Himachal Pradesh High Court
Maharishi Markandeshwar University & ... vs State Of H.P And Others on 20 May, 2020
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1465 of 2018 alongwith CWP 22 of 2018 and CWP 1839 of 2018 .
Reserved on : 05.03.2020
Date of decision : 20.05.2020
CWP No.1465/2018
Maharishi Markandeshwar University & another ...Petitioners.
Versus
State of H.P and others ....Respondents.
CWP No.22/2018
Tilak Raj Sharma & others ...Petitioners.
Versus
State of H.P and others ....Respondents.
CWP No.1839/2018
Raj Kumar Nagpal & another ...Petitioners
Versus
State of H.P and others ....Respondents.
.................................................................................... Coram The Hon'ble Mr. Justice L.Narayana Swamy, Chief Justice The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?1 Yes Mr. K.D. Shreedhar, Senior Advocate, with Ms. Shreya Chauhan, counsel for the petitioners in CWP No. 1465 of 2018, respondent No. 3 in CWP No. 22 of 2018 and for respondents No. 3 and 4 in CWP No. 1839 of 2018 Mr. Bhupender Gupta, Senior Advocate, with Mr. Ajeet Jaswal, counsel for the petitioners in CWP No. 22 of 2018.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 2Mr. Naveen Kumar and Mr. Gobind Korla, counsel for the petitioners in CWP No. 1839 of 2018.
.
Mr. Ashok Sharma, Advocate General alongwith Mr. Ajay Vaidya, Senior Additional Advocate General, for the State.
Whether the fee structure for the undergraduate MBBS course of petitioner medical college, fixed by the respondent State vide communications/notifications dated 28.8.2017/5.9.2017 is conclusive, final for the academic years 2017-18 to 2021-2022 or not And whether it is open for the government to review/re-look/withdraw the notification dated 5.9.2017 by issuing memorandum dated 22.6.2018 directing the petitioners to submit fresh proposal for fee fixation for the sessions 2017-2022, are the primary questions involved in these three writ petitions. Therefore these writ petitions are taken up together for disposal.
CWP 1465/2018 has been instituted by the petitioner university and its constituent medical college asserting that fee for its undergraduate MBBS course was fixed by the State in accordance with law vide notifications dated 28.8.2017/5.9.2017 and that this fee structure could not be withdrawn/re-looked/reviewed under the memorandum dated 22.6.2018.
Therefore memorandum issued on 22.6.2018 has been challenged in this writ petition.
CWP 22/2018 & 1839/2018 have been instituted by parents of some of the students of petitioner medical college belonging to academic ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 3 session 2017-18 laying grievance to the fee fixed under 28.8.2017/5.9.2017 notifications.
2. Facts may be noticed hereinafter:-
.
2(i) Maharishi Markandeshwar University came into existence under Maharishi Markandeshwar University (Establishment and Regulation) Act 2010 (in short to be referred as 2010 Act). With the approval of Medical Council of India and other concerned authorities, it established Maharishi Markandeshwar Medical College and Hospital at Kumarhatti, District Solan, H.P. Maharishi Markandeshwar University and its Medical College are being referred hereinafter as the petitioners.
2(ii) Section 32 of the Act of 2010 prescribes for fee fixation.
Being relevant, this section is extracted hereinafter:-
"32. (1) the University may, from time to time, prepare and revise, its fee structure and send it to the Government for its approval before 31 st December of every preceding academic year alongwith the approval of courses granted by the Regulatory Commission and the Government shall convey the approval within three months from the receipt of the proposal. Provided further that the fee structure for each course shall be decided before the issue of prospectus and shall be reflected in the prospectus: Provided further that the fee structure shall not be revised or modified during the academic year.
(2) The fee structure prepared by the University shall be considered by a committee to be constituted by the State Government, in the manner as may be prescribed, which shall submit its recommendations to the Government after taking into consideration whether the proposed fee is:.
(a) sufficient for generating (i) resources for meeting the recurring expenditure of the university; and (ii) the savings required for the further development of the University; and
(b) not unreasonably excessive.
(3) After receipt of the recommendations under sub-section (2), if the Government is satisfied, it may approve the fee structure. (4) The fee structure approved by the Government under sub-section (3) shall remain valid until next revision."
2(iii) State of Himachal Pradesh has framed the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 4 Fixation of Fees) Act, 2006 (in short to be referred as 2006 Act). Sections 3 & 7 of this Act, pertaining to fixation of fee in private medical colleges, are extracted hereinafter:-
.
"3.Regulation of admission, fixation of fee and madding of reservation (1) The State Government may regulate admission, fix fee and make reservation for different categories in admissions to Private Medical Educational Institutions.
(2) The State Government shall ensure that the admission under all the categories in an institution is done in a fair and transparent manner; (3) The State Government, may constitute an Admission and Fee Committee, (hereinafter referred to as the 'Committee') consisting of such members as may be specified by the State Government by notification, to recommend the mode of admission, making of reservation, allocation of seats and fixation of fees etc. to the State Government. (4) The State Government, shall oversee the working of Admission and Fee Committee.
(5) The terms and conditions of the Committee constituted under sub-
section (3) and its members shall be specified, by the State Government, by notification from time to time.
(6) If the State Government is satisfied that the institution affiliated to the Himachal Pradesh University, has contravened any provision of this Act, it may recommend to the Himachal Pradesh University for withdrawal of recognition or affiliation of such institution.
(7) The State Government, shall take appropriate action wherever deemed necessary, with regard to improvement in the system of making admissions in the institutions, charging of fee by the institutions and on any other matter, which may be necessary to facilitate smooth running of the system and to remove grievances.
...........
7. Fixation of fee- (1) The State Government while determining, or the Committed constituted under sub-section (3) of Section 3 while recommending to the State Government, the fee to be charged by a Private Medical Educational Institution, shall consider the following factors:-
(a) the location of the institution;
(b) the nature of the medical courses;
(c) the cost of land and building;
(d) the available infrastructure and equipment;
(e) the expenditure incurred or being incurred or faculty administration and maintenance:
(f) the reasonable profit, required for the growth and development of the institution; and
(g) any other relevant factor, which the State Government deems just and appropriate for the determination of fee.
(2) Before determining fee under sub-section (1), the State Government or the said Committee, as the case may be, shall give the concerned Private Medical Educational Institutions and the ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 5 representatives of the students already studying in such institutions and the representatives of the students who intend to seek admission in those institutions, as reasonable opportunity to express their view point in writing in respect to the fee determination.
(3) Notwithstanding anything contained in sub-section (1) and (2) .
the State Government may, in public interest, determine a provisional fee structure:
Provided that the fee shall be fixed in accordance with the provisions of sub-section (1) and sub-section (2) within a period of ninety days from the fixation of such provisional fee.
(4) Notwithstanding anything contained in sub-sections (1) and (2) the State Government shall have the power to review the fee structure fixed by any Committee, prior to the commencement of this Act."
2(iv) Under the aforesaid provisions of the 2006 Act, 14.8.2013;-
"
r to following fee structure for the petitioner medical college was notified on FEE STRUCTURE Sr.No Category Fee (per student per annum) 1 State Quota Seats Rs.5,00,000/- (Rs. Five lakh) only including development charges.
2 IRDP/BPL students of Rs.30,000/- (Rs. Thirty thousand) only Himachal (3 seats) including development charges.
3 Management Quota Seats Rs.9,00,000/- (Rs. Nine lakh) only + 5% Development charges 4 NRI's/Foreign National USD 1.20 lakh + 5% Development charges '' The fee as fixed above was not revised subsequently by the respondent State for the years 2014 and 2015. The petitioner medical college allegedly owing to the low fee structure, did not admit any student for its undergraduate course during academic session 2016-17. Some of those students, whose names were sponsored by the Counseling Committee, instituted a writ petition bearing CWP No. 2423/2016, praying for admission in the petitioner medical college. By way of its defence in the afore writ petition, the petitioners submitted that the fee under 14.8.2013 ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 6 notification was fixed on a lower side contrary to the proposals sent by the university and that it was not averse to the admission of the students provided its fee structure was revised and enhanced by the State. Hence .
on 20.09.2016, following order was passed in the writ petition: -
"....In the meantime, we deem it proper to direct respondent No. 1 to admit the students, as per the list issued by the Counseling Committee, headed by the Director, Medical Education and Research, Himachal Pradesh, with the command to the petitioners to execute an undertaking before this Court, to the satisfaction of the learned Registrar (Judicial), that in case, the fee is enhanced or revised, they have to pay the revised fee from this academic session. Ordered accordingly. In the meantime, we deem it proper to direct respondent No. 1 to admit the students, as per the list issued by the Counseling Committee, headed by the Director, Medical Education and Research, Himachal Pradesh, with the command to the petitioners to execute an undertaking before this Court, to the satisfaction of the learned Registrar (Judicial), that in case, the fee is enhanced or revised, they have to pay the revised fee from this academic session. Ordered accordingly..."
Petitioner college was ordered to admit the students subject to their furnishing undertakings that in case of revision/enhancement of the fee, they would pay such revised fees from academic session 2016-
17. The undertakings in terms of order passed by the Court were furnished by the students. They were admitted in the petitioner medical college, whereafter, CWP No.2423/2016 was disposed of on 3.10.2016, with direction to the State Government to examine the request of the petitioner college for revisiting its fee structure and to take decision thereupon within a period of six weeks.
2(v) State Government accordingly issued a notification on 8.3.2017 under the provisions of 2006 Act, revising the fee structure of petitioner medical college in the following manner:-
::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 7"
Existing Fees Fees for Fees for Fees for Session
per year Session 2016- Session 2017- 2018-19
17 18 Per year
Per year Per year
.
IRDP/BPL Rs.30,000/- As per rates applicable for General Category in
Government Medical Colleges.
State Quota Rs.5,00,000/- 5% increase= 10% increase 15% increase =
Rs.5,25,000/- =Rs.5,50,000/ Rs.5,75,000/-
-
Managemen Rs.9,00,000/- 5% increase 10% increase 15% increase =
t Quota + 5% +=Rs.9,45,00 = Rs.10,35,000 + 5%
Development 0 + 5% Rs.9,90,000/- Development
Charge Development + 5% charge
charge Development =Rs.10,86,750/-
=Rs.9,92,250/ Charge=
- Rs.10,39,500/-
NRI seats 24,00 USD 5% increase + 10% increase 15% increase =
conversion = USD = USD USD 27,600/- 5%
rate 66.50 = 25,200/-+ 5 % 26,400/- + 5% Development
15,96000/- Development Development Charge = USD
+5% Charge = Charge = 28,980/-
Development USD 26,460/- USD 27,720/-
Charge=
USD
16,75,800/-
Notification dated 8.3.2017 revised the fee not only for the academic year 2016-17 but also for the years 2017-18 and 2018-19 with 5%, 10% and 15% increase in the respective academic sessions. The fee thereunder was to remain the same for entire duration of MBBS course for the students admitted during respective sessions under different quotas. The fee structure notified on 8.3.2017 was incorporated in the prospectus for the year 2017-18 with the rider that the fee was subject to change by the Government.
2(vi) The revised fee structure notified on 8.3.2017, was not accepted by the petitioner medical college for various reasons, one of them being fee notified in 2013 was taken as the base fee for revision in ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 8 2017 without taking into account non revision of fee during the years 2014 & 2015 and second that fee fixed in 2013 was already on much lower side and fixed contrary to the proposal sent by the petitioners. No action by the .
State on the representations and appeal of the petitioner seeking enhancement in the fee fixed under notification dated 8.3.2017 led to the institution of CWP No.1502/2017 laying challenge to the notification dated 8.3.2017 and seeking further enhancement in its fee structure. Vide order dated 6.7.2017 passed in CWP No.1502/2017, respondents were directed to examine the matter of fixation of fee structure of the petitioner college afresh within two weeks. A direction was also issued to inform the students admitted in the petitioner institution, about the pendency of the petition and that the fee payments made by them, would be subject to the outcome of the writ petition. Directions issued to the petitioners were complied with. Students seeking admissions in the petitioner medical college during academic session 2017-18 were informed about the pendency of CWP 1502/2017. These students furnished undertakings to pay enhanced fee, if any, revised in future. Further, vide order dated 27.7.2017 passed in the CWP 1502/2017, Secretary Law and representative of Chamber of Commerce were included as members of Fee Structure Committee, which was directed to take holistic view in determining the fee structure of the petitioner Medical College within a period of four weeks.
2(vii) The Fee Structure Committee held its meeting in furtherance of the directions issued in CWP 1502/2017. Vide communication dated 28.8.2017, the Government notified following fee structure of under-::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 9
graduate MBBS course of petitioner medical college for academic sessions 2017-18, 2018-19, 2019-20, 2020-21 and 2021-22, i.e. for a period five years. Condition No. 13 of the communication was that fee .
approved shall be applicable from academic session 2017-2018 & for subsequent new batches till the completion of the course.
"
Existing Fees for Fees for Fees for Fees for Fees for fees Academic Academic Academic Academic Academic Session Session Session Session 2020- Session 2017-18 2018-19 2019-20 21 Annually in 2021-22 Annually in Annually in Annually in two equal Annually in two equal two equal two equal installments two equal installments installments installments installments IRDP/BPL Rs. Rs. 44,000/- Rs. 48,000/- Rs. 53,240/- Rs. 58,564/- Rs. 64,420/-
candidates 40,000/- (10% (10% (10% (10% increase) (10%
increase) increase) increase) increase)
State Quota Rs.
Seats 5,25,000/-
r Rs.
7,00,000/-
Rs.
7,70,000/-
Rs.
8,47,000/-
Rs. 9,31,700/- Rs.
(10% increase) 10,24,870/-
(10% (10% (10% (10%
increase) increase) increase) increase)
Management Rs. Rs. Rs. Rs. Rs. 15,97,200/- Rs.
Quota Seats 9,45,000/- 12,00,000/- 13,20,000/- 14,52,000/- (10% increase) 17,56,920/-
(10% (10% (10% (10%
increase) increase) increase) increase)
NRI Quota USD USD USD USD USD USD
Seats 25,200/- 28,980/- 33,327/- 38,326/- 44,075/- (15% 50,686/- (15%
(15% (15% (15% increase) increase)
increase) increase) increase)
"
Taking note of the above fresh fee structure notified by the Government, CWP No.1502/2017 was withdrawn by the petitioner vide order dated 31.08.2017. On 5.9.2017 revised notification of the fee structure for academic sessions 2017-18 to 2021-22 was issued by the respondents for the petitioner Medical College. The fee re-notified on 5.9.2017 was on the lines of communication dated 28.8.2017.
2(viii) Aggrieved against the fee structure notified by the Government on 28.8.2017/5.9.2017, CWP No.22/2018 and CWP No. 1839/2018 were preferred by the parents of some of the students in ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 10 January and August 2018 respectively, for the benefits of their wards, praying for charging of fee as reflected in the prospectus for the session 2017-18. The wards of the petitioners in these two writ petitions are the .
students admitted in the petitioner medical college in academic session 2017-18. Vide order dated 3.01.2018, passed in CWP No.22/2018, petitioner medical college was restrained from taking any coercive action for recovery of enhanced fee from the students. However the subsequent order passed on 9.5.2018 in the writ petition noticed the facts pointed out by the Medical College in respect of admission of students, only pursuant to their furnishing undertakings to pay fee to be enhanced/revised by the State and that revision effected under 8.3.2017 notification was further revised vide notifications dated 28.8.2017/5.9.2017. The order dated 3.1.2018 was clarified on 9.5.2018 to the extent that the fee as was due and admissible under the revised fee structure (notified on 5.9.2017) would be payable by the students, which would be subject to the outcome of the writ petition.
During the pendency of CWP No. 22/2018, a memorandum dated 22.6.2018, was issued by the respondents-State specifying that the existing fee structure notification dated 5.9.2017, which was approved & notified by the State Government needs to be reviewed/re-
looked/withdrawn having been fixed contrary to Section 32(1) of the Act of 2010, in view of the Government decision obtained on the relevant file.
Petitioner College was required to submit fresh proposal for fee fixation alongwith documents by 26.6.2018. The meeting of Fee Structure Committee was scheduled for 29.6.2018. Aggrieved against the issuance ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 11 of memorandum dated 22.6.2018, the petitioner College has preferred CWP No.1465/2018.
.
3. We have heard learned counsel for the parties and with their assistance gone through the record. We have also perused the record produced by the respondent State.
Contentions 3(i) On behalf of the petitioners, following arguments have been advanced in support of notifications dated 28.8.2017/5.9.2017 ( in so far as the same relates to the fee structure) and against the memorandum dated 22.6.2018;-
a) Pursuant to the directions issued in CWP 1502/2017, the Fee Structure Committee deliberated over the fee structure for undergraduate MBBS course of petitioner college. Eventually, a provisional fee structure was arrived at, which after approval of the State Government became final. Accordingly communications dated 28.8.2017/5.9.2017 were issued to the petitioner college notifying the final fee structure. Taking note of this final fee structure, which was acceptable to the petitioner, CWP 1502/2017 was withdrawn by it. After letting the petitioner withdraw CWP 1502/2017 on the basis of notifications dated 28.8.2017/5.9.2017, it was not open to the State to subsequently withdraw/review notifications dated 28.8.2017/5.9.2017 by issuing memorandum dated 22.6.2018.
b) Parents of some students of petitioner medical college had already instituted CWP 22/2018 in January 2018 against notifications dated ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 12 28.8.2017/5.9.2017. While these notifications were sub-judice before the Court, it was not open for the State to issue memorandum dated 22.6.2018 for withdrawing/reviewing 5.9.2017 notification.
.
c) During arguments, ld. Senior Advocate for the petitioners fairly submitted that the State has the right to determine fee structure for the petitioners in accordance with provisions of 2010 Act as well as 2006 Act.
However according to him, memorandum dated 22.6.2018 was not issued in accordance with provisions of these Acts. Fee structure once approved and notified could not be reviewed/withdrawn. In the facts and circumstances of the case, State had no jurisdiction to issue memorandum dated 22.6.2018 and to direct the petitioner university/medical college to submit fresh fee proposal. It is for the university/college to send the fee proposal, if it deems fit. It is not for the State to direct the university to send the proposal.
d) Students were allowed admissions in the petitioner medical college in academic session 2016-17 only subject to their furnishing undertakings to the effect that they would pay the revised enhanced fee to be determined by the State for the academic session 2016-17. The fee notified by the State on 8.3.2017 was though published in the prospectus for the year 2017-18 but was not acceptable to the petitioner college and accordingly it filed CWP 1502/17 seeking enhancement of the notified fee structure. Prospectus for the academic session 2017-18 also contained a stipulation that fee notified therein was subject to change by the State Government. Pursuant to the directions issued by the Court in CWP 1502/2017, all the students in the petitioner medical college were informed ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 13 about the pendency of the writ petition seeking upwards revision of the fee fixed under notification dated 8.3.2017. The students admitted in petitioner medical college in the academic session 2017-18 including wards of the .
petitioners in the CWP 22/2018 & 1839/18 had also furnished undertakings to the effect that they will pay the revised fees if so enhanced by the State in future. The fee subsequently notified by the State on 5.9.2017, was also published in the subsequent prospectus for the year 2018-19. Therefore the students are bound to pay the fee as per notification dated 5.9.2017.
e) Petitioner medical college is self financing institution solely dependent upon the fee collected from the students, therefore is free to devise its own fee structure in accordance with applicable Statutes subject to the limitation that there can be no profiteering and capitation fee. State is to regulate the fee to prevent profiteering and capitation fee. In support of its contentions, reliance was also placed upon various pronouncements of Hon'ble Apex Court viz. (2002) 8 SCC 481 titled T.M.A. Pai Foundation & others Vs. State of Karnataka, (2003) 6 SCC 697 titled Islamic Academy of Education & another Vs State of Karnataka& others, (2005) 6 SCC 537 titled P.A. Inamdar & others Vs State of Maharashtra & others, (2010) 14 SCC 186 titled Modern Dental College & Research Centre & others Vs State of Madhya Pradesh, (2008) 8 SCC 82 titled Cochin University of Science and Technology & another Vs Thomas P. John & others, (2013) 3 Sim.L.C. 1457 titled Bhojia Dental College & Hospital & another Vs State of Himachal Pradesh, (2016) 7 SCC 353 titled Modern Dental College & Research Center & others Vs State of ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 14 Madhya Pradesh and others, (2017) 6 SCC 675 titled Maharishi Markandeshwar Medical College & Hospital Vs State of HP.
.
3(ii) On behalf of some of the students of the medical college (wards of the petitioners in CWP 22/2018 & 1839/2018) who were admitted in academic session 2017-18, in support of memorandum dated 22.6.2018 and against the notifications dated 28.8.2017/5.9.2017, it has been contended that once the fee structure had been approved by the State under notification dated 8.3.2017 issued under 2006 Act, made part of prospectus for the year 2017-18, then it was not open for the State to review it by issuing notifications dated 28.8.2017/5.9.2017. The Fee Structure Committee was not properly constituted. Therefore fee notified on 28.8.2017/ 5.9.2017 was unjustified and could not be given effect to.
The fee structure in any case was not correctly revised under notifications dated 28.8.2017/5.9.2017. The fee fixed thereunder was exorbitant.
Students have been put to severe hardships because of these notifications. Prayer has been made for charging of fee only as per notification dated 8.3.2017 from the students admitted in academic session 2017-18. Reliance has been primarily placed upon (2002) 8 SCC 481 titled T.M.A. Pai Foundation & others Vs. State of Karnataka, (2003) 6 SCC 697 titled Islamic Academy of Education & another Vs State of Karnataka& others, (2005) 6 SCC 537 titled P.A. Inamdar Vs State of Maharashtra, (2016) 7 SCC 353 titled Modern Dental College and Research Centre and others Vs. State of Madhya Pradesh and others, (2018) 9 SCC 171 titled M. Aamira Fathima and others Vs ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 15 Annamalai University and others, (2019) 7 SCC 172 titled Vasavi Engg.
College Parents Ass. Vs. State of Telangana.
.
3(iii) Contentions on behalf of the State are;-
a) The Fee Structure Committee had though revised the fee structure for the petitioner medical college on 28.8.2017/5.9.2017 but this was only provisional revision. The provisional revision was not approved by the State. Final fee was yet to be determined by the State. It is in this background that the Memorandum was issued on 22.6.2018 for determining the final fee structure. There is therefore no illegality in issuance of impugned memorandum.
b) State had the right to determine and revise/review the fee structure of petitioner medical college under the Act of 2010 as well as Act of 2006.
c) Students of petitioner medical college had complained that fee fixed under notifications dated 28.8.2017/ 5.9.2017 was on higher side therefore also memorandum was issued for revision/review of the fee.
d) The fee, fixed under 5.9.2017 notification for five academic sessions in one go w.e.f. 2017-18 to 2021-22, was in contravention to the provisions of 2010 Act.
Observations
4. Nature of the fee detailed in communications dated 28.8.2017/5.9.2017:
The fee notified on 28.8.2017/5.9.2017 for undergraduate medical course of the petitioner college was final fee approved by the State. It cannot be considered as provisional determination for the following reasons;-::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 16
4(i) The fee notified by the State on 8.3.2017 was not accepted by the Petitioner college. It therefore instituted CWP 1502/2017 for upward revision of the fee and challenged the notification dated 8.3.2017.
.
Directions were issued by the Court to the State for afresh examination of the fee determined under 8.3.2017 notification. These directions were accepted by the State. The Fee Structure Committee was constituted by the State as per the directions issued in CWP 1502/2017. Various aspects involved in determination of the fee as per the requirements of the applicable statutes were deliberated by this Committee. Meeting of Fee Structure Committee was held. On 19.8.2017, a provisional fee structure was arrived at by the Committee constituted by the State on 11.8.2017 in terms of directions issued in CWP 1502/2017. A reading of the minutes of the meeting suggests that the fee structure arrived therein was to be treated as final subject to changes, which might be made in it based on studies of fee structure of private medical colleges in the other States.
Note Nos. 131-135 at running page 246 of the CWP 1465/18, being relevant are extracted hereinafter;-
"Dy. No. 54075017/Ps.44-46 Ps 44-46;
Vide PUC placed below the Member Secretary-cum-Joint Director of Higher Education (C ) HP has forwarded the minutes of the Fee Structure Committee meeting held on 19th August 2017 at 3.00PM under the Chairmanship of worthy Addl. Chief Secretary (Education) to discuss the issues of Fee in respect of MBBS course being run in Maharishi Markandeshwar University, Kumarhatti Solan.
.....
Further the Member Secretary submitted that in the meeting following points were agreed upon unanimously and has been accepted provisionally as under;-
1. The Fee for MBBS course State Quota will be Rs. 7,00,000/- and Rs. 12,00,000/-
for the Management Quota for the Academic Session 2017-18 with the hike @ 10% per year as per table A/A. ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 17
2. It was also decided that the fee structure of MBBS course of other State's/Private Universities shall be studied and considered for final decision.
In this regard it is to submit that in the meeting it was also agreed that the fee for the Academic Session 2016-17 shall not be reconsidered at this belated stage. Also, the .
University has not submitted its proposal for Hostel Charges and the University should be directed not to charge Hostel Charges without approval of the Fee Structure Committee/Government.
Further the Member Secretary was asked to study the Fee Structure of neighbouring States but it appears that nothing has been done in this regard and before taking further necessary action in the matter if approved, the later be directed accordingly."
The Fee Structure Committee in its meeting held on 19.8.2017 had agreed on charging Rs. 7,00,000/- & Rs. 12,00,000/- from the students admitted under State and Management quota respectively in academic session 2017-18 with hike of 10% per year till session 2021-22.
The fee was fixed provisionally by the Committee. The fee for the academic year 2016-17 fixed under 8.3.2017 notification was not touched by the Committee due to long time gap. These minutes of Fee Structure Committee were approved by the Competent Authority on 24.8.2017.
Further approval of the Competent Authority was again sought under Ss.
32 of 2010 Act for approval of the fee structure arrived at by the Committee specifically for the petitioner medical college . Relevant notes 138-142 at page 247 of the paperbook are extracted hereinafter;-
"...The proceedings of the meeting of the Fee Structure Committee as received from the Member Secretary-cum-Joint Director (Colleges) were put up for consideration/approval of Worthy Addl. Chief Secretary (Education) to the Govt. of HP and further the Hon'ble Chief Minister has also approved the same, please peruse Ns. 32/ante. Now these proceedings are required to be sent to the Member Secretary-cum-Joint Director (C ) or circulating the same amongst all the Members of the Committee.
As per the requirement of Section 32 of the respective private University the proposals for approving the fee structure in respect of courses approved by the Regulatory Commission to be run in these universities are to be submitted to this department/Fee Structure Committee for consideration/approval.::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 18
Meeting of the Fee structure Committee was held under the Chairmanship of the Addl. Chief Secretary (Education) on dated 19 th August 2017 to discuss the proposal submitted by the Maharishi Makandeshwar University Kumarhatti Solan for consideration of fee structure of MBBS course for the .
Academic Session 2017-18, 2018-19, 2019-20, 2020-21 and 2021-22.
The fee as recommended/approved by the Fee Structure Committee is now required to be approved and thereafter to be conveyed to the Maharishi Markandeshwar University Kumarhatti Solan. Accordingly the draft is added below alongwith terms and conditions for approval of Hon'ble Chief Minister being Minister-in-Charge.."
The above fee structure was approved by the Competent Authority on 26.8.2017. The approved fee structure was accordingly conveyed to the petitioners on 28.8.2017. On the basis of a separate communication of 30.8.2017 issued on the similar lines, these facts, developments and revised fee structure were brought to the notice of the Court in CWP 1502/2017 in following manner;-
"...I am directed to refer to your letter No.CWP1502/2017-23758 dated 01-08-2017 on the subject cited above and to say that vide letter No.EDN-A-Ka(5)-26/2016-L-I dated: 28-8-17, on the recommendations of the Fee Structure Committee, the State Government has approved the fee structure for the academic session 2017-18, 2018-19, 2019-20, 2020-21 & 2021-22 in respect of Maharishi Markandeshwar University, a copy of which is enclosed herewith.
You are therefore requested to kindly apprise to the Hon'ble Court accordingly..."
Since the above communication unequivocally apprised the Court about fee structure having been approved by the State for the petitioner medical college for the years 2017-18 to 2021-22 vide communication dated 28.8.2017 therefore under following order passed on 31.8.2017, petitioner was permitted to withdraw the writ petition ;-
"...Mr. Anup Rattan, learned Addition Advocate General has placed on record communication dated 30th August 2017. Quite apparently, State has now taken a decision and issued the revised fee structure for academic session 2017-18, 2018-19, 2019-20, 2020-21 and 2021-22. In terms of communication ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 19 dated 28th August 2017, so issued by the Joint Secretary (Higher Education) to the Government of Himachal Pradesh.
2. In view of the same, Mr. K.D. Shreedhar, learned Senior Advocate seeks permission to withdraw the present petition, reserving liberty to agistae all .
surviving issues before an appropriate forum including filing a fresh petition on the same and subsequent cause of action. Ordered accordingly.."
State in its wisdom, did not consider the fee structure of private medical colleges of other States. The fee structure proposed by the Committee was accepted as such by the State Government. It was approved by the Competent Authority firstly on 24.8.2017 and thereafter on 26.8.2017. It was communicated to the Medical Council of India, HP Private Educational Institutional Regulatory Commission and to the petitioners on 28.8.2017.
The revision so carried out was final and not provisional.
4(ii) The notifications dated 28.8.2017/5.9.2017 do not mention that the fee notified therein was provisional. Rightly so, as the fee determined provisionally by the Fee Structure Committee was subject to the approval of the State Government. Once the same was approved by the Competent Authority, it became final and was so communicated not only to the petitioners but to the Medical Council of India as well as to the HP Private Educational Institutional Regulatory Commission besides other concerned authorities.
4(iii) In case the approval of the fee by the State was provisional then not only this important fact would have found mention in the notifications dated 28.8.2017/5.9.2017 but such provisional fee would have been finalized as well within a reasonable period. Section 7(3) of 2006 Act speaks about finalizing the fee within 90 days in case of provisional ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 20 fixation. In the case in hand, neither the notifications gave any insight that the fee structure fixed therein was provisional nor the State took any steps for finalizing the alleged provisionally fixed fee.
.
4(iv) Even the terms and conditions contained in the notifications dated 28.8.2017/5.9.2017 do not advance the plea of the State that the fee fixed therein was provisional. Rather condition no. 13 thereof records the fact that the fee was approved for the sessions 2017-18 to 2021-22.
4(v) The notifications dated 28.8.2017/5.9.2017 were endorsed to various authorities including Medical Council of India as well as the HP Private Educational Institutional Regulatory Commission. Under the circumstances, fee fixation could hardly be termed as provisional. The communication dated 30.8.2017 produced before the Court on 31.8.2017 in CWP 1502/2017, available at page 541 of the records produced by the respondent State, clearly states that the fee structure recommended by the Fee Structure Committee for the petitioner medical college for the sessions 2017-18 to 2021-22 was approved by the State and communicated as such to all concerned on 28.8.2017.
4(vi) The record of the case also suggests that after the Minutes of the Meeting of the Fee Structure Committee were approved by the competent authority on 24.8.2017 and the Fee fixed thereunder was further approved by the Competent Authority on 26.8.2017 leading to its communication to the petitioner university on 28.8.2017 and passing of order dated 31.8.2017 in CWP 1502/2017, revised minutes of meeting dated 19.8.2017 were sent by the Member Secretary to the State on 30.8.2017( page 557 of the record) wherein though there was no change ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 21 in the fee structure approved earlier but there were certain changes in respect of reservation/allocation of seats besides certain clerical errors/rectifications pointed out in the earlier notification of 28.8.2017 as is .
apparent from the notes 163-164, 164-170 of the record produced by the respondent State. The rectifications/changes in the notification are not subject matter of this writ petition. These revised minutes with earlier approved fee structure retained therein was once again approved by the competent authority on 4.9.2017 and subsequently a revised notification was issued in this regard on 5.9.2017.
4(vii) The impugned memorandum issued on 22.6.2018 also encompasses the fact that fee notified on 28.8.2017/5.9.2017 was though approved by the State but needed to be reviewed/re-looked/withdrawn. In case 5.9.2017 notified fee was provisional, there would have been no occasion for reviewing or withdrawing the same under the memorandum dated 22.6.2018. Even the impugned memorandum dated 22.6.2018 does not mention the fee fixed under 28.8.2017/5.9.2017 notifications being provisional as the cause for its issuance.
Therefore the argument raised by the State that the fee fixed in the notifications dated 28.8.2017/5.9.2017 was provisional and not final does not hold any force. The argument that memorandum dated 22.6.2018 was issued for finalizing the fee fixed provisionally in the notifications dated 28.8.2017/5.9.2017 is therefore rejected. We may also observe here that this argument in fact is not even available to the State. As observed earlier, vide its communication dated 30.8.2017 respondent State unambiguously and categorically informed this Court in CWP 1502/2017 ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 22 about the approval by the State to the recommendations of the Fee Structure Committee in respect of the fee structure of petitioner institutes for academic sessions 2017-2022. On the basis of this information, the .
petitioner withdrew the writ petition on 31.8.2017. In case the State is now allowed to take the stand that the recommendations of the Fee Structure Committee were not approved by the State then we would obviously have to hold that the State is guilty of suppressio veri and expressio falsi. As in that situation, the State fully aware of the issues raised and directions being passed by the Court in CWP 1502/2017, misled not only the parties but also suppressed true facts from this Court in getting the writ petition disposed of, by knowingly and consciously making wrong submissions about approval of the recommendations of the fee structure committee regarding the fee structure of the petitioners. Black's Law Dictionary Tenth Edition define Latin maxim suppressio veri and suggestio falsi as;-
'suppression of truth, an indirect lie, whether by words, conduct or artifice, a type of fraud.' And 'false representation or misleading suggestion' respectively.
Against the backdrop of the factual matrix of the case, it will be apt to quote following from Moti Lal Songara Vs. Prem Prakash (2013) 9 SCC 199;-
"19. The second limb of the submissions is whether in the obtaining factual matrix, the order passed by the High Court discharging the respondent-accused is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial judge, yet he did not bring the same to the notice of the Revisional Court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Anyone who takes recourse to method of ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 23 suppression in a court of law, is, in actuality, playing fraud upon the court, and the maxim supressio veri, expressio falsi i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of .
the fact before the Revisional Court. It can be stated with certitude that the respondent-accused tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum."
Since we have already held that the fee structure recommended by the Fee Structure Committee for the petitioners was approved by the State therefore nothing further needs to be mentioned in respect of suppressio veri, suggestio falsi save and except that the argument of fee structure recommended by the Fee Structure Committee for the petitioners being provisional and unapproved by the State, is not even available to the State in the given facts.
5. Whether the fee structure for the petitioner medical college approved by the State under notifications dated 28.8.2017/5.9.2017 could be reviewed by issuing memorandum dated 22.6.2018? Answer to this question depends upon various factors, which are being considered hereinafter;-
5(i) Section 32 of Act of 2010 and Section 7 of Act of 2006 pertain to fixation of fee structure in the petitioner medical college. Hon'ble Apex Court in (2017) 6 SCC 675 titled Maharishi Markandeshwar Medical College & Hospital Vs. State of H.P. has already held that 2006 Act provides for regulation of admission and fixation of fee in Private Medical Educational Institutions in the State of Himachal Pradesh and for incidental matters. Object of 2006 Act is to regulate admissions as per the ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 24 extent and applicable pronouncements of the court and to determine fee structure in colleges imparting medical courses within the State. It has also been held that the Petitioner University is an independent and a full .
fledged university established under an independent special State Legislation and is free to discharge its functions as delineated in the 2010 Act. Though on behalf of the petitioners in CWP 22 of 2018, the pleaded case is that applicable provisions of 2006 Act as well as 2010 Act will have to be read for determination of fee for petitioner medical college, however during course of arguments, Ld. Senior Advocate appearing for the petitioners in CWP 22/2018 and Ld. Counsel for the petitioners in CWP 1839/2018 submitted that it is only the 2006 Act, which will govern the fee structure of the petitioner medical college. It is not disputed by the State that applicable provisions of 2010 and 2006 Acts have to be read together for the purposes of fee fixation for the petitioner medical college. Various documents on record including the memorandum dated 22.6.2018 are pointer towards the fact that it is the case of the State that fee for the petitioners institute is governed both under 2006 and 2010 Act. We have gone through the Ss. 32 of the Act of 2010 and Ss. 3 & 7 of Act of 2006 pertaining to fee fixation for the petitioner medical college. These provisions supplement each other. A conjoint reading of these sections, extracted above, envisage moving of proposal from time to time by the University for preparing/revising its fee structure and sending it for approval of the Government before 31 st December of every preceding academic year, the examination of the proposal by the Fee Structure Committee by considering the various factors viz. location of the institute, ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 25 cost of land and building, nature of medical course, available infrastructure & equipment, expenditure incurred or being incurred on faculty, administration and maintenance, reasonable profit required for growth and .
development of the institution, whether the fee is unreasonably excessive and other relevant factors. While considering the proposal, the fee structure committee or the State Government may give a reasonable opportunity to the medical college and the representatives of the students studying in the college to express their view points. Based on these parameters, the approval to the fee structure has to be conveyed by the State within three months from the date of receipt of proposal so that it can be reflected in the prospectus. It is also open to the State Government to determine provisional fee structure in public interest, however such provisional determination has to be finalized within a period of 90 days.
The fee structure is not to be revised or modified during the academic year. The fee structure once approved shall remain valid till its next revision. Power to review the fee structure is available to the State where such fee structure was determined prior to the commencement of 2006 Act.
Fee structure for the petitioner medical college was notified for the first time on 14.8.2013 under the provisions of 2006 Act. The duration of the fee structure was not mentioned in this notification however no revision of fee took place in the years 2014 and 2015. The fee was revised on 8.3.2017 under the provisions of 2006 Act. On 28.4.2017, Hon'ble Apex Court while deciding CA 5198 of 2017 reported in ( 2017) 6 SCC 675 titled Maharishi Markandeshwar Medical College and ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 26 Hospital & others Vs State held that petitioner is an independent autonomous university established under a separate special State Legislation under 2010 Act. Petitioner college challenged the fee revision .
carried out under 8.3.2017 notification by way of CWP 1502/2017 on grounds of inadequate fee enhancement. During the pendency of the petition and pursuant to the directions issued in CWP 1502/2017, the fee structure was revised further on 28.8.2017/5.9.2017. This revision was carried out under the enabling provisions of the Acts of 2010 and 2006.
The fee revision proposal was examined and deliberated by the Fee Structure Committee, which determined a provisional fee structure. The fee structure so determined was approved by the State and brought to the notice of the Court in CWP 1502/2017 and communicated to the petitioner, Medical Council of India, HP Private Educational Institutional Regulatory Commission and all concerned authorities. Section 32 of Act of 2010 states that the proposal once approved will be binding till its next revision.
Therefore in normal circumstances, the fee structure as approved by the State and notified on 28.8.2017/5.9.2017 to be considered as binding till its next revision.
5(ii) While revising the fee structure, it is open for the State or the Fee Structure Committee to give a reasonable opportunity to the representatives of the students to express their views in writing. Grant of such an opportunity is however not mandatory. Hon'ble Apex Court in (2010) 14 SCC 186 titled Modern Dental College & Research Centre & Others Vs State of Madhya Pradesh has held that though it is open for the committee to consider any written representation submitted by the ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 27 students concerned while fixing the fee however students are not entitled for personal hearing. This grievance has been raised only on behalf of some of the students of academic session 2017-18. Events have traveled .
thereafter. Subsequent batches for the academic session 2018-19 & 2019- 20 have also been granted admission on the basis of the fee structure impugned on behalf of some of students of academic session 2017-18. A factual submission made during hearing of the case by ld. Senior Advocate on behalf of the petitioners that 45 out of total of 78 parents in CWP 22/2018 have already expressed their intention to withdraw from the writ petition, was not controverted by the ld. Senior Advocate appearing for them.
5(iii) It is admitted case of the parties that due to non revision of the fee structure of petitioner institute for the years 2014 & 2015, it did not admit any students in the academic session 2016-17, which led to filing of CWP 2423/2016 by some of those students, whose names were sponsored for admission in academic session 2016-17. In terms of the orders passed in CWP 2423/2016, subject to undertakings furnished by the students agreeing to pay the revised fee to be determined by the State for academic session 2016-17, the students were admitted by the petitioner medical college. Fee was subsequently revised by the State on 8.3.2017 for the academic sessions 2016-17, 2017-18 and 2018-19. This was also reflected in the prospectus for the year 2017-2018. Notification dated 8.3.2017 issued under 2006 Act was assailed by the petitioner college by way of CWP 1502/2017 on grounds of inadequate enhancement. This ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 28 Court directed the reconstituted Fee Structure Committee to examine the matter of fixation of fee afresh and to bring the factum of pendency of the petition to the notice of all the students. While the fee committee was .
examining the proposal, the students of petitioner medical college were not only apprised of the pendency of the writ petition but they had also given undertakings to pay enhanced/revised fee to be determined by the State. Wards of the petitioners in CWP 22/18 & 1839/18, seeking admission in academic session 2017-18, had also furnished undertakings to pay fee if any enhanced by the State in future. Prospectus for the year 2017-18 also contained the stipulation that fee mentioned therein was subject to change by the government.
The fee was ultimately revised on 28.8.2017/5.9.2017 whereunder the fee structure for the academic session 2016-17 already fixed vide notification dated 8.3.2017 was not further revised. Students seeking admission in academic session 2016-17 had already undertaken to pay revised fee for the year 2016-17. Therefore there is no dispute in so far as fee for the year 2016-17 is concerned. Wards of the petitioners in CWP 22/18 & 1839/18, who belong to session 2017-18, had also undertaken to pay fee if so revised/enhanced by the State in future.
5(iv) The fee structure of petitioner college was initially fixed under 14.8.2013 notification. The duration of the fee structure was not mentioned therein. The fee was revised subsequently under 8.3.2017 notification for the years 2016-17, 2017-18 and 2018-19. In compliance to the directions issued by the Court, the fee structure was further revised under 28.8.2017/5.9.2017 notifications. The fee was revised thereunder for five ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 29 academic sessions i.e. w.e.f. 2017-18 to 2021-22. The fixation of fee for five years in one go has been agitated by the students and has also been taken as one of the grounds by the State to review the notification dated .
5.9.2017. Though there is no provision either under the Act of 2010 or Act of 2006, which limits the currency of the fee revision however Section 32(1) envisages sending proposal for fee structure by the petitioner university/college to the Government for its approval before 31 st December of every preceding academic year. Hon'ble Apex Court in (2003) 6 SCC 697 titled Islamic Academy of Education & another Vs State of Karnataka & others has held that fee fixed by the Committee shall be binding for a period of three years, at the end of which period, the institute would be at liberty to apply for revision. Fees once fixed should not ordinarily be changed for a period of three years unless there exists an extraordinary reason. In the instant case, the government approved the recommendations of the Fee Structure Committee for the academic sessions 2017-18, 2018-19, 2019-20, 2020-21 and 2021-22 and clause no. 13 of the terms contained in communication dated 28.8.2017 reads;- "
The fee approved shall be applicable from academic session 2017-18 and for the subsequent new batches and till the completion of the course"
Fixation of fee for five years under notifications dated 28.8.2017/5.9.2017 therefore is contrary to the judgment passed by Hon'ble Apex Court. The fee fixed under notifications dated 28.8.2017/5.9.2017 could have been fixed for a period of three years i.e. 2017-18, 2018-2019, 2019-2020 and not beyond. As already observed earlier, fee for the session 2016-17 was revised on 8.3.2017. Fee for the session 2016-17 was not enhanced ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 30 subsequently under 28.8.2017/5.9.2017 notifications. Students at the time of taking admissions in academic session 2016-17 had already undertaken to pay enhanced fee to be revised by the State. No dispute has been .
raised in respect of fee for the academic session 2016-17. Therefore the fee revision for the year 2016-17 is final and not to be interfered with.
Wards of the petitioners in CWP 22/18 & 1839/18 i.e. students of academic session 2017-18 admitted under the prospectus issued for the year 2017-18 reflecting the fee notified on 8.3.2017 had also undertaken to pay fee if any revised by the State in future. The fee revision for the year 2017-18, 2018-19 and 2019-20 proposed by the committee and as approved by the State under 28.8.2017/5.9.2017 notifications comes within 3 year ceiling fixed by Hon'ble Apex Court. The students admitted in the petitioner institute had been informed about the pendency of CWP 1502/2017 and that the fee paid by them will abide by any change in the fee structure as per orders passed in CWP 1502/2017. The students of academic session 2017-18 including wards of the petitioners in CWP 22 & 1839/2018 had also furnished following undertakings at the time of their admission during the pendency of CWP 1502/2017;-
"...I understand that I am being permitted to seek admission in Maharishi Markandeshwar Medical College & Hospital, a constituent college of MM University, Kumarhatti-Solan to the first year of MBBS course for the academic session 2017-18 in compliance with the directions issued by the High Court of Himachal Pradesh on 6.7.2017 in Civil Writ Petition no. 1502/2017,........ I hereby undertake to pay the enhanced or revised fee from this academic session of 2017-18 and onwards as and when the same is revised by the Government of Himachal Pradesh or authority/committee/court as the case may be..."
The fee revised under notification dated 5.9.2017 was also incorporated in the prospectus for the years 2018-19 onwards. Since CWP 22/2018 had been filed in January 2018 on behalf of some of the students of the ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 31 petitioner medical college therefore perhaps prospectus for the year 2018- 19 contained a note to the effect that the fee structure is subject to change by the State of HP.
.
The revision of fee pursuant to the directions of the Court accepted by the State of Himachal Pradesh, could be carried out only for next three academic sessions i.e. 2017-18, 2018-19 and 2019-20 and not beyond that. Therefore the Fee Structure Committee was not justified in fixing the fee beyond academic sessions 2019-2020. Consequently the same could not be approved under the notifications dated 28.8.2017/5.9.2017 beyond academic session 2019-20.
5(v) On behalf of the wards of petitioners in CWP 22 & 1839/2018 it has been contended that the fee was justifiably fixed under notification dated 8.3.2017 issued under 2006 Act. There was no change in the circumstances leading to its enhancement under 28.8.2017/5.9.2017 notifications. It is well settled by Hon'ble Apex Court in(2002) 8 SCC 481 titled T.M.A. Pai Foundation & others Vs. State of Karnataka, (2003) 6 SCC 697 titled Islamic Academy of Education & another Vs State of Karnataka& others, (2005) 6 SCC 537 titled P.A. Inamdar & others Vs State of Maharashtra & others, (2013) 3 Sim.L.C. 1457 titled Bhojia Dental College & Hospital & another Vs State of Himachal Pradesh, (2016) 7 SCC 353 titled Modern Dental College & Research Center & others Vs State of Madhya Pradesh and others that decision on the fee to be charged must necessarily be left to the private educational institute that does not seek or is not dependent upon any funds from the Government. Such an institute is free to devise its own free structure but ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 32 the same can be regulated for preventing profiteering. It is also recognized that unaided educational institutions may charge the fee that would take care of various expenses incurred by these educational institutions plus .
provision for the expansion of education for future generation. It has also been observed that it would be well-nigh impossible for an educational institution to have an effective administration and to maintain high educational standards, if a downward revision during the pendency of a course would be automatically made applicable to students admitted earlier under a different fee structure. The fee fixed under 8.3.2017 was not acceptable to the petitioners, which led them to institute CWP 1502/2017. The directions issued in the writ petition were accepted by the State. Accordingly the Fee Structure Committee reconstituted by the State in terms of the directions, revisited the fee structure, culminating in the issuance of 28.8.2017/5.9.2017 notifications revising the fee structure of the petitioners. It is not the case of the respondent State that the fee fixed by the Committee and approved by it had enabled the petitioners to profiteering or undue enrichment.
Conclusions
6. In view of above discussions, we hold that the fee fixed by the Fee Structure Committee on 19.8.2017 for the undergraduate medical course of petitioner medical college, was approved by the State Government on 24/26.8.2017, as endorsed to the Medical Council of India, HP Private Educational Institutions Regulatory Commission, the petitioners along with authorities concerned on 28.8.2017 and as submitted to this Court in CWP 1502/2017 on 31.8.2017 vide communication dated ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 33 30.8.2017. Therefore the fee structure reflected therein is final for all intents and purposes. However, the fee structure detailed therein shall be treated as final & approved only for the academic sessions 2017-18, 2018- .
19 and 2019-20. In the peculiar facts and circumstances of the case, it shall be open for the parties to fix the fee structure of undergraduate courses of petitioner medical college in accordance with the procedure prescribed under the Acts of 2010 and 2006 under the memorandum dated 22.6.2018 for the immediate ensuing academic session 2020-21 in accordance with law as per applicable Statutes within a period of four weeks from today or before the issuance of the prospectus, whichever is earlier. In case the fee structure for academic session 2020-21 is not finalized within this period then the fee structure as already laid down in the notification dated 5.9.2017 for the academic session 2020-21 shall be treated as final.
7. Having decided these writ petitions, we also deem it necessary to reiterate well recognized principle that if a Statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it prohibits doing of the act in any other manner than that what has been prescribed. ( Refer Nazir Ahmed Vs King Emperor AIR 1936 PC 253, State of Uttar Pradesh Vs Singhara Singh & ors AIR 1964 SC 358, Zuari Cement Ltd Vs Regional Director ESIC Hyderabad & ors AIR 2015 SC 2764, Uddar Gagan Properties Ltd Vs Sant Singh & ors 2016(11)SCC378). We have already held that fee structure for the petitioners is governed by sections 3 & 7 of Act of 2006 as ::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 34 well as section 32 of Act of 2010. To clarify, we issue following directions, which shall be followed for academic session 2021-22 and onwards;-
i) Petitioner university can send its proposal of fee revision for .
approval to the State by 31st December of every preceding academic year.
ii) The fee revision proposal shall be examined by the State and/or competent authority in accordance with provisions of section 3 & 7(1) of 2006 Act and Section 32(2) of 2010 Act.
iii) While examining the fee proposal, the competent authority besides granting opportunity of hearing to the petitioners shall also give a reasonable opportunity to the representatives of the students studying and intending to study there to express their views on the proposal, which shall be considered in accordance with law.
iv) Final decision on the proposal shall be taken by the State and conveyed to the petitioners and all concerned authorities on or before 31st March of the next year i.e. within a period of 90 days from the last prescribed date of receipt of the fee revision proposal. In case no decision on the fee revision proposal is communicated by the State to the petitioners within the stipulated period then the fee proposed under the fee revision proposal shall be treated as finally approved.
v) It shall also be open for the State to fix provisional fee for the petitioners in public interest with due intimation to them within the stipulated period. However such provisional fee shall be finalized and communicated as such to the petitioners and all concerned authorities within a period of 90 days from the date of fixation of provisional fee or before the issuance of Prospectus, whichever is earlier.
::: Downloaded on - 20/05/2020 20:23:04 :::HCHP 35vi) Approved final fee structure for the petitioners for each course shall be reflected in the prospectus for the next academic session.
vii) Fee once finally approved shall not be revised or modified .
during the academic year and shall remain as such till its next revision in accordance with law.
These writ petitions are accordingly disposed off alongwith all pending applications.
(L. Narayana Swami),
Chief Justice
(Jyotsna Rewal Dua),
r Judge
20.05. 2020
(rohit)
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