Association of Combined Entrance Examination & Others vs Lalit Mohan Tewari & others

Manoj K. Tiwari, J.

These appeals have been filed by Association of Combined Entrance Examination against the judgment dated 09.07.2018 passed by learned Single

Judge in WPMS No. 3433 of 2016 and WPMS No. 3462 of 2016. Since appellant was not party to the writ petition, therefore, he filed application

seeking leave to appeal which was allowed by this Court vide order dated 27.08.2018.

Since common question of fact and law are involved in these appeals, therefore, both appeals are being heard and decided together. However, for

the sake of clarity, facts of SPA No. 639 of 2018, are being taken into consideration for disposal of these matters.

Appellant is an association of Private Ayurvedic Colleges, which is registered under the provisions of Societies Registration Act, 1860. Students of

a private college, namely, Himalaya Ayurvedic, Medical College & Hospital studying in Bachelor of Ayurvedic Medicine & Surgery (BAMS) course

filed writ petition (M/S) No. 3433 of 2016 and connected petitions before learned Single Judge contending that at the time of their admission, tuition

fee was fixed as Rs.80,000/- per year, which was enhanced to Rs.2,15,000/- per year by the State Government vide Government Order dated

14.10.2015. The affiliating University, i.e. Uttarakhand Ayurvedic University authorised the Ayurvedic College to charge enhanced fee vide letter

dated 10.10.2016 and the college issued a notice dated 18.11.2016 demanding the revised tuition fee from its students. Thus feeling aggrieved, students

of BAMS course filed writ petition (M/S) No. 3433 of 2016 before this Court, challenging the said revision in fee structure.

A counter affidavit was filed by the concerned college stating that in the information brochure, supplied to the students at the time of admission,

there was a stipulation that fee can be revised as per the Government Orders. It was further stated that fee was last revised in the year 2007 as per

the recommendation of the Fee Regulatory Committee and thereafter, there has been three fold increase in the expenses incurred by the management

for running the course. It was further stated that Principal of the College had requested the State Government to revise the fee vide representation

dated 22.10.2013 and ultimately the State Government took a decision to revise the tuition fee from Rs.80,000/- per year to Rs.2,15,000/- per year in

respect of BAMS course.

Affiliating University, i.e. Uttarakhand Ayurvedic University filed a separate counter affidavit stating that a Fee Regulatory Committee headed by

Justice Sri Laxmi Bihari (Retired) had determined the tuition fee in the year 2007. It was further stated that the said determination was for a period of

one year only, i.e. Academic Session 2007-2008, as the private medical colleges were facing difficulty to meet the expenses, therefore, they requested

the State Government to revise the fee structure. On 25.08.2014, a meeting of Fee Regulatory Committee was held in which it was decided that a

notice be published in newspapers calling upon the concerned colleges to submit necessary documents and account books in support of their claim

within stipulated time, so that, appropriate decision may be taken regarding fee revision. It was further stated that the Additional Secretary,

Department of Ayush Education issued one letter dated 26.02.2015 to various authorities, including Registrar, Uttarakhand Ayurvedic University,

whereby they were requested to get the public notice published in terms of direction issued by Fee Regulatory Committee. The counter affidavit filed

by the University is, however, silent regarding the fee determination, if any, made by the Committee.

Learned Single Judge allowed the writ petition, filed by the private respondents, vide judgment dated 9. 07.2018. The operative portion of the said

judgment is extracted below:-

“10. Learned counsel for the State would argue that this increase in fee has been done after seven years. The last fixation was in the year 2007.

This may be true, but again it is wrong to increase fee in the manner it has been done, for the reason that firstly, the students who have taken

admission did that knowing that they have to pay a fee of Rs. 80,000/- (Rupees Eighty Thousand only), secondly, the increase in fee is not based upon

any scientific calculation by experts or the body as contemplated under law and, thirdly the fixation is retrospectively done. The order of the State

Government therefore is unsustainable.

In view of the above, all the writ petitions are allowed. Orders dated 14.10.2015 and 10.10.2016, notice dated 18.11.2016 and the demand letters

dated 31.05.2017 are hereby quashed and set aside. It is, however, made clear that in future the Government and the University will always be at

liberty to revise this fee, but it must be based on the recommendation of the Fee Regulatory Committee, and should be prospective.

It is made clear that in case any private medical college has already recovered this fee from the students, the enhanced amount shall be returned

to the students forthwith within a period of two weeks from the date a certified copy of this order is produced before the Principal of the college

concerned.â€​

Heard learned counsel for the parties and perused the record.

Admittedly, the field is occupied by Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of

Fee) Act, 2006 which was enacted in the light of the judgment rendered by Hon’ble Supreme Court in the cases of Islamic Academy of Education

Vs State of Karnataka reported in (2003) 6 SCC 697 and P.A. Inamdar Vs State of Maharashtra reported in (2005) 6 SCC 537.

Section 2 of the said Act provides that it applies to unaided private professional educational institutions affiliated to State Funded Universities,

Councils, Boards or other bodies established under Law, excluding minority institutions.

The expression “Feeâ€​ has been defined under Section 3(f) as “all fees including tuition fee and development chargesâ€​.

Section 5(1) of the said Act lays down the factors which shall be taken into consideration by the admission and Fee Regulatory Committee

constituted under Section 4(1) of the Act), while determining the fee structure.

Sub Section (2) of Section 5 prohibits charging any fee, by whatever name or form called, from the candidate over and above the fee determined

by the Committee.

Admittedly, none of the Ayurvedic Medical College in Uttarakhand enjoys the status of minority institution, therefore, the aforesaid Act is

applicable to the said college. It is nobody’s case that the fee structure has been revised pursuant to recommendation of the Fee Regulatory

Committee constituted under the said Act. Thus it can be safely inferred that the said Committee has not made any determination as contemplated

under Section 5(1) of the Act.

Since the field is occupied by a legislation, therefore, the State Government or the affiliating University cannot unilaterally enhance the fee, in the

absence of any recommendation by the Committee constituted under the said legislation. Thus, the decision taken by the State Government to revise

the fee from Rs.80,000 per year to Rs.2,15,000/- per year is violative of provisions of the aforesaid Act and also the law laid down by Hon’ble

Supreme Court in the case of T.M.A. Pai Foundation & others reported in (2003) 6 SCC 790 and Islamic Academy of Education & another Vs State

of Karnataka & others reported in (2003) 6 SCC 697 and P.A. Inamdar Vs State of Maharashtra reported in (2005) 6 SCC 537.

We, therefore, concur with the view taken by learned Single Judge. There is no force in these special appeals and the same are accordingly

dismissed.