Modi Nilay Bhadreshbhai and Others vs Smt. N.H.L. Municipal Medical College and Others

Jayant Patel, J.—The short facts of the case appears to be that the petitioners are the students of medical faculty studying in Smt. N.H.L.Municipal Medical College. The fee structure was approved by the Committee for the period from 2003-2004, 2004-2005, 2005-2006. Thereafter, for the period of 2006-2007 to 2008-2009, the proposal was submitted by the college for approval of the fee structure of Rs. 2,50,000/- as against the fee structure of the earlier period upto 2005-2006 of Rs. 1,40,000/-.

The Committee considered the material placed on record and attributed the expenses of the hospital in the fee structure and approved the fee structure of Rs. 2,15,000/- for the year 2006-2007 and for the other respective period. However, on the NRI seat, it was observed that the college shall be free to fix the fees for NRI students upto 15% of the intake capacity subject to the approval of the Fee Committee and the additional fees from NRI students will be utilised for the purpose of scholarship only. Thereafter, the respondent No. 1 insisted for recovery of the difference of the amount from the students based on the fee structure approved and it is under these circumstances, the petitioners have approached to this Court by preferring the present petition.

Heard Mr. Dave for the petitioners, Mr.Mehta for respondents Nos. 1 & 2, Mr.Sunit Shah, learned Govt. Pleader with Ms.Patel and Mr.Shukla, learned Asst. Govt. Pleaders for State and Mrs. Nanavati, for respondent No. 5 for final disposal.

It may be recorded that more or less, similar challenge came to be considered by this Court in Special Civil Application No. 25954 of 2007, which was preferred by the Parents Association for the Medical/Dental students studying in Pramukhswami Medical College affiliated with Sardar Patel University. The aforesaid Special Civil Application and allied matter is already decided by this Court vide Judgement dated 19-24.03.2008. When this Court considered the present petition, on 01.04.2008, the following order was passed:

In the decision of this Court in Special Civil Application No. 25954/07 and allied matters, decided on 19-24.03.2008 in the case of Parents Association for the Medical/dental students and Ors. v. Justice R J Shah Fee Committee (Medical) and Ors. in case of Pramukhswami Medical College, the view taken by this Court is that the Fees Committee ought not to have attributed 50% cost of the hospital in the fees to be borne by the student concerned on the ground of the time consumed by the students in the hospital and as ordered by this Court in the said decision, the decision of the Committee is set aside and the matter is remanded.

In the said decision, by interim arrangement, the students are ordered to pay Rs. 1.80 Lakhs, as against the fees fixed by the Fees Committee of Rs. 2.20 Lakhs of that college.

In the present case, fee structure sanctioned is Rs. 2.15 Lakhs. Therefore, Rs. 5,000/- less than the fees sanctioned in the case of Pramukhswami Medical College.

Hence, Notice returnable on 16th April, 2008. By ad interim order, it is directed that the respondent shall not take coercive steps and shall release the mark-sheets of the students concerned on the condition that the petitioner/student concerned pays the amount of fees at the rate of Rs. 1.75 Lakhs per year by way of an interim arrangement as against the fee sanctioned by the fees committee of Rs. 2.15 Lakhs, but subject to further orders in the present petition.

It is observed and directed that as the concerned students shall be required to pay the fees at the fee structure of Rs. 1.75 Lakhs in place of Rs. 2.15 Lakhs as fixed by the fees committee subject to further orders which may be passed by this Court in the preset petition, the mode and manner of payment of such difference as permitted by the college to such students shall proportionately get reduced.

In response to the notice issued by this Court to respondent No. 1 college, which is under the control of respondent No. 2 Corporation, Mr.Mehta for Mr.Trivedi & Gupta has appeared and it was submitted that the affidavit-in-reply could not be filed on behalf of the college and it was also submitted that the Judgement of this Court dated 19-24.03.2008 in Special Civil Application No. 25954/07 is carried before the Letters Patent Bench and the matter has been kept in vacation. Therefore, it was submitted that this Court may differ final hearing of the matter until the view is before the Court of the Letters Patent Bench.

It deserves to be recorded that it is an admitted position that the Letters Patent Appeal Bench has not stayed against the operation of the Judgement and the appeal is pending as it is. Further, the present proceedings are before the Single Judge of this Court and the issue as such is covered by the decision of this Court. If the matter is concluded before the Single Judge of this Court, no useful purpose would be served in delaying the final disposal of the matter, more particularly when the Committee who is to reconsider the matter is yet to finalise the fee structure as may be ordered by this Court hereinafter. Further, as per the various aspects clarified in the above referred decision of this Court, the Committee will have to give a fresh look and will have to examine the material which is produced on behalf of the respondent No. 1 College before it. All such materials which came to be considered by this Court in the above referred decision forming part of the record of the Committee are already before the Committee and therefore, I find that when the issues are covered by the decision of this Court on the basis of the material already available before the Committee, the matters can be finally ended on the same line as was so ordered by this Court in the above referred decision.

The contentions as are raised in the present petition and which arise for the consideration of this Court are already covered by the above referred decision of this Court in the case of Parents Association for the Medical/Dental Students (supra). It may be recorded that this Court in the above referred decision, inter alia observed at paras 8 to 10 on the aspects of the role of the committee in exercise of the power for approval of the fee structure. It was further observed by this Court in the above referred decision, at paras 12 to 15 as under:

It may be recorded that the scope of judicial scrutiny for examining the legality and validity of the decision of the quasi judicial authority or a quasi judicial body is by now well settled.

The error of law on the face of the record is one of the aspects on which the judicial scrutiny may be undertaken. Further if the lower authority or the Tribunal has acted on evidence, which is legally inadmissible or has refused to consider the admissible evidence or if the finding is not supported by any evidence at all, the same can be considered in exercise of writ power by this Court. Not only that, but if a ground or a material germane to the exercise of the power is not considered, it may result into a jurisdictional error. In the same manner, if a ground or a material which was not germane to the exercise of power, if considered and the decision or the finding is based on the same, it would also result into jurisdictional error, which can be considered by writ Court under Article 226 of the Constitution of India while undertaking the judicial scrutiny. If the finding is recorded by the lower authority without their being any evidence on record, then such finding can be said as perverse and the same would also be subject to the scope of judicial review by a writ Court against the decision of a quasi judicial authority.

It would be worthwhile to extract certain observations made by the Apex Court in the case of Rameshwar Prasad and Others Vs. Union of India (UOI) and Another, wherein the Apex Court had an occasion to examine the action or dissolution of the Legislative Assembly of State of Bihar. In the said decision, the Apex Court (speaking through Mr. Justice Arijit Pasayat) observed at para 239 to 242 as under:

A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person person could ever dream that it may law within the powers of the authority.

It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to the apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See, Smt, Shalini Soni and Ors. v. Union of India and Ors.)

The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if(i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or(iii) it is so absurd that no sensible person could ever have reached to it.

As observed by Lord Diplock in CCSU''s case (supra) a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it

On the factual aspects, following appears to be an undisputed position.

The requisite informations at the time when the proposal was submitted in Column No. 2 for the building of college/hospital, the total cost as on 31.03.2005 of the building was shown in Annexure-II as under:

------------------------------------------------------------------------ Sr. Particulars Area Gross Depreciation Net Value No. in Sq.Mtr. Value (Rs.In Lakhs) (Rs.In Lakhs) ------------------------------------------------------------------------ 1. Medical 13065.98 139.99 86.96 53.03 College 2. Academic 4538.20 100.88 14.60 86.28 Block ------------------------------------------------------------------------- TOTAL 240.87 101.56 139.31 ------------------------------------------------------------------------- In Column No. II, the age of the building is shown as 18 years. Therefore, the net value of the building as shown by the institution is of 139.31 Lakhs and the age of the building is 18 years.

The building is not owned by Pramukhswami Medical College, respondent No. 2 herein, but is owned by Charutar Arogya Mandal, which is the parent body of the college/institution.

In the fee structure, at Part-IV, the existing fee structure is shown as Rs. 1.45 Lakhs. Similarly, in NRI quota, blank is shown. No fee structure whatsoever is mentioned. In Part-VIII of the details of new investment for building, unaudited for the accounting year of 2005-2006 is shown as addition of only Rs. 3.13 Lakhs.

In the compilation of S.B. Billimoria & Cos., for institutional details, it has been mentioned that all buildings are owned by Charutar Arogya Mandal and rent has not been charged for the buildings to the respective institution.

In the audited books of accounts, copy of which was produced by Mr.Shah, learned Counsel for the fees Committee with the declaration that these details were produced before the Committee, the depreciation claimed as on 31.03.2005 in the books of accounts of Pramukhswami Medical College, is Rs. 15,07,701.54 ps.(roughly rounded figure of Rs. 15 Lakhs). Similarly, in the audited books of accounts, for the year ending on 31.03.2004, of Pramukhswami Medical College, the depreciation claimed is Rs. 10,43,631/- (roughly rounded figure of Rs. 10 Lakhs).

In the report of S.B.Billimoria & Co., which is considered by the Committee as it is, under the head of Cost of Medical College shown as fee based on the audited books of account for the year 2003-2004, depreciation included is Rs. 31,98,000/- (rounded figure is Rs. 32 Lakhs) and for the accounting year of 2004-2005, it is shown as Rs. 32,53,000/- (rounded figure is Rs. 32 Lakhs).

In the aforesaid S.B. Billimoria''s report for the year of 2005-2006, towards cost of the medical education (Pramukhswami Medical College), depreciation shown is Rs. 33,11,000/- (roughly Rs. 33 Lakhs) as against in the audited books of accounts, which were produced before the Committee of Prakukhswami Medical College, depreciation claimed is Rs. 22,83,327/- (roughly Rs. 22 Lakhs).

As per the instructions issued by the Committee, the depreciation is to be claimed on straightline method @ 5% p.a. and it is not clear as to whether such depreciation is to be claimed with gross value as existed at the time when the construction was made or the cost incurred or the net value.

The Committee has included 50% of the cost of Shri Krishna Hospital which is attached to the Pramukhswami Medical College on the basis that the students are occupying 50% of their study time in attending hospital and therefore, 50% of the cost of the hospital is required to be borne by the students being part of the cost of medical education. The aforesaid is with the clarification that certain cost of the hospital which is not concerned to the medical education viz., the Blood Bank, Laboratory, etc., are not included in the cost of hospital for attribution to the fees.

Even while considering the cost of the hospital under the head of depreciation, the figures do not tally with the audited books of accounts, which were submitted before the Committee. For example, for the accounting year of 2005-2006, the depreciation claimed by Krishna Hospital in the audited books of accounts is 90,36,972/- (rouhgly Rs. 90 Lakhs). As against the same, in the report of S.B. Billimoria, though in the estimated figure, depreciation shown is of Rs. 1,56,49,000/- (roughly Rs. 1.50 Crore) as against the figure of Rs. 90 Lakhs shown in the books of accounts. Same is the position for the accounting year of 2004-2005 inasmuch as in the books of accounts of Krishna Hospital, depreciation claimed is Rs. 1,05,80,199/-(roughly Rs. 1 Crore), whereas in the figure considered in the S.B.Billimoria''s report, is Rs. 2,83,28,000/- (roughly Rs. 2.80 Crores). In the same manner, for the accounting year of 2003-2004, in the audited books of accounts, the amount of depreciation claimed by Krishna Hospital is Rs. 1,15,80,192/- (roughly Rs. 1.15 Crores), whereas the amount shown in the report of S.B.Billimoria is Rs. 1,32,43,000/- (roughly Rs. 1.32 Crores).

No comparative study is undertaken by the Committee after undertaking any exercise through the Member of the Medical Council on the aspects about the additional costs which may be required to be undertaken by a hospital on account of the students getting education for practical and clinical in hospital, except that as per the opinion of the Member of Medical Council of India (MCI), students are spending 50% of time in hospital while studying and therefore, required to bear 50% of the cost of the hospital.

Earlier, the very Committee had taken the view for the academic year of 2003-2004, 2004-2005, 2005-2006 that the college/institution is not entitled to any additional amount towards the cost of maintenance of the hospital as fees but the said decision of the Committee was not accepted in the past by the respondent College.

The Committee either itself or through the member of the MCI, did not call for the information of MCI regarding any material for incurring of the additional cost by a hospital, if attached to the medical college.

On the aspect of scope of judicial scrutiny, this Court on the basis of the material produced during the course of the hearing in the said matter, further observed at paras 16 to 24 as under:

In view of the aforesaid factual scenario, keeping in view the scope of judicial review against the decision of a Committee to be treated as the quasi judicial authority or a quasi judicial body, can be considered as discussed hereinafter. However, before it is considered, the language used by the Apex Court deserves to be reiterated again for the role of the Committee to be more sensitive and to act rationally and reasonably with due regard for realities. As observed by the Apex Court, the Committee should refrain from generalizing the fee structure and are required to go into the accounts, schemes, plans and objects of an individual institution for the purpose of finding out as to what would be an ideal and reasonable fee structure for that institution.

It appears to the Court that the following aspects germane to the exercise of powers by the Committee while deciding the fee structure are not considered:

In the information which was submitted by the institution to the Committee for deciding the fee structure vide Item No. 2 it is mentioned as per Annexure-II which if considered shows the net value of the medical college is of Rs. 53.03 Lakhs and of the academic block is of Rs. 86.28 Lakhs, total 139.31 Lakhs. If straightline method of depreciation @5% already decided by the Committee in its policy is considered, the depreciation would come to Rs. 6.96 Lakhs for one year towards the building. Whereas in the cost statement as per Annexure-IX being Part-vi, the depreciation claimed for the accounting year of 2004-2005, i.e. as on 31.03.2005, is of Rs. 17.38 Lakhs. The pertinent aspect is that, even in the statement at Annexure-A, which is an estimated figure, the depreciation claimed to be included in the cost is Rs. 13.19 Lakhs. Therefore, the cost of depreciation which is sought to be included in the cost structure as against the net value of the asset and net value of the medical college and the academic block, is roughly more by Rs. 10.41 Lakhs (Rs. 17.38 Lakhs figure shown minus Rs. 6.96 Lakhs permissible depreciation). If the cost as shown vide Annexure-IX for the accounting year of 2004-2005 is considered for the accounting year of 2005-2006, is more by Rs. 6.23 Lakhs (Rs. 13.19 Lakhs figure shown as per Annexure-A minus Rs. 6.96 Lakhs permissible depreciation) as against the actual net value of the building. Therefore, the institution has shown cost of depreciation more than the actual, had the details considered and cross-checked through its account member of the Committee. The Committee has without cross-checking the details of Annexure-IX with the details of Annexure-II in the information supplied, has been unduly impressed and wrongly guided by the figures supplied at Annexure-IX.

The aforesaid is coupled with the circumstance that in the audited books of accounts of the Pramukhswami Medical College, in none of the year, any depreciation is claimed towards the building; the reason being not that the property is owned by Charutar Arogya Mandal, but is due to the fact that Charutar Arogya Mandal has given property for use to the college as free from rent and no cost is being incurred. The said aspect is apparent from the compilation of the S.B. Billimoria''s report under the head of Institutional details.

As such, if the institution/college has not incurred any expenses for construction of the college/academic block, and has received free the use of the building, no expenses towards rent or even depreciation could be claimed being part of the cost to the college, more particularly when even in the books of accounts of such college, duly audited for income tax purpose, such amount is neither claimed nor deducted.

The learned Counsel for the respondent College did attempt to submit that in the books of accounts of Charutar Arogya Manda, such depreciation has been claimed and therefore, the same could be included in the cost structure for the fees.

No data is produced before the Committee for which the contention is sought to be relied upon by the learned Counsel. Further, even if considered for the sake of examination, the same cannot be permitted to travel beyond the information which has been supplied at the initial stage for providing cost of the building. Even if the contention of the learned Counsel is accepted, then also, as observed earlier, there is exaggeration shown under the head of the depreciation for the cost structure by about 10 Lakhs for the accounting year of 2004-2005 and more than Rs. 6 lakhs for the accounting year of 2005-2006.

Therefore, the aforesaid shows that the Committee has apparently committed jurisdictional error in not cross-checking the information and ignoring the basic information supplied by the institution at the time when the proposal was submitted for sanction of the fee structure.

In the information supplied to the Committee, at the time when the fee structure was proposed to be sanctioned, Part-iv for fee structure provided for:

A-State Quota

B-Management Quota

C-NRI Quota

Under the said head, the present fees shown is of Rs. 1.45 Lakhs for State quota, and Management quota with the note that the same is under challenge before the Hon''ble Supreme Court and the final fee would, if would be, subject to the directions of the Hon''ble Supreme Court. The pertinent aspect is that under the head of proposed fee, the amount is shown as blank and no fee structure whatsoever is proposed either for State quota or for Management quota. The same is the situation for NRI quota. The fees is kept blank.

The aforesaid shows that the institution at the time when submitted proposal for approval of the fee structure, did not propose any fee structure at all for State quota or management quota nor had disclosed the fee structure for NRI quota. If the aforesaid is considered with Part-IX of the scholarship/aid to students for academic year of 2004-2005 (Actual shown is as NIL) and 2005-2006(actual it is shown NIL). Hence, it is apparent that no scholarship/aid to the student whatsoever has been extended or disbursed to any of the students.

The aforesaid if bifurcated for the purpose of fixing the cost structure and for the NRI separately, it was required for the Committee to bear in mind and consider that the institution has to propose its own fee structure by quantifying the figure. In absence thereof, the Committee could not have been guided by a subsequent report of S.B.Billimoria & Co. for proposal of the fee structure at the later stage. Further, in the very information supplied at the time when the fee structure was proposed for approval, part-iv provides for cost statement as per Annexure-IX. In the very cost structure submitted at Annexure-IX by the institution itself, as observed earlier, under the head of depreciation, has claimed an amount which is not tallying with the Annexure-II for the net value of the building and the academic block.

Apart from the above, the important aspect is that, the college itself has also not included any cost whatsoever in the cost structure proposed for sanction towards the cost of hospital. There is no reference whatsoever for inclusion of the cost of hospital in the proposed fee structure at the time when the application was submitted by the institution to the Fees Committee.

In absence of the same, at the initial stage, it was required for the Committee to act with sensitivity based on the sound principles for exercise of quasi judicial power inasmuch as if in the application for sanction of the fee structure, the cost of hospital is not claimed by the institution itself, the same could not have been permitted to be claimed by the Committee at the later stage by submission of the report of S.B.Billimoria & Co., a firm of Chartered Accountant. If the Committee was to act as per the sound principles of quasi judicial power, the Committee could not have permitted the institution to take somersault by altering the fee structure and thereby including the cost of the hospital in the fee structure.

The aforesaid is coupled with the circumstance that even as per the report of S.B.Billimoria & Co., the figures under the head of Depreciation is neither supported by the information supplied in Annexure-II of the application for sanction of the fee structure nor is tallying with the audited books of accounts of Pramukhswami Medical college as well as Krishna Hospital (refer para Nos. 5,6,7 & 10 of the admitted facts are referred to hereinabove) Therefore, the Committee by considering the report of S.B. Billimoria & Co., has practically allowed the college to claim the cost of the hospital which was not at all claimed by the institution and thereby, not only the Committee has exceeded in exercising of its jurisdiction, but has acted against the sound principles of exercise of judicial power for sanction of the fee structure.

If considered for fixation of fees of NRI quota, the observations of the Apex Court for utilisation of the fund can be reconsidered as under:

The amount of money in whatever form collected from such NRI''s should be utilised for benefiting students such as from economically weaker sections of the society. On well defined criteria the educational institutions may admit on subsidized payment of their fee.

The information supplied in the application for NRI quota, as observed earlier, is kept absolutely blank and if the conduct of the institution is considered in light of the scholarship/aid to the student, as per the institution itself, in the academic year of 2004-2005 or for 2005-2006, the same is absolutely Nil.

It deserves to be recorded that even if the institution had the liberty to fix the fees for NRI students, the same was subject to the intimation to the fee committee. Further, as per the observations of the Apex Court, the surplus fees, if any, was to be utilised for the student of economically weaker section as per the well defined criteria. Therefore, when the Committee is to fix the fee structure, it is also required for the Committee to simultaneously consider the matter for surplus of the amount available from the fees of NRI quota and the manner or mode or mechanism suggested by the institution to extend scholarship/aid to the students of weaker sections simultaneously.

There is absolutely no information and the past record as per the institution itself is that, it has not spent a single rupee for scholarship and for aid to the students. Hence, it was not required for the Committee to conclude the matter by just making observation for NRI fees and the surplus of the amount from the NRI without considering the quantum of the NRI students'' fees; the surplus amount, if any, and the utilisation thereof towards the students of economically weaker section etc. during the relevant academic year. The aforesaid shows that the Committee on such aspects has remained insensitive towards the utilisation of the surplus fund of NRI seats for the students of the weaker section. To say the least, not meeting with the expectations as observed by the Apex Court on the aforesaid aspects.

The aforesaid shows that not only the Committee has committed jurisdictional error, but has forgotten to exercise the power for which duty is cast upon it and thereby, ex facie jurisdictional error.

The learned Counsel for the respondent institution did attempt to contend that the present petition is by the students who are on State or Management quota and none is on NRI quota and therefore, it was submitted that the aspect of NRI quota and the utilisation of surplus amount is outside the scope of the petition.

I am afraid such contention can be countenanced by this Court from the mouth of the institution which has not used a single rupee as per the information supplied towards scholarship or aid to the students for the academic year of 2004-1005 and 2005-2006. Further, since no mechanism whatsoever is considered by the committee for the surplus amount available and the utilisation thereof, the existing students who may be falling in the category of economically weaker section could be said as deprived of the benefit thereof.

Apart from the above, the Committee is enjoined with the duty to implement the observations of the Apex Court in true spirit. If by non-consideration of such aspects, the students are deprived of for consideration of the benefit of scholarship/aid to the students under the head of economically weaker section or other reserved category, and are consequently required to pay the full amount of fees, it can hardly be said that such would fall outside the scope of the petition, more particularly when the whole order of the Committee for fixing the fee structure and the mechanism thereof including the utilisation of the fund is under challenge in the present petition.

It deserves to be recorded that in the earlier decision of the Committee, for the academic year of 2003-2004 to 2005-2006, towards use of hospital by the students, it had considered lumsum amount of Rs. 10,000/- on adhoc basis and had fixed up the fee structure of Rs. 1.45 Lakhs. It is true that ultimately, pursuant to the orders passed by the Apex Court, the matter was remanded and the Committee had to undertake the exercise for fixation of fee structure. However, while fixing such fee structure, the Committee could have been guided with information as was available on record, which came to be submitted by the institution for fixing the said fee structure then. The Committee could have been guided by information as was available on record which came to be submitted by the institution for fixing of the fee structure. But it appears that the Committee in view of the inclusion of the cost of hospital in fixation of the fee structure, for the academic year of 2006-2007 onwards, included the cost of hospital in the fee structure of 2003-2004 to 2005-2006. As the fee structure for the academic year of 2003-2004 to 2005-2005 is not the subject matter nor the informations are available, the same may not assume much importance except observing that once the Committee took the decision in principle of attributing a particular cost of Rs. 10,000/- towards use of hospital infrastructure, it could have revised the figure, but sharing of the cost of hospital by the student is a new concept introduced by the Committee in the fixation of fee structure even for the academic year of 2006-2007 onwards, though was not proposed at the time when the application were submitted, but on account of the report of S.B.Billimoria & Co.

Even if the cost of hospital could be one of the relevant consideration for fixing the fee structure, it would a caveliar approach, if not absurd, to attribute the cost on the basis of the time spent by the students in the hospital. Even for time spent by the student, the total clinical hours and the teaching hours are required to be taken into consideration as per the information of the MCI. If the Committee was to consider the time factor of clinical hours spent by the student while undertaking medical education vis-a-vis, the teaching hours, comparative study as per the syllabus of MCI was required to be undertaken and then only a definite conclusion could be recorded and not just by ipsi dixit of the member of the MCI that the students spent 49% of the time in the hospital without their being any scientific data put forward before the Committee and considered by the Committee based on the syllabus prescribed by the MCI.

Further, though time may be one of the consideration for attribution of the cost of hospital, the same can hardly be said as the sole and only consideration for attributing the cost of hospital in the medical education. It was required for the Committee to undertake the mechanism, if required, with the assistance of MCI and accountants for ascertaining the actual expenses which a hospital management is required to undertake for facilitating the students to have the clinical study. Merely because the medical college must be attached with the hospital as per the MCI guidelines, it cannot be said that the full cost of the hospital can be attributed nor the cost can be attributed based on the time consumed by the students in the hospital. As such, running of a hospital is an independent activity of a trust for treatment to patients and its attachment for medical education to the students can at the most be considered as a subsidiary aspect. Further, the hospital is to bear the cost for treatment of the patient and the patient is to pay for expenses of the cost of treatment by way of a normal rule. If the hospital is subsidising the cost to the patient on account of its fund available for charity, such can hardly be attributed towards the cost of medical education to the students. At the same time, if the students while attending clinical hours, is to observe the treatment and to treat the patients, the hospital management is likely to be benefited thereof, but can hardly be said that any loss would be caused to the hospital management on account of the students treating the patients or watching the treatment to be undertaken. It is only the cost of amount by way of additional expenses incurred by the hospital management for permitting the students to observe the treatment or to make use of the machineries etc., which could be considered as additional cost by the hospital management for the medical education. Further, if the teachers of the medical college are to treat the patients in a hospital, the hospital management is bound to be benefited. The same can be attributed on the basis of the time consumed by the teachers in college for imparting education in comparison to the time consumed in the hospital for treatment of the patients. The aforesaid are only some of the relevant aspects, but cannot be termed as exhaustive. The adhoc or lumsum attribution of cost based on the time consumed by the student in the hospital, can hardly be said as the sole consideration for attribution of the cost of hospital to the medical education.

As such, as observed earlier, in absence of such claim by the college/institution, it was not required for the Committee to permit the college to make out claim for inclusion of the cost of hospital. Further, even if such grounds were to be considered for the sake of examination, the relevant consideration which were germane to the inclusion of the cost of hospital in fee structure are not considered by the Committee and the attribution of cost only on the time consumed by the students in the hospital can be said as jurisdictional error in not considering the relevant circumstances germane to the exercise of power and thereby, remaining insensitive to the field of education keeping in view the realities in the hospital and of the students.

The learned Counsel for the respondent college did submit that as per the study undertaken by MCI for the cost of medical education of AF Ferguson & Co, which has been submitted by learned Counsel for MCI during the course of hearing, the cost of medical education was much higher in the year 1997 than the fees approved by the Committee. Therefore, he submitted that the amount of fee structure fixed by the Committee cannot be said as unreasonable or arbitrary.

Whereas on behalf of the Committee it was fairly conceded that no comparative data is studied in detail except the time consumed by the student in the hospital.

The learned Counsel for MCI submitted that the study was undertaken in response to the questions raised in Rajya Sabha by one of the member. However, she fairly conceded that the actual attribution of the cost in a hospital for its attachment to the medical student for medical education was not undertaken.

It appears to the Court that the report is for the cost of medical education on the premise that full cost of the hospital is to be considered for all cost incurred by the medical college and hospital and it is not a study undertaken for separating expenses of running a hospital independently and additional cost to be incurred by the hospital for permitting the students to have clinical study in the hospital. The report only speaks that the professional staff salary can be bifurcated between the college and hospital in the ratio of 68:32 per cent based on the MCI''s for the time spent in the college and the hospital. But, it does not speak reverse so far as the students are concerned. Therefore, the said report cannot be considered as concluded for attributing of cost of hospital towards the medical education to be borne by the student nor the same cannot be said as conclusive.

In view of the aforesaid, the only inevitable conclusion is that the Committee has committed the above referred jurisdictional error in exercising the power for deciding/recommending/approving the fee structure as per the impugned decision. Therefore, the impugned decision of the Committee cannot be sustained in the eye of law and deserves to be quashed and set aside.

In the said matter, this Court ultimately gave the final operative directions at paras 27 and 28 as under:

Hence, the impugned order of the Committee for fixation of the fee structure including on the aspects of surplus of NRI Fees are quashed and set aside with the further direction to the Committee to reconsider the matter in light of the observations made by this Court in the present Judgement and to finalise the fee structure as early as possible preferably within a period of four months from the receipt of the order of this Court.

It is further directed that until the Committee finalises the aspects of fee structure, as indicated earlier, the students shall pay the fees at Rs. 1,80,000/- per annum for each academic year with the undertaking that they shall pay the remaining amount if required after the decision of the Committee and the amount of Rs. 1,80,000/- shall also be accepted by the institution with the direction that the balance, if any, after the decision of the Committee shall be refunded to the respondents or the surplus, if any, shall be adjusted in the next academic year, if the students are to prosecute the study further for the remaining year.

If the facts of the present case are examined in light of the aforesaid decision, after taking into consideration the contention raised on behalf of the petitioners, it can broadly be segregated into two parts; one for the students who are already prosecuting the studies prior to 2006-2007, in whose case also, the revised fee structure after 2006-2007 has been made applicable by the college. The another is for the students who have been admitted in the academic year of 2006-2007 and for them the fee structure as approved is made applicable.

The case of the students who have been admitted in the academic year of 2006-2007 and afterwards are concerned, would stand fully covered by the decision inasmuch as the manner and method in which the Committee has undertaken the exercise for fixation of the fee structure is the same as was in the case of Pramukhswami Medical College coupled with the aspect of attribution of the cost of the hospital in the approval of the fee structure and therefore, no much discussion is required on the said aspects.

Concerning to the first part of the petition of the students who were already prosecuting the studies prior to 2006-2007, the contention of the learned Counsel for the petitioners is that it was already notified in the Board of the college that revised fee structure shall be applicable only to the students who are admitted in the academic year of 2006-2007 and onwards. Therefore, it was submitted that the college had abandoned or waived the rights to recover the revised fees from the students who were prosecuting studies prior to 2006-2007 and therefore, the principles of estopple operates against the college in collecting or insisting for recovery of the fees as per the revised fee structure. In furtherance to his submission, the learned Counsel for the petitioners have relied upon the decision of the Apex Court in the case of State of Orissa and Others Vs. Mangalam Timber Products Ltd., and contended that the college is estopped from backing out from such declaration and therefore, the revised fees cannot be collected from the students who were already prosecuting the studies prior to 2006-2007.

It appears that the stand of the Committee is that since the burden of fees are to be shared by the students, it must be distributed amongst all students on roll irrespective of the fact that whether they were admitted prior to the revision of the fee structure or not. It also appears from the decision of the Committee that this Court had an occasion to consider the matter on judicial side at the interim stage for attribution of the fee structure to all students on roll and the Court did not interfere with such a stand taken by the Fee Committee and therefore, the Committee accordingly clarified in the communication dated 26.02.2007, which reads as under:

So far as applicability of the revised fee structure to the students enrolled during 2003-04, 2004-05, 2005-06 is concerned, the committee has made its view clear that the revised fees are applicable to all the students on roll as on date. This stand has been upheld by the Hon''ble High Court in its interim order dated 20th September, 2006

So far as the applicability of the revised fee structure to the students on roll during 2003-2004, 2004-2005 and 2005-2006, the Committee has made its view clear and revised fees are applicable for students as on the date. This stand has been upheld by the Hon"ble High Court in its interim order dated 20.09.2006.

As per the decision of the Apex Court in the case of Islamic Academy(Supra) read with the subsequent decision in the case of P.A.Inamdar (Supra), the fee structure so approved by the committee is to remain in operation for a period of 3 years. Therefore, at the 4th year, the fees are subject to the revision and there is no express view that such fees which are revised would apply only to new entrant students and not to existing students on roll. The methodology adopted for approval of the fee structure is based on the cost structure for 3 years.

Hence, if the expenses are for a period of 3 years and the fees based on the same is subject to revision at the 4th year, the students on the face of the decision of the Supreme Court in the above referred cases, can hardly contend that the principles of Promisory estoppel would operate as sought to be canvassed. Further, if the Committee has taken view of distributing the burden equally to all students on roll, irrespective of the fact that whether they were admitted prior to the existing span of 3 years or not, such a view even otherwise also on the part of the Committee cannot be said as unjust, or arbitrary, and the principal reason being that if all students do not bear the burden equally of the revised fee structure, the consequence would be that the new students will have to bear the additional burden though that students who are prosecuting the studies are to enjoy the benefit of education. Under these circumstances, the said contention of the learned Counsel for the petitioners cannot be accepted.

In view of the above, the directions as were given in the above referred decision deserves to be given in the present case also and the interim arrangement as were made pending the petition can be continued for an interim period until the Committee finally decides the matter.

Hence, the impugned order of the Committee for fixation of the fee structure of Rs. 2,15,000/- for the academic year of 2006-2007 onwards including on the aspects of surplus of NRI fees are quashed and set aside with the further direction to the Committee to reconsider the matter in light of the observations made by this Court in the present Judgement to finalise the fee structure as early as possible, preferably within a period of four months from the receipt of the order of this Court.

It is further directed that until the Committee finalises the fee structure, as communicated earlier, the students shall continue to pay the fees at the rate of Rs. 1,75,000/- for each academic year with the undertaking that they shall pay the remaining amount, if required, after the decision of the Committee and the amount of Rs. 1,75,000/- shall be accepted by the institute with the direction that balance, if any, after the decision of the Committee shall be refunded or adjusted in the next academic year, if the student is to prosecute the studies further for the remaining year.

It is clarified that the Schedule and the installments for payment of fees as per the earlier interim order passed by this Court shall continue to remain in operation until the difference, as the case may be is paid by the student concerned.

The petitioners are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.