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Judgment
N.A. Kakru, J.—The petitioners came to be admitted to the Acharya Shri Chandra College of Medical Science and Hospital, Sidra, Jammu
to the MBBS Course in the year 1997. The selection and admission of the petitioners is not at issue, but the controversy centres round the fee
structure. The respondent No. 1 has determined the fee chargeable by private medical colleges in the state by Government Order No. 955-HME
of 1997 dated 28-10-1997 forming Annexure (D) to the writ petition and by way of clarification, a communication bearing No. ME-GM-190/96
dated 30-3-1998 was issued which reiterates the Government order, consequent upon which, the respondent No. 3 has issued a notice bearing
No. ADCOMS/Adm/DA/N/54 dated 31-3-1998 requiring the students of the college to deposit the fee as fixed by the Government and through
the medium of this writ petition, petitioners have challenged the above referred Govt. order, communication of the Government besides notice of
respondent No; 3, which are referred to hereinafter as impugned order, impugned communication and impugned notice respectively on the
following grounds:
(a) The fee chargeable from the students has been prescribed by the Government by a notification No. MBBS/BDS/CAEE of 1997 dated 1-2-
1997, which is reiterated by a communication bearing No. ME-GM-190/96 dated 23-2-1998 and on the basis of said notification and
communication, the petitioners contend that the respondents have no authority to change the fee structure chargeable from them till they complete
the course, it is also canvassed that in terms of Rule 6 of J. and K. Private Medical Education Institutions (selection and admission) Rules' 96, the
fee structure, once fixed, has to be in force for a minimum period of three years ;
(b) The impugned order has been passed without giving personal hearing to the petitioners, therefore, violative of principles of natural justice;
(c) The respondents have re-examined the matter in compliance to the judgment of Supreme Court in case T.M.A. Pai Foundation and others Vs.
State of Karnataka and others, and when the petitioners had been admitted to the college, the judgment had already governed the field, therefore,
alternation in the fee structure on the basis of said judgment is without any justification. It is further contended that TMA PAI is applicable to
minority institutions and the fee structure envisaged by the judgment cannot be made applicable to the petitioners, because they have been admitted
to the Session 1996-97, when respondent No. 3 was not a minority institution.
Mr. Kohli has controverted the stand taken by M. M.A. Qayoom and has contended that the State was required to constitute a committee,
which would fix the fee chargeable by private medical education institutions in compliance to the directions of the Apex Court in case Unni
Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., : Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and
others etc. etc., , but steps in compliance to the said directions were not taken because there were no recognised private medical colleges in the
State at the relevant point of time and when the admission process was initiated by the competent authority for the session 1996-97, the fee
structure had not been settled, therefore, the Government prescribed a fee of Rs. 75,000/- for payment seats per annum only for session 1996-97
and the notification was issued by the Government bearing No. MBBS/BDS/ CAEE of 1997 dated 1-2-1997. Mr. Kohli has referred to Clause
(6) of the notification, which is relevant to the point at issue and is reproduced hereunder:
The fee structure for the session 1996-97 fixed by the Government of J. and K. for Private Medical Colleges within the state is as under :
i./ Free seats Rs. 20,000/- per annum;
ii./ Payment State Rs. 75,000/- per annum.
Mr. Kohli has also referred to the notification No. CAEE-13 of 1996 dated 13-8-1996 and the para relevant to the issue involved in this case
reads as under:
The fee for the payment seats in private medical institutions shall be fixed by a committee constituted by the Government for the purpose. The fee
for fee seats shall be-notified separately.
It is also contended that a committee was constituted by the Government in the year 1997, which fixed the fee structure in its meeting dated 26-6-
1997 after due deliberations and the relevant paras of the minutes of the meeting are reproduced hereunder:
The report of the Medical Counsel of India submitted to Union Govt. and the letter of Ministry of Health and Family Welfare, GOI, addressed to
the State Secretaries were discussed in detail and after the due deliberations, the following decisions were arrived at:
i. Payment Seats: The amount of Rs. l.10 lacs per student per year (12 months) payable as fee with effect from the academic year 1997-98 was
agreed upon;
ii. Free/merit seats : Rs. 10,000/-(Rupees ten thousand only) per student per annum, payable as fee was fixed for a period of one academic year,
i.e. 12 months .........
It is further submitted that in consequence to the decisions of the committee, the Government Order No. 955-HME of 1997 dated 28-10-1997
was issued (impugned order) followed by a communication bearing No. ME-GM-190/96 dated 30-3-1998 (impugned communication) and the
fee having been fixed, the respondent No. 3 issued a notice to the students including the petitioners to deposit the fee in accordance with the fee
structure determined by the Government. Mr. Kohli has vehemently submitted that neither constitutional nor statutory rights of the petitioners have
been infringed, which would call for interference of the Court under Article 226 of the Constitution and submits that the respondents have strictly
followed the fee structure prescribed by the Government in compliance to the judgment of the Apex Court. Mr. Kohli has taken all these pleas in
his reply supported by an affidavit and Mr. Kawoosa AAG has adopted the objec-tions for and on behalf of respondents 1, 2, and 4 filed by Mr.
Kohli.
To appreciate the arguments of learned counsel for the parties it is relevant to notice here that the Apex Court in Unni Krishnan, J.P. and others
Vs. State of Andhra Pradesh and others etc. etc., besides formulating a scheme for recognition, affiliation and admission directed the State
Governments to constitute committee to fix the ceiling on the fee chargeable and the relevant directions are contained in sub-para 6 of para 210 of
the judgment 1993) SCC 645 : Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., which is reproduced hereunder :
(6) (a) Every State Government shall forthwith constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of
professional colleges, as the case may be. The Committee shall consist of a Vice Chancellor, Secretary for Education (or such Joint Secretary, as
he may nominate) and Director, Medical Education/Director Technical Education. The Committee shall make such enquiry as it thinks appropriate.
It shall, however, give opportunity to the professional colleges (or their association(s) if any) to place such material, as they think fit. It shall,
however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every
three years or at such longer intervals, as it may think appropriate.
The respondent State did not respond with promptitude to the said directions because at the relevant point of time there was no recognised
private Medical Education Institution in the State of J. and K. as contended by the respondents and in view of the issue involved it is not necessary
to go into the question as to whether the delay caused in responding to the judgment of the Apex Court was justified or not.
From pleadings of the parties, it is evident that the process for admission was initiated by the Competent Authority Entrance Examination for the
session 1996-97 for MBBS course among other courses vide notification dated 13-8-1996. Since the fee was not fixed, therefore, it was
specifically provided in the notification that the fee would be fixed by a committee to be consti tuted by the Govt. for the purpose. The list of
candidates selected for admission to the MBBS/ BDS course in the Government Medical Col leges, Government Dental Colleges, Jammu and
Srinagar and the Acharya Shri Chandra College of Medical Sciences and Hospital, Sidhra, Jammu for the session 1996 was notified vide notifica
tion No. MBBS/BDS/CAEE of 1997 dated 1-2- 1997 and the fee chargeable was reflected in the said notification vide para (6) which stands re
produced hereinabove and a perusal of clause (6) of the notification makes it amply clear that the fee has been fixed only for the session 1996-97
and the respondents have not disputed this hard fact.
The main ground of challenge against the impugned order is that the ceiling of fee of Rs. 75,000/- per annum cannot be changed in view of the
communication dated 23-2-1998 addressed by the under Secretary to Government to respondent No. 3 instructing him to charge the fees at the
rate of Rs. 75,000/- per annum till the course is completed by the petitioners which instruction runs contrary to the minutes of the committee
constituted by the Government for determination of fee as also to the Government order, No. 955-HME of 1997 dated 28-10-1997, therefore, it
tantamounts to transgression of powers on the part of signatory of the communication and being without any authority of law has to be ignored, that
apart, communication dated 30-3-1998, which is latter in point of time, has the effect of rescinding the communication dated 23-2-1998. In this
view of the matter, no benefit whatsoever can flow to the petitioners from the , said communication, obviously, contention of the petitioners
advanced on the basis of communication of the Under Secretary dated 23-2-1998 indicating that the respondents cannot charge fee more than Rs.
75,000/.- per annum is without sanction of law, hence untenable.
The petitioners have also pleaded that the fee structure fixed vide notification dated 1-2- 1997 cannot be changed before expiry of three years
and LC for the petitioners relies at rule (6) of the J&K Private Medical Education Institu tions (Selection and Admission) Rules 1996. The relevant
rule is reproduced hereunder :
Structure of fee payable.- (1) The structure of the fee for various professional courses in Government colleges as well as private medical
education institutions for free seats shall be as prescribed by the Government from time to time.
(2) The fee for the payment seats in private medical education institutions shall be fixed by the committee consisting of:
Vice Chancellor of the University to which such institution is affiliated;
Secretary to Government Medical Educa tion Department or such Additional Secretary, he may nominate;
Director Health Services.
The said committee shall fix the fee once every three years or at such longer intervals as it may think appropriate.
(3) The fee chargeable for payment seats shall be divided into the number of years/semesters of study in each course and payable accordingly.
No doubt, a plain reading of the rule reveals that the committee has to fix the fee once every three years or at longer intervals which means that
once the committee has fixed the fee, it has to hold good for three years at a stretch) and to derive benefit from the said rule, the petitioners have to
establish that the fee was fixed vide notification dated 1-2-1997 in consequence to the decision of the commitee constituted for the purpose and
with a view to appreciate the contention of the petitioners in its right perspective, it is appropriate to notice that the notification prescribing the fee
of Rs. 75,000/- per annum was issued on 1-2-1997, but the contents do not suggest that such fixation for the session 1996-97 is pursuant to the
committee's decision and fact of the matter is that the committee had no role to play in respect of notification dated 1-2-1997, which fact is further
substantiated by minutes of the meeting forming annexure R-4 to the objections filed by Mr. Kohli and these minutes depict that decision of the
committee came into being on 26-6-1997 and from the relevant events, it is amply clear that fee for the session 1996-97 did not have any sanction
of the committee, so much so, the committee was not constituted on 1-2-1997 and it was by way of an interim arrangement that the Government
had fixed the fee for a particular session i.e. 1996-97 which arrangement was evolved in anticipation of constitution of the committee. It being so,
there is no scope for the enforcement of notification dated 1-2-1997, because it does not fall within the ambit of Rules of 1996, thus, the fee
prescribed in terms of notification dated 1-2-1997 is valid only for the session 1996-97 and beyond the said session, the field is occupied by the
Rules of 1996 read with the minutes of meeting dated 26-6-1997 as also Govt. Order No. 955-HME of 1997 dated 28-10-1997.
The petitioners have also challenged the impugned order, communication and notice on the ground that right of hearing has not been provided to
them before changing the fee structure. Having examined the pleas aforementioned, I am satisfied that the fee fixed by the committee has not been
changed, therefore, right of hearing is not available to the petitioners, otherwise also right of hearing cannot be claimed by them because of the
reasons which follow hereinafter. The Government has an obligation and duty to exercise control and check properly on the private medical
institutions and is required to envolve a mechanism for effective control and an obligation is cast on the state to lay down conditions in matters of
admission and charging of fee, for, these institutions impart education which is a public duty, thus required to act fairly and to achieve this object,
the state has to regulate the fee and has full powers to do so, in which direction state has framed rules of 1996, consequent upon which, the
statutory committee was constituted and decision of the committee has received approval of the Govt. vide impugned order. Relevant to notice
here, that the Rules of 1996 are not under challenge, conversely, these rules have been put into service by the petitioners and fixation of the fee in
terms of the said rules is the power of the State Government, which do not pre-suppose an opportunity to the students, moreso, the rules of 1996
have been formulated in compliance to the judgment in case Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., and
the said judgment also does not require the state to provide an opportunity of hearing to the students and examining the contention of the
petitioners from any angle, right of hearing is not available to the petitioners, in respect of determination of the fee.
The contention of petitioners that judgment of the Apex Court in TMA Pai v. State cannot be made applicable to the petitioners being absolutely
irrelevant, suffice to say that the Government has fixed the fee in terms of rules of 1996 validly. It is relevant to notice here that it is not a case
where commercialisation of education is alleged against the respondent No. 3 nor is it a case where respondent state could be held guilty of
regulating the fee structure in violation to the; mandate of Apex Court's judgment, but in the case in hand, the Government has regulated the fee
structure, that too in compliance to the directions of the Apex Court and the power so exercised is otherwise also available to the Government
which has been exercised validly and does not violate any of the legal or constitutional rights of the petitioners, thus the petitioners have no right to
challenge the Government order, Government communication and notice issued by respondent No. 3.
Now a word about the interim direction and it is appropriate to mention that the petitioners did not choose to produce the notification No.
CAEE/13/1996 dated 13-8-1996 which depicts that the fee for payment seats would be fixed by the committee which had to be constituted, as
such, this notification has made the petitioners fully aware of the fact that the fee had to be fixed subsequent to the admission. Likewise, notification
bearing No. MBBS/BDS/CAEE of 1997 dated 1-2-1997 has also been withheld by the petitioners which prescribes the fee structure only for the
session 1996-97-and I make it clear that had the petitioners chosen to be fair to produce the aforementioned notification, grant of interim direction
was out of question and it is only suppression of material facts, which tempted this Court to pass the interim direction and because of such
suppression, the writ petition is liable to be dismissed with costs, but having regard to the fact that the petitioners are not earning hands, I choose
not to impose costs.
It also needs to noticed that during the course of arguments, it was contended by Mr. Kohli that the petitioners had represented to the
respondent No. 3 before filing this writ petition for permission to allow them to defray the fee in instalments and while the representations were
under consideration, they filed this writ petition. In this behalf, it needs to be observed that in case respondent No. 3 is seized of such
representations or if the representations are filed before respondent No. 3, in such eventuality, respondent No. 3 is expected to consider the
representations of the petitioners, however, it shall be the look-out of the said respondent to concede to the request or otherwise.
For the aforementioned reasons, this writ petition is dismissed but no order as to costs in view of the peculiar circumstances of the case.