CHARUTAR AROGYA MANDAL Vs. JUSTICE R J SHAH RETD FEE COMMITTEE MEDICAL FOR SELF FINANCED PROFESSIONAL COLLEGES

JUDGEMENT

(1.) These appeals under Clause 15 of the Letters Patent are preferred from the common judgment by, or on the basis of which the petitions of the appellants are rejected and challenge of the educational institutions to the fee-structure prescribed by Justice R.J.Shah (Retd.) Fee Committee for Self-financed Professional Colleges is turned down. That Fee Committee, originally joined as the only respondent, was set up pursuant to the directions of the Supreme Court in ISLAMIC ACADEMY OF EDUCATION v. STATE OF KARNATAKA [(2003) 6 SCC 697]. Subsequently, the State of Gujarat have been added by an amendment as a party-respondent and the Parents Association of Medical and Dental Students has also joined as party-respondent. Some students of the medical colleges at Karamsad and Surat also applied for being joined as parties and their advocates were also heard.

(2.) According to the impugned judgment, mainly two contentions were raised to assail the decision of the respondent Committee. One was that the constitution of the Committee itself was bad in law and, therefore, its decision was ab initio void. The second contention was that the Committee has not given any reason for arriving at the decision as to the amount of fees fixed for particular institutions. The learned Single Judge took the view that once the fee fixed by the Committee was given binding effect by the Apex Court, High Court would not exercise its powers under Article 226 of the Constitution to nullify the binding effect. Even if the binding effect did not foreclose judicial scrutiny under Article 226, High Court would not entertain such petition of a party who had acquiesced in the constitution and proceedings of the Committee and surrendered to its jurisdiction. Even otherwise, the Committee was an expert body in the field and normally the Court would not sit in appeal over the decision of such expert body. It is observed that the powers exercised by the Committee were administrative in nature and it was not always necessary that its decision must be by way of a speaking order. It is noted in the impugned judgment that there was no allegation in the petition that on account of any extraneous consideration the decision of the Committee was vitiated. Adverting to the factual aspect, it is held that if the expert body had, after taking into consideration the details and materials produced, arrived at the decision after actual inspection of the colleges and the relevant records, the Court exercising powers under Article 226 of the Constitution could not undertake the exercise of substituting a different figure of fees. 2.1 It is noted in the impugned judgment that there was no disclosure on the part of the petitioner, at least initially, of the undertaking filed by the petitioner pursuant to the earlier proceedings under which part of the fees already collected were required to be refunded. Such practice on the part of the petitioner was deprecated and it was stated as an additional circumstance which disentitled the appellant from invoking the discretionary and equitable jurisdiction of the Court under Article 226 of the Constitution.

(3.) There is no doubt or controversy about the fact that the present round of litigations has sprung from the fixation of fees by the Committee set up under the directions of the Supreme Court in ISLAMIC ACADEMY (supra) and its constitution, powers, procedure and parameters are governed by the directions of the Supreme Court. Therefore, it would be advantageous to quote as under, in extenso, the relevant part of the text of the said judgment:- "7. So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment, it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course, there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment, imparting of education is essentially charitable in nature. Thus, the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profit/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment of T.M.A.PAI FOUNDATION case, the respective State Governments/ authority concerned shall set up, in each State, a Committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short "MCI") or the All India Council for Technical Education (in short "AICTE'), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The 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. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee...."