- (1.)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the State in accordance with law vide notifications dated 28.8.2017/5.9.2017 and that this fee structure could not be withdrawn/re-looked/reviewed under the memorandum dated 22.6.2018.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 and 1839/2018 have been instituted by parents of some of the students of petitioner medical college belonging to academic 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 Fixation of Fees) Act, 2006 (in short to be referred as 2006 Act). Sections 3 and 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 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;- 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 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:-

[TABLE NOT FOUND]

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 2017 without taking into account non revision of fee during the years 2014 and 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- 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 and 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.

[TABLE NOT FOUND]

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 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 and 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 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 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 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 and 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 and others Vs. State of Karnataka, (2003) 6 SCC 697 titled Islamic Academy of Education and another Vs State of Karnataka& others, (2005) 6 SCC 537 titled P.A. Inamdar and others Vs State of Maharashtra and others, (2010) 14 SCC 186 titled Modern Dental College and Research Centre and others Vs State of Madhya Pradesh, (2008) 8 SCC 82 titled Cochin University of Science and Technology and another Vs Thomas P. John and others, (2013) 3 Sim.L.C. 1457 titled Bhojia Dental College and Hospital and another Vs State of Himachal Pradesh, (2016) 7 SCC 353 titled Modern Dental College and Research Center and others Vs State of Madhya Pradesh and others, (2017) 6 SCC 675 titled Maharishi Markandeshwar Medical College and 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 and 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 and others Vs. State of Karnataka, (2003) 6 SCC 697 titled Islamic Academy of Education and 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 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

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