Ashok Bhushan, J. - (1.) THESE two appeals have been filed by Subharati K.K.B. Charitable Trust and Subharati Medical College through its Principal challenging a common judgment of the learned Single Judge dated 14th August, 2007 deciding Writ Petition No. 12333 of 2004 (Abhishekh Kodian v. State of U.P. and others) and Writ Petition No. 68368 of 2006 (Arshad Jamal and others v. State of U.P. and others). Both the appeals have been heard together and are being disposed of by this common judgment.
(2.) IN Special Appeal No. 995 (defective) of 2007 there is a delay of 43 days in filing the appeal. IN the affidavit filed in support of the delay condonation application sufficient cause has been shown for condoning the delay. The delay of 43 days in filing the Special Appeal No. 995 (defective) of 2007 is condoned. The application for condonation of delay is allowed. We have heard Sri S.P. Gupta, Senior Advocate, assisted by Sri Anurag Khanna, for the appellants, Sri S.N. Shukla, Advocate for the private respondents and Sri V.K. Singh, Additional Advocate General assisted by Sri V.K. Chandel for the State-respondents. Facts giving rise to these two appeals, briefly noted, are; Writ Petition No. 12333 of 2004 was filed by Abhishek Kodian and 63 other students of Subharati Medical College, Meerut, who were admitted in M.B.B.S. course through Combined Pre Medical Test-2002. The Combined Pre Medical Test-2002 was held on 30th June, 2002 for admission in Government Medical Colleges as well as three private Medical Colleges of the State of Uttar Pradesh including Subharati Medical College, Meerut. The information brochure of 2002 in Paragraph "Cha' gave details of fee in private dental/medical colleges for M.B.B.S. course as Rs. 1,10,000.00 for payment seat and as Rs. 13,000.00 for free/merit seat. The State Government had issued a Government order dated 8th January, 2003 fixing Rs. 1,26,500.00 for payment seat and Rs. 14,950.00 for free/merit seat. On the basis of the test held on 30th June, 2002 the counselling took place on 15th April, 2003. The writ petitioners were allocated Subharati Medical College where they were admitted on 25th April, 2003 in the M.B.B.S. course 2002-03. The college got deposited fee of Rs. 1,75,000.00 from the students who were admitted under free/merit seat and Rs. 3,05,000.00 from the students who were admitted against the payment seat. The aforesaid fee was in addition to hostel fee, security and other expenses. On 15th July, 2003 the State Government issued a Government order providing that in private medical colleges the scheme of admission in free and payment seat is discontinued with effect from academic year 2003-04 and for academic year 2003- 04 for M.B.B.S. course Rs. 1,55,000.00 per annum is fixed for admission. It was further provided by the Government order that for those students who were admitted prior to academic year 2003-04, the old scheme for free/merit seat and payment seat shall continue. The State Government issued another Government order dated 14th August, 2003 directing the Director General, Medical Education and Health to publish the information for fee fixed by the State Government as Rs. 1,55,000.00 for M.B.B.S. course and Rs. 1,10,000.00 for B.D.S. course with instruction to the Medical Colleges/Dental Colleges not to charge higher than aforementioned fees. Abhishek Kodian alongwith 63 students of M.B.B.S. course 2002-03 filed Writ Petition No. 12333 of 2004 praying for a writ of mandamus directing the Subharati Medical College and Subharati K.K.B. Charitable Trust (the appellants herein) not to charge fee over and above mentioned in the information brochure. The writ petitioners stated that they are liable to pay the fee as per information brochure/as mentioned in the Government orders dated 8th January, 2003 and 14th August, 2003. This Court passed an interim order providing that in the meantime the fee in question, which is being realised, shall be treated as provisional and the same shall abide by the final judgment of the Court.
(3.) WRIT Petition No. 68368 of 2006 was filed by Arshad Jamal and 16 other students of M.B.B.S. 2002-03 challenging the notice dated 1st December, 2006 and 22nd March, 2007 by which the students of 2002 batch were warned that unless they do not pay the fee as demanded by the college, they shall not be permitted to appear in the examination scheduled to commence from 16th December, 2006. Reference was made to the decision dated 5th September, 2006 of the Sarin Committee by which an interim order was passed by the Sarin Committee permitting the appellants to realise the same fee from the students of 2003-04 batch or earlier batch at the rate which was being charged from them earlier. The writ petitioners in the writ petition stated that the Management is charging fee exorbitantly and in breach of the Government orders dated 8th January, 2003 and 15th July, 2003. Reference of earlier WRIT Petition No. 12333 of 2004 was also made. In the WRIT Petition No. 68368 of 2006 following prayers were made: "(i) issue a writ, order or direction in the nature of certiorari quashing the notice dated 1.12.2006 and 22.3.2007 and the order of Sarin committee dated 5/9/2006 (Annexure Nos. 13 and 12 respectively to the writ petition). (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to ensure that the petitioners are not charge fee higher than the fee prescribed by the State of U.P. vide Government order dated 8.1.2003 (Annexure-2). (ii) issue a writ, order or direction in the nature of mandamus directing the respondents to adjust the fee deposited by the petitioners in excess of the fee prescribed by the State of U.P. vide Govt. Order dated 8.1.2003 (Annexure- 2) against the fee payable by the petitioners for subsequent years. (iv) issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 3 and 4 to refund forthwith the excess fee realized by them in violation of the aforesaid Government order. dated 8.1.2003 alongwith interest @ 12% from the date of realization uptill the date, the excess amount is returned to the petitioners and the Respondent Nos. 1 and 7 be directed to take necessary action against the Respondent Nos. 3 and 4 in terms of the directions contained in the decision of Hon'ble Apex Court in case of Islamic Academy of Education v. State of Karnataka, 2003(6) SCC 697." In both the writ petitions, counter-affidavits were filed by the College. The Medical Council of India also filed counter-affidavits in the writ petitions. The learned Single Judge by its judgment dated 14th August, 2007 allowed both the writ petitions directing the appellants to charge the tuition fee of payment seats of the students admitted in 2002-03 academic session and for all subsequent years of the same batch at the rate of Rs. 1,26,000.00 as fixed by the Government order dated 8th January, 2003. Direction was also issued to the College to refund the entire excess amount collected from all the 64 students admitted on the payment seats of 2002-03 batch and for the subsequent years from the same batch. The petitioners of Writ Petition No. 68368 of 2006 were permitted to appear in the 4th semester by adjusting the excess amount and by making payment of difference only at the rate of Rs. 1,26,500.00 per annum. The judgment was confined only to the students admitted on payments seats in the academic session 2002-03 and in subsequent years for the same batch. The judgment of the learned Single Judge has been challenged by filing Special Appeal No. 1212 of 2007. Subsequently another special appeal being Special Appeal No. 995 (defective) of 2007 has been filed separately challenging the order of learned Single Judge passed in Writ Petition No. 68368 of 2006.;