SABHAJEET YADAV, J. - (1.) BY this petition the petitioners have challenged the Government Orders dated 15 -7 -2003 (Annexure -2) and 2 -8 -2003 (Annexure -3), whereby the Government had fixed the fees of the students in private unaided professional colleges for the Session 2003 -2004. Petitioner No. 1 is a registered society, which established a Private Dental College, petitioner No. 2, namely, Rama Dental College Hospital and Research Centre, Lakhanpur, Kanpur Nagar. The petitioner No. 2 is an institution established after necessary permissions from different authorities including Dental Council of India. The same is duly recognised and is affiliated to Dr. B.R. Ambedkar University, Agra. The institution does not receive any aid from the Government, it is a private unaided institution.
(2.) IT is stated that under the scheme framed by the Hon'ble Supreme Court in J.P. Unni Krishnan's case reported in AIR 1993 SC 2178, 50% seats were free seats, 35% seats were payment seats and 15% seats were NRI/Management quota seats and the petitioner -institution like all other private professional colleges fixed different fee structure for different categories of seats. The fee structure fixed by the institution was submitted to the State Government demonstrating that the petitioners has fixed their fee structure strictly in accordance with the scheme laid down in Unni Krishnan's case and that the petitioners were not charging any capitation fee. In the year 1997 the State of Uttar Pradesh without considering any material facts, purported to fix fees for free and payment seats for different professional courses run by different private professional colleges. Petitioner No. 2 challenged this fixation of fee by the State Government vide order dated 27 -9 -1997 by filing Writ Petition No. 35610 of 1997 and this Court vide its order dated 22 -5 -1998 stayed the operation of the order dated 27 -9 -1997 fixing the fees by the State Government. The aforesaid writ petition is pending and the stay order dated 22 -5 -1998 is continuing. Since the fixing of fees by the State Government vide order dated 27 -9 -1997 had been stayed by this Court, petitioner institution as well as other similarly situated private professional institutions continued to submit their fee structure every year, the candidates were selected by respondent No. 2 for admission on free and payment seats on the basis of common entrance test were allotted to the petitioners, who were admitted year to year and paid the fees according to the fee structure of petitioner institution. The present cause of action arose on account of the aforesaid Government orders issued by the State Government appears to be on directions issued by the Hon'ble apex Court in the decision of the Constitution Bench of eleven Judges rendered in T.M.A. Pai case dated 31 -10 -2002 since reported in 2002 (2) LBESR 933 (SC). The State Government purporting to act in compliance of the law laid down by the Hon'ble Supreme Court, issued Government Order dated 15 -7 -2003 and in this Government Order it provided that the earlier scheme of free and payment seats in self financed Medical and Dental Colleges is abrogated from the Session 2003 -2004 and provided that 75% of the seats in the institution shall be filled up on the basis of CPMT Examination conducted by the State Government on the basis of merit in conformity with the reservation policy of State Government while 25% seats shall be filled up by the Management of the institution according to merits in a transparent selection procedure. It further provided that for Dental Colleges maximum fees of Rs. 1,10,000/ - has been fixed for each student per year from Session 2003 -2004. It further provided that these professional colleges shall not charge any fees in excess of the fees fixed by the Government and in case any institution wants to charge higher fees, it shall submit its proposal alongwith justification for the same alongwith relevant records before the permanent committee set up by the State Government which shall inquire as to whether fees proposed by the institution is within the parameters laid down by the Hon'ble Supreme Court and the same is not for earning profits and the recommendation of the said permanent committee shall be considered and a decision thereon shall be taken by the State Government. It also provided that in case any Dental College charges fees higher than that fixed in the Government Order it shall be deemed that the same is being charged for earning profits and necessary action shall be taken against it. It also provided that the fees fixed by the State Government in the aforesaid G.O. dated 15 -7 -2003 shall be charged from the Session 2003 -2004. Although in the aforesaid Government order the particulars of so called permanent committee before whom the institutions were required to submits their proposals for higher fee, was not disclosed, but vide subsequent Government Order dated 2 -8 -2003 the State Government had constituted a permanent committee headed by the Vice -Chancellor of Chhatrapati Sahuji Maharaj Medical University, Lucknow as its Chairman alongwith four members. The said Government Order dated 2 -8 -2003 was served upon the petitioner institution on 16 -8 -2003.
(3.) THE judgment of the Hon'ble apex Court dated 31 -10 -2002 rendered in T.M.A. Pai's case was subsequently clarified by a Constitution Bench of five Judges in Islamic Academy of Education Anr. v. State of Karnataka and Ors., reported in 2004 (1) LBESR 85 (SC) JT 2003 (7) SC 1, decided on 14 -8 -2003. A copy of the decision of the Hon'ble apex Court rendered in Islamic Academy of Education case has been filed as Annexure -4 of the writ petition. In this subsequent decision the Hon'ble apex Court has held that a private unaided professional institution 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 benefits of the student. The respective State Government/concerned authority was directed to set up a committee headed by retired High Court Judge, who shall be nominated by the Chief Justice of that State. The other members of the committee have to be nominated by the aforesaid Judge. The committee would be able to decide the proposed fee structure of educational institutions and it would be at liberty to approve fee structure submitted by the institutions or to propose some other fees, which can be charged by the institution concerned. The fee fixed by the Committee shall be binding for the period of three years at the end of which the institution would be at liberty to apply for its revision. Thus so called permanent committee constituted by the State Government vide Government Order dated 2 -8 -2003 is not competent to decide the validity of the proposed fee structure submitted by the instituted and the same can only be decided by a committee as contemplated in the judgment and order dated 14 -8 -2003 of Hon'ble apex Court and it has not been constituted till date. It is stated that as done in the previous years petitioner institution had already submitted its fee structure for the Session 2003 -2004 to the State Government as well as to respondent No. 2. This fee structure was also mentioned in the prospectus of the petitioner institution. The Photostat copy of the fee structure for free seats and payment seats as submitted to the respondents and appended to the prospectus of petitioner institution is filed as Annexure -5 of the writ petition.;