HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- SPECIAL APPEAL No. - 5 of 2015 Appellant :- M.J.P. Rohilkhand University And 2 Ors. Respondent :- Self Finance College Welfare Association And 2 Ors. Counsel for Appellant :- Vivek Varma Counsel for Respondent :- C.S.C.,D.K. Singh,V.K. Singh Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
The special appeal has arisen from a judgment and order of the learned Single Judge dated 13 November 2014. By the judgment which is impugned in the special appeal, the learned Single Judge set aside a decision taken by the Executive Council of the M.J.P. Ruhilkhand University1 to demand a payment of Rs.500/- per student as a Development fee exclusively from students of self financed institutions. While allowing the writ petition, the learned Single Judge has directed the University to return the amount collected to the colleges with a further direction to the colleges to return such amount to the students concerned.
On 15 July 2013, the Executive Council of the University resolved to enhance the Development fee payable by every student of self financed institutions from Rs.100/- to Rs.500/-. These self financed institutions are unaided institutions which are affiliated to the University. The fee was sought to be challenged by an association representing the Managements of self financed institutions affiliated to the University. During the course of the proceedings, an affidavit was filed on behalf of the association setting out the names of twelve member colleges whose representatives are in the Committee of Management of the association. During the course of hearing, a statement was made on behalf of the association that the member institutions undertake to abide by the outcome of the writ proceedings.
The ground on which the challenge was addressed before the learned Single Judge was that the demand was not backed by authority of law. The learned Single Judge upheld the contention and came to the conclusion that under Section 51 of the Uttar Pradesh State Universities Act, 19732, the fees which may be charged by the University or by affiliated or associated colleges for any purpose are required to be determined by Ordinances. Moreover, under proviso (c) to Section 52 (3), every Ordinance affecting the income or expenditure of the University has to be approved before it is made, by the State Government. In the present case, it is not in dispute that no Ordinance was framed. The University relied upon the provisions of Section 21 (1) (viii) of the Act, which the learned Judge noted, enables the University to fix the fees, emoluments and traveling and other allowances of examiners. In this view of the matter, it was held that unless the demand of a Development fee was supported by an appropriate Ordinance framed in accordance with the provisions of Section 52, the charging of such an amount would be without jurisdiction. In this view of the matter, the resolution of the Executive Council dated 15 July 2013 was set aside and a direction was issued to the University to refund the amount to the colleges with a consequential direction to the colleges to return the amount to the students concerned.
The only submission which has been urged on behalf of the appellants at the hearing of the appeal is that a writ petition filed at the behest of an association representing the self financed institutions was not maintainable. Firstly, it was urged that the fee is liable to be paid by students and no student was before the Court in order to challenge the demand which has been levied by the University in pursuance of the resolution of the Executive Council. Secondly, it was sought to be urged that the bye-laws of the association which were annexed to the writ petition did not indicate the purpose for which the association was formed. The operation of the impugned judgment and order of the learned Single Judge, it was urged, may result in the colleges unjustly enriching themselves since no student was before the Court with any grievance with regard to the levy of the fee.
This objection was sought to be controverted by the learned Senior Counsel appearing on behalf of the respondents by urging that in substance what the University has purported to do is to levy a Development fee, without authority of law, and only upon students of self financed institutions which is discriminatory. Learned counsel urged that this is a matter which not only affects the students but also causes serious prejudice to the functioning of the colleges themselves since it is only those students who take admission to self financed institutions who are subjected to such a demand by the University without framing an appropriate Ordinance. Hence, it is urged that the petition could not be dismissed on the ground of absence of locus. Finally, it was urged that none of the self financed institutions are desirous to retain any part of the money which has been collected by the University and it is urged that this Court may devise a suitable mechanism including by directing the University to refund the fees to any aggrieved student to whom the refund is liable to be made.
The Executive Council of the University is the principal executive body. The powers of the Executive Council are defined in clauses (i) to (xvii) of Section 21 (1) of the Act. Among them, clause (viii) confers the power to fix the fees, emoluments and other allowances of examiners. The Executive Council is vested with the general power to regulate and manage the finances, accounts, investments, property, business and all other administrative affairs of the University. By clause (xvii), the Executive Council is empowered to regulate and determine all other matters concerning the University as well as its constituent, affiliated and associated colleges in accordance with the provisions of the Act, the Statutes and the Ordinances. A reading of these provisions would make it clear that the Executive Council as the principal executive body of the University is vested with the power inter alia to fix the fees of examiners. In the present case, the Development fee which is being charged from the students of self financed institutions clearly does not fulfill the description of a fee of an examiner under clause (viii) of Section 21 (1). While undoubtedly the Executive Council has the power to regulate and determine all other matters concerning the University and its constituent and affiliated colleges, this power has to be exercised in accordance with the provisions of the Act, Statutes and Ordinances. Under Section 51 (1) subject to the provisions of the Act and the Statutes, the Ordinances may provide for any matter which by the Act or the Statutes is to be or may be provided for by the Ordinances. Without prejudice to the generality of that power in sub-section (1), clauses (a) to (o) to sub-section (2) of Section 51 provide for the matters in respect of which Ordinances can be framed. Clause (j) to sub-section (2) of Section 51 covers the fees which may be charged by the University or by an affiliated or associated college for any purpose. Hence, fees which can be charged by the University or, for that matter, by affiliated or associated colleges have to be regulated by Ordinances under Section 51 (2) (j). The proviso to sub-section (3) of Section 52 stipulates that no Ordinance can be made effecting the income or expenditure of the University, unless a draft thereof has been approved by the State Government. A draft Ordinance proposing to enhance the fees of the University would therefore require the approval of the State Government before the Ordinance is made effective. Admittedly no Ordinance has been made for the levy of a Development fee. Hence, having adverted to the legal position which was expounded by the learned Single Judge, we see no reason to differ with the view which has been taken.
The real point of contest in this appeal has been whether the writ petition which was filed by the association representing self financed colleges was maintainable. In the matter of assessing the locus of the association, we are of the view that an unduly technical view should not be adopted for more than one reason. Firstly, the development fee which is sought to be levied is on the students of self financed institutions and on the students of those institutions alone. There can be no gainsaying the fact that the Development fee directly impinges upon the rights of students of self financed institutions and only upon those students. A student of the University similarly placed with any other student and availing of the same facilities and subjecting himself to the same examination is liable to pay the Development fee only if he is a student of a self financed institution. This is a matter on which it cannot be said that the self financed institutions have no grievance or interest in pursuing the challenge. If a student of a particular category, to wit, of a self financed institution is alone subjected to the demand and which is not imposed on other similarly circumstanced students, that is certainly a matter which would effect the self financed institutions. Secondly, we have already observed that before the learned Single Judge, the association filed a supplementary affidavit setting out the names of its member institutions and made a statement that all the members of the association would abide by the result of the writ proceedings. In this view of the matter, we find it difficult to accept the submission that the learned Single Judge erred in entertaining the writ petition.
In conclusion therefore, we are of the view that the learned Single Judge was not in error in coming to the conclusion that in the absence of an Ordinance being framed in exercise of powers conferred by Section 52 of the Act, the University acted ultra vires by levying a Development fee on students of self financed institutions. This is a matter where the University would have to frame an Ordinance before it can regulate and demand a fee to that effect.
The remaining question that survives for consideration is in regard to the ultimate relief which was granted by the learned Single Judge. The University has already realized the development fee through the constituent colleges which collected the fee from individual students which was then remitted to the University. The learned Single Judge directed the University to refund the fee to the colleges with a further direction to the colleges to refund the fee to the students. In our view, this would not necessarily result in a situation where the fee would directly reach the hands of students to whom the fee would have to be given. Some of them may have left their colleges having completed the courses. The learned Single Judge had no data or material that would indicate how many students was the fee collected from; how many students were still pursuing their education in constituent or affiliated colleges and how many had left their courses of study either by completing their courses or otherwise. The order of the learned Single Judge should not in our view result in a situation where the colleges ultimately retain the fee upon the refund being made by the University without the students obtaining a refund of the fees which they have paid. In our view, such a direction was not warranted. In the absence of sufficient data and in the absence of details of students before the Court, it would not be appropriate or proper to issue such a direction. That part of the direction consequently shall stand quashed and set aside. We, however, sustain the declaration by the Single Judge that the levy of a Development fee without framing an Ordinance under Section 52 of the Act is ultra vires and illegal.
The special appeal is, accordingly, disposed of.
There shall be no order as to costs.
Order Date :- 3.8.2015
RK (Dr D Y Chandrachud, CJ)
(Yashwant Varma, J)