HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.42807 OF 2022
ORDER:
Heard Mr. Zeeshan Adnan Mahmood, learned counsel for the petitioners, and Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing on behalf of respondent No.1, Mr. P. Bhasker, learned Standing Counsel for respondent No.2 and also Mrs. Megha Rani Agarwal, learned Standing Counsel for UGC appearing on behalf of respondent No.3.
2. This writ petition is filed to declare the action of the Ombudsman Committee and Grievance Committee of respondent No.2 in passing order dated 23.05.2022 and dated 14.06.2021 as illegal and in clear derogation of binding guidelines and communication dated 17.12.2020 issued by respondent No.3 and for a consequential direction to respondent No.2 to refund the fee of Rs.1,59,000/- together with 18% penalty from 19.12.2020 till the date of actual payment to the petitioners and a further direction to respondent No.3 to take punitive action against respondent No.2 in terms of Clause - 5 of the Notification on Refund of Fees and Non- 2
KL,J W.P. No.42807 of 2022 retention of Original Certificates and communication dated 17.12.2020 issued by respondent No.3.
3. Petitioner No.2 is the father of petitioner No.1. Petitioner No.1 obtained admission in respondent No.2 College vide proceedings dated 31.08.2020 in Bachelor of Technology in Computer Science and Master of Science in Computational Linguistics for the academic year 2020-21. At the time of admission, the petitioners paid an amount of Rs.1,60,000/- i.e., Rs.1,40,000/- towards fee for the First Semester; Rs.10,000/- towards admission fee and Rs.10,000/- towards Caution Deposit. He has attended classes for 96 days. Thereafter, petitioner No.1 got admission in Indian Institute of Technology (IIT), Mumbai in Aero Space Programme Engineering. Therefore, he sought cancellation of seat in respondent No.2 Institution. The said request was accepted by respondent No.2 and admission of petitioner No.1 was cancelled and he was given back all the documents submitted by him at the time of admission in respondent No.2 Institution. But, failed to refund the said amount to the petitioners.
4. According to respondent No.2, the petitioners are not entitled for refund of tuition fee and other fee as claimed by them and 3 KL,J W.P. No.42807 of 2022 they are entitled to receive Rs.10,000/-, that too after deduction of cost of e-books.
5. According to the petitioners, despite regular persuasion and repeated request, respondent No.2 did not refund the aforesaid amount. Therefore, they have approached Ombudsman Committee of respondent No.2, which in turn, vide proceedings dated 23.05.2022 rejected the claim of the petitioners. The same was informed by respondent No.2 vide proceedings dated 14.06.2021. Challenging the same, the petitioners filed the present writ petition.
6. According to the petitioners, respondent No.3 had issued Notification in October, 2018 with regard to refund of fees and non- retention of original certificates. It has also issued guidelines on Academic Calendar for the First Year of Under-Graduate and Post- Graduate Students of the Universities for the Session 2020-21 in view of COVID-19 pandemic. The said guidelines were issued in September, 2020. Respondent No.3 vide proceedings dated 17.12.2020 reiterated that the UGC Guidelines are to be followed mandatorily by all the Universities in letter and spirit. Any institution/university found to be violating the guidelines and refusing 4 KL,J W.P. No.42807 of 2022 to refund the fee by giving its own interpretation of the guidelines shall be liable for punitive actions. Therefore, the petitioners are entitled for the refund of the aforesaid amount. They have also placed reliance on the judgments of the Hon'ble Supreme Court which will be dealt with contextually.
7. Respondent No.2 has filed counter contending that the present writ petition is liable to be dismissed for not making necessary parties i.e., All India Council for Technical Education (AICTE) as party to the present writ petition. Respondent No.2 is a deemed University as per Section - 10 (n) of AICTE. Therefore, AICTE has empowered to take steps to prevent commercialization of Technical Education (non-refund of fee as cancellation/would amount to commercialization of technical education) as per the stand taken by the AICTE. It has also issued a Circular dated 31.08.2020, specifically addressed to all the Technical Institutes, deemed Universities and Universities conducting technical courses approved by the AICTE. As per the said Circular, dated 31.08.2020, the last date of cancellation of seats of technical courses with full refund is 10.11.2020, and if a student leaves the course after 10.11.2020 and the 5 KL,J W.P. No.42807 of 2022 vacant seat is consequently filled up with another student, the Institute must refund the fee collected after deduction of processing fee that is not more than Rs.1000/-. The said period was extended up to 30.11.2020 in view of COVID-10 pandemic situation. Therefore, the petitioner admitting that he sought for cancellation on 19.12.2020 is not entitled for refund. Respondent No.2 has to follow the guidelines issued by the AICTE. With the said submissions, respondent No.2 sought to dismiss the present writ petition.
8. Respondent No.3 has also filed counter contending that the UGC guidelines on examinations and academic calendar in view of COVID-19 pandemic, July, 2021 are applicable for Universities, Colleges and Institutions and Deemed to be Universities. Considering the financial hardship being faced by parents due to lockdowns and related factors, a full refund of fees should be made on account of all cancellations of admissions/migrations of students up to 31.10.2021 for the academic session 2021-22 as a specific case. Entire fee, including all charges, should be refunded on account of cancellations/migrations up to 31.10.2021. Thereafter, on cancellation/withdrawal of admissions up to 31.12.2021, the entire fee 6 KL,J W.P. No.42807 of 2022 collected from a student should be refunded in full after deducting not more than Rs.1,000/- as procession fee. Respondent No.3 has also published a Notification on 02.11.2018 regarding refund of fees and non-retention of original certificates. The said notification and instructions contained therein shall be applicable to undergraduate, postgraduate and research programs run by Universities included under Section - 2 (f) of the UGC Act. Respondent No.3 has also issued public notice dated 02.08.2022 and 01.11.2022, wherein all the Higher Educational Institutions were requested to ensure compliance of UGC direction in respect of refund of fees and return of original documents to the students.
9. The petitioners herein had filed reply to the counter affidavit filed by respondent No.2 contending that AICTE is not a necessary party since it has no jurisdiction in respect of framing regulations, implementation, more so, when the same pertains to a University, which is not a Technical Institute. It is only an Advisory Body. Respondent No.2 has to necessarily follow the guidelines issued by respondent No.3.
7
KL,J W.P. No.42807 of 2022
10. The aforesaid facts would reveal that according to the petitioners, they are entitled for full refund, whereas, according to respondent No.2, the petitioners are not entitled for refund and it has to follow the guidelines issued by AICTE but not UGC.
11. In view of the said submissions, it is relevant to note that as per Regulation 5.4 a of the All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2020, Technical Institutes are required to comply with the UGC Regulations and the same is relevant for the purpose of appreciation and, therefore, the same is extracted as under:
"5.4 a. Institutions Deemed to be Universities shall seek prior approval of the Council under Clause 1.2 of these Regulations. The requirements, eligibility and procedure shall be as specified in the Approval Process Handbook.
Further to that, the Institution Deemed to be Universities shall also have to fulfill the norms as per UGC Regulations."
12. Vide letter dated 17.12.2020, respondent No.3, referring to the UGC Guidelines on Academic Calendar for the First Year of Under-Graduate and Post-Graduate Students of the Universities for the Session 2020-21 in view of COVID-19 pandemic, informed all the Universities including Deemed Universities that UGC guidelines are 8 KL,J W.P. No.42807 of 2022 to be followed mandatorily by all the Universities in letter and spirit. Any institution/university found to be violating the guidelines and refusing to refund the fee by giving its own interpretation of the guidelines shall be liable for punitive actions as notified in Clause - 5 of the UGC Notification refund of fees and non-retention of original certificate issued in October, 2018. Thus, respondent No.3 requested all the Universities to ensure the compliance of the UGC directions in respect of refund of fee in accordance with the UGC guidelines.
13. AICTE is only an Advisory Body and it has no power to frame Regulations, implementation. The said principle was also laid down by the Hon'ble Supreme Court in Bharathidasan University v. All India Council for Technical Education1. The said principle was also reiterated by the Apex Court in Association of Management of Private Colleges v. All India Council for Technical Education2. The relevant portion of the said judgment is as under:
"53. A cumulative reading of the aforesaid paragraphs of Bharathidasan University's case which are extracted above makes it very clear that this Court has exempted universities, its colleges, constituent institutions and units from seeking prior approval 1 . (2001) 8 SCC 676 2 . (2013) 8 SCC 271 9 KL,J W.P. No.42807 of 2022 from the AICTE. Also, from the reading of paragraphs 19 and 20 of Parashvanath Charitable Trust case it is made clear after careful scanning of the provisions of the AICTE Act and the University Grants Commission Act, 1956 that the role of AICTE vis-à-vis universities is only advisory, recommendatory and one of providing guidance and has no authority empowering it to issue or enforce any sanctions by itself.
55. It is also relevant to refer to the exclusion of university from the definition of 'technical institution' as defined under section 2(h) of the AICTE Act. The Institution means an institution not being university, the applicability of bringing the university as defined under clause 2 (f) of UGC Act includes the institution deemed to be a university under Section 3 of the said Act and therefore the affiliated colleges are excluded from the purview of technical institution definition of the AICTE Act. The submission made on behalf of the colleges which are affiliated to the respective universities which are being run by the appellants in the connected appeals will also come within the purview of the university referred to in the above definition of technical institution. The above interpretation sought to be made by the learned senior counsel and another counsel is supported by the provisions of the UGC Act. Section 12A of the UGC Act clearly speaks of regulation of fees and provisions of donation in certain cases which refers to the phrase affiliation together with its grammatical variation included in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of universities. A careful reading of sub-sections (2)(c), (3), (4) and (5) of Section 10 KL,J W.P. No.42807 of 2022 12A of the UGC Act makes it abundantly clear about colleges which are required to be affiliated to run the courses for which sanction/approval will be accorded by the university or under the control and supervision of such universities. Therefore, affiliated colleges to the university/universities are part of them and the exclusion of university in the definition of technical institution as defined in Section 2(h) of the AICTE Act must be extended to the affiliated colleges to the university also, otherwise, the object and purpose of the UGC Act enacted by the Parliament will be defeated. The enactment of UGC Act is also traceable to Entry 66 of List I. The aforesaid provisions of the UGC Act have been examined by this Court with reference to the provisions of AICTE Act in Bharathidasan University's case. Therefore, it has clearly laid down the principle that the role of the AICTE Act is only advisory in nature and is confined to submitting report or giving suggestions to the UGC for the purpose of implementing its suggestions to maintain good standards in technical education in terms of definition under Section 2(h) of the AICTE Act and to see that there shall be uniform education standard throughout the country to be maintained which is the laudable object of the AICTE Act for which it is enacted by the Parliament. The provisions of the AICTE Act shall be implemented through the UGC as the universities and its affiliated colleges are all governed by the provisions of the said Act under Section 12A of the UGC Act read with Rules Regulations that will be framed by the UGC in exercise of its power under Sections 25 and 26 of the said Act. Therefore, the conclusions arrived at in Bharathidasan University case is supported by the eleven Judge Constitution Bench decision 11 KL,J W.P. No.42807 of 2022 in T.M.A. Pai case (supra) wherein this Court has overruled the directions given in Unni Krishnan J.P. & Ors. v. State of Andhra Pradesh & Ors.[6] to the Central Government and others regarding the reservations and schemes.
60. A reading of the aforesaid paragraphs extracted from TMA Pai's case makes it very clear that in view of decision of the eleven Judges Constitution Bench of this Court, the scheme framed under the Unni Krishnan's case has been overruled. Therefore, the autonomy of the university is recognized in the said case and the object and intendment of the Parliament in excluding the universities from the definition of technical institution as defined under Section 2(h) of the AICTE Act makes is explicitly clear, after scanning the definition of education institution with reference to the exclusion of universities and Sections 10, 11, 12 and 13 of the AICTE Act. The object of the statutory enactment made by the Parliament has been succinctly examined by this Court in Bharathidasan University and Parshvanath Charitable Trust cases referred to supra therefore they have rightly made observations that the role of the AICTE Act in view of the UGC Act and the powers and functions conferred by the UGC for controlling and regulating the universities and its affiliated colleges has been explicitly conferred upon the UGC. Hence, they have been given the power to regulate such universities and regulations in relation to granting sanctions/approvals and also maintaining educational standards and over-seeing the prescription of the fee structure including the admission of students in various courses and programmes that 12 KL,J W.P. No.42807 of 2022 will be conducted by the university and its institutions, constituent colleges, units and the affiliated colleges."
14. It is also relevant to note that the guidelines dated 06.07.2020 issued by respondent No.3 were questioned before the Apex Court on the ground that the said guidelines are non-binding and advisory nature. The Apex Court in Praneeth K. v. University Grants Commission (UGC)3 held that UGC is competent to issue guidelines and the same are binding. The relevant paragraph of the said judgment is extracted below.
"(1) The Revised Guidelines dated 06.07.2020 issued by the UGC are not beyond the domain of the UGC and they relate to coordination and determination of standards in institutions of higher education. (2) The Guidelines dated 06.07.2020 are in continuation to the earlier Guidelines dated 29.04.2020 and are not contrary to the earlier Guidelines. We have to look into the substance of the Guidelines to find out the intention and object of the Guidelines. The Guidelines were issued with the object that a uniform academic calendar be followed by all the Universities and final /terminal examinations be held.
(3) The Guidelines dated 06.07.2020 has to be treated to have been issued in exercise of the statutory powers vested in the Commission under Section 12. As per the Statutory Regulations, 2003, it is the statutory duty of the Universities to adopt the 3 . 2020 SCC OnLine SC 688 13 KL,J W.P. No.42807 of 2022 Guidelines issued by the UGC. The Guidelines dated 06.07.2020 cannot be ignored by terming it as non statutory or advisory."
15. Thus, AICTE is only an Advisory Body and it has no power to issue guidelines. It is the UGC which has power to issue guidelines and the same are binding. In view of the aforesaid principle, the contention of learned counsel for respondent No.2 that the guidelines issued by respondent No.3 - UGC are not binding and Circular issued by AICTE is binding on respondent No.2 is unsustainable.
16. As discussed above, respondent No.3 had issued Notification with regard to refund of fees and non-retention of original certificates in October, 2018. Clause - 4.1 of the said Notification deals with 'Refund of Fees'. Clause - 5 deals with 'punitive actions by Commission against defaulting Higher Education Institutions'. UGC has also issued guidelines in September, 2020 i.e., UGC Guidelines on Academic Calendar for the First Year of Under- Graduate and Post-Graduate Students of the Universities for the Session 2020-21 in view of COVID-19 pandemic.
14
KL,J W.P. No.42807 of 2022
17. Clause - 5 of the said guidelines are relevant and the same is extracted below:
"5. In order to avoid financial hardship being faced by the parents due to lockdown and related factors, full refund of fees be made on account of all cancellation of admissions/ migration of students, up to 30.11.2020, for this very session as a special case. To be crystal clear, the entire fees including all charges be refunded in totality (Zero Cancellation charges) on account of cancellation/ migration up to 30.11.2020. Thereafter, on cancellation/ withdrawal of admissions up to 31.12.2020, the entire fee collected from a student be refunded in full after deduction of not more than Rs.1000/- as processing fee."
18. As discussed above, respondent No.3 vide letter dated 17.12.2020 informed all the Universities to follow the said guidelines mandatorily. Otherwise, punitive action as per Clause - 5 of the said Notification will be initiated. Respondent No.3 had also filed counter. It is relevant to note that vide proceedings dated 02.08.2022, respondent No.3 has issued fee refund policy 2022-23, and it says that in order to avoid financial hardships being faced by parents, it has been decided by the UGC that full refund of fees should be made by the Higher Educational Institutions on account of all cancellations of admissions / migrations of students up to 31.10.2022 for the academic 15 KL,J W.P. No.42807 of 2022 session 2022-23 as a special case. Vide communication dated 01.11.2022, respondent No.3 informed all the Universities to strictly follow the said guidelines. In view of the same, according to this Court, respondent No.2 shall necessarily follow the guidelines issued by respondent No.3. Thus, as per Clause - 5 of the UGC guidelines for the Session 2020-21, the petitioners are entitled for refund of full amount. Therefore, the petitioners who withdrew the admission vide letter dated 19.12.2020, is entitled for full amount after deduction of Rs.1,000/- as processing fee.
19. The aforesaid facts were not considered by the Ombudsman Committee of respondent No.2 in its Report, dated 23.05.2022 and in the proceedings dated 14.06.2021 of respondent No.2. Thus, both the said reports dated 23.05.2022 of the Ombudsman Committee of respondent No.2 and the proceedings dated 14.06.2021 of respondent No.2 are set aside and respondent No.2 is directed to refund the aforesaid amount of Rs.1,59,000/- (Rupees One Lakh and Fifty Nine Thousand Only) to the petitioners together with interest @ 12% per annum thereon from 19.12.2020 till the date of actual payment made, within one (01) month from the date of receipt of copy of this order. 16
KL,J W.P. No.42807 of 2022
20. The present writ petition is accordingly allowed with costs of Rs.10,000/- (Rupees Ten Thousand Only), and respondent No.2 shall pay the said costs to the petitioners within the aforesaid period of one (01) month from the date of receipt of this order.
As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 13th April, 2023 Mgr