Appejay Education Society vs Government Of Nct Of Delhi And Ors.
2007 Latest Caselaw 108 Del

JUDGMENT

Sanjay Kishan Kaul, J.

Page 0586

1. Rule.

2. Learned Counsel for the respondents accept notice. The matter is taken up for final disposal with the consent of the learned Counsel for the parties.

3. The petitioner-institution is being run on an affiliation granted by All India Council for Technical Education ('AICTE' for short)/respondent No. 3.

4. Dispute relates to fee structure for the academic year 2004-05. It is necessary to set out the background to the dispute.

5. The issue of regulation of fee structure in private unaided educational institutions inter alia came to be examined in the Constitution Bench judgment of the Apex Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. and Islamic Academy of Education and Anr. v. State of Karnataka and Ors. . Each of the State Governments was required to set up a committee presided over by a retired Judge of a High Court to examine the question of the fee which an institute was liable to charge keeping in mind the infrastructure and facilities provided by the Institute. The Committee had to find out whether the proposed fee structure would result in profiteering/capitation. The committee for Delhi was appointed with a retired Judge presiding and in terms of the impugned order dated 29.06.2004 it has been deemed appropriate by the Committee to fix the blanket Page 0587 fee limit stating that there was absence of sufficient material on behalf of different institutions and it was not possible for a Committee to take a decision in individual proposals. The impugned order also stated that the prescribed fee structure for the year 2003-04 would prevail for 2004-05. There was thus no examination of particular cases of different institutes.

6. The petitioner was charging fee higher than that prescribed by the Committee and thus the impugned notices were issued and action for de-affiliation was proposed to be taken by respondent No. 3 which has also been challenged in the present proceedings.

7. The bedrock of the submissions of the learned senior counsel for the petitioner is the judgment of the Hon'ble Mr. Justice Vikramajit Sen in Educate India Society v. All India Council for Technical Education . This judgment has considered the ramification of the judgment in T.M.A. Pai Foundation's case (supra) and Islamic Academy of Education and Anr.'s case (supra). The question of the scope and ambit of a Committee which had been appointed was examined and whether a blanket fee could be fixed for all such institutes irrespective of the claims of each institute was thus considered. The observations in para 14 and 15 set out hereinafter succinctly set forth the scope and ambit of a Committee and since I am in full agreement with the view expressed by the learned Judge, I deem it appropriate to reproduce the said paragraphs:

14. What the Apex Court has laid down that all educational institutions must conform with standards set down by the University. Private unaided Colleges should be free to prescribe their own fee, subject to the rider that education should not be transformed from a vocation to a commercial venture. The fixation of a uniform fee is not recommended by any of their Lordships of the Apex Court. The language in TMA Pai'case and of the majority judgment in the Islamic Academy's case, is precise and unambiguous. What it envisaged is that the College can propose its fee structure which will thereafter be approved or modified by the Committee after giving the College an opportunity of being heard. As soon as this exercise is complete the educational institution will have to comply with the fixation for a period of 3 years. While approving the fee structure the Committee ought not to interfere with the administration of the concerned educational institution since in those premises it would become a substitute for the State or bureaucratic control. The Committee must be enlightened enough to allow a free hand to the College and step in only if the proposed fees are wholly unrealistic or a disguise for dividends drawn by the Managements. This is for the reason that role of the Committee does not come to an end on the approval by it of the fees. It has been specifically empowered to monitor the financial working of the college concerned. For example, while making out its budget and fixing its fees in consonance with a teacher/student ratio of 1:10, this may not have been achieved in actuality. It may be proposed by the College to pay a very salary, below which an outstanding person or professor may not consent to join the faculty. At the initial stage a Page 0588 free hand must be given but while monitoring the activities of the educational institution it would be open to the Committee to take remedial steps in case the aggregate sums collected by the College have not been expended as anticipated in its budget. This monitoring is essential to plug the possibility of making secret profits. By a rule of thumb if the Committee finds that the surplus of income over expenditure exceeds the 15 per cent permissible to be retained towards Development etc., the Committee may prescribe measures for carrying out adjustments in future fees. If centres of higher education, or at least a few of them are to move from mediocrity to excellence, education therein may perforce become expensive. There are adequate safeguards in the TMA Pai and Islamic Institute Schemes to ensure that any Management should not deviate from the objective of disseminating quality education.

15. In the present case the Respondents have acted in haste, and beyond the functions permitted by the Hon'ble Supreme Court. They have preempted the action reserved to the Society. The Society had forwarded its fee structure in advance of the ensuing academic year. It is not a case where the Society's endeavor is to charge fees which are likely not to be approved by the Committee, by taking advantage of its own delay in forwarding the proposed tuition fees to the Committee. If a uniform fee fixed not by the educational institution but by the State is to be permitted it would obliterate the regime set down in the two judgments of the Apex Court. Mr. Vaidyanathan had vehemently submitted that a perusal of the Balance Sheet of the Society will disclose that its present proposal is far in excess of the expenditure in previous years. The explanation given by the Society, inter alia, that it was functioning on the Unnikrishnan's Scheme, that it was maintaining a teacher/student ratio higher than 1:10 may be plausible, but this is precisely the envisaged exercise and obligation of the Committee, and not of the State. If the Society is forced to adhere to the fees fixed by the State the Islamic Academy's regime will be set at naught. Let us leave education to the educationist, at least initially.

8. If the present case is considered within the parameters laid down, it would be found that the Committee has failed to examine each case and thus failed to fulfill the requirement as set out. There may have been cases where the requisite material may not have been available. It was open to the Committee to summon further material as it desired. There may have been other cases where such material was available. The order of the Committee itself says that there is 'cursory' perusal of the material.

9. In my considered view the Committee was required to examine each case separately on its own merits and there could not have been such cursory perusal of all the material submitted by different institutes as a block. It is not as if one fee level had to be fixed for all the Institutes whereby the material had to be taken in toto and a fee fixed uniformly for all the Institutes.

10. It is stated that now the matter is under consideration of a Committee of another retired Judge in pursuance to a notification dated 13.10.2005. It is however not clear whether this Committee would be examining the Page 0589 question of the fee structure for the year 2004-05 or whether only the fee structure for 2005-06 would be examined. Such fee structure, it may be stated, is to be followed for a period of three years.

11. Be that as it may, in view of the observations aforesaid the decision of the Committee as arrived at in pursuance of the impugned order dated 29.06.2004 cannot be sustained and is set aside and the committee at present functioning would be required to examine the question of the fee structure to prevail even for the year 2004-05. As a consequence of the aforesaid other orders issued in pursuance to the said order including seeking to de-affiliate the petitioner- institution are also accordingly quashed.

12. Rule is made absolute leaving the parties to bear their own costs. CM No. 2028/2005 No further directions are called for on this application. The application stands disposed of.