Association Of Self Financing ... vs Govt. Of Nct Of Delhi And Anr
2013 Latest Caselaw 5657 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on   : 03.12.2013
                                  Judgment pronounced on : 06.12.2013


+              W.P.(C) 6948/2012 & CM No.18062/2012 (Stay)

ASSOCIATION OF SELF FINANCING INSTITUTIONS..... Petitioner
             Through: Mr. Rajmangal Kumar, Adv. for
                       Mr. S.K. Dubey, Adv. for the Petitioner.

                                   versus

GOVT. OF NCT OF DELHI AND ANR                  ..... Respondents
              Through: Ms. Zubeda Begum, Standing Counsel,
                       GNCTD with Mr. Ajay Kumar,
                       Administrative Officer, Department of
                       Higher Education.
                       Mr. Harsh Kaushik, Adv. for R-2.

+     W.P.(C) 7734/2012; CM Nos.19516/2012 (Stay), 303/2013
(for modification of order dt. 11.12.2012) & 14277/2013 (Directions)

ANIRUDH DHAUMYA & ORS.                       ..... Petitioners
            Through: Mr. Davinder N. Grover, Adv.

                                   versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS.                        ..... Respondents
              Through: Mr. Vaibhav Kalra, Advs. for R-1.
                       Mr. Abhay Singh, Ms. Yasmin Zafar &
                       Ms. Vindhya Singh, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

Section 6(1) of Delhi Professional Colleges or Institutions

(Prohibition of Capitation Fee, Regulation of Admission, Fixation of

Non-Exploitative Fee and Other Measures to Ensure Equity and

Excellence) Act, 2007, requires the Government to constitute a Fee

Regulatory Committee, for determination of the fee for pursing courses in

an institution. Sub-section (3) of the said Section, to the extent it is

relevant, provides that the Government, after receipt of recommendations

of the said Committee, shall notify the fee determined by the Committee.

Sub-section (13) of the said Section provides that the fee notified by the

Government shall be valid for three years though the Government can

extend its validity for a further period to be notified by it. Section 10(1)

of the Act provides that no institution shall collect any fee, over and

above the fee determined by the Fee Regulatory Committee and notified

by the Government.

2. Vide order dated 27.07.2011, which is stated to have been duly

published in the Official Gazette, Government of NCT of Delhi on the

recommendations of the Committee, notified the following fee structure

for the academic year 2009-10:

The Committee recommends increase in the fee structure of the

academic year 2009-10 and onwards as per details given below:-

S.No.   Grade of the Institute     % of the Fee hike        Base Year
1       A+                         30%                      Over the base year
                                                            2008-09
2       A                          25%                      -do-
3       B                          20%                      -do-
4       C                          15%                      -do-

"The fee structure recommended as annexed will be valid for the academic session 2009-10 and 2010 and a hike of 5% has been recommended for the students to be admitted to the various courses during the academic session 2011-12.

New Institutions which come into operation during the academic year 2009-10 will be given a hike in the fee structure on the base fee as is applicable to Grade-„C‟ institutions (i.e. 15% hike of base fee)."

Vide notification dated 7.02.2012, the first paragraph below the

table was substituted by the following paragraph:

"The fee structure recommended as annexed will be valid for the academic session 2009-10 and a hike of 5% of this fee is allowed to be charged in the third year (i.e.2011-12) from the students who were enrolled in 2009-10."

3. Vide the aforesaid notification dated 07.02.2012, the following fee

structure was notified by the Government for the academic year 2011-12:

            S.No.    Grade recommended   by Increase     in     fee
                    SFRC                   recommended by the
                                           committee     on    the
                                           existing fee, for the
                                           Academic year 2010-11
           1        A+                     20%
           2        A                      15%
           3        B                      10%
           4        C                      5%
           5        D                      3%

Vide yet another notification dated 16.08.2013, the Government on

the recommendations of the Committee, extended the fee structure,

notified by it for the year 2011-12 to the academic year 2012-13.

4. Vide communication dated 24.02.2012, GGSIP University

forwarded the order dated 07.02.2012 to all the privately managed self-

financing institutions affiliated to the said University, for information of

all concerned. A meeting of the Committee was held on 21.03.2012 in

the office of the Secretary (Higher Education), Government of NCT of

Delhi. It was noted in the said meeting that some institutes were charging

extra fee from students enrolled in 2010-11. It was decided that the

tuition fee fixed by the Committee was for the academic year 2011-12

and no hike has been prescribed for the students enrolled in the year

2010-11 and, therefore, no extra fee can be charged from them. It was

also decided that extra fee, if any, charged from the students should be

returned back to them. The aforesaid decision taken by the Committee

was circulated to all the self-financed privately managed institutes,

including Gitarattan International Business School vide communication

dated 23.08.2010, issued by the Government of NCT of Delhi and they

were required to refund the extra fee, if any, collected by them from the

students. Being aggrieved from the aforesaid decisions, the said institute

has filed W.P.(C) No. 6948 of 2012 seeking quashing of the order dated

21.03.2012 which, in fact, are the minutes of the meeting held on that

date.

5. W.P.(C) No. 7734/2012 has been field by the students of Banarsi

Das Chandiwala Institute of Professional Studies-respondent No. 2 in the

said petition seeking quashing of the demand notice dated 26.06.2012,

issued to them by the said institute seeking fee of Rs 68,500/- from the

second year student of 2011-14 batch and third year student of 2010-13

batch for the academic year 2011-13.

6. It would be seen from the above-referred notifications, issued by

the Government of NCT of Delhi, that the students who took admission

in the academic year 2009-10 were required to pay the fee stipulated in

the notification dated 27.07.2011 for the year 2009-10 as well as 2010-11

and the fee was to increase by 5% in the academic year 2011-12. There

was no hike in the fee payable by the students admitted in the academic

year 2010-11, meaning thereby that, they were to pay the same fee which

the students admitted in the year 2009-10 were to pay and for the year

2011-12, the fee was to increase by 5% as was the case in respect of the

students admitted in the year 2009-10. As regards the students who took

admission in the year 2011-12, according to Government of NCT, they

were to pay the fee, as stipulated in the order dated 07.02.2012 which

provided for hike of 20%, 15%, 10%, 5% and 3% for the students graded

as A+, A, B, C and D respectively over the fee notified for the year 2010-

11.

7. During the course of hearing on 03rd December, 2013 the learned

standing counsel for the Government of NCT of Delhi stated, on

instructions that the fee notified by the Government for the students

taking admission in the year 2009-10 was to apply to such students for

three years 2009-10, 2010-11 and 2011-12, the fee, notified for the

students taking admission in the year 2010-11 which incidentally was the

same as was the fee notified for the students taking admission in the year

2009-10, would apply to such students for the academic year 2010-11,

2011-12 and 2012-13 and the fee notified for the students taking

admission in the year 2011-12 would apply to them for the years 2011-

12, 2012-13 and 2013-14. However, the learned standing counsel did not

clarify as to in which academic year the fee would increase by 5% for the

students who took admission in the year 2010-11, i.e., whether it would

increase in the academic year 2011-12 or 2012-13.

8. The learned counsel for the petitioner n W.P.(C) No. 6948 of 2012

submitted that in fact, the notification dated 07.02.2012 provides for

increase in fee for the academic year 2010-11 and not for the year 2011-

12. I, however, find no merit in this contention. It is clearly stated in the

first paragraph of the order dated 07.02.2012 that the Government vide

said order, was notifying the fee determined by the Committee for the

period 2011-12. The third paragraph of the said order dated 07.02.2012

also refers to the report of the Committee for the academic year 2011-12.

Similarly, in the second paragraph of the order dated 07.02.2012 on page

55 of the paper book, the Committee accepted the plea of certain

institutions with respect to the fee for the year 2011-12. In the second

last paragraph on page 55 of the paper book, the Committee fixed the fee

to be charged by certain new institutions at the lowest rate given in the

corresponding „C‟ category institutions, in the year 2011-12.

Though in its meeting held on 21.03.2012, the Committee clarified

that it had not granted any hike for the year 2010-11 even in the absence

of such clarification, there is no escape from the conclusion that the order

dated 07.02.2012 referred only to the fee fixed for the year 2011-12 and

not to the fee for the year 2010-11.

9. The respondents have in order to put the matter beyond any shade

of doubt placed on record a letter dated 17.01.2011, written by the

Chairman of the Committee to the Government of NCT of Delhi,

enclosing therewith a report of the Committee with respect to fee

structure. It is clearly stated in the said report that the Committee had

decided that for the year 2010-11, last year‟s fee may continue and there

was no need to fix a new fee for the said year.

10. Shri S.K. Dubey, the learned counsel for the petitioner in W.P.(C)

No. 6948/2012 emphasized upon the use of the academic year 2010-11 in

the table given in the order dated 07.2.2012. In my view, the words

"increase in fee recommended by the Committee on the existing fee for

the academic year 2010-11" means that for the year 2011-12, the

Committee was recommending increase, by the percentage specified in

the table, on the fee which was applicable for the academic year 2010-11.

It would be wrong understanding of the aforesaid table to say that the

Committee recommended enhancement by the percentage stipulated in

the table for the academic year 2010-11.

For the reasons stated hereinabove, I find no merit in W.P.(C) No.

6948/2012 filed by the Association of Self Financing Institutions.

11. Coming to W.P.(C) No. 7743/2012, it is quite clear from a careful

perusal of sub-section (1) of Section 6 of the Act that the Government is

required to determine fee „for various courses‟ and not for various

batches of different courses. The Government thus was required to

determine fee payable by the students taking admission in various courses

such as BBA, LLB, B.Tech, BCA, MCA, B.Ed. M.Ed., etc. on the

recommendations of the Fee Regulatory Committee. This is also evident

from the proviso to sub-section (2), which provides for hearing to the

Institution before determining „the fee to be fixed for a course of study‟

and recommending fee „in each course of study‟. Of course, there can be

different fee for different courses, but once the Government has

determined the fee for a particular course by way a Gazette Notification,

such fee remains valid for a period of three years in terms of sub-section

(13) of the said Section. Though the Government is competent to extend

the validity of such fee for a term beyond three years it cannot reduce the

period of validity of such fee, by fixing a different fee for a period prior

to three years. The aforesaid Section, in my view, does not permit the

Government to determine fees for each batch of students, i.e., one fee for

the students taking admission in 2009-10, second fee for the students

taking admission in 2010-11 and the third fee for the students taking

admission in 2011-12. Therefore, the fee which the Government

determined vide notification dated 27.07.2011 was valid for the years

2009-10, 2010-11 and 2011-12 irrespective of whether the students took

admission in the year 2009-10, 2010-11 and 2011-12. Since the aforesaid

order carried a stipulation for hike by 5% in the year 2011-12 „for the

students taking admission in the year 2009-10‟, the students who have

taken admission in the said year, i.e., 2009-10, in a course having

duration of three years or more, will have to pay the fee hiked by 5% over

the fee of 2009-10, in the year 2011-12. Considering that the students

taking admission in the year 2009-2010 were to pay enhanced fee in the

academic year 2011-2012, I see no reason why the students who took

admission in the year 2010-11 also should not suffer a similar hike in the

third year of their study, i.e., academic year 2012-13, wherever the course

had duration of three or more years.

On the same lines, I am of the view that the students who took

admission in the academic year 2011-12 shall have to pay, for the said

year, the fee fixed for 2009-10 vide order dated 27.07.2011. For the

year 2012-2013, the Government may either fix the fee by way of a

separate order or it may extend the fee fixed vide notification dated

27.7.2011 for the said year.

12. As regards the notification dated 07.02.2012, giving hike of 20%,

15%, 10%, 5%, 3% to A+, A, B, C and D grade institutions, over and

above the fee fixed for the year 2010-11, I am of the view that the said

order cannot apply for the academic year 2011-12. The fee determined by

the Government vide order dated 27.07.2011 could be hiked on the

recommendations of the Committee only for the year 2012-13 and not in an

earlier year.

13. It is made clear that respondent No. 2 in the said petition shall not

be entitled to charge any fee in excess of the fee stipulated in the order

dated 27.07.2011 from any student in the year 2009-10, 2010-11 and

2011-12. If respondent No. 2 in W.P.(C) No. 7734/2012 has charged any

fee over and above, the fee stipulated in the order dated 27.07.2011, as

interpreted in this judgment, such fee shall be adjusted/refunded to the

petitioners within four weeks from today.

The writ petitions stand disposed of. All the pending applications

also stand disposed of. No order as to costs.

V.K.JAIN, J

DECEMBER 06, 2013 bg