Bhaikaka University vs Fee Regulatory Committee Medical
2021 Latest Caselaw 15908 Guj

     C/SCA/7318/2021                                        JUDGMENT DATED: 08/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7318 of 2021


FOR APPROVAL AND SIGNATURE: Sd./-


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed                           NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                                    NO

3     Whether their Lordships wish to see the fair copy                          NO
      of the judgment ?

4     Whether this case involves a substantial question                          NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                              BHAIKAKA UNIVERSITY
                                     Versus
                       FEE REGULATORY COMMITTEE MEDICAL
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Appearance:
MR DHAVAL DAVE, SR. ADVOCATE, MR UDIT N VYAS(9255) for the
Petitioner(s) No. 1,2
MS. ML SHAH, SR. ADVOCATE, MR HARSHIL C DATTANI(6241) for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 08/10/2021

                                ORAL JUDGMENT

1. Heard, learned Senior Advocate Mr. Dhaval Dave assisted by learned Advocate Mr. Udit N. Vyas for the petitioners and learned Senior Advocate Ms. Manisha L. Shah assisted by the learned Advocate Mr. Harshil c. Dattani for the

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Respondent.

2. Rule. Learned AGP Mr. Dattani waives service of rule for the Respondent.

3. Having regard to the controversy arising in this matter in a narrow compass, with the consent of the learned Advocates for the parties, the same m is taken for final hearing and disposal today.

4. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs:

"20. ...

(a) That this Hon'ble Court may be pleased to issue a writ of certiorari and / or any other writ, order or direction and thereby quash and set aside the impugned order dated March 15, 2021 passed by the Fee Regulatory Committee (Medical), the Respondent herein;

(b) That pending admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to stay the effect, operation and implementation of the impugned order dated March 15, 2021 passed by the Fee Regulatory Committee (Medical), the Respondent herein;

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(c) ..."

5. The brief facts of the case are that Petitioner No.1- is a non-affiliated private university, established under the Gujarat Private Universities Act, 2009 (in brief, the 'Act of 2009') with effect from 25th September, 2019.

5.1 Petitioner No.2 is the college established in the year 1987 by the Charutar Arogya Mandal for imparting education in the discipline of medicine with the prior approval of the competent authority, having intake capacity of 150 students at the level of post graduation level and intake capacity of 96 students in the post graduation diploma various broad specialties.

5.2 The Respondent "Fee Regulatory Committee Medical" is a body constituted under Section 9(1) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (in brief, the 'Act of 2007).

5.3 For the Academic Years 2018-2019, 2019-2020 and 2020-2021, the Respondent determined the prescribed fee structure for the purpose of post graduate courses offered by Petitioner No.2- College by order dated 16th July, 2018 under the

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provisions of the Act of 2007.

5.4 It is the case of the petitioner that a communication was received from the Respondent, calling upon the petitioner to appear before the Respondent on 14th September, 2020 to explain the charging of higher fees than what is determined vide order dated 16th July, 2018.

5.4.1 Accordingly, the Petitioner No.2 submitted its reply along with the details of fees published by the Admission Committee for the Academic Years 2018-2019 and 2019-2020 on 25th September, 2020.

5.5 Thereafter, on 15th October, 2020, the Respondent directed Petitioner No.2-College to furnish the break-up of the costs of imparting education into fixed cost and variable cost for the Academic Years 2018-2019 and 2019-2020 on projected figures submitted at the time of fixation of fees and actual cost incurred during the concerned academic years.

5.6 The petitioners submitted details of break-up of the costs on 4th November, 2020, and after considering such details, the Respondent passed the impugned order dated 15th March, 2021, whereby, the Petitioners are directed to refund

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the excess fees charged from the students for the Academic Years 2018-2019 and 2019-2020 by reducing the differential fees charged and collected from various students during the Academic Years 2018-2019 and 2019-2020.

5.6.1 At this juncture, it would be necessary to refer to the order dated 16th July, 2018, whereby, the Respondent has determined the Fee Structure of Petitioner No.2-College, which is as under;

FEE REGULATORY COMMITTEE (MEDICAL) GUJARAT STATE Near 5 Bungalows, Opp.: National Park Society, Behind Polytechnic Gulbai Tekra, Ahmedabad-380015 Phone No. 079-26303990 Fax: 079-26303990 FRC/973/2018 16/07/2018 Fee Structure of the Postgraduate Medical and Dental Course for the Year 2018-2019, 2019-2020 and 2020-2021 (Rs. In Lakh) Name of Government Management Government Management Government Management College Seats Fee Seats Fee Seats Fee Seats Fee Seats Fee Seats Fee for the for the for the for the for the for the Students Students Students Students Students Students Admitted admitted in Admitted admitted Admitted admitted in the year in the in the in the in the the year year 2018-19 year year year 2020-21 2018-19 2019-20 2019-20 2020-21 6 Pramukh 16.31 27.50 16.60 27.79 17.10 28.09 swami Medical College, Karamsad

5.7 In the order dated 16th July, 2018, recommendation was also made by the Respondent of the above fee structure with following

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stipulation;

"The Committee also recommends the college to devise a fee structure providing for differential fee for the degree / diploma courses, provided the average fee from all the courses and from all the students as fees indicated in above table.

The fee structure determined by this Committee shall be binding for the years the 2018-19, 2019-20 and 2020-21. The fees so determined shall be applicable to the new students admitted in that specific academic year only and shall not be revised till the completion of their professional course in that college or institution i.e. 1. the students admitted in the year 2018-19, the fees of 2018-19 are applicable to those students up to the completion of their course. 2. the students admitted in the year 2019-20, the fees of 2019-20 are applicable to those students up to the completion of their course. 3. the students admitted in the year 2020-21, the fees of 2020-21 are applicable to those students up to the completion of their course.

It is made clear that if any management seat remains vacant or the institution surrenders the management seats to the Government for admission in that case fee would be at par with the government seats."

6. Learned Senior Advocate Mr. Dhaval Dave

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assisted by learned Advocate Mr. Vyas for the petitioners submitted that as per the provisions of Section 10(3) of the Act of 2007 the Respondent could not have revised the fees vide impugned order dated 15th March, 2021, which was determined vide order dated 16th July, 2018. Learned Senior Advocate Mr. Dave relied on the decision of the Apex Court in 'FEE REGULATORY COMMITTEE VS. KALOL INSTITUTE OF MANAGEMENT'1,in support of his submission.

6.1 In the alternative, learned Senior Advocate Mr. Dave submitted, on merits, that the Respondent could not have revised the fees taking into consideration only the stipend paid to the students for the purpose of calculation of variable costs even if it is assumed that the Respondent is entitled to revise the fees in favour of the petitioners so as to calculate the average costs which the petitioners can recover in view of the less number of students taking admission in Petitioner No.2-College.

6.2 It was submitted that variable costs submitted by the petitioners ranges from about 20% to 25% and even if the calculation as per the Respondent is revised then the petitioners have

1 (2011) 10 SCC 592

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not to received any fees more than the costs incurred by the Petitioner No.2-College.

7. On the other hand learned Senior Advocate Ms. Manisha Shah assisted by learned Advocate Mr. Dattani for the Respondent submitted that the Respondent has shown grace and has passed the impugned order enabling the petitioner to recover the fixed cost and revised the fee structure by taking into consideration the less number of students having taken admission in Petitioner No.2-College and after giving the credit of the variable costs upon the students who have not taken admission and by taking into consideration the stipend which is the major variable expenses to be incurred on the students at the rate of 45% of the total cost for the purpose of calculation of extra-fees charged by Petitioner No.2-College. It was, therefore, submitted that the impugned order dated 15th March, 2021 is in fact in favour of Petitioner No.2 as the Petitioner No.2 institution is directed to revise the fees based upon the calculation made by the Respondent taking into consideration the variable costs of the students which are admitted by the Petitioner No.2-College vis-à-vis the fixed cost incurred by it for the Academic year 2018-19.

7.1 It was submitted that as the fees which

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was determined by the Respondent vide order dated 16th July, 2018 was on the basis of the intake of 61 students in the Government Quota for the Academic Year 2018-19 and after taking into consideration the details provided by Petitioner No.2-College the Respondent determined the average fees of Rs.16.31/- lakh to be charged for the Academic Year 2018-19 from the students to be admitted in Government Quota which was marginally increased for the remaining two Academic Years 2019-20 and 2020-21 in view of the increase of the number of students in the and the average fees was determined at Rs.16.60/- lakh and Rs.17.10/- lakh for the Academic Years 2019-20 and 2020-21 respectively for the students who have been admitted under the Government Quota.

7.2 It was further submitted that the Respondent has calculated and revised the fee in view of the fact that as against 61 students which were to be admitted under the Government Quota for the year 2018-19, only 48 students were admitted by Petitioner No.2-College.

7.3 It was therefore submitted that the Petitioner No.2 could not have charged more fees than Rs.16.31/- lakh per students on average basis irrespective of charging the fees from such

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students more or less as per the costs of the subject for which admission was given which is permitted by the Respondent vide order dated 16th July, 2018 but the overall calculation of the fees could not have been more than Rs.16.31/- lakh per student on an average basis.

7.4 It was therefore submitted that the Respondent has after taking into consideration the fact that the Petitioner No.2 admitted only 48 students in the year 2018-19 thought it fit to consider the aspect of revising the fees in view of the more fixed costs burden on Petitioner No.2-College and accordingly the Respondent has calculated and revised the fees by considering the variable costs at the rate of 45% of the total costs and thereafter revised the fees to Rs.18.74/- lakh instead of Rs.16.31/- lakh to be charged by Petitioner No.2-College for the Academic Year 2018-19.

7.5 It was therefore submitted that the Respondent has acted in a fair manner by taking into consideration the fact of less admission of the students in Petitioner No.2-College in the Academic Year 2018-19 and accordingly, calculating the excess or more fees charged by Petitioner No.2-College after revising the fees which was determined vide order dated 16th July,

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2018 and therefore if the petitioners have any grievance against such a sympathetic and reasonable approach adopted by the Respondent then the Respondent is ready and willing to reconsider the issue in the light of the judgment of the Supreme Court whereby the petitioner shall not be entitled to any benefit of charging more fees from the students who are admitted under the Government Quota taking into consideration the more fixed costs for the less number of admitted students against the number of students who were considered for fixing the fees at Rs.16.31/- lakh for the Academic Year 2018-19.

8. Having heard the learned Advocates for the respective parties and having perused the material on record, it appears that the Supreme court in the case of 'FEE REGULATORY COMMITTEE' (Supra) has decided the issue which has cropped- up in this petition. The relevant observations of the Apex Court are as under;

"6. The High Court also held that if the respondents file undertaking that they will actually implement the recommendations made by the Sixth Pay Commission for their teaching and non-

teaching staff, such additional burden on account of implementation of the recommendations of the Sixth Pay Commission shall also be taken into

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consideration while deciding the fee structure afresh by the Fee Regulatory Committee. The High Court observed that till such orders are passed by the Fee Regulatory Committee, the respondents shall continue to collect the same fees from the students as are collected presently under the orders of the Fee Regulatory Committee. Aggrieved by the impugned orders of the High Court, the Fee Regulatory Committee has filed these appeals.

7. The only contention raised before us by Dr. Rajiv Dhavan, learned counsel appearing for the appellants, is that the direction of this Court in Islamic Academy of Education and Another v. State of Karnataka and Others [(2003) 6 SCC 697] is that the fee fixed by the Committee shall be binding for a period of three years and at the end of the period of three years, the institution would be at liberty to apply for revision and accordingly it has been provided in Section 10(3) of the Act that the fee structure determined by the Fee Regulatory Committee shall be binding on the unaided professional educational colleges or institutions for a period of three years and the fee so determined shall be applicable to a student who is admitted to a professional educational college or institution in that academic year and shall not be revised till the completion of his professional course in that college or institution. He submitted that despite this statutory provision in Section 10(3) of the Act, the High Court

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has directed to revise the fees for the academic years 2008-2009, 2009-2010 and 2010-2011, which had already been determined by the Fee Regulatory Committee and which could not be revised for a period of three years.

8. Mr. Dushyant A. Dave, learned counsel appearing for the respondents, on the other hand, submitted that unaided private engineering and professional colleges have to pay the revised pay and allowances as per the recommendations of the Sixth Pay Commission and, therefore, they are entitled to recover the additional cost on account of payment of revised pay and allowances from the students by enhancing fees in accordance with the judgments of this Court in T.M.A. Pai Foundation and Others v. State of Karnataka and Others [(2002) 8 SCC 481], Islamic Academy of Education and Another v. State of Karnataka and Others (supra) and P.A. Inamdar and Others v. State of Maharashtra and Others [(2005) 6 SCC 537].

9. We have considered the submissions of the learned counsel for the parties and we find that Section 10(3) of the Act reads as follows:

"10(3). The fee structure so determined by the Fee Regulatory Committee shall be binding to the unaided professional educational colleges or institutions for a period of three years and the fee so determined shall be applicable to a

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student who is admitted to a professional educational college or institution in that academic year and shall not be revised till the completion of his professional course in that college or institution."

10. Obviously, the Fee Regulatory Committee cannot overlook the aforesaid statutory provisions in Section 10(3) of the Act that the fee structure so determined by the Fee Regulatory Committee shall be binding on the unaided professional educational colleges or institutions for a period of three years and the fee so determined shall be applicable to a student who is admitted to a professional educational college or institution in that academic year and shall not be revised till the completion of his professional course in that college or institution. The High Court, therefore, could not have directed revision of the fees already fixed by the Fee Regulatory Committee for the academic years 2008- 2009, 2009-2010 and 2010-2011 contrary to the aforesaid statutory provisions. Nonetheless, the unaided private professional and technical colleges or institutions were entitled to recover the extra cost on account of payment of revised pay and allowances to the teaching and non-teaching staff through the fees collected from the students and this could be done only by enhancing the fees from the students for the academic years 2011- 2012, 2012-2013 and 2013-2014 and for period of three years thereafter. Exactly

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how much of this cost would be recovered through the fees collected from the students during the first period of the three years and how much of this cost would be recovered through fees collected from the students during the second period of three years can only be appropriately worked out by the Fee Regulatory Committee keeping in mind both the interest of the colleges/institutions and the students.

11. We accordingly set aside the impugned orders of the High Court and direct that the increase in cost suffered by the respondents-colleges/institutions on account of the higher pay and allowances payable to the teaching and non-teaching staff on the basis of the recommendations of the Sixth Pay Commission will be taken into consideration by the Fee Regulatory Committee while determining the fees for the academic years 2011-2012, 2012-2013 and 2013-2014 and subsequent period of three years in accordance with the provisions of the Act and the observations made herein. These appeals are allowed. There shall be no order as to costs."

9. In view of the above dictum of law, the Respondent could not have revised the fees contrary to Section 10(3) of the Act of 2007. As held by the Apex Court once the fee is determined under Section 10(3) of the Act of 2007, the same is to remain intact for the period of three years and the students who have taken admission on the

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basis of such fees determined by the Respondent cannot be asked to pay fees on the basis of revision which may be done by the Respondent during the period of three years within the completion of the professional courses in a college or institution.

10. The Apex Court has also categorically held that if any loss which the institution incurs over and above the fees determined by the Respondent then the same can be considered by the Respondent while fixing the fees in the next block of three years.

11. In view of the above settled legal position the Respondent could not have revised the fee structure which was determined vide order dated 16th July, 2018 in any manner. Therefore without entering into the veracity and the legality of the impugned order revising the fees for the block years 2018-19, 2019-20 and 2020-21, as per the above decision of the Apex Court, is contrary to the settled legal position so also to the provisions of Section 10(3) of the Act of 2007 and therefore the same is liable to be quashed and set aside.

12. For the foregoing reasons, the impugned order

dated 15th March, 2021, passed by the Respondent

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is hereby quashed and set aside being contrary to

Section 10(3) of the Act of 2007 with a rider

that consequence as per the Act of 2007 shall

take place / follow and if the Petitioners have

charged excess / extra fees as alleged against

the petitioner No.2-College, the Respondent shall

consider such allegations in accordance with law.

Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(BHARGAV D. KARIA, J) UMESH/-