Dhairya Omprakash Jhunjhun Wal vs Union Of India
2023 Latest Caselaw 1629 Tel

            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-

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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

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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

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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

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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

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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.

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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

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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

. (2001) 8 SCC 676

. (2013) 8 SCC 271

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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

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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

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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

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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

. 2020 SCC OnLine SC 688

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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.

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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

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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.

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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