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2018 DIGILAW 309 (UTT)

Pradeep Datta v. State of Uttarakhand

2018-06-12

LOK PAL SINGH, RAJIV SHARMA

body2018
JUDGMENT : Rajiv Sharma, J. The question of grave public importance has been raised in the present petition to protect the interest of students’ community who are undergoing/proposing to undergo professional educational courses in un-aided private professional educational institutions existing in the State of Uttarakhand. 2. According to the petitioner, the professional un-aided educational institutions are charging exorbitant fees. The students are asked to furnish advance bank guarantees. It is difficult for the parents belonging to the lowest strata to impart education to their children in unaided professional educational institutions. 3. The State of Uttarakhand, in view of the judgment rendered by the Hon’ble Supreme Court as well as per the advisory issued by the Ministry of Health and Family Welfare on 14.05.2003 has enacted the Act called “Uttaranchal Un-aided Private Professional Education Institutions (Regulation of Admission and Fixation Fee) Act, 2006” (hereinafter referred to as the Act, 2006) in order to provide for regulation of admission and determination of fee in Professional Educational Institutions in the State of Uttaranchal and to provide for reservation of seats to persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes in the seats professional educational institutions. 4. Section 4(1) of the Act, 2006 reads as under:- “4.(1) The State Government shall constitute an Admission and Fee Regulatory Committee, which shall consist of the following:- (a) Retd. High Court Judge to be nominated by Chief Justice - Chairman of High Court (b) Secretary, Medical Education (Ex-Officio) - Member (c) Secretary, Technical Education (Ex-Officio) - Member (d) Secretary, Law (Ex-Officio) - Member (e) One Retd. Govt. Officer retired froma post not below the rank of Secretary to the State Govt. nominated by the State Govt. - Member (f) One Ex-Vice Chancellor of the State University to be nominated by the Governor - Member (g) Two Eminent Educationalist to be nominated by the State Govt. - Member (h) Secretary, Higher Education (Ex-Officio) Secretary - Member The Chairman of the committee will also nominate a Chartered Accountant of repute as may be defined in the rules.” 5. The fixation of fee has been provided under Chapter III and the right to admission is provided under Chapter IV of the Act. 6. Section 12(1) provides for Appellate Authority to be appointed by the State Government. The fixation of fee has been provided under Chapter III and the right to admission is provided under Chapter IV of the Act. 6. Section 12(1) provides for Appellate Authority to be appointed by the State Government. It reads as under:- “12.(1) The State Government shall appoint an Appellate Authority, which shall consist of the following:- (a) Retd. High Court Judge to be nominated by Chief Justice of High Court … Chairman (b) One Retd. Govt. Officer retired from a post not below the rank of Chief Secretary of the State, to be nominated by the State Govt. … Member (c) One Eminent Educationalist to be nominated by Governor … Member A person or unaided private professional educational institution aggrieved by an order of the Admission and Fee Regulatory Committee may file an appeal, within a period of ten days of receiving such order.” 7. However, surprisingly, by way of the Uttarakhand Un-aided Private Professional Education Institutions (Regulation of Admission and Fixation of Fee) (Amendment) Act, 2010, sub-Section 1 of Section 4 has been substituted as under:- “The State Government shall constitute an Admission and Fee Regulatory Committee comprising:- (a) A retired Judge of the High Court of nominated by the State Government - Chairman (b) Principal Secretary/Secretary, Medical Education (Ex-Officio) - Member (c) Principal Secretary/Secretary, Technical Education (Ex-Officio) - Member (d) Principal Secretary/Secretary, Law (Ex-Officio) - Member (e) A retired Government officer retired from a post not below the rant of Secretary to the State Government nominated by the State Government. - Member (f) One Ex-Vice Chancellor of the State University to be nominated by the Governor - Member (g) Two Eminent Educationalist nominated by the State Govt. - Member (h) A renowned Chartered Accountant as defined in the rules nominated by the State Government - Member (i) Principal Secretary/Secretary, Higher Education (Ex-Officio) Secretary - Member 8. Similarly, an amendment has been carried in clause (a) of sub-section 1 of Section 12 as under:- “4. For clause (a) of sub-section (1) of Section 12 of the principal Act of the following clause shall be substituted; namely:- (a) A Retired Judge of High Court nominated by the State Government -Chairman” 9. Similarly, an amendment has been carried in clause (a) of sub-section 1 of Section 12 as under:- “4. For clause (a) of sub-section (1) of Section 12 of the principal Act of the following clause shall be substituted; namely:- (a) A Retired Judge of High Court nominated by the State Government -Chairman” 9. Their Lordships of the Hon’ble Supreme Court in 2003 (6) SCC 697 , in the case of “Islamic Academy of Education & another vs. State of Karnataka & others”, have directed the respective states to appoint a permanent Committee which will ensure that the tests conducted by the association of colleges are fair and transparent. For each State a separate Committee shall be formed. The Committee is to be headed by a retired Judge of the High Court. The Judge was to be nominated by the Chief Justice of that State. In the same judgment their Lordships of the Hon’ble Supreme Court have held that it has been notices that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years because the institute was not sure whether the student would leave the institute midstream and due to seat lying vacant the institute would suffer. Hon’ble Mr. Justice Sinha has held that the fee structure in relation to each and every college must be determined separately keeping in view several factors, including facilities available, infrastructure made available, the age of the institution, investment etc. It is also held that reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education. Their Lordships have held as under:- “8. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance. “19. We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as the Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove.” 154. The fee structure, thus, in relation to each and every college must be determined separately keeping in view several factors, including facilities available, infrastructure made available, the age of the institution, investment made, future plan for expansion and betterment of the educational standard etc. The case of each institution in this behalf is required to be considered by an appropriate Committee. For the said purpose, even the books of accounts maintained by the institution may have to be looked into. Whatever is determined by the Committee by way of a fee structure having regard to relevant factors, some of which are enumerated hereinbefore, the management of the institution would not be entitled to charge anything more. 155. For the said purpose, even the books of accounts maintained by the institution may have to be looked into. Whatever is determined by the Committee by way of a fee structure having regard to relevant factors, some of which are enumerated hereinbefore, the management of the institution would not be entitled to charge anything more. 155. While determining the fee structure, safeguard has to be provided for so that professional institutions do not become auction houses for the purpose of selling seats. Having regard to the statement of law laid down in paragraph 56 of the judgment, it would have been better, if sufficient guidelines could have been provided for. Such a task which is a difficult one has to be left to the Committee. While fixing the fee structure the Committee shall also take into consideration, inter alia, the salary or remuneration paid to the members of the faculty and other staff, the investment made by them, the infrastructure provided and plan for future development of the institution as also expansion of the educational institution. Future planning or improvement of facilities may be provided for. An institution may want to invest in an expensive device (for medical colleges) or a powerful computer (for technical college). These factors are also required to be taken care of. The State must evolve a detailed procedure for constitution and smooth functioning of the Committee. 156. While this Court has not laid down any fixed guidelines as regards fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education. 157. The institutions shall charge fee only for one year in accordance with the rules and shall not charge the fees for the entire course. 159. With a view to ensure that an educational institution is kept within its bounds and does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in their absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf. 161. Fees once fixed should not ordinarily be changed for a period of three years, unless there exists an extraordinary reason. The proposed fees, before indication in the prospectus issued for admission, have to be approved by the concerned authority/body set up. 161. Fees once fixed should not ordinarily be changed for a period of three years, unless there exists an extraordinary reason. The proposed fees, before indication in the prospectus issued for admission, have to be approved by the concerned authority/body set up. For this purpose the application should not be filed later than April of the preceding year of the relevant education session. The authority/body shall take the decision as regards fees chargeable latest by October of the year concerned, so that it can form part of the prospectus. No institution should charge any fee beyond the amount fixed and the fee charged shall be deposited in a nationalized bank. In other words, no employee or any other person employed by the management shall be entitled to take fees in cash from the students concerned directly. The statutory authority may consider the desirability of framing an appropriate regulation inter alia to the effect that in the event it is found that the management of a private unaided professional institution has accepted any amount other than the fees prescribed by the Committee, it may have to pay a penalty ten to fifteen times of the amount so collected and in a suitable case it may also lose its recognition or affiliation. 162. However, there cannot be any doubt that before any such order is passed, the institutions concerned shall be entitled to an opportunity of being heard. For the aforementioned purpose, the State shall set up a machinery to detect cases where amounts in excess of the permitted limit are collected as it is the general experience that students pay a huge amount. 163. However, if for some reason, fees have already been collected for a longer period the amount so collected shall be kept in a fixed deposit in a nationalized bank against which no loan or advance may be granted so that the interest accrued thereupon may enure to the benefit of the students concerned. Ordinarily, however, the management should insist for a bond from the concerned students. 187. There cannot, however, be any gainsaying that the appropriate statutory authority on a deeper consideration of the matter may prescribe a suitable method for the purpose of determining the merit as also the fair and transparent manner in which such examinations can be conducted. Such a power exists under the UGC Act, the MCI Act and the AICTE Act. 187. There cannot, however, be any gainsaying that the appropriate statutory authority on a deeper consideration of the matter may prescribe a suitable method for the purpose of determining the merit as also the fair and transparent manner in which such examinations can be conducted. Such a power exists under the UGC Act, the MCI Act and the AICTE Act. The relevant enactments wherein these statutory authorities have been created provide for such law. However, assuming such a machinery is not evolved, the State may constitute a body which may be headed by a person who has been a Judge of a High Court to be nominated by the Chief Justice thereof. Standard of education at no cost shall be given a go-by.” 10. In 2005 (6) SCC 537 , in the case of “P.A. Inamdar & others vs. State of Maharastra & others”, their Lordships of the Hon’ble Supreme Court have held that professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on a uniform basis. Their Lordships have further held that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged directly or indirectly, or in any form. Their Lordships have further held that education is continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Their Lordships have held as under:- “88. Education is: “… continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain.” (See Eternal Values for A Changing Society, Vol. III - Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19.) “We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own feet. … The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. … The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.” (Swami Vivekanand as quoted ibid., at p. 20.) 89. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though an occupation, it cannot be equated to a trade or a business. 90. In short, education is national wealth essential for the nation’s progress and prosperity. Q. 3. Fee; regulation of 139. To set up a reasonable fee structure is also a component of “the right to establish and administer an institution” within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation1. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (paras 56 to 58 and 161 [answer to Question 5(c)] of Pai Foundation1 are relevant in this regard). 141. Our answer to Question 3 is that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged.” 11. In sequel to the amendment carried out by the State Government, as noticed hereinabove, Justice Shri Gurmeet Ram was appointed Chairman of the Committee constituted under Section 4 of the Act, 2006. Justice Shri Brijesh Kumar Srivastava was appointed as Chairman of the Appellate Authority on 31.01.2018. 12. The amendment carried out by the State Government in clause (a) of sub-Section 1 of Section 4 and clause (a) of sub-section (1) of the Section 12 of the Principal Act is contrary to the dicta of the Hon’ble Supreme Court. The Chairman of the Admission and Fee Regulatory Committee could only be a retired Judge of the High Court to be nominated by the Chief Justice of the respective State. Similarly, the Chairman of the Appellate Authority could only be a retired Judge of the High Court to be nominated by the Chief Justice of the respective State. 13. The Chairman of the Admission and Fee Regulatory Committee could only be a retired Judge of the High Court to be nominated by the Chief Justice of the respective State. Similarly, the Chairman of the Appellate Authority could only be a retired Judge of the High Court to be nominated by the Chief Justice of the respective State. 13. However, on the basis of the amendment carried out, the State itself has decided to nominate the retired Judge as the Chairman of the Admission and Fee Regulatory Committee and the Chairman of the Appellate Authority. Their Lordships of the Hon’ble Supreme Court in the case of “P.A. Inamdar vs. State of Maharashtra”, have held that the committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made in the judgment. The admission procedure and fixation of fees is required to be to regulated and controlled. The retired High Court Judges heading the Committees are assisted by experts in accounts and management. The decision of the Committee is quasi-judicial in nature. 14. We have been apprised at the bar that Justice Shri Gurmeet Ram has submitted his resignation but no decision has been taken by the State Government on the resignation submitted by Justice Shri Gurmeet Ram. The State Government should have taken the decision immediately in larger interest of the student community pursuing their studies in private un-aided professional institutions. The statutory bodies cannot remain in limbo. 15. The fees to be charged from the students admitted in professional institutions should be as per the judgments rendered by their Lordships of the Hon’ble Supreme Court in the cases of “State of Karnataka vs. Dr. T.M.A. Pai Foundation & others”, reported in 2003 (6) SCC 790 , “Islamic Academy of Education & another vs. State of Karnataka & others”, reported in 2003 (6) SCC 697 , and in “PA Inamdar vs. State of Maharashtra”. The students belonging to Scheduled Castes, Scheduled Tribes, candidates belonging to BPL category and Other Backward Classes should not be charged exorbitant fees. The private unaided schools and colleges are provided land by the State Government at concessional rates. The students belonging to Scheduled Castes, Scheduled Tribes, candidates belonging to BPL category and Other Backward Classes should not be charged exorbitant fees. The private unaided schools and colleges are provided land by the State Government at concessional rates. The private unaided schools and colleges should provide atleast 5% preference/quota to the students belonging to BPL category towards their constitutional and social responsibilities. 16. The Parliament has enacted the Right to Education Act, 2009. The amendment has also been carried out in the Constitution by inserting Article 21 (A). Once the law has been made, it should be scrupulously followed. 17. Learned counsel appearing for the petitioner has submitted that the State Government, though, has enacted the Act to regulate the determination of fees in private un-aided professional educational institutions, but till date, it has not taken any steps to regulate the fees as far as private un-aided schools are concerned. It was expected from the State Government to take steps by framing suitable legislation to regulate admission and determine the fee in private un-aided schools. 18. The duties to be discharged by the Chairman of the Admission and Fee Regulatory Committee and by the Chairman of the Appellate Authority are of great public importance. The State Government cannot be permitted to do indirectly which it could not do directly. It was expected from the State Government to send the proposal to the Chief Justice of India to appoint the Chairman of the Admission and Fee Regulatory Committee as well as for the appointment of the Chairman of the Appellate Authority. The Admission and Fee Regulatory Committee is required to fix the admission fee as per the law laid down by the Hon’ble Supreme Court. 19. We are not oblivious of the fact that the latest trend is that the parents admit their wards in private schools instead of government schools. The reason is apparent. The government schools lack proper infrastructure wherewithal. The lack of facilities in government schools, more particularly, in rural areas is impeding the growth and development of the villages. Even the government employees are enrolling their children in private schools by ignoring the government schools. The private un-aided schools are charging exorbitant fees which cannot be afforded by the parents belonging to lowest strata. 20. The lack of facilities in government schools, more particularly, in rural areas is impeding the growth and development of the villages. Even the government employees are enrolling their children in private schools by ignoring the government schools. The private un-aided schools are charging exorbitant fees which cannot be afforded by the parents belonging to lowest strata. 20. The State Government, in view of the Right to Education Act, 2009 read with Article 21 (A) of the Constitution of India is required to regulate the admission and fee structure of private schools on the analogy of private un-aided professional institutions. 21. The State Government while carrying out the amendment vide notification dated 26.03.2010 has overlooked the mandate of the Hon’ble Supreme Court. The amendments carried out are in utter violation of the judgments rendered by their Lordships of the Hon’ble Supreme Court. The appointments of Justice Shri Gurmeet Ram and Justice Shri Brijesh Kumar Srivastava are in contravention of the law laid down by the Hon’ble Supreme Court in the judgments cited hereinabove. 22. Petitioner has not laid specific challenge to the amendment carried on 26.03.2010 but since the same is in violation of the judgments rendered by their Lordships of the Hon’ble Supreme Court, the same is liable to be struck down by reading it down. The retired Judge of the Committee could only be nominated by the Chief Justice and not by the State Government. 23. Accordingly, the writ petition is allowed. A. The amendments carried out vide notification dated 26.03.2010 in clause (a) of sub-section (1) of Section 4 and in clause (a) of sub-section (1) of Section 12 are struck down. B. The appointments of Justice Shri Gurmeet Ram as Chairman of Admission and Fee Regulatory Committee and Justice Shri Brijesh Kumar Srivastava as Chairman of Appellate Authority are quashed and set-aside. C. The State Government is directed to send the proposal to the Hon’ble the Chief Justice of the High Court for nominating retired Judges of the High Court as Chairman of the Admission and Fee Regulatory Committee as well as the Chairman of the Appellate Authority within three weeks from today. D. We recommend/suggest the State Government to bring suitable legislation for regulating the admission and fee structure in private unaided schools in the State of Uttarakhand within a period of three months from today. D. We recommend/suggest the State Government to bring suitable legislation for regulating the admission and fee structure in private unaided schools in the State of Uttarakhand within a period of three months from today. E. The Admission and Fee Regulatory Committee shall ensure that the fee structure of students belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Disabled persons, persons below poverty line and including wards of Freedom fighters is not exorbitant. F. The Admission and Fee Regulatory Committee is directed to regulate the fee as per the law laid down by their Lordships of the Hon’ble Supreme Court in the judgments reported in 2003 (6) SCC 697 and 2005 (6) SCC 537 . 24. Pending applications, if any, stand disposed of.