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2019 DIGILAW 247 (AP)

Alluri Ashok Raju v. State of Andhra Pradesh

2019-09-24

A.V.SESHA SAI, CHEEKATI MANAVENDRANATH ROY

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JUDGMENT : Akula Venkata Sesha Sai, J. 1. Since these two writ petitions share the common grievance, this Court deems it appropriate and apposite to dispose of these two matters by way of this common order. 2. These writ petitions, filed under Article 226 of the Constitution of India, call in question the order of the State Government, vide G.O. Ms. No. 149, Health, Medical and Family Welfare (C1) Department, dated 6.9.2017. By way of the said order, the State Government, on the representations made by the private medical colleges, enhanced the tuition fee payable by the MBBS students. 3. Heard learned Counsel for the petitioners, learned Government Pleader for Medical & Health appearing for the first respondent, the learned Additional Advocate General appearing for the second respondent-Dr. NTR University of Health Sciences, Sri G. Ramesh Babu, learned Counsel appearing for the unofficial respondents, and Sri Vivek Chanra Sekhar, learned Standing Counsel for Medical Council of India, apart from perusing the entire material available on record. 4. The sum and substance of the case of the petitioners, as advocated by the learned Counsel for the petitioners, is that, in the absence of any report of the Admission and Fee Regulatory Committee (hereinafter called as 'AFRC'), the State Government has no power to enhance the fee payable by the students and the said action is opposed to the very spirit and object of the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 and the Andhra Pradesh Admission and Fee Regulatory Committee (for Professional Courses offered in Private Un-Aided Professional Institutions) Rules, 2006. In support of the said contention, learned Counsel for the petitioners placed reliance on the judgment, dated 23.4.2019, rendered by a Division Bench of the High Court for the State of Telangana in WP No. 29938 of 2018. 5. Per contra, the learned Additional Advocate General, the learned Government Pleader and the learned Counsel appearing for the private medical colleges, while resisting the contention of the learned Counsel for the petitioners, strenuously contend that there is no illegality nor there exists any infirmity in the impugned order and, in the absence of the same, the questioned order is not amenable for any judicial review, under Article 226 of the Constitution of India, nor the petitioners are entitled for any relief. In elaboration, they further contend that, obviously keeping in view the increase in the expenditure, which the colleges incur towards the pay and allowance of the teaching and non-teaching staff, and other expenditure that the colleges incur towards infrastructure, the State Government issued the impugned order, enhancing the fee structure, and as such, the same cannot be faulted. 6. It is significant to note that, earlier, followed by the report of the AFRC, the State Government notified the fee structure for the period 2011-2014. 7. In order to consider the above said rival contentions, it would be appropriate to refer to the relevant provisions of law. The State Government, pursuant to the law declared by the Honourable Apex Court in P.A. Inamdar and others v. State of Maharashtra and others, AIR 2005 SC 3226 , framed the Rules called the Andhra Pradesh Admission and Fee Regulatory Committee (for Professional Courses offered in Private Un-Aided Professional Institutions) Rules, 2006, in exercise of the powers conferred under Section 15 read with Sections 3 and 7 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 and notified the same vide G.O. Ms. No. 6, Higher Education (EC-2) Department, dated 8.2.2007. Rule 3 of the said Rules deals with the constitution, composition, disqualification and functions of the Admission Fee Regulatory Committee. According to the said Rule, the Committee shall consist of the Chairman, who should be a retired Judge of the High Court and other members. Rule 4 of the above said Rules deals with the fee fixation, which reads as under: 4. Fee Fixation:-- (i) The AFRC shall call for, from each Institution, its proposed fee structure well in advance before the date of issue of notification for admission for the academic year along with all the relevant documents and books of accounts for scrutiny. (ii) The AFRC shall decide whether the fees proposed by the Institution is justified and does not amount to profiteering or charging of capitation fee. (iii) The AFRC shall be at liberty to approve or alter the proposed fee for each course to be charged by the Institution. Provided that it shall give the Institution an opportunity of being heard before fixing any fee or fees. (iii) The AFRC shall be at liberty to approve or alter the proposed fee for each course to be charged by the Institution. Provided that it shall give the Institution an opportunity of being heard before fixing any fee or fees. (iv) The AFRC shall take into consideration the following factors while prescribing the fee : (a) the location of the professional Institution, (b) the nature of the professional course, (c) the cost of available infrastructure, (d) the expenditure on administration and maintenance, (e) a reasonable surplus required for growth and development of the professional Institution, (f) the revenue foregone on account of waiver of fee, if any, in respect of students belonging to the Schedule Caste, Schedule Tribes and wherever applicable to the Socially and Educationally Backward Classes and other Economically Weaker Sections of the society, to such extent as shall be notified by the Government from time to time, (g) Any other relevant factor. Provided that, no such fees, as may be fixed by the AFRC, shall amount to profiteering or commercialization of education. (v) The AFRC shall communicate the fee structure as determined by it, to the Government, for notification. (vi) The fee or scale of fee determined by the AFRC shall be valid for a period of three years. (vii) The fee so determined shall be applicable to a candidate who is admitted to an institution in that academic year and shall not be altered till the completion of his course in the institution in which he was originally admitted. No Professional Educational Institution shall collect at a time a fee which is more than one year's fee from a candidate". 8. Earlier, followed by the report of the AFRC, the State Government issued G.O. Ms. No. 167, Health, Medical & Family Welfare (E1) Department, dated 18.6.2011, fixing and enhancing the fee for the academic years, 2011-2012, 2012-2013 and 2013-2014, and Annexure to the said Governmental Order reads as under: "Particulars of tuition fee for Private Un-aided Minority and Non-Minority Medical Colleges in the State in respect of Super Specialty Courses for the academic years 2011-2012, 2012-2013 and 2013-2014 and certain directions connected thereto. 1. Fee fixed for Private Un-aided Minority Medical Colleges: The Tuition fee is fixed at Rs. 1. Fee fixed for Private Un-aided Minority Medical Colleges: The Tuition fee is fixed at Rs. 5,85,000/- (Rupees Five Lakhs and Eighty Five Thousand only) per annum per each student for the Super Specialty Medical Courses in the Private Un-aided Minority Medical Colleges for the academic years, 2011-2012, 2012-2013 and 2013-2014. 2. Fee fixed for Private Un-aided Non-Minority Medical Colleges: The Tuition fee is fixed:--The Tuition fee is fixed at Rs. 3,70,000/- (Rupees Three Lakhs and Seventy Thousand only) per annum per each student for Competent Authority seats (50%) in Private Un-aided Non-Minority Medical Colleges for Super Specialty Medical Courses for the academic years, 2011-2012, 2012-2013 and 2013-2014. The tuition fee is fixed at Rs. 7,50,000/- (Rupees Seven Lakhs and Fifty Thousand only) per annum per each student for Management seats (50%) in Private Un-aided Non-Minority Medical Colleges for Super Specialty Medical Courses for the academic years, 2011-2012, 2012-2013 and 2013-2014. 3. The following directions are given to the Managements of the Private Un-aided Minority and Non-Minority Medical Colleges in the proceedings issued by the Committee relating to the fixation of fee structure for the above said Super Specialty Medical Courses:-- (i) The Management shall not charge any Capitation Fee and there shall not be any profiteering. Except the above fee fixed by the Committee, no other amount, either directly or indirectly, can be charged un-authorizedly or illegally by the Management. If any such other amount is charged under any other head or guise (eg. Donation etc.) it would amount to charging of Capitation Fee. The surplus (profit) that is generated from the collection of the fee must be for the benefit of the institution and cannot be diverted for other purposes or for personal gain. (ii) The students admitted to the course during the academic years 2012-2013 and 2013-2014 shall pay every year the same annual tuition fee as paid at the time of their admission till they complete the course. (iii) The institutions shall collect the Annual Tuition Fee every year in advance only for that particular year either in a lumpsum or in installments, if it so opts. (iii) The institutions shall collect the Annual Tuition Fee every year in advance only for that particular year either in a lumpsum or in installments, if it so opts. (iv) The Management of the institution is also informed that fixation of the Fee Structure by the Committee will not by itself enable or permit the Management to run the relevant Super Specialty Medical Courses if it is otherwise not duly recognized by the Government/MCI/concerned University at any relevant time. 4. The fee fixed for the above courses will be valid and binding for the academic years 2011-2012, 2012-2013 and 2013-2014". 9. It is very much evident from a reading of the above mentioned provisions that the condition precedent for enhancement of the fee is the submission of the report by the AFRC after examining and verifying various issues as stipulated in the Rules. In the instant case, undisputedly there is no such report of the AFRC, posterior to the year, 2014 and, as observed supra, earlier, the AFRC fixed the fee structure in 2011 for three years commencing from 2011-2012 to 2013-2014. There is no controversy that after 2014 there is no report submitted by the AFRC so as to enable the State Government to enhance the fee structure as per the law declared by the Honourable Apex Court in Inamdar's case (supra). When the same issue fell for consideration before the High Court for the State of Telangana, in WP No. 29938 of 2018, a Division Bench of the High Court for the State of Telangana dealt with the issue extensively, while referring to the judgment of the Honourable Supreme Court (referred to supra) and came to a categorical conclusion that the impugned action, enhancing the fee on the representations of the private medical colleges in a unilateral manner without being preceded by the report of the AFRC, would not be sustainable. In the considered opinion of this Court, the law laid down in the said judgment is squarely applicable to the cases on hand. It may be appropriate to refer to the findings in the said order, dated 23.4.2019, recorded by the Division Bench of the High Court for the State of Telangana in WP No. 29938 of 2018, at Paragraph Nos. 10 to 16, which read as under: "10. It may be appropriate to refer to the findings in the said order, dated 23.4.2019, recorded by the Division Bench of the High Court for the State of Telangana in WP No. 29938 of 2018, at Paragraph Nos. 10 to 16, which read as under: "10. In fact, the constitution of the Fee Regulatory/Fixation Committee was pursuant to a judicial mandate issued in Islamic Academy of Education and another v. State of Karnataka and others, But, the decision rendered in Islamic Academy of Education's case (supra) and P.A. Inamdar's case (supra), have now been thrown to the winds by the Government while passing the impugned order. 11. The Government of Telangana has filed a counter-affidavit, conceding the fact that G.O. Ms. No. 167, dated 18.6.2011, was issued pursuant to the recommendations of Fee Regulatory Committee. Very strangely, the Government has taken a stand in Paragraph No. 6 of the counter-affidavit that the 6th respondent herein (a Minority Medical College) sent a representation, dated 7.6.2018, seeking revision of fee from Rs. 5,85,000/- to Rs. 25,00,000/-. According to the counter-affidavit of the Government of Telangana, the 1st respondent immediately addressed a letter to the Telangana Admission and Fee Regulatory Committee, requesting them to examine the representation of the 6th respondent and to submit a report. But, even before the report could be received, the Government took note of the financial burden on the Colleges with regard to the actual cost and passed the impugned Government Order. 12. One portion of the counter-affidavit of the 1st respondent is sufficient to allow the writ petition and hence Paragraph No. 6 of the counter-affidavit of the 6th respondent is reproduced as follows : "6. In reply to Paras 8-12, it is submitted that 6th respondent herein i.e., Deccan College of Medical Sciences has made a representation dated 7.6.2018 to the 1st respondent herein for revision of fee from Rs. 5,85,000/- to Rs. 25,00,000/- p.a. for Super Speciality Courses as it has become burden to the Medical Colleges as the colleges has to pay stipend of Rs. 30,000/- p.m. to Super Specialty Residents. The 1st respondent vide Letter No. 7695/C1/2017, dated 23.6.2018 addressed the Telangana Admission & Fee regulatory Committee requesting to examine and furnish a report to the Government for revision of fee structure for the academic year 2018-2019 for PG Super Specialty Courses, as the tuition fees are not enhanced since 2011. 30,000/- p.m. to Super Specialty Residents. The 1st respondent vide Letter No. 7695/C1/2017, dated 23.6.2018 addressed the Telangana Admission & Fee regulatory Committee requesting to examine and furnish a report to the Government for revision of fee structure for the academic year 2018-2019 for PG Super Specialty Courses, as the tuition fees are not enhanced since 2011. Though the above said letter was addressed on 23.6.2018, the report is yet to be received from TAFRC. It is submitted that in pursuant to representation made by 6th respondent, dated 7.6.2018, the 1st respondent after taking into consideration of the financial burden of the colleges with regard to actual cost involved in imparting quality education and escalations in cost, the Government of Telangana has issued G.O. Ms. No. 78, HM & FW (C1) Department, dated 14.8.2018 enhancing the tuition fee in respect of Super Specialty Courses. Apart from above G.O. issued by the Government of Telangana, the Government of A.P. have also issued G.O. Ms. No. 149, HM & FW (C1) Dept, dated 6.9.2017, enhancing the tuition fee as Rs. 24.00 lakhs p.a. for Super Specialty Courses from the academic year 2017-2018 onwards. It is submitted that other States also fixed the fee similarly to that of fee fixed by the Government of Telangana & Government of A.P. in respect of Super Specialty Courses." 13. It is clear from the above that the judgment of the Supreme Court has been totally thrown to the winds by the Government. Hence, the impugned order is liable to be set aside. 14. Interestingly, the 6th respondent College has filed a counter-affidavit attempting to justify their claim for enhancement of fee. Even according to their counter-affidavit, the enhancement of fee was not ordered on the basis of the recommendations of the Fee Regulatory Committee. 15. In their counter-affidavit, the 6th respondent has attempted to make a comparison with Institutions in the neighbouring States. But, we cannot assume the role of Fee Fixation Committee to find out whether the enhancement was justified or not. We are merely concerned in this case with the question whether the procedure prescribed by Law was followed before revising the fee structure or not. Since the procedure has not been followed, the impugned order is liable to be set aside. 16. We are merely concerned in this case with the question whether the procedure prescribed by Law was followed before revising the fee structure or not. Since the procedure has not been followed, the impugned order is liable to be set aside. 16. In view of the above, the writ petition is allowed, the impugned order is set aside and if any fee in excess of what was already fixed by the Government under G.O. Ms. No. 167, dated 18.6.2011 had been collected, the same shall be refunded by the concerned college to the petitioner within 4 weeks. However, in the circumstances of the case, there shall be no order as to costs". 10. It is very much evident from a reading of the above mentioned Rules that the said Rules do not permit the Government to resort to the impugned action of enhancement and fixing the fee without being preceded by submission of the report by the AFRC. In these circumstances, this Court has absolutely no hesitation to hold that the impugned order cannot be sustained in the eye of law. 11. For the aforesaid reasons, writ petitions are allowed, setting aside G.O. Ms. No. 149, Health, Medical and Family Welfare (C1) Department, dated 6.9.2017, issued by the first respondent to the extent of enhancement of fee. In respect of the other aspects the same shall remain intact. It is made clear that, if any fee already fixed by the Government, vide G.O. Ms. No. 167 Health, Medical & Family Welfare (E1) Department, dated 18.6.2011, had been collected, the same shall be refunded by the colleges to the petitioners, after adjusting the amounts payable, within a period of two months from today. There shall be no order as to costs. 12. Consequently, miscellaneous petitions, if any, pending in these writ petitions, shall stand closed.