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2021 DIGILAW 1626 (PNJ)

Naitik v. State Of Haryana

2021-08-24

GIRISH AGNIHOTRI, JASWANT SINGH

body2021
ORDER 1. The forty-seven (47) petitioners are students, who have taken admission in respondent Nos. 5 to 7 private medical institutions affiliated with respondent No. 4-University, in the MBBS course from the session 2020-21. The challenge in the present petition is, inter alia, to Section 7 of Haryana Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Maintenance of Educational Standards) Act, 2012 (in short "the 2012 Act"), which permits the State Government to constitute a Fee and Admission Committee consisting of such members as may be notified by the State Government, on the ground that the same is ultra vires Article 14 and Article 19 (1) (g) of the Constitution of India. Further challenge is to the order dated 29.7.2015 (Annexure P-16/A), whereby the State of Haryana, while exercising powers under Section 7 of the 2012 Act, have constituted Fee Fixation Committee which consists only of the Government Officials as members. Since the petitioners have assailed the very constitution of the fee fixation committee, consequently, the fee determined vide notification dated 30.10.2017. The petitioners have even further assailed the Notifications dated 30.10.2017 (Annexure P-l), 29.10.2020 (Annexure P-2), 13.11.2020 (Annexure P-3) and Notification dated 29.12.2020 (Annexure P-4), whereby the fees for the private unaided medical colleges has been determined by the Fee Fixation Committee, as constituted by the State of Haryana vide order dated 29.07.2015. 2. In addition to above, the Notification dated 29.12.2020 (P-4) has been assailed on the grounds of interfering with the process of admission session 2020-21 mid-stream, as majority of the admissions had already taken place under the notification (P-4) as amended vide corrigendum dated 13.11.2020 (P-3). 3. To the extent vires of Section 7 of the 2012 Act is under challenge, prima facie, we are not impressed with the arguments so raised in support of challenge to Section 7, to the effect that comprising of only the Government Officials makes the Fee and Admission Committee illegal. The Hon'ble Supreme Court in T.M.A. Pai Foundation vs. State of Karnataka, 2002 (8) SCC 481 has held that a rational fee structure should be adopted by the management which would not include any capitation fee or intention of profiteering. The State is empowered to devise appropriate machinery so as to ensure that no capitation fee is charged and there is no profiteering by the institutions. The State is empowered to devise appropriate machinery so as to ensure that no capitation fee is charged and there is no profiteering by the institutions. In Islamic Academy of Education vs. State of Karnataka 2003 (6) SCC 697 , case also the Hon'ble Supreme Court observed that there can be no fixing of any rigid fee structure by the Government and that each institute must have freedom to fix its own fee structure. But at the same time, it was observed that the Government/appropriate authorities should consider framing appropriate regulations, if not already framed to ensure that no profiteering or capitation fee is charged by an Institute. The committees so constituted in the Islamic Academy's case (supra) by the Hon'ble Supreme Court were only transitionary in nature, as held by the Hon'ble Supreme Court in P.A. Inamdar vs. State of Maharashtra, 2005 (6) SCC 537 . In P.A. Inamdar's case (supra), it has been observed that the committees constituted in Islamic Academy's case (supra) are as an ad hoc arrangement until a suitable legislation or regulation is framed by the State. Further in paragraph 141 of P.A. Inamdar's case (supra), it has been observed that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. Similar view has been taken in Modern Dental College and Research Centre vs. State of Madhya Pradesh, 2016 (7) SCC 353 , wherein it has been observed that though no rigid fee is can be forced upon an Institute, however, the State is to act as a regulator and satisfy itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee etc. is charged. The Hon'ble Supreme Court further observed that to ensure that neither the merit is compromised nor any capitation fee is charged, the State should introduce regulatory measures at the initial stage itself. The Hon'ble Supreme Court deprecated the argument by the private institutions to the extent that post audit measures would meet the regulatory requirements, as control is required at the initial stage itself. 4. The Hon'ble Supreme Court deprecated the argument by the private institutions to the extent that post audit measures would meet the regulatory requirements, as control is required at the initial stage itself. 4. This Court also in C.W.P. No. 20545 of 2009, titled as Anti-Corruption and Crime Investigation Cell Versus State of Punjab & others directed the State of Punjab, State of Haryana and Union Territory of Chandigarh to provide for some permanent regulatory bodies/mechanism which would ensure that appropriate checks and balances are imposed upon the private institutions, in public interest, so that they do not indulge in profiteering or in any other unethical manner to charge capitation fees. Further this Court while issuing directions to the States of Punjab, Haryana as well as Union Territory of Chandigarh to examine the feasibility of establishing such a mechanism, formulated three (03) committees one each for the State of Punjab, State of Haryana and the Union Territory of Chandigarh headed by retired Hon'ble Judges of the High Court to ensure transparency in the functioning of the private educational institutions. The said committees were also transitionary in nature, till such time appropriate law is brought into force by the respective State Governments. 5. From combined reading of the abovementioned judgements, it is evident that the Hon'ble Supreme Court of India has time and again held, that fixing of rigid fee structure is not an acceptable restriction and that each institute must have freedom to fix its own fee structure taking into consideration the infrastructure, facilities available, the investments made, salaries to be paid to the staff and other future plans for expansion etc. etc. At the same time, while granting freedom to fix the own fee structure the private institutes have been barred from indulging in profiteering or charging capitation fees. The State governments have been empowered to lay down such norms/ regulations so as to keep a check on the private institutions and to ensure that no capitation fees is being charged by institute or the Institute is indulging in profiteering. The 2012 Act seems to be a creation in pursuance to the observations made by the Hon'ble Supreme Court from time to time and in terms of the directions issued by this Court in Anti-Corruption's Case (supra). The 2012 Act seems to be a creation in pursuance to the observations made by the Hon'ble Supreme Court from time to time and in terms of the directions issued by this Court in Anti-Corruption's Case (supra). Thus, the 2012 Act, prima facie, seems to be regulatory in nature which is in tune to the observations made by the Hon'ble Courts from time to time 6. Further as per us, prima facie, there seems no illegality in Section 7 of the 2012 Act, whereby the committee for regulating the fee has been constituted, as at no point of time it was ever observed by the Hon'ble Supreme Court or by this Court restraining State Government from constituting the committee comprising of only officers of the State. The vires of a Statute cannot be adjudicated upon apprehension of the petitioners, as in the present case the challenge is on the ground that non-inclusion of private persons or any independent persons in the Fee Fixation Committee would nullify the purpose of the committee. It seems that appropriate checks and balances have been maintained in the 2012 Act and various parameters have been laid down in Section 8 of the 2012 Act, which includes grant of hearing to the representatives of the students prior to finalization of the fee. The fulfillment of the parameters by the committee is separate thing as the same is always open to judicial scrutiny, in accordance with law. But to straightaway apprehend the non-functioning of the committee in a transparent manner cannot be a ground of challenge. 7. Further, prima facie, we also feel that to the extent the challenge has been laid to the notifications dated 30.10.2017 (P-l), 29.10.2017 (P-2) and 13.11.2020 (P-3), the petitioners having accepted the conditions of the Prospectus issued in the form of Notifications, participated in the admission process under the said notifications (containing unrevised fee) without any demur, now at such a belated stage cannot be permitted to turn around and lay challenge to the same, once the game has not only begun but has already been played. The said hurdle will have to be crossed by the petitioners. 8. However, we feel that a formal reply would be necessary for adjudication of the issues raised in the present petition. 9. Notice of motion for 25.10.2021. 10. Mr. The said hurdle will have to be crossed by the petitioners. 8. However, we feel that a formal reply would be necessary for adjudication of the issues raised in the present petition. 9. Notice of motion for 25.10.2021. 10. Mr. Ankur Mittal, Additional Advocate General, Haryana, appears and waives off notice on behalf of respondent Nos. 1 to 3/ State. 11. Mr. Naman Jain, Advocate, appears and waives off notice on behalf of respondent No. 4 - Pt. B.D. Sharma University of Health Sciences, Rohtak. 12. Mr. Gurminder Singh, Senior Advocate, assisted by Mr. Jatinder Singh Gill, Advocate, appears and waives off notice on behalf of respondent Nos. 5 & 6 - Private Medical Colleges. 13. Mr. Amit Jhanji, Senior Advocate, assisted by Mr. Vikas Kuthiala, Advocate, appears and waives off notice on behalf of respondent No. 7 - Private Medical College. 14. Mr. Satya Pal Jain, Additional Solicitor General of India, assisted by Mr. Arun Gosain, Sr. Govt. Counsel, Union of India, appears and waives off notice on behalf of respondent No. 8 - UOI. ON INTERIM STAY 15. Learned counsel for the parties have been heard at length on interim stay. 16. The petitioners are also seeking stay on the operation of the notification dated 29.12.2020 (P-4), whereby the fees for the students admitted in the private medical colleges (respondent Nos. 5 to 7) has been revised retrospectively for the session 2020-2021. Learned Senior Counsel for the petitioners submits that Notification dated 29.12.2020 (P-4) is already under challenge in CWP No. 5325 of 2021, titled "Mamta and others versus State of Haryana and others", and this Court, vide order dated 5.03.2021, has granted interim relief to the petitioners therein, by permitting the students to continue to attend the classes in the educational institutions and further directing fees to be charged as per the old fee structure. Learned Senior Counsel for the petitioners also places reliance upon the orders dated 18.6.2020 and 15.7.2020 passed in CWP No. 7941 of 2020 titled as "Adesh University and another versus State of Punjab & others". Learned Senior Counsel for the petitioners also places reliance upon the orders dated 18.6.2020 and 15.7.2020 passed in CWP No. 7941 of 2020 titled as "Adesh University and another versus State of Punjab & others". It is submitted that this Court is seized of similar issue in Adesh University's case (supra) wherein the State Government reduced the fee structure notified for the Adesh University mid-admissions and this Court vide its order dated 18.6.2020 stayed the corrigendum issued by the State Government reducing fee of the University and permitted the Adesh University to charge un-revised fees (fees prior to reduction) which was notified prior to the commencement of the counselling. The order dated 18.6.2020 has been confirmed by this Court while dismissing the application for vacation of stay on 15.7.2020. 17. Learned counsel for the respondents have vehemently opposed the grant of interim relief by stating that the proposal for revision of the fees had already commenced prior to finalization of the admission process and that fee has been revised in accordance with the 2012 Act, across the board for all the students. Therefore, no prejudice has been caused to the present petitioners. 18. It is admitted position, that the procedure for admission had commenced vide Notification dated 29.10.2020 (P-2), which was followed by a corrigendum dated 13.11.2020 (P-3). The fee structure was duly mentioned in the Notification dated 29.10.2020 as modified vide corrigendum dated 13.11.2020. The 1st counselling was conducted from 15.11.2020 to 23.11.2020 vide public notice (Annexure P-7) issued by respondent No. 2. The 2nd counselling was conducted from 12.12.2020 to 18.12.2020 vide public notice Annexure P-9, and the 3rd counselling for leftover seats viz. Mop-up Round of counselling was conducted from 25.12.2020 to 31.12.2020 vide public notice Annexure P-10. 19. In the present case, there are 47 petitioners, majority of whom were allocated seats in either 1st or 2nd round of counselling and 14 petitioners were allocated seats in the Mop-up Round of counselling viz. the 3rd counselling conducted for leftover seats. The details of the admissions are mentioned in tabular form at page 36 of the writ petition. The petitioners had joined the respondent medical institutes in pursuance to the above said counselling at un-revised fee, as evident from the details mentioned in the tabular form at page 39 to 42 of the writ petition. However, once the fees was revised upon asking of the respondent Nos. The petitioners had joined the respondent medical institutes in pursuance to the above said counselling at un-revised fee, as evident from the details mentioned in the tabular form at page 39 to 42 of the writ petition. However, once the fees was revised upon asking of the respondent Nos. 5 to 7 institutes, certain petitioners have paid the enhanced fees. 20. The comparative chart as prepared on page 66 of the writ petition makes it evident that there is drastic increase in the fees to be charged by the respondent Institutes/Colleges. Learned counsel for the respondents, at this stage, have submitted that the fee has been revised in accordance with law and in terms of the 2012 Act. It is further submitted by learned Senior Counsel representing respondent Nos. 5 and 6 (private medical institutes) that the petitioners have already deposited the revised fee in January, 2020 (for the 1st year) and even the fee for the 2nd year has already been deposited by the petitioners in July, 2021, therefore having deposited the revised fees, the petitioners are not entitled for any interim relief especially once legal remedy has been invoked at such a belated stage. In rebuttal, learned Senior Counsel representing the petitioners has pointed out, that the fee has been revised without adhering to the process and there are severe deficiencies in the private medical colleges' respondent Nos. 5 to 7 w.r.t. the minimum infrastructure facilities to be provided by respondent medical colleges. In support thereof, learned Senior Counsel for the petitioners has placed reliance on certain documents and inspection reports pertaining to the respondent private medical Colleges. It has even been urged, that the petitioners have paid the revised fees on account of the superior position of the respondent private colleges, as the axe of their name being struck from the college was hanging upon their heads. As per us, the permissibility, sanctity and quantum of the revised fee can only be adjudicated once the decision-making process is placed on record by the respondent state to depict adhering of the process as enshrined in 2012 Act especially the parameters contained in Section 8. Further with regard to the revised fee being paid by the petitioners on the directions of the private medical colleges' respondent Nos. Further with regard to the revised fee being paid by the petitioners on the directions of the private medical colleges' respondent Nos. 5 to 7 is concerned, prima facie, we are of the opinion that only by bowing before the demands of the respondent private medical colleges, does not waive off the right to challenge the same, if the same is contrary to law. It is a settled position that there is no estoppel to law. Though strictly speaking the rule of estoppel as being pleaded by learned counsel representing respondent Nos. 5 and 6, prima facie, to ourmind shall not be applicable since the candidates participated in the process of admission as per the notification dated 29.10.2020 as amended vide corrigendum dated 13.11.2020. The demand so raised, against which the interim relief is being sought, is to the notification dated 29.12.2020 which has been issued at the very fag end of the admission process when majority of the petitioners already stood admitted. Any subsequent payment made will not debar this Court from adjudicating upon the illegalities committed by the respondent state. The Hon'ble Apex Court also in Dr. (Major) Meeta Sahai vs. State of Bihar (SC) 2019 (20) SCC 17 has observed, that mere participation in the selection process does not debar a candidate from challenging the process, where there is misconstruction of statutory rules and discriminating consequences arising therefrom. 21. Be that it may so, prima facie, we are of the considered opinion that once the prospectus in the form of notification dated 29.10.2020 (P-2) had been issued and implemented, it cannot be allowed to be changed mid-admissions so as to disrupt the process of admissions. The notification dated 29.10.2020 as amended vide corrigendum dated 13.11.2020 (P-3) controls the method and procedure for admission to the courses. Concededly, the revised fee structure has been issued after completion of the 2 round of counselling and in fact 2 days before the closure of the 3 counselling viz. the Mop-up Round. Hence, the State Government ought not to have interfered/altered the conditions of the prospectus to the disadvantage of parties (students). 22. Even at the time of argument, no reason has been assigned by the learned State Counsel for changing the fee at the very fag end of the admission process, once the majority of the students have already taken admissions in terms of the un-revised fees. 22. Even at the time of argument, no reason has been assigned by the learned State Counsel for changing the fee at the very fag end of the admission process, once the majority of the students have already taken admissions in terms of the un-revised fees. The position in law is already clear that Rules of the game cannot be changed midstream. Reference in this regard be made to Himani Malhotra vs. High Court of Delhi, 2008(2) S. C. T. 736, Bishnu Biswas vs. Union of India, 2014 (2) SCT 654 . 23. Therefore, to maintain the balance and equities and in light of the order dated 5.3.2021 passed in "Mamta and others versus State of Haryana and others" and orders dated 18.6.2020 and 15.7.2020 passed in CWP No. 7941 of 2020 titled as "Adesh University and another versus State of Punjab & Others", since the impugned Notification dated 29.12.2020 (P-4) relates only to revision of fee structure of MBBS course to be charged by private institutes - respondent Nos. 5 to 7, the retrospective operation of the Notification dated 29.12.2020 (P-4) from the session 2020-21 is hereby stayed till the next date of hearing. 24. We understand the apprehension of the private colleges that refunding the excess fee charged by the respondent-private medical colleges will cause financial disruption, therefore, we permit the excess fee deposited by the petitioners in terms of Notification dated 29.12.2020 (P-4) instead of being refunded, be adjusted in the fees yet to be paid by the petitioners. 25. Needless to say that the payment of the fees by the students at the unrevised rate shall be subject to final outcome of the writ petition.