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2021 DIGILAW 191 (HP)

Shailja Choudhary v. State of H. P.

2021-03-31

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The instant petition has been filed for the grant of following substantive reliefs: “(i) That writ in the nature of certiorari may kindly be issued by quashing the office order dated 26.09.2020 (Annexure P13) and the notification dated 9th August, 2017 (Annexure P3). (ii) That the writ in the nature of mandamus may kindly be issued by directing the respondents to remove the anomaly/disparity in the fee structures of the petitioners. (iii) That writ in the nature of mandamus may kindly be issued directing the respondents to maintain the parity in the fees structure and charge the tuition fees as was being charged for the year 2016-17, and is being charged for the year 2018-19 and 2019-20 for the NRI vacant/unfilled seats allotted to state general quota seats.” 2. On 28.06.2017, respondent No.2 invited online applications from the eligible and qualified candidates of NEETUG2017. On 15.07.2017, merit list was prepared and notified by the Himachal Pradesh University i.e. respondent No.3 and the first counselling was scheduled to commence w.e.f. 18.07.2017 to 26.07.2017. The petitioners were called for counselling on 19.07.2017. After completion of first round of counselling, 20 seats of NRI quota remained unfilled/vacant due to the non-availability of NRI candidates. 3. On 09.08.2017 a notification was issued by respondent No.2 Directorate of Medical Education & Research clearly stating therein that Council had decided to raise the tuition fees at par with the fees prescribed for the State general quota seat in the private medical college of the State and, accordingly, the fees has been enhanced from Rs.60,000/to Rs. 5,50,000/. This notification was assailed by one of the candidate Sunidhi Pathania by filing CWP No. 1840 of 2017. However, the same was dismissed by this Court as being not maintainable on 17.8.2017. 4. Aggrieved by the aforesaid judgment, the said Sunidhi Pathania approached the Hon’ble Supreme Court. The Hon’ble Supreme Court allowed Sunidhi Pathania to continue with the course by paying the fees payable by the general merit candidate. At the same time, one Nidhi Sharma, approached the Hon’ble Supreme Court by filing petition under Article 32 of the Constitution of India. However, the Hon’ble Supreme Court disposed of the said petition by granting liberty to the petitioner to assail the action of the respondents regarding fixation of fees before this Court. 5. At the same time, one Nidhi Sharma, approached the Hon’ble Supreme Court by filing petition under Article 32 of the Constitution of India. However, the Hon’ble Supreme Court disposed of the said petition by granting liberty to the petitioner to assail the action of the respondents regarding fixation of fees before this Court. 5. For completion of facts, it needs to be stated that a similar petition was filed by one Aakriti Vashishta before the Hon’ble Supreme Court under Article 32 of the Constitution of India, being Writ Petition (Civil) No. 1009/2017. However, the same was dismissed by passing the following order: “We are not inclined to entertain this petition filed under Article 32 of the Constitution of India. The Writ Petition is dismissed.” 6. It is averred that the action of the respondents in fixing exorbitant fees of Rs.5,50,000/is discriminatory as the respondents themselves for the subsequent years 2018-19 and 2019-20 fixed a fees which is far low I.e.only Rs.60,000/as compared to the fees levied upon the petitioners, who have been admitted to the course in the year 2017-18. 7. The prospectus of the Himachal Pradesh University, issued by the respondent for admission to MBBS and BDS courses for the Session 2017-18 inter alia provides in Clause 10(ii) of ChapterIII (Distribution of seats and admission criteria) as under: “10(ii) The vacant/unfilled seats, if any, under NRI Quota will be filled up as per directions of the Government of Himachal Pradesh for which separate notice will be issued in due course of time.” 8. Since some of the NRI quota seats for admission to MBBS for the Session 2017-18 remained unfilled, the State Government in its wisdom took a conscious decision in the Cabinet meeting held on 2.8.2017 that the unfilled NRI seats in Government Medical Colleges shall be filled up as paid seats from Himachali Bonafide Candidates in order of merit drawn by the Himachal Pradesh University on the basis of NEETUG and the fees for all such paid seats shall be at par with the fees for State quota seats in Private Medical College of the State i.e. Rs.5,50,000/-( per student per year). 9. Accordingly, the State Government directed the respondent vide letter dated 9.8.2017 that the unfilled NRI seats in Govt. 9. Accordingly, the State Government directed the respondent vide letter dated 9.8.2017 that the unfilled NRI seats in Govt. Medical Colleges shall be filled up as paid seats out of which one paid seat at Nahan and two paid seats at Chamba shall be filled up from Tibetan Refugees on the basis of NEETUG merit, subject to availability of eligible candidates. All the remaining paid seats (including left out paid seats from Tibetan Refugees) shall be filled up from Himachali Bonafide Candidates in order of merit drawn by H.P. University on the basis of NEETUG and the fees for all such paid seats shall be at par with the fees for State quota seats in Private Medical College of the State i.e. Rs.5,50,000/-(per student per year). 10. The total number of filled up seats was two, out of twentyfour seats were filled up as said seats in three new Govt. Medical Colleges from General Category and three were filled up from Tibetan Refugees candidates for the academic session 2017-18 from merit rank 418 to 586 as per meritcumchoice of the candidates. The last cut off merit of General category was exhausted at merit rank of 416. The candidates selected for paid seats were having merit rank 418 to 586. The detail of merit of rank of such candidates is as 418, 419, 423, 429, 432, 435, 438, 439, 443, 447, 452, 454, 455, 458, 463, 484, 486, 513, 521, 541, 545, 554, 570 and 586. 11. It would be noticed that many of the candidates who were in the merit did not opt for NRI seats due to heavy fee structure. 12. The petitioners admittedly accepted these conditions and knew very well that they are required to pay the fees for the entire course. Therefore, in such circumstances, the moot question arises as to whether the petitioners can maintain the instant petition. 13. A similar issue came up for consideration before three Judge Bench of the Hon’ble Supreme Court in Cochin University of Science and Technology and another vs. Thomas P. John and others 2008) 8 SCC 82, wherein like in the present case, challenge had been laid to fixing of the fees for the year 1995-96 including from 1995 on the ground that the fees for the subsequent years was far less and thus, it amounts to discrimination. Rejecting the said contention, it was observed by the Hon’ble Supreme Court in para19 of the judgment as under: “19. In the present case, we find that the NRI students took admission on certain specific conditions and the University has a right to insist that those conditions are observed. To our mind, therefore, it would not be open to the students to contend that notwithstanding that they had been admitted on a certain fee structure they were entitled to claim as a matter of right, a reduction in fee to bring them at par with students admitted later under a lower fee structure. The argument of estoppel in such a case would, thus, be available to an educational institution. The High Court was influenced by the fact that estoppel was a plea in equity and as the right of the NRI students under Article 14 appeared to have been violated, this plea was not available to the University. We do not agree with this submission for several reasons, firstly the NRI students have not been granted admission on their over all merit but on the basis of the 10% reservation in their favour and as such any claim based on equity would be suspect and secondly each set of admissions made year wise cannot be said to over lap the admissions made earlier or later. We have also considered Mr. Rao's submission that the fee had the trappings of a capitation fee. We find no merit in this assertion, as the fee is being levied year wise for the course. We have also gone through the judgments cited by Mr. Iyer. To our mind, they are not applicable to the facts of this case.” 14. In the said case, the respondents-students were admitted in the B.Tech. Course in the year 1997-98 and 1998-99. They were admitted in the NRI students quota. Fee in the relevant academic year was US$4000 per annum, whereas in the year 1999-2000, earlier provision which was made in the year 1995-96 i.e., fee of US$5000 and in addition to that payment of Rs.20,000/-per semester was reduced. Petitioners filed representation claiming that they are also entitled to have the benefit of reduction of fee on account of reduction of fee in the subsequent years. The High Court allowed the Writ Petition against which judgment the respondent-University filed an appeal before the Hon’ble Supreme Court. Petitioners filed representation claiming that they are also entitled to have the benefit of reduction of fee on account of reduction of fee in the subsequent years. The High Court allowed the Writ Petition against which judgment the respondent-University filed an appeal before the Hon’ble Supreme Court. The Hon’ble Supreme Court in the said judgment has laid down that an educational institution chalks out its own programme year wise on the basis of the projected receipts and expenditure and the court need not interfere in this purely administrative matter which is the right of the educational institution. The Hon’ble Supreme Court further laid down that NRI students who took admission on certain basic conditions and on a fee structure cannot claim as a matter of right reduction in fee to bring them at par with the students admitted later in a lower fee structure. 15. The aforesaid judgment unequivocally declares that subsequent reduction in the fee structure for the subsequently admitted students cannot withstand a ground to reduction by the students who were admitted on different fee structure in a year. 16. In view of the aforesaid exposition of law, the instant petition is clearly not maintainable and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.