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2022 DIGILAW 23 (KER)

Sanju Simon S/o Simon Thomas v. State of Kerala

2022-01-07

A.K.JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P.

body2022
JUDGMENT : A.K. JAYASANKARAN NAMBIAR, J. 1. These writ petitions raise a very pertinent question as regards the propriety of the demand of annual fees from medical students under circumstances where the fee demanded pertains to an academic year different from the academic year in respect of which instructions are being imparted to the students. 2. The petitioners in these writ petitions are students who were admitted to the 2019-2020 batch of the MBBS Course offered by various private medical colleges in the State. The fee that can be collected by the said medical colleges, from the students admitted thereto, has been fixed by the Admission and Fee Regulatory Committee constituted in the State of Kerala in terms of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 [hereinafter referred to as the “2017 Act”]. As per the provisions of the 2017 Act, the committee is expected to determine the fee that can be collected by the private medical educational institutions from the students in the year in which they are admitted to the institution concerned and the institutions are prohibited from collecting any amount in excess of the annual fee so determined, in an academic year. The yearly fee that is determined by the committee cannot also be revised by the educational institution concerned till the student completes his/her course in the institution. In the cases before us, there is no dispute with regard to the annual fee that can be collected from the students by the educational institutions concerned, or with regard to the fact that, the medical course being spread over a period of 54 months (4.5 Years), the students have to pay the annual fee for five academic years. These aspects have been determined by the Admission and Fee Regulatory Committee that is the statutory body vested with the power to determine them and we do not intend to interfere with the said determination. 3. The immediate provocation for the writ petitions appears to be the intervention of the pandemic situation in our country, as a result of which, there was a break occasioned in the imparting of instructions to the students in the medical educational institutions concerned. Consequently, the instructions relevant to an academic year could not be completed within the period allotted for the same and spilled over to subsequent months in a calendar year. Consequently, the instructions relevant to an academic year could not be completed within the period allotted for the same and spilled over to subsequent months in a calendar year. This resulted in a situation where the students, while pursuing the second year of their course in the educational institutions, were issued with demand notices for the fee in respect of the third year of the course. The said demand notices are impugned in the writ petitions inter-alia on the contention that, by demanding fees in respect of a year different from that for which instructions are imparted, the educational institutions concerned are effectively collecting the determined fees in advance and this is not permissible going by the dictum in Islamic Academy of Education and Another vs. State of Karnataka and Others, (2003) 6 SCC 697 and the provisions of Section 8(3) of the 2017 Act. The Educational institutions concerned, on the other hand, would justify the demand by arguing that it is the third calendar year since the student was admitted to the institution and, hence, they are entitled to collect the annual fee determined for the third year. 4. We have heard Sri. Ranjith Thampan, the learned Senior Counsel, duly assisted by Advocate Sri. V.M. Krishnakumar, on behalf of the petitioners in all these writ petitions as also Advocate Sri. Haris Beeran, duly assisted by Advocate Smt. O.A. Nuriya, Advocate Sri. Murugan, Sri. S. Sreekumar, the learned senior counsel, duly assisted by Advocate Sri. Arun B. Varghese, Sri. George Poonthottam, the learned senior counsel, duly assisted by Advocate Smt. Nisha George, Advocate Sri. S. Vinod Bhat, Advocate Sri. Babu Karukapadath, Advocate Sri. George Jacob Jose, Sri. Kurian George Kannanthanam, the learned senior counsel, duly assisted by Advocated Sri. Tony George Kannanthanam, Advocate Sri. Millu Dandapani, Advocate Sri. Amal Das and Advocate Sri. P. Sanjay on behalf of the respondent educational institutions. We have also heard Sri. R.T. Pradeep, the learned counsel appearing for the Admission and Fee Regulatory Committee, Sri. P. Sreekumar, learned Standing Counsel for the Kerala University of Health Sciences and Sri. Bijoy Chandran, the learned Government Pleader for the official respondents of the State. 5. P. Sanjay on behalf of the respondent educational institutions. We have also heard Sri. R.T. Pradeep, the learned counsel appearing for the Admission and Fee Regulatory Committee, Sri. P. Sreekumar, learned Standing Counsel for the Kerala University of Health Sciences and Sri. Bijoy Chandran, the learned Government Pleader for the official respondents of the State. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, we may observe, at the outset, that there is an inherent incongruity in prescribing the payment of the annual fee determined by the Admission and Fee Regulatory Committee over five years, when the course duration of the MBBS Course itself is only four and a half years. While, under normal circumstances, an academic year would comprise a period of twelve months of study and a course having duration of four and a half years would cover four full calendar years and six months in the fifth calendar year, in the case of the MBBS Course, the Regulations on Graduate Medical Education, 1997, framed under the Indian Medical Council Act, 1956 envisage a distribution of subjects by Professional Phase as follows: Table 2: Distribution of subjects by Professional Phase Phase and Year of MBBS training Subjects and New Teaching Elements Duration University examination First Professional MBBS Foundation Course (1 month) 1 + 13 Months I Professional Human Anatomy, Physiology and Biochemistry, introduction to Community Medicine, Humanities Early Clinical Exposure Attitude, Ethics and Communication Module (AETCOM) Second Professional MBBS Pathology, Microbiology, Pharmacology, Forensic Medicine and Toxicology 12 Months II Professional Introduction to clinical subjects including Community Medicine Clinical postings Attitude, Ethics and Communication Module (AETCOM) Third Professional MBBS Part I General Medicine, General Surgery, Obstetrics and Gynecology, Pediatrics, Orthopedics, Dermatology, Psychiatry, Otorhinolaryngology, Ophthalmology, Community Medicine, Forensic Medicine and Toxicology, Respiratory medicine, Radio-diagnosis and Radiotherapy, Anesthesiology 13 Months III Professional (Part I) Clinical subjects/postings Attitude, Ethics and Communication Module (AETCOM) Electives Electives, Skills and assessment* 2 Months Third Professional MBBS Part II General Medicine, Pediatrics, General Surgery, Orthopedics, Obstetrics and Gynecology including Family Welfare and allied specialties 13 Months III Professional (Part II) Clinical postings/subjects Attitude, Ethics and Communication Module (AETCOM) *Assessment of electives shall be included in Internal Assessment It can be seen from the above table that the distribution of the subjects in the MBBS Course is spread over four phases comprising 14 months, 12 months, 15 months (including electives) and 13 months respectively. While this period would normally spread over four full calendar years and six months in the fifth calendar year if the course proceeds uninterruptedly from its commencement until completion, an interruption or break in the course would result in a lack of synchronization between the calendar year and the academic year. That appears to have caused the peculiar predicament of the petitioners in these writ petitions. That appears to have caused the peculiar predicament of the petitioners in these writ petitions. As a result of the lock down imposed by the State Government in the wake of the global COVID pandemic, there was an unavoidable interruption to the course of study and hence, while the months in the calendar year passed by, there was no simultaneous progress in the instruction months that constituted the academic year. This led to the situation where the petitioners were called upon to remit the fee payable for the third year of their course when they were effectively pursuing only the second year of their course. The issue we are called upon to decide is whether the educational institutions can be permitted to collect the third year fee at this stage? 6. On a consideration of the statutory provisions as also the decision of the Supreme Court in Islamic Academy (Supra) that preceded them, we are of the view that it would be wholly inequitable and unjust to permit the educational institutions concerned in these writ petitions to collect the determined annual fees in respect of any academic year save that for which instructions are currently being imparted. The judgment in Islamic Academy (Supra) clearly mandates that institutions shall charge fee only for one year in accordance with the rules and shall not charge the fees for the entire course (See: Para 157 of the judgment). It is also observed that 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 (See: Para 163 of the judgment). This is also the statutory mandate under Section 8 (3) of the 2017 Act. It is clear, therefore, that the educational institutions are not justified in collecting any amount towards fee for a period longer than the academic year in question. In collecting the third year fee, while the student is pursuing the second year of the course, they would be doing just that. 7. There is yet another aspect of the matter. Conceptually, a fee is a remuneration for services rendered. In collecting the third year fee, while the student is pursuing the second year of the course, they would be doing just that. 7. There is yet another aspect of the matter. Conceptually, a fee is a remuneration for services rendered. When the fee permitted to be collected is an annual fee for rendering educational services, the collection of any fee that does not relate to the academic year for which the educational service is rendered but for a future period, would militate against the very concept of a fee for it would be a payment for services yet to be rendered. The educational institutions would then be resorting to ‘profiteering’ which term is defined in the Blacks Law Dictionary (5th Edn.) as the making of profit by taking advantage of an unusual or exceptional circumstance. The COVID pandemic without doubt brought about an unusual or exceptional situation fraught with financial implications. The exceptional situation, however, affected not only the educational institutions but also the student community and their financier guardians. We feel it would be unconscionable on the part of the private medical educational institutions concerned to demand the determined fees, unmindful of the difficulties faced by the students. 8. We therefore allow these writ petitions by directing those among the respondent private medical institutions, where the petitioners in these writ petitions are studying, to refrain from demanding or collecting academic fees from them in respect of any academic year other than the one for which instructions are currently being imparted based on the Regulations on Graduate Medical Education, 1997 during such periods when there occurs a disruption to the continuity of the MBBS course offered by the Institution concerned. We make it clear that the directions issued in this judgment are to operate only in the aforesaid peculiar situation thrown up by the COVID pandemic.