Differential MBBS and BDS fees for Government and Management Quotas were upheld. The court sustained the tentative and final fee determinations, rejected students’ demand for Government Quota fees, and held their undertakings binding. All writ petitions brought by colleges, students and the parents’ association were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2021
CORAM
THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Orders Reserved On Orders Pronounced On
06.09.202120.09.2021
W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
W.P.No.18984 of 2017 :-
Sri Manakula Vinayagar Medical College and Hospital,
Rep., by its Chairman and Managing Trustee,
Kalitheerthalkuppam, Madagadipet,
Puducherry. ...Petitioner
vs
1.Secretary to Government (Health), Department of Health, Government of Puducherry, Chief Secretariat (Health) – 605 001.
2.The Secretary, Medical Council of India, Pocket-14, Sector 8, Dwaraka, New Delhi – 110 077.3.The Secretary, Ministry of Health & Family Welfare, New Delhi.4.Under Secretary to Government (Health), Department of Heath, Government of Puducherry, Chief Secretariat (Health) – 605 001.5.The Chairman,
Fee Committee Puducherry,
Unaided Self Financing Medical, Dental Colleges,
No.AA-67, 1st Street,
Near Rountana Nalli Silk House,
Anna Nagar, Chennai-40.
6.V.Vimala ...Respondents
[RR5 & 6 – Impleaded as per orders dated 08.08.2017
and 09.08.2021 in W.M.P.Nos.21974 of 2017 &
10583 of 2021 respectively in W.P.No.18984 of 2017 ]
Prayer :- Petition filed under Article 226 of the Constitution
of India praying for issuance of Writ of Certiorarified Mandamus
to call for the records relating to the order of the 4th
respondent dated 19.05.2017 in proceedings No.C.983/H5/Health/
2015-16 and quash the same and consequently direct the 1st
respondent to fix the fee to the students admitted through
CENTAC-Centralized Admission Committee under Government Quota in
the petitioner's college for the academic year 2017-18 to First
Year MBBS, equivalent to the tentative fees fixed by the order
of the 4threspondent dated 19.07.2017 in proceedings
No.C.983/H5/Health/2017-2018/238.
[Prayer amended as per order dated 08.08.2017 made in
W.M.P.No.21975 of 2017 in W.P.No.18984 of 2017]
For |
Petitioner |
: |
Mr.Balavijayan |
|---|---|---|---|
For |
RR1 & 4 |
: |
Mr.C.T.Ramesh, |
Addl. Govt. Pleader (Pondicherry) |
|||
For |
R2 |
: |
Ms.Shubharanjani Ananth |
For |
R3 |
: |
Mr.R.Rajesh Vivekananthan |
For |
R5 |
: |
Ms.A.V.Bharathi |
For |
R6 |
: |
Mr.V.B.R.Menon |
W.P.No.19135 of 2017 :-
Sri Venkateswara Dental College,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. ...Petitioner
vs
1.The Union Territory of Puducherry, Rep., by its Secretary to Government,
Health Department, Office of the Chief Secretariat,
Puducherry-605 001.
2.The Fee Committee, In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry.
3.V.Vimala ...Respondents
[RR2 & 3 – Impleaded as per orders dated 09.08.2017 and
16.03.2021 in W.M.P.Nos.22238 of 2017 &
11145 of 2018 respectively in W.P.No.19135 of 2017]
Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorari to call for the
records on the files of the respondents in its proceedings
No.C.983/H5/Health/2015-16 dated 19.05.2017 and quash the same
as arbitrary insofar as it fixes fee without considering the
factors prescribed by the Hon'ble Supreme Court in Islamic
Institution, P.A.Inamdar and Modern Dental College.
For Petitioner :Mr.Abishek Jenasenan
For RR1 & 2 :Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R3 :Mr.V.B.R.Menon
W.P.No.19136 of 2017 :-
Sri Venkateswara Dental College,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. ...Petitioner
vs
1.The Union Territory of Puducherry,
Rep., by its Secretary to Government,
Health Department,
Office of the Chief Secretariat,
Puducherry-605 001.
2.The Fee Committee,
In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry. ...Respondents
[R2 – Impleaded as per order dated 09.08.2017 in
W.M.P.No.22239 of 2017 in W.P.No.19136 of 2017]
Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorari to call for the
records on the files of the respondents in its proceedings
No.C.983/H5/Health/2017-18-238 dated 19.07.2017 and quash the
same as arbitrary insofar as it fixes temporary fee stating that
the order in No.C.983/H5/Health/2015-16 dated 19.05.2017 did not
make any difference between Management Quota and Government
Quota students, thus restricting it to Management Quota student
alone.
For Petitioner :Mr.Abishek Jenasenan
For RR1 & 2 :Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
W.P.No.19137 of 2017 :-
Sri Venkateswara Medical College
Hospital and Research Centre,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. ...Petitioner
vs
1.The Union Territory of Puducherry,
Rep., by its Secretary to Government,
Health Department, Office of the Chief Secretariat,
Puducherry-605 001.
2.The Fee Committee,
In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry.
3.V.Vimala ...Respondents
[RR2 & 3 – Impleaded as per orders dated 09.08.2017 and
16.03.2021 in W.M.P.Nos.22240 of 2017 &
19125 of 2019 respectively in W.P.No.19137 of 2017]
Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorari to call for the
records on the files of the respondents in its proceedings
No.C.983/H5/Health/2015-16 dated 19.05.2017 and quash the same
as arbitrary insofar as it fixes fee without considering the
factors prescribed by the Hon'ble Supreme Court in Islamic
Institution, P.A.Inamdar and Modern Dental College.
For RR1 & 2 :Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R3 :Mr.V.B.R.Menon
W.P.No.24161 of 2018 :-
Pondicherry Medical Colleges Students
and Parents Association,
Rep., by its Secretary, No.158, Mission Street,
Puducherry-605 001. ...Petitioner
vs
1.The Chief Secretary to Govt. of Puducherry, Secretariat, Goubert Avenue, Puducherry-605 001.2.The Deputy Secretary to Government of Puducherry, Health and Family Welfare Services Department, Secretariat, Beach Road, White Town, Puducherry-605 001.3.The Director, Department of Health and Family Welfare
Services (DHFWS),
Victor Samuel Street, Puducherry-605 001.
4.Puducherry Fee Committee, Rep., by its Chairman,
No.7 (NCB), Greenways Road,
Chennai-600 028.
5.The Registrar, Pondicherry University, R.V.Nagar, Kalapet, Puducherry-605 014.6.Sri Manakula Vinayagar Medical College and Hospital, Rep., by its Chairman and Managing Director, M.Dhanasekaran, Kalitheerthalkuppam, Madagadipet, Puducherry-605 107.7.Sri Venkateswara Medical College Hospital and Research Centre, Rep., by its Chairman, B.Ramachandhiran, Main Road, Ariyur, Puducherry-605 102.[RR6 & 7 – Impleaded as per order dated 04.07.2019 in
W.M.P.Nos.17795 of 2019 & 17815 of 2019 in W.P.No.24161 of 2018]
8.The Registrar,Pondicherry Institute of Medical Sciences, Kalathumettupathai, Ganapathichettikulam, Village No.20, Kalapet, Puducherry-605 014. ...Respondents[R8 – Impleaded as per order dated 16.12.2020 in
W.M.P.No.23270 of 2020 in W.P.No.24161 of 2018]
Prayer :- Petition filed under Article 226 of the Constitution
of India praying for issuance of Writ of Certiorarified Mandamus
to call for the records pertaining to the Fee Order dated
03.07.2018 issued by the Government of Puducherry in
G.O.Ms.No.24 prescribing separate Annual Fees for MBBS Students
admitted under Management Quota in the 6th, 7th and 8th Respondent
Medical Colleges and quash the same and consequently to direct
the 6th, 7th and 8th Respondents to collect the Annual Fees from
the MBBS Students admitted under Management Quota also as per
the common Fee Order dated 19.05.2017 issued by the Puducherry
Government and to refund the excess Annual Fee amounts already
collected from them.
[Prayer amended as per order dated 16.08.2021 in
W.M.P.No.310 of 2021 in W.P.No.24161 of 2018]
For |
Petitioner |
: |
Mr.V.B.R.Menon |
|---|---|---|---|
For |
RR1 to 4 |
: |
Mr.C.T.Ramesh,Addl. Govt. Pleader (Pondicherry) |
For |
R5 |
: |
Ms.A.V.Bharathi |
For |
R6 |
: |
Mr.B.Balavijayan |
For |
R7 |
: |
Mr.L.Swaminathan &Mr.Devashish Bharakassisted by Ms.Q.Rubina |
For |
R8 |
: |
Mr.AR.L.Sundaresan,Senior Counselassisted by Mr.Abishek Jenasenan |
W.P.No.19466 of 2020 :-
1.Leen.J
2.Prasanth.B
3.Sriram.J
4.John Albert.S
5.Preethi Prabhakar
6.Shenaz Banu.B
7.Shirly Pricilla.J 8.Kevin Abraham.A.9.Robert Melvin.D.Sami
10.Govardhana.S.
11.Ajinkya Dhumale
12.Praneetha.V.R.
13.Saranya.J
14.Joslin Joe.A
15.Aravindraj.D
16.Shabeera.M
17.Muthubarathy.S.R.
18.Dhana Nadeeshwaran.R.S.
19.Sneha.T.
20.Angel Grace Marie
21.Mirthulla Julie Anne
22.Mohankumar.R.
23.Yashwanth.K
24.Mruganayani.G
25.Harishelvan.P
26.Samuel.M
27.Sweatha.K
28.Ashaya.E
29.Ramkumar.P
30.Thanushree.A
31.Rishi Kesavan.R
32.Shanmugapriya.A
33.Leander Pradeep
34.Adhithya.R
35.Milind.L
36.Jayakrishna.M
37.Ragothaman.T
38.Krishna Chandran Alias Abou.R
vs
1.The Secretary to Government of Puducherry, Health and Family Welfare Services Department, Secretariat, Beach Road, White Town, Puducherry-605 001.2.The Registrar, Pondicherry University, R.V.Nagar, Kalapet, Puducherry-605 014.3.The Chairperson,
National Medical Commission,
Pocket-14, Sector-8,
Dwarka Phase-I, New Delhi-110 077.
4.Pondicherry Institute of Medical Sciences,
Rep., by its Chairman,
Kalathumettupathai, Ganapathichettikulam,
Village No.20, Kalapet, Puducherry-605 014.
5.Sri Venkateshwara Medical College Hospital
and Research Centre, Rep., by its Chairman,
Main Road, Ariyur, Puducherry-605 102. ...Respondents
Petition filed under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorarified Mandamus to
call for the records of the Fee Order issued by the Government
of Puducherry in G.O.Ms.No.24 dated 03.07.2018 prescribing
separate Annual Fees for MBBS Students admitted under Management
Quota during the academic year 2017-18 to the Private Affiliated
Medical Colleges situated in the Union Territory of Puducherry
and to quash the same in respect of the petitioners only and
consequently to direct the 4th and 5th respondents to collect from
the petitioners Annual Fees for the entire 5-year MBBS Course
only as per the common Fee Order dated 19.05.2017 issued by the
Pondicherry government and to refund the excess Annual fee
amounts already collected from them.
For |
Petitioners |
: |
Mr.V.B.R.Menon |
|---|---|---|---|
For |
R1 |
: |
Mr.C.T.Ramesh, |
Addl. Govt. Pleader (Pondicherry) |
|||
For |
R2 |
: |
Ms.A.V.Bharathi |
For |
R3 |
: |
Ms.Shubharanjani Ananth |
For |
R4 |
: |
Mr.AR.L.Sundaresan,Senior Counsel |
assisted by Mr.Abishek Jenasenan |
|||
For |
R5 |
: |
Mr.L.Swaminathan &Mr.Devashish Bharakafor Ms.Q.Rubina |
COMMON ORDER
T.S.Sivagnanam, J.
All these writ petitions pertain to the fee structure for
the MBBS and BDS Courses offered by the unaided Medical and
Dental Colleges in the Union Territory of Puducherry.
2.The writ petitions can be broadly grouped into two
categories, those filed by the Medical Colleges/Institutions and
those filed on behalf of and by the students.
3.The prayer sought for in the various writ petitions are
as hereunder:-
(i) W.P.No.18984 of 2017, filed by Sri Manakula Vinayagar
Medical College and Hospital, is for issuance of Writ of
Certiorarified Mandamus to quash the order passed by the
Government of Puducherry dated 19.05.2017 by which, the fee
structure for Medical, Dental and Nursing Colleges was fixed.
Insofar as the petitioner-college is concerned, the fee
structure was fixed for the academic years 2016-17, 2017-18 and
2018-19. The petitioner seeks for a consequential direction
upon the Government of Puducherry to fix the fee to the students
admitting through the Centralized Admission Committee (CENTAC)
under the Government Quota in their college for the academic
year 2017-18 to the I-Year MBBS Course equivalent to the
tentative fees fixed by the Government of Pondicherry, vide
order dated 19.07.2017;
(ii) In W.P.No.19135 of 2017, the petitioner, Sri
Venkateswara Dental College, prays for issuance of Writ of
Certiorari to quash the Government Order dated 19.05.2017,
fixing the fee for the petitioner-college for the academic years
2017-18, 2018-19 and 2019-20, insofar as it fixes the fee
without considering the factors prescribed by the Hon'ble
Supreme Court in various decisions;
(iii) W.P.No.19136 of 2017 has been filed by Sri
Venkateswara Dental College for issuance of Writ of Certiorari
to quash the order passed by the Government of Pondicherry dated
19.07.2017, insofar as it fixes temporary fee for the academic
year 2017-18 stating that the fee fixation order dated
19.05.2017 did not make any difference between the students
admitted under the Management Quota and those students admitted
under the Government Quota, thus restricting it to the
Management Quota students alone;
(iv) W.P.No.19137 of 2017 has been filed by Sri
Venkateswara Medical College Hospital and Research Centre
praying for issuance of Writ of Certiorari to quash the order
passed by the Government of Pondicherry dated 19.05.2017, with
regard to the fee fixed for the academic years 2015-16, 2016-17
and 2017-18 as being arbitrary, as it has been fixed without
considering the factors prescribed in the various decisions of
the Hon'ble Supreme Court;
(v) W.P.No.24161 of 2018 has been filed by the
Pondicherry Medical College Students and Parents Association
(for brevity “the Association”) for issuance of Writ of
Certiorarified Mandamus to quash the order passed by the
Government of Pondicherry in G.O.Ms.No.24 dated 03.07.2018,
prescribing separate annual fee for MBBS students admitted under
Management Quota in Sri Manakula Vinayagar Medical College and
Hospital, Sri Venkateswara Medical College Hospital and
Pondicherry Institute of Medical Sciences and for a
consequential direction to direct those three institutions, who
were impleaded as the 6th, 7th and 8th respondents in the writ
petition to collect annual fee from the MBBS students admitted
under the Management Quota as per the fee fixed in the order
dated 19.05.2017, passed by the Government of Pondicherry and to
refund the excess annual fee already collected from the
students; and
(vi) W.P.No.19466 of 2020 has been filed by 38
petitioners, who were the students admitted to the MBBS course
during the academic year 2017-18 in the Pondicherry Institute of
Medical Sciences and Sri Venkateswara Medical College Hospital
and Research Centre, respondents 4 and 5 in the writ petition,
praying for issuance for Writ of Certiorarified Mandamus to
quash the order passed by the Government of Pondicherry in
G.O.Ms.No.24 dated 03.07.2018, prescribing separate annual fee
for MBBS students admitted under Management Quota during the
academic year 2017-18 in the 4th and 5th respondent-Colleges and
to direct them to collect annual fee from the writ petitioners
for the entire 5-year MBBS course as per the common fee fixed by
the Government of Pondicherry in the order dated 19.05.2017, and
refund the excess annual fee collected from hem.
4.The learned counsel appearing for the writ petitioners
as well as the respondents submitted that in W.P.No.24161 of
2018, filed by the Association of the Institution, all the
Governmental Authorities (except National Medical Commission)
and the Puducherry University are parties and therefore, the
papers filed in the said writ petition by both sides can be
taken up and they would make their submissions accordingly.
5.We have heard Mr.Abishek Jenasenan – learned counsel
for Sri Venkateswara Dental College; Mr.P.Balavijayan – learned
counsel for Sri Manakula Vinayagar Medical College and Hospital;
Mr.AR.L.Sundaresan – learned Senior Counsel, assisted by
Mr.Abishek Jenasenan – learned counsel for the Pondicherry
Institute of Medical Sciences; Mr.L.Swaminathan, learned counsel
and Mr.Devashish Bahraka, learned counsel for Ms.Q.Rubina –
learned counsel for Sri Venkateswara Medical College Hospital
and Research Centre; Mr.C.T.Ramesh – learned Additional
Government Pleader (Pondicherry) for the Government of
Pondicherry; Ms.Shubharanjani Ananth – learned counsel for the
National Medical Commission; Mr.Rajesh Vivekanandan – learned
counsel for the Union of India; Ms.A.V.Bharathi – learned
counsel for the Puducherry Fee Committee and the Puducherry
University; and Mr.V.B.R.Menon – learned counsel for the
Association and students and carefully perused the materials
placed on record.
6.We first take into consideration the legal position as
regards the regulation of the fee structure and admission
process in private Medical and Dental Colleges. The correctness
of the decision of the Hon'ble Supreme Court in Unni Krishnan
J.P. vs. State of Andhra Pradesh [(1993) 1 SCC 645 (SC)] came up
for consideration before the Hon'ble Supreme Court in T.M.A.Pai
Foundation vs. State of Karnataka [(2002) 8 SCC 481 (SC)]. It
was pointed out that in the case of Mohini Jain (Miss) vs. State
of Karnataka and Ors., [(1992) 3 SCC 666], the challenge was to
a notification of June, 1989, which provided for a fee
structure, whereby for Government seats, the tuition fee was
Rs.2,000/- per annum and for students from Karnataka, the fee
was Rs.25,000/- per annum, while the fee for Indian students
from outside Karnataka, under the payment category was
Rs.60,000/- per annum. It was contended that charging of such a
discriminated and high fee violated constitutional guarantees
and rights and this challenge was sustained and it was held that
there was fundamental right to education in every citizen and
the State was duty bound to provide the education and that the
private institutions that discharge the State's duties were
equally bound not to charge a higher fee than the Government
institutions. The Court held that any prescription of fee,
excess of what was payable in Government colleges, was a
capitation fee and would, therefore, be illegal. The
correctness of the said decision was challenged in Unni Krishnan
contending that if the ratio in Mohini Jain (Miss) was applied,
the educational institutions would have to be closed down, as
they would be wholly unviable without appropriate funds, by way
of tuition fees, from their students.
7.In Unni Krishnan, the Hon'ble Supreme Court considered
the conditions and regulations, which the State could impose in
running of a private unaided/aided and recognized affiliated
educational institutions running professional courses such as
Medical Course, Engineering, etc. Further, to consider the
extent to which the fee could be charged by such an institution
and the manner in which admission could be granted, was also
considered. It was held that private unaided recognized/
affiliated educational institutions running of professional
courses were entitled to charge fee higher than that charged by
the Government institutions for similar courses, but such fee
could not exceed the maximum limit fixed by the State. It was
held that commercialisation of education was not permissible.
With regard to the private aided/recognised/affiliated
educational institutions, the Court held that the power of
Government to frame rules and regulations in the matter of
admission and fee as well as matters in such as regulation of
conditions of fee of teachers and staff. It was further held
that it was obligatory upon the authority granting recognition
to an affiliated institution upon such conditions as were
appropriate to ensure not only an education of requisite
standard, but also fairness and equal treatment in the matter of
admission of students.
8.Then the Court proceeded to formulate a scheme (a) that
a professional college should be established and/or administered
only by a Society registered under the Societies Registration
Act, 1860 or the corresponding Act of a State or by a Public
Trust registered under the Trusts Act or under the Wakfs Act and
that no individual, firm, company or other body of individuals
would be permitted to establish and/or administer a professional
college; (b) that 50% of the seats in every professional college
should be filled by the nominees of the Government or
university, selected on the basis of merit, determined by a
common entrance examination, and these seats were to be referred
as “free seats” and the remaining 50% seats (“payment seats”)
should be filled by those candidates, who pay the fee prescribed
therefor and the allotment of students against payment seats
should be done on the basis of inter se merit determined on the
same basis as in the case of “free seats”; (c) that there should
not be no quota reserved for the management or for any family,
caste or community, which may have established such a college;
(d) that it should be open to the professional college to
provide for reservation of seats for constitutionally
permissible classes with the approval of the affiliating
University; (e) that the fee chargeable in each professional
college should be subject to such a ceiling as may be prescribed
by an appropriate authority or by a competent Court; (f) that
every State Government should constitute a Committee to fix the
ceiling on the fees charged by a professional college and this
Committee after hearing the professional colleges, fix the fee
once every three years or at such longer intervals, as it may
think appropriate; and (g) that it would be appropriate for the
University Grants Commission to frame regulations under its Act
regulating the fees that the affiliated colleges operating on a
no-grant-in-aid basis were entitled to charge. The minority
education institution as well as the Government contended that
the scheme framed in Unni Krishnan was not warranted.
9.It was submitted that the cost incurred on educating a
student in unaided professional college was more than the total
fee, which was realised on the basis of the formula fixed in the
scheme and this has resulted in Revenue shortfalls. It was
contended that 50% of the seats are to be given on the basis of
merit, determined by conducting a common entrance examination
and the rate of fee would be minimal. So far as the “payment
seats” is concerned, it represents the balance number, which
would cross-subsidize the “free seats”. It was contended that
the scheme framed in Unni Krishnan, helped the privileged from
richer urban families and it resulted in economic losses for the
educational institutions concerned and made them financially
unviable. Testing the correctness of these submissions and the
other submissions, the Hon'ble Supreme Court in T.M.A.Pai
Foundation, held that the decision in Unni Krishnan, insofar as
it framed the scheme relating to the grant of admission and the
fixing of the fee, was not correct, and to that extent, the said
decision and the consequential direction given to the UGC,
AICTE, Medical Council of India, Central and State Government,
etc., were overruled.
10.In T.M.A.Pai Foundation, the Hon'ble Supreme Court
pointed out that providing good amenities to the students in the
form of competent teaching faculty and other infrastructure
costs money and it has to be left to the institution to
determine the scale of fee that it can charge from the students.
Further, it was pointed out that inasmuch as the occupation of
education is, in a sense, regarded as charitable, the Government
can provide regulations that will ensure excellence in education
while forbidding the charging of capitation fee and profiteering
by the institution. It was reiterated that educational
institution should not be established for making of profit,
however, a reasonable revenue surplus would be permissible.
11.In Islamic Academy of Education vs. State of Karnataka
[(2003) 6 SCC 697], four questions were framed for consideration
of which, Question No.1 would be of relevance to us namely,
whether the educational institutions are entitled to fix their
own fee structure. While answering the said question, it was
held that there can be no fixing of a rigid fee structure by the
Government, each Institute must have the freedom to fix its own
fee structure taking into consideration the need to generate
funds to run the institution and to provide facilities necessary
for the benefit of the students. They must also be able to
generate surplus and it must be used for the betterment and
growth of that educational institution. Each Institute will be
entitled to have its own fee structure and the fee structure for
each Institute must be fixed keeping in mind the infrastructure
and facilities available, the investments made, the salaries
paid to the teachers and staff, future plans for expansion
and/or betterment of the institution, etc. There can be no
profiteering and capitation fees cannot be charged. The
surplus/profit that can be generated must be only for the
benefit/use of that educational institution and cannot be
diverted for any other use or purpose. The Court directed that
in order to give effect to the judgment in T.M.A.Pai Foundation,
the respective State Governments/concerned authorities shall set
up, in each State, a Committee headed by a retired High Court
Judge, who shall be nominated by the Chief Justice of that
State. The other member, shall be nominated by the Judge, should
be a Chartered Accountant of repute. Apart from, a
representative of the Medical Council of India or AICTE,
depending on the type of institution, shall also be a member and
the Secretary of the State Government in which all Medical
Education or Technical education shall be a member and Secretary
of the Committee. The Committee so constituted, was free to
nominate/co-opt another independent person of repute so that
total number of members of the Committee shall not exceed five.
It was further directed that each educational Institute must
place before the said Committee, well in advance of the academic
year, its proposed fee structure. Along with the proposed fee
structure, all relevant documents and books of accounts must
also be produced before the Committee. The Committee shall
decide whether the fees proposed by that Institute are justified
and are not profiteering or charging capitation fee. The
Committee will be at liberty to approve the fee structure or to
propose some other fee, which can be charged by the Institute.
The fee fixed by the Committee shall be binding for a period of
three years, at the end of which period, the Institute would be
at liberty to apply for revision. It was further held that once
fees are fixed by the Committee, the Institute cannot charge
either directly or indirectly any other amount over and above
the amount fixed as fees. The Government was directed to
consider framing appropriate regulations, if not already,
framed, whereunder, if it is found that an institution is
charging capitation fee or profiteering, that institution can be
appropriately penalized and also face the prospect of losing its
recognition/affiliation.
12.In P.A.Inamdar vs. State of Maharashtra [(2005) 6 SCC
537], four questions were taken up for decision pursuant to two
orders of reference, of which, Question Nos.1, 3 and 4 are
relevant, viz.,
(i) to what extent, the State can regulate
the admissions made by unaided (minority or non-
minority) educational institutions? Can the State
enforce its policy of reservation and/or
appropriate to itself any quota in admissions to
such institutions?
(ii) …..........
(iii) Whether Islamic Academy could have
issued guidelines in the matter of regulating the
fee payable by the students to the educational
institutions? and
(iv) Can the admission procedure and fee
structure be regulated or taken over by the
Committees ordered to be constituted by Islamic
Academy?
13.While answering Question No.(i), the allocation of fee
for Non Resident Indian (NRI) was considered and it was held
that a limited reservation of seats, not exceeding 15%, may be
made available to NRIs depending on the discretion of the
Management subject to two conditions, viz., such seats should be
utilized bona fide by the NRIs only and for their children or
wards and secondly, within the said quota, merit should not be
given a complete go-by. Further, the amount of money, in
whatever form collected from such NRIs, should be utilized for
benefiting students such as from economically weaker sections of
the society, whom, on well can defined criteria, the educational
institution may admit on subsidized payment of their fee.
14.With regard to Question No.(iii), it was held that 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 T.M.A.Pai Foundation. It was further held that
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. Thus,
the question was answered by upholding that every institution is
free to devise its own fee structure, but the same can be
regulated in the interest of preventing profiteering and no
capitation fee can be charged.
15.While answering Question No.(iv) above, it was held
that the committees for monitoring admission procedure and
determining fee structure in the judgment of Islamic Academy is
permissible as regulatory measures aimed at protecting the
interest of the student community as a whole as also the
minority themselves in maintaining required standards of
professional education on non-exploitative terms in their
institutions. Thus, the Committee constituted for fixation of
the fee in the Islamic Academy stood approved.
16.With regard to the functioning of the Committee, it
was pointed out that the Committee should be more sensitive and
act rationally and reasonably with due regard for realities.
They should refrain from generalizing fee structures and where
needed should go into accounts, schemes, plans and budgets of an
individual institution for the purpose of finding out what would
be an ideal and reasonable fee structure for that institution.
17.Bearing in mind the above legal position, we now
proceed to consider the controversy raised before us and arrive
at a decision.
18.The Government of Pondicherry framed the Pondicherry
Private Professional Educational Institutions (Provisions of
Reservation, Admission of Students and Fixation of Fee)
Regulations, 2006 (“Regulations” for brevity). The said
Regulations was to apply to all private professional
institutions imparting professional course of study functioning
within the geographical limits of Union Territory of Puducherry.
Part 1 of the Regulations deals with “fees”, which is as
hereunder:-
3(a) Fee Committee”, having regards to
the following factors.–
(i) the location of the professional
Institutions;
(ii) the nature of the professional
course;
(iii) the cost of land and building;
(iv) the available infrastructure;
(v) the expenditure on administration and
maintenance;
(vi) a reasonable surplus required for
growth and development of the professional
institution;
(vii) the revenues foregone on account of
waiver of fee, if any, in respect of students
belonging to the scheduled castes, scheduled
tribes, 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; and
(viii) any other relevant factor, shall
determine the fee or fees to be charged by a
Private Professional Educational Institution.
(b) The Private Professional Educational
Institutions/TeacherTrainingInstitutions,
shall propose the structure of fee to be charged
from the students admitted to the institutions
to the Fee Committee constituted hereunder.
There shall be no profiteering and no capitation
fee shall be charged.
4.The Fee Committee consisting of the |
|
|---|---|
follo |
wing members shall be constituted for |
appro |
val of the fee structure in Private |
Profe |
ssional Educational Institutions and |
Teach |
er Training Institutions:- |
(a) |
A Retired Judge of High Court, ... ChairmanMadras (to be nominated by theChief Justice, High Court Judicature,Madras |
(b) |
Chartered Accountant (to be... Membersnominated by the Chairman) |
(c) |
A representative of All India... MemberCouncil in respect of HealthMedical Education |
(d) |
A representative of All India Council ...Memberfor Technical Education (in respectof Engineering Education) |
(e) |
A representative of National Council ...Memberfor Teacher Education (in respect ofB.Ed. and D.T.Ed.) |
(f) |
Secretary (Health), Pondicherry and ...MemberSecretary for Medical Educationa |
(g) |
Secretary (Education), Pondicherry ...Memberand for Education for Engineering,B.Ed., and D.T.Ed and other Courses |
5.Each Private Professional Educational |
|
Instisubmi |
tutions/Teacher Training Institutions shallt to the Chairman of the Fee Committee well |
in a |
dvance of the academic year, its proposed |
fee |
structure.Along with proposed fee |
structure attested Xerox copies of the relevant
documents and books of accounts must be produced
for scrutiny. Original of the same must be
produced before the Committee for scrutiny.
6.Managements, having more than one
college, shall be competent to propose different
fee structure for different colleges.
7.In the same Private Professional
Educational Institution, different fee structure
may be proposed for different courses.
8.The Fee committee shall consider the
proposals and be at liberty to approve the fee
structure or to propose some other fee which can
be charged by the Private Professional
EducationalInstitutions/TeacherTraining
Institutions. The Fee Committee shall give the
institution an opportunity of being heard before
fixing any fee or fees. The fees fixed by the
Committee shall be binding on the above Private
Professional Educational Institutions and
Teacher Training Institutions for a period of
three years, at the end of which period the
Institutions would be at liberty to apply for
revision.
9.The approved fee structure shall be
communicated to the Private Professional
EducationalInstitutions/TeacherTraining
Institutions to the Convenor of Centralised
Admission Committee and to the University
concerned and shall also be published in such
manner as considered appropriate by the
Committee.
10.After fixation of fee structure by the
Committee,theabovementionedPrivate
Professional Educational Institutions and
Teacher Training Institutions shall not charge
either directly or indirectly any other amount
over and above the amount fixed as fees. If any
other amount is charged, under any other head or
guise e.g., donations, the same shall amount to
charging of capitation fee. If any Private
Professional Educational Institution/Teacher
TrainingInstitutionisfoundcharging
capitationfeesorprofiteering,it's
recognition/affiliation shall be withdrawn
forthwith and be appropriately penalised.”
19.It is not disputed that the Fee Committee in terms of
Regulation 3 above, has been functioning in the Union Territory
of Pondicherry since 2006 and fee has been fixed for
professional institutions up to 2014-15 and for the academic
years 2015-16 and 2016-17, the Committee did not fix any fee and
there appears to be some delay in constitution of the Committee,
submitting the details etc.
20.The Fee Committee constituted in terms of Regulation
3, by G.O.Ms.No.41 dated 29.03.2004, was asked to continue to
function as per G.O.Ms.No.2 dated 25.11.2011 in compliance with
the directions issued by the Hon'ble Supreme Court in Islamic
Academy of Education and later clarified in P.A.Inamdar. The
Committee considered the fees to be fixed for the Medical and
Dental Colleges for the academic years 2015-16, 2016-17 and
2017-18. The Committee heard the representatives of the
institutions/colleges, who are before us. The colleges were
also visited by the Fee Committee to collect direct evidence
about the fee structure than what was fixed for the academic
years 2012-13, 2013-14 and 2014-15 and the Committee found that
the increase sought for to be steep and the colleges were not
able to substantiate the request with adequate data. Therefore,
the colleges were directed to furnish the breakup of the total
current fee collected from each student and also directed the
college to supply detailed information with projections for the
three years to substantiate the enhancement sought for. The
Committee took note of the proposals, which were placed before
it, the income calculation chart, the anticipated projection and
details of the fees fixed in the other States. The Committee
heard the views of the parents, students, NGOs and other
interested persons. The feedback received was that the existing
fee itself is exorbitant and the colleges are collecting
capitation fee, which is prohibited and they are collecting the
fee in advance for the entire course and collecting one year fee
for six month period. The Committee analysed the materials
placed before it and the Chartered Accountant member analysed
the projections given by the Institutions, taking note of the
cost inflation, infrastructure development, the consumer cost
inflation index and the requirements to be made by the
institutions by developing their infrastructure and more
importantly, the interest and welfare of the student community,
which was considered to be paramount. After considering all the
relevant informations as mentioned, the Committee came to the
conclusion that an increase of 32% is permissible on the fee
fixed by the earlier Committee for the previous academic years.
Accordingly, the Committee proceeded to fix the fee for the
three Medical Colleges before us and the Dental Colleges. Other
directions were issued to the institution not to collect any
kind of fee under any guise except the fee fixed by the
Committee. The Government of Pondicherry by order dated
19.05.2017, notified the permissible fee fixed by the Committee.
Subsequently, the Committee met on 12.07.2017 to discuss
regarding fixation of fee for the Under Graduate Medical/Dental
Colleges for the academic year 2017-18 for the Management Quota
only. In the proceedings of the Committee, it has been recorded
that the Fee Committee by its proceedings dated 23.03.2017,
fixed the fee for the Undergraduate Courses in MBBS/BDS/B.Sc.,
(Nursing) in Private Self-financing Medical/Dental and Para
Medical Nursing Colleges of the Union Territory of Pondicherry.
The fee as fixed by the Committee in its proceedings dated
23.03.2017, does not make any difference between the students
who were admitted under the Management Quota and students
admitted under the Government Quota as before.
21.It was recorded that the Government of Pondicherry by
letter dated 23.06.2017, informed the Committee that so far the
fee for the students admitted under the Management Quota for the
UG Medical/Dental Courses in Private Self financing
Medical/Dental Colleges in the Union Territory of Pondicherry
was not fixed. Therefore, the request made by the Government of
Pondicherry in their letter dated 23.06.2017, for fixing the
fees for the students admitted in the Management Quota was taken
up for consideration. The request made in the letter dated
23.06.2017 was that the Fee Committee took note that two of the
Private Medical Colleges submitted their proposals with a
request to revise the earlier fee fixed by the Committee for the
UG Courses on 23.03.2017. The same request was reiterated by
the Government of Pondicherry in their letter dated 29.06.2017.
Accordingly, the Fee Committee took up the matter for discussion
and pointed out that insofar as the fee fixed by the Committee
on 23.03.2017 is concerned, it has become final and the fee has
been fixed, after considering all the relevant details and
particulars furnished by the Government and the Management of
the Colleges and after taking note of the views of the parents
andthestudents,itwasdecidednotto
revoke/review/modify/change/alter the fee already fixed by the
Committee on 23.03.2017. Thereafter, the Committee proceeded to
consider the request of the Government of Pondicherry and the
Managements of the Self-financing Colleges for fixing the fee
for the students to be admitted under the Management Quota from
the academic year 2017-18 onwards.
22.The representatives of the three Medical Colleges
attended the meeting, who sought for enhancement of the fee
fixed by the Committee on 23.03.2017 by reviewing the same, but
they were clearly informed by the Committee that there can be no
review/modification of the fee fixed by the Committee on
23.03.2017. As far as the students to be admitted under the
Management Quota from the academic year 2017-18 is concerned,
the Committee found the details, particulars and data furnished
by the Management of the Colleges were inadequate and all the
three Medical Colleges agreed to submit particulars/details/
data, which were not readily available with them at that point
of time. Therefore, the Committee took a decision to tentatively
fix the fee with regard to the Management Quota, which was
accepted by all the three Medical Colleges. Insofar as the
Dental Colleges, which had also made similar request for
increase in the fee and follow the pattern adopted in the State
of Tamil Nadu, the same was considered, the members of the
public and parents of the wards were heard, who stated that
there should not be different fee for students admitted under
Government Quota and under Management Quota. The teaching
faculty of the Self-financing Professional Colleges requested
the fee should be hiked or else, they would lose their
employment. The Committee considered the request and also took
note of the report of the Tamil Nadu State Fee Committee and
found that even in the State of Tamil Nadu, no separate fee was
fixed for Management Quota and Government Quota till the
academic year 2016-17 and only from the academic year 2017-18,
the different fee was fixed for the Government Quota and the
Management Quota. The Committee noted the views expressed by
the Expert Member (Chartered Accountant) that the fee pattern
followed in Tamil Nadu is first fixing the fee for the
Government Quota and thereafter, increasing the same three times
for the Management Quota and by six times for the NRI Quota.
Therefore, the Committee decided to adopt the said pattern
temporarily, since the admissions were to be done and
accordingly, the tentative fee for the academic year 2017-18 for
the Management Quota and NRI Quota was fixed. It was made clear
that the students, who were already admitted before the academic
year 2017-18 shall be governed by the fee structure fixed by the
Committee in its order dated 23.03.2017. So far as the fee
fixed for the Management Quota for the academic year 2017-18 is
concerned, it was made clear that it was only a tentative
fixation and the final fee would be fixed after evaluating the
necessary particulars, proposals, data, information etc., from
the colleges. To the said effect, the Management of the
Colleges also gave a Letter of Undertaking. In addition to the
fee fixed, the educational institutions were permitted to
collect an amount of Rs.50,000/- per student towards development
fees. The students were directed to be covered under the
Students Group Insurance Scheme.
23.Pursuant to the decision of the Fee Committee dated
12.07.2017, the Government of Pondicherry notified the tentative
fee for the academic year 2017-18 for the Management Quota and
the NRI Quota. The Fee Committee was re-constituted vide
G.O.Ms.No.13 dated 10.08.2018. The Government of Pondicherry by
letter dated 23.06.2017 requested the re-constituted Fee
Committee to fix the fee structure for UG Medical and Dental
Courses for the students to be selected under the Management
Quota. The Committee took note of the tentative fixation of fee
done by proceedings dated 12.07.2017, and took note of the
undertaking given by the students stating that the earlier fee
was only a tentative fee. The Committee took note of the
request made by the three colleges, their audited statement of
accounts, the cost incurred for each student for imparting
education, took note of the inspection reports prepared by the
previous Committee and after comprehensive inspection of the
previous Committee fixed the fee at Rs.12 Lakhs per annum for
Management Quota seats and Rs.20 Lakhs per annum for NRI Quota
for all the three Medical Colleges for the academic years 2017-
18, 2018-19 and 2019-20. The colleges were also permitted to
collect Rs.50,000/- per student towards development charges.
The Committee pointed out that insofar as students, who have
already admitted with the annual fee of Rs.12 Lakhs/15.50 Lakhs
for the academic year 2017-18, further a sum of Rs.3.5 Lakhs
would be payable by those students at the rate of Rs.50,000/-
per semester commencing from III Semester. This was to enable
the students to pay the difference in equal instalments in order
to ease their burden. The Government by G.O.Ms.No.24 dated
03.07.2018, notified the fee fixed by the Committee for the
Management Quota seats and NRI Quota seats for the academic
years 2017-18, 2018-19 and 2019-20.
24.The students, who were admitted for the MBBS Course
during the academic year 2016-17, filed writ petitions in
W.P.Nos.23732 of 2017, 9472, 10550, 13039 and 16924 of 2018
contending that the demand of fees over and above the fee fixed
by the Committee vide proceedings dated 23.03.2017, as notified
by the Government on 19.05.2017, cannot be collected. By common
order dated 18.07.2019, it was held that the fee fixed by the
Committee in its proceedings dated 23.03.2017, shall be
applicable for the academic year 2016-17 and the excess fee paid
by the students shall be refunded. Review applications were
filed by the Colleges in Review Application Nos.194 to 198 of
2019 and 8 of 2020 and they were dismissed by common order dated
28.04.2021. The Colleges filed Special Leave Petitions before
the Hon'ble Supreme Court challenging the order of the Division
Bench dated 18.07.2019 and the order in the Review Applications
dated 28.04.2021, and the matter is pending.
25.As mentioned above, the colleges are before us
challenging the Government Order dated 19.05.2017, fixing the
fees in terms of the proceedings of the Committee dated
23.03.2017 and the tentative fee fixed by proceedings dated
19.07.2017. The Association and the students are aggrieved by
the fee fixation order in G.O.Ms.No.24 fixing differential fee
for students admitted under the Management Quota and NRI Quota
and to direct the Management to collect the fee in terms of the
Government Order dated 19.05.2017, and refund the excess amount.
26.The learned counsel appearing for the Association and
the students submitted that the fee, which has been notified by
the Government in G.O.Ms.No.24 is more than the fee notified by
order dated 19.05.2017. It is submitted that the fee was fixed
for the academic year 2016-17 ranging from Rs.2.99 Lakhs to
Rs.3.99 Lakhs and the proceedings of the Fee Committee dated
23.03.2017 does not make any distinction between the State Quota
and Management Quota. Subsequently, by order dated 19.07.2017,
a provisional fee of Rs.12 Lakhs was fixed from the academic
year 2017-08. Thereafter, the final fee was fixed by
G.O.Ms.No.24 and the students, who were previously admitted
under the Management Quota were directed to pay the differential
fee. It is submitted that the annual fees fixed for the
Management Quota seats have been preferred in an ad-hoc and
arbitrary manner without taking into account the variations and
the actual cost/expenditure incurred by the three Medical
Colleges. The fixation done in G.O.Ms.No.24 is in violation of
the directions issued by the Hon'ble Supreme Court of India,
which had directed to assess the fee structure for each
institution separately and there cannot be a uniform fee
structure. Before the Fee Committee took a decision vide
proceedings dated 23.03.2017, all the stakeholders including the
parents, students, NGOs and other interested were heard and in
addition, the institutions were also heard and the facilities
and the infrastructure was examined after which, the
recommendation was made on 23.03.2017, which fructified in
Government Order dated 19.05.2017, which does not state that it
is applicable only to the Government Quota seats. However, when
the tentative fees was fixed by proceedings dated 12.07.2017, in
the recommendation dated 19.06.2018, the exercise undertaken by
the Fee Committee before passing the proceedings dated
23.03.2017 was not done and the fee has been arbitrarily fixed
without hearing the stakeholders such as parents, students, NGOs
etc. The denial of opportunity to the stakeholders to
participate in the deliberation of the Fee Committee before the
above decisions were taken, is a clear violation of the
directions issued by the Hon'ble Supreme Court in S.L.P.(C)
No.41475 of 2017 dated 22.12.2017 (Sucheta Das Das vs. State of
Maharastra). Further, it is submitted that it is not clear as
to how the final fee was fixed by the Committee by proceedings
dated 19.06.2018 in the absence of appropriate material and data
and such fixation is arbitrary and unreasonable. Further, the
interim fee was fixed by proceedings dated 12.03.2017 by merely
multiplying the existing fee by a factor of 3 without assessing
the cost that will be incurred by the respective Medical
Colleges in imparting education to the students. The procedure
adopted is in clear violation of Regulation 3 of the
Regulations, which has prescribed the factors to be considered
by the Fee Committee while determining and approving the annual
fee and while doing so, the source of payment whether it is
Government Quota or Management Quota is not a relevant factor.
Further, the Regulations does not empower to fix separate fee
for students admitted under Management Quota alone and
therefore, the Government order in G.O.Ms.No.24 is liable to be
set aside.
27.It is further submitted that the Medical Council of
India, presently the National Medical Commission has not
prescribed separate standards of education for Government Quota
and Management Quota and to demand differential fee from the two
categories of students irrespective of the quota under which,
they were admitted is illegal. The fixation of separate fee for
Government Quota and Management Quota has no rationale or nexus
to the objects sought to be achieved and it is violative of
Article 14 of the Constitution of India. The said
classification is an unreasonable classification, it is
discriminatory and arbitrary. Further, the learned counsel has
referred to the observations made by the Division Bench in its
order dated 18.07.2019 in W.P.Nos.23732 of 2017 etc., batch that
fixing differential fee would run contrary to the decision of
the Hon'ble Supreme Court in P.A.Inamdar.
28.The report of the Admission Fee Regulatory Committee
For Professional Colleges in Kerala, with regard to the fee for
MBBS Course for the academic year 2017-18, shows that the
students have been classified only into two categories, i.e.,
85% of the students are under Government Quota and 15% under NRI
Quota. The annual fee structure notified by the State of
Karnataka would show that the fee fixed by the Government of
Pondicherry is far and excess of the fee fixed in the said
State. Further, when compared to the fee fixed by the Tamil Nadu
Fee Fixation Committee with that of the fee fixed by the
Pondicherry Fee Committee would show that the fee is
unreasonable. Elaborate reference was made to the fixation of
fee by Kerala Fee Fixation Committee to buttress the submission
that the exercise undertaken by the Pondicherry based on the
recommendation of the Fee Committee is arbitrary and
unreasonable.
29.At the commencement of the hearing, the colleges
raised an objection with regard to the maintainability of the
writ petition by the Association. It was submitted that the
Association was registered initially with seven members and the
children of none of those members were students of any of these
institutions, who were admitted in the academic year 2017-18.
Therefore, it was contended that the Association cannot espouse
the case of the students, who were admitted in 2017-18, the
Association does not have locus standi. Responding to the said
preliminary objection, it is submitted by the learned counsel
that the Association comprised only of parents of Medical
students who are presently undergoing Medical Courses in the
Medical Colleges situated in Pondicherry and it being a
registered body, consisting only of parents of Medical students,
it is entitled to protect the interest of all its members and
their dependants. Further, it is submitted that since such
technical objection was raised, the students have independently
filed W.P.No.19466 of 2020 for the very same relief as sought
for by the Association and the writ petition was also tagged
along with the batch of cases. Therefore, it is submitted that
the objection regarding locus standi has to necessarily fail.
30.It is reiterated that nowhere in the report of the Fee
Committee dated 23.03.2017, it has been stated that it is
applicable only to Government Quota seats. That apart, the fee
which has been fixed is abnormally high and there is no
rationale for fixing such fee and the exercise undertaken by the
Committee before fixing the fee vide proceedings dated
23.03.2017 was not followed, the stakeholders were not heard,
arbitrary exercise has been done resulting in illegal fee
fixation orders. Further, it is submitted that after the expiry
of the validity of the order of the Fee Committee dated
23.03.2017, the Government of Pondicherry has notified and
revised the annual fee for MBBS Course without any distinction
for Government Quota and Management Quota for a period of three
years in G.O.Ms.No.39 dated 15.07.2017 based on the proceedings
of the Fee Committee dated 19.05.2017. Therefore, there is no
vacuum or discontinuity in preventing and notifying the annual
fee amount from the year 2016-17 up to 2021-22 either by the
Government or by the Fee Committee. With the above contention,
the learned counsel submitted that the G.O.Ms.No.24 is liable to
be set aside and the excess fee collected from the students is
to be refunded.
31.As mentioned above, the first set of writ petitions,
namely, W.P.Nos.19135/2017, 19136/2017 and 19137/2017 have been
filed by Sri Venkateswara Dental and Medical College Hospital.
The prayer sought for in W.P.Nos.19135 and 19137 of 2017 are
identical, questioning the fee fixation order dated 19.05.2017.
The prayer sought for in W.P.No.19136 of 2017 is to quash the
order dated 19.07.2017 by which the Government implemented the
decision of the Fee Committee fixing tentative fee for the
Management Quota seats.
32.The challenge to the Government Order dated 19.05.2017
is on the ground that the fee fixed is contrary to the
directions contained in the judgments of the Hon'ble Supreme
Court in Islamic Academy of Education, P.A.Inamdar and Modern
College and Research Centre vs. State of Madhya Pradesh [(2010)
14 SCC 186]. It is further submitted that the fee fixation
order dated 19.07.2017 fixing a temporary fee without reference
to the relevant considerations and also the fee fixed by the
Tamil Nadu Fee Committee is arbitrary. Further, it is contended
that the order is arbitrary and ultravires in so far as it does
not make any distinction between the Management Quota and
Government Quota seats. Further, it is submitted that the order
dated 19.05.2017 is arbitrary as it is based on the Fee
Committee report dated 23.03.2017 which only adapted the fee
fixed by the Tamil Nadu Fee Committee by increasing the existing
fee by 32% without taking into account the relevant capital
expenditure towards land and building and other infrastructures
and expenses which are reflected in the accounts and financial
statements which were furnished by the petitioner. With regard
to the challenge to the Government Order dated 19.07.2017 is
also identical to that of the challenge made in other two writ
petitions.
33.The argument of the learned counsel appearing for the
Institution is that the decision of the Fee Committee in its
proceedings dated 23.03.2017 fixing the fee for the MBBS course
was only for the Government Quota seats. This factual position
become clear on perusal of the proceedings of the Fee Committee
dated 12.07.2017, wherein decision was taken to fix a tentative
fee for the Management Quota seats. Much reliance was placed on
the letter written by the Government of Puducherry dated
23.06.2017 informing the Committee that the fee for the
Management Quota was never fixed earlier and a request was made
to fix the fee for the Management Quota seats. This argument is
sought to be substantiated by referring to the counter affidavit
filed by the Government of Puducherry in W.P.No.23732 of 2017,
wherein they had stated that no separate fees fixed for the
students admitted under Management Quota in the MBBS course up
to the year 2016-17. The Medical Colleges have fixed their own
fees structure and notified the same in the website of the
respective Institution before commencement of admission. It was
therefore submitted that the candidates/students who decided to
join the Institutions were aware of the separate fees structure
for the Management Quota seats and were admitted by the Colleges
by paying the fees as fixed by the Colleges. It was further
stated that during the year 2017-18 while fixing the fees
structure for Post Graduate Medical/Dental courses, the Fee
Committee directed to follow the same fees structure available
in Tamil Nadu as a temporary measure until the Fee Committee
meets and fixes the fees structure finally. Therefore, the
Government of Puduchery issued an order dated 14.05.2017 fixing
the separate temporary fees structure for Post Graduate
Medical/Dental courses under Management Quota and Government
Quota. The said fees structure was further temporarily revised
by order dated 24.05.2017 and subsequently finalized in
G.O.Ms.No.8 dated 22.03.2018. It is further stated that while
fixing the fees structure for Under Graduate courses for the
year 2017-18, the Fee Committee in its meeting dated 19.06.2018
fixed the fees structure for Management/NRI Quota for the years
2017-18, 2018-19 and 2019-2020.
34.The argument of the learned counsel appearing for the
students and the Association is that nowhere in the proceedings
of the Fee Committee dated 23.03.2017 or in the Government Order
dated 19.05.2017, there is any indication that the fee fixed is
only for Government Quota seats and in the light of the decision
of the Hon'ble Supreme Court, differential fee cannot be fixed.
35.The contention raised on behalf of the Association and
the students first needs to be tested for its correctness on
facts. It is only thereafter it has to be seen as to whether a
differential fee can be fixed for the Government Quota seats and
the Management Quota seats. Before we do so, we should clear
the doubts/contentions raised about the effect of the judgment
of the Division Bench in W.P.No.23732 of 2017, etc. batch dated
18.07.2019. In the said writ petitions, the students of the
Institution before us challenged the circulars issued by the
respective Institutions demanding payment of fee for 2018-19 and
to direct the Institutions to abide by the proceedings of the
Fee Committee dated 23.03.2017 and not to demand fee as per the
tentative fee fixed by Government Order dated 19.07.2017 and the
final fee fixed by G.O.Ms.No.24 dated 03.07.2018. The Division
Bench in its judgment and order dated 18.07.2019 did not decide
the correctness of the Government fee order dated 19.07.2017 or
the correctness of the final fee fixation order in G.O.Ms.No.24
dated 03.07.2018, which are impugned before us and these writ
petitions were delinked and ordered to be heard separately.
Therefore, the Association/Students can place no reliance on the
observations contained in the said judgment dated 18.07.2019 to
substantiate these contentions in this batch of cases.
36.The Association, petitioner in W.P.No.24161 of 2018
state that it is a registered Association comprising of medical
students and their parents as members which was formed with the
object to promote and develop the welfare of the medical
students studying in various Medical Colleges in the Union
Territory of Puducherry. The Association states that the amount
payable by medical students for the various courses offered by
the Colleges is one of the prime concern of the Association.
Admittedly the Association was registered only in the year 2018
and the challenge in W.P.No.24161 of 2018 is only with regard to
the fixation of differential fee in G.O.Ms.No.24 for Medical
College students in the three Medical Colleges and for a
consequential direction to collect the fee only in accordance
with the Government Order dated 19.05.2017. It may be true that
in all cases the students cannot be compelled to approach the
Court especially when they are pursuing their education and
litigating against the Institution in which they are studying
may lead to certain other problems. Nevertheless if the parents
of those students were aggrieved by the fee structure, nothing
prevented them from seeking appropriate relief before the
appropriate forum or approach the Court to vindicate their
grievances. Admittedly no such attempt appears to have been
done by any of the parents of those students who were admitted
based on the fees structure fixed in G.O.Ms.No.24. In fact when
the tentative fee was fixed by the Fee Committee which was
notified by the Government Order dated 19.07.2017 the students
were informed that the fee fixed is tentative and subject to
modification and all the students have executed letters of
undertaking agreeing that the fixation of fee by Government
Order dated 19.07.2017 is only tentative.
37.Thus the larger question would be as to whether the
Association or the students can now take a stand that they are
not required to pay the fee as fixed in G.O.Ms.No.24 and the fee
which was fixed by the Government Order dated 19.05.2017 has to
be adopted. This argument is predicated on the submission that
the Government Order dated 19.05.2017 fixing the fee does not
distinguish between Government Quota seats and Management Quota
seats and therefore the said order would be applicable to the
petitioners in W.P.No.19466 of 2020 and consequently,
G.O.Ms.No.24 has to be struck down. The argument made on behalf
of the students and the Association is difficult to accept for
the reason that when the proceedings of the Committee was passed
on 23.03.2017, no fees structure was fixed for the Management
Quota seats. This fact cannot be denied by the
students/Association as at the relevant time, it is the
respective Institutions which had fixed their fee and notified
in their website. The Government in no uncertain terms informed
the students that the tuition fee payable by them shall be the
fee as notified by the respective Institution. Therefore, it
will be too late for the students to now state that the fee
fixation order date 19.05.2017 has to be uniformly applied for
all category of seats when the factual position was otherwise.
This aspect gets fortified on reading the Committee's order
dated 12.07.2017. The Committee has specifically recorded that
the Government of Puducherry dated 23.06.2017 had addressed the
Committee stating that till that date the Committee has not
fixed the fee for Management Quota for Under Graduate
Medical/Dental courses in Private Self Financing Medical/Dental
Colleges in the Union Territory of Puducherry. This has been
reiterated by the Government of Puducherry by letter dated
29.06.2017. Thus, it cannot be disputed that prior to 23.06.2017
there is nothing on record to show that the Fee Committee had
fixed the fee for the Management Quota seats and for the first
time, the issue was taken up for consideration in the meeting of
the Fee Committee held on 12.07.2017. Further, CENTAC took over
the entire admission process by way of Centralized Counseling
from the academic year 2017-18 and it is only from the said
academic, the Fee Committee fixed the fee for the Management
Quota and NRI Quota seats. The Association/petitioners would
fault the procedure adopted by the Committee that tentative fee
fixation had no validity in the eye of law, differential fee
could never have been fixed as it would fall foul of the dictum
in T.M.A.Pai Foundation and Islamic Academy and the exercise
which was done by the Committee before passing the order dated
23.03.2017 was not followed, stakeholders were not heard and an
adhoc fee has been fixed by merely following the pattern in
Tamil Nadu.
38.In Islamic Academy of Education, the Hon'ble Supreme
Court pointed out that there can be no fixing of a rigid fees
structure by the Government, each Institute must have the
freedom to fix its own fees structure taking into consideration
the need to generate funds to run the Institution and to provide
facilities for the benefit of the students. The Institutions
should also be able to generate a surplus which must be used for
the betterment and growth of the educational institutions. In
no uncertain terms, it was held that there can be no
profiteering and capitation fee cannot be charged. The Court
proceeded to issue directions to give effect to the judgment of
T.M.A.Pai Foundation's case by constituting a Committee headed
by a retired High Court Judge who shall be nominated by the
Chief Justice of that State. Each educational institution was
required to place before the Committee, well in advance of the
academic year, its proposed fees structure. Along with the
proposed fees structure all relevant documents and books of
accounts must also be produced before the Committee for their
scrutiny. The Committee shall then decide whether the fees
proposed by the Institution are justified and are not
profiteering or charging capitation fee. The Committee will be
at liberty to approve the fees structure or to propose some
other fees structure which can be charged by the Institution and
the fee fixed by the Committee shall be binding for a period of
three years.
39.In P.A.Inamdar, the Hon'ble Supreme Court sounded a
note of caution to Fees Committees as the petitioner therein had
severely criticized the functioning of some of the Committees so
constituted stating that some of the Committees have indulged in
assuming such powers and performing such functions as were never
given or intended to be given to them by Islamic Academy.
Certain decision of the Committee were subjected to serious
criticism by pointing out that the fees structure approved by
them was abysmally low which has rendered the functioning of the
Institution almost impossible or made the Institution to run
into losses. Further the Court noted that in some of the
Institutions, the teachers have left their jobs and migrated to
other Institution as it was not possible for the Management to
retain talented and highly qualified teachers against the fee
permitted by the Committees. It was pointed out that the
retired High Court Judges heading the Committees are assisted by
experts in Accounts and Management may also have the benefit of
hearing the contending parties. Thus, it was observed that the
Committees, so long as they remain functional shall be more
sensitive to act rationally, reasonably and with due regard to
realities. They should refrain from generalizing the fees
structure and whenever needed should go into accounts, schemes,
plans and objects of an individual Institution for the purpose
of finding out what would be an ideal and reasonable fees
structure for that Institution. Further, it was made clear that
in case of any individual Institution, if any of the Committees
is found to have exceeded its powers by unduly interfering in
administration and financial matters of the unaided of the
Private Professional Institutions, the decision of the Committee
being quasi-judicial in nature would always be subject to
judicial review. Thus, the challenge to the setting up of the
two Committees, to regulate the admission and the fees structure
was rejected.
40.In Pramati Educational & Cultural Trust vs. Union of
India [W.P(C)No.416 of 2012, dated 06.05.2014], the challenge
was to the validity of Article 15(5) of the Constitution as
inserted by the Constitution (Ninety-third Amendment) Act, 2005
with effect from 20.01.2006 and on the validity of Article 21A
of the Constitution inserted by the Constitution (Eighty-Sixth
Amendment) Act, 2002 with effect from 01.04.2010. Article 15(5)
of the Constitution enables the State to make a special
provision, by law, for advancement of socially and educationally
backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes insofar as such special provisions relate to
their admission to educational institutions including private
educational institutions, whether aided or unaided by the State,
other than the minority educational institutions referred to in
Clause (1) of Article 30 of the Constitution.
41.The constitutional validity of Article 15(5) of the
Constitution was considered by the Constitution Bench of the
Hon'ble Supreme in Ashoka Kumar Thakur vs. Union of India
[(2008) 6 SCC 1] and the clause was held to be valid and does
not violate the "basic structure" of the Constitution so far as
it relates to the State-maintained institutions and aided
educational institutions. The question whether Article 15(5)
was constitutionally valid, insofar as "private unaided"
educational institutions were concerned, the question was left
open and this issue was decided in Pramati Educational &
Cultural Trust.
42.The Two substantial questions of law, which were
referred to in Pramati Educational & Cultural Trust, were (i)
whether by inserting Clause (5) in Article 15 of the
Constitution (Ninety-third Amendment) Act, 2005, Parliament had
altered the basic structure or framework of the Constitution;
and (ii) whether by inserting Article 21A of the Constitution
(Eighty-Sixth Amendment) Act, 2002, Parliament had altered the
basic structure of framework of the Constitution. While
answering the first question, the Hon'ble Supreme Court took
note of the Statement of Objects and Reasons of the Bill, which
after enactment became the Constitution (Ninety-third Amendment)
Act, 2005 and it was observed that the object is to provide
equal opportunity to a large number of students belonging to the
socially and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes to study in
educational institutions and equality of opportunity is also the
object of Clauses (1) and (2) of Article 15 of the Constitution
and accordingly, it was held that Clause (5) of Article 15 of
the Constitution is not an exception or a provision overriding
Article 15 of the Constitution, but an enabling provision to
make equality of opportunity promised in the preamble in the
Constitution a reality.
43.The next question, which was considered was whether
Article 15(5) of the Constitution has destroyed the right under
Article 19(1)(g) of the Constitution to establish and administer
private educational institutions. Noting the decision in
T.M.A.Pai Foundation, wherein it was held that the establishment
and running of an educational institution “is occupation” within
the meaning of Article 19(1)(g) of the Constitution, took note
of paragraph 20 of the majority judgment while dealing with the
four components of the rights under Articles 19 and 26(a) of the
Constitution in respect of private unaided non-minority
educational institutions. The observations made therein were
noted wherein, it was held that unaided professional
institutions are entitled to autonomy in their administration
while, at the same time, they do not forego or discharge the
principle of merit and therefore, it would be permissible for
the University or the Government, at the time of granting
recognition, to require a private unaided institution to
provide for "merit-based" selection while, at the same time,
giving the management sufficient discretion in admitting
students. It was held that this can be done through various
methods. For instance, a certain percentage of the seats can be
reserved for admission by the management out of those students,
who have passed the common entrance test held by itself or by
the State/University and have applied to the college concerned
for admission, while the rest of the seats may be filled up on
the basis of counselling by the State Agency. It was further
pointed out that this will incidentally take care of poorer and
backward sections of the society and the prescription of
percentage for this purpose has to be done by the Government
according to the local needs and different percentages can be
fixed for minority unaided and non-minority unaided and
professional colleges and the same principles may be applied to
other non-professional but unaided educational institutions
viz., graduation and post-graduation non-professional colleges
or institutes.
44.After noting the said decision, it was pointed out
that the content of the right under Article 19(1)(g) of the
Constitution to establish and administer private educational
institutions, as per the judgment in T.M.A.Pai Foundation,
includes the right to admit students of their choice and
autonomy of administration making it clear that this right and
autonomy will not be affected if a small percentage of students
belonging to the weaker and backward sections of the society
were granted freeships or scholarships, if not granted by the
Government. Thus, it was held that the identity of the right of
private educational institutions under Article 19(1)(g) of the
Constitution was not to be destroyed by admissions from amongst
educationally and socially backward classes of citizens as well
as the Scheduled Castes and the Scheduled Tribes.
45.Further, the Hon'ble Supreme Court in Pramati
Educational & Cultural Trust noted the decision in P.A.Inamdar
and observed that in the said decision, the Hon'ble Court was of
the view that the judgment in T.M.A.Pai Foundation held that
there was no power vested on the State under Article 19(6) of
the Constitution to regulate or control admissions in the
unaided educational institutions so as to compel them to give up
a share of the available seats to the State or to enforce the
reservation policy of the State or available seats in unaided
professional institutions. After noting paragraph 125 in
P.A.Inamdar, it was held that the appropriation of seats by the
State for enforcing a reservation policy was not a regulatory
measure and not reasonable restriction within the meaning of
Article 19(6) of the Constitution, as there was no provision
other than Clause (6) of Article 19 of the Constitution under
which the State could in any way restrict the fundamental right
under Article 19(1)(g) of the Constitution. It was thus,
pointed out that Clause (5) in Article 15 of the Constitution
vests power on the State, independent of and different from the
regulatory power under Clause (6) of Article 19 and the Hon'ble
Court proceeded to examine whether this new power vested in the
State which enables the State to force the charitable element on
a private educational institution destroys the right under
Article 19(1)(g) of the Constitution. After noting that Clause
(5) of Article 15 was inserted to enable the State to make a law
making special provisions for admission of socially and
economically backward classes of citizens or for the Scheduled
Castes and Scheduled Tribes for their advancement and to a very
limited extent affected the voluntary element of this right
under Article 19(1)(g) of the Constitution and therefore,
rejected the contention of the colleges that the identity of
their right under Article 19(1)(g) of the Constitution has been
destroyed by Clause (5) of Article 15 of the Constitution.
46.Further, it was held that the power in Clause (5) of
Article 15 of the Constitution is a guided power to be exercised
for the limited purposes stated in the clause and as and when a
law is made by the State in purported exercise of the power
under Article 15(5), the Court will have to examine and find out
whether it is for the purposes of advancement of any socially
and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes and whether the law is
confined to admission of such socially and educationally
backward classes of citizen or for the Scheduled Castes and the
Scheduled Tribes to private educational institutions, whether
aided or unaided. The Hon'ble Court rejected the contention
that Article 15(5) of the Constitution fails to make a
distinction between aided and unaided educational institutions
and those alike and it was held that in doing so, it is not
violative of Article 14 of the Constitution.
47.The exclusion of minority institutions referred to in
Clause (1) of Article 30 was held to be justified. The
contention of the institutions that excellence would be
compromised by admission from amongst the backward classes of
citizens and the Scheduled Castes and the Scheduled Tribes in
private institutions was rejected as being contrary to the
preamble of the Constitution which promises to secure to all
citizens "fraternity assuring the dignity of the individual and
the unity and integrity of the nation". Accordingly, it was
held that none of the rights under Articles 14, 19(1)(g) and 21
of the Constitution have been abrogated by clause (5) of Article
15 of the Constitution and the view taken by Hon'ble Bhandari,
J. in Ashoka Kumar Thakur that the imposition of reservation on
unaided institutions by the Ninety-third Amendment abrogated
Article 19(1)(g) was held to be not correct and the insertion of
Clause (5) of Article 15 of the Constitution was held to be
valid.
48.Thus, the distinction between the State Quota, which
are popularly known as “free seats” and the Management Quota has
been held to be constitutionally permissible consequent upon the
insertion of Clause (5) in Article 15 of the Constitution.
Thus, the Association and the students cannot contend that there
can be no distinction in the seats by earmarking a specific
quota for the Government and remaining for the Management. That
apart, in the Union Territory of Puducherry, ever since the
private unaided Medical Colleges were established, there were
two category of seats namely, the Government Quota seats and
Management Quota seats and there were two fee structures. This
is clear from the Pondicherry Private Professional Educational
Institutions (Provisions of Reservation, Admission of Students
and Fixation of Fees) Regulations, 2006 which was issued on
25.05.2006 stipulating two categories of seats and two fee
structures. Furthermore, it has been factually established that
prior to the Government Order dated 19.07.2017, fee was never
fixed in the Union Territory of Puducherry for Management Quota
and NRI Quota seats.
49.At this juncture, we take note of the submissions made
by the learned counsel for the National Medical Commission (for
brevity “NMC”), who has placed before us the National Medical
Commission Act, 2019 (Act 30 of 2019) (for brevity “the NMC
Act”). Under Section 10 of the said Act, powers and functions
of Commission are enumerated. In Section 10(1)(i), the
Commission has power to frame guidelines for determination of
fees and other charges in respect of fifty per cent of seats in
private medical institutions and deemed to be universities,
which are governed under the provisions of the NMC Act.
50.The learned counsel has also placed before us the
Draft Guidelines framed by the NMC under Section 10(1)(i) of the
NMC Act for fee fixation on which, public comments have been
invited and it is submitted that till date 18,000 comments have
been received from various stakeholders and the same are in the
process of being considered.
50.1.Under Clause 6 of the Draft Guidelines, it is
proposed that the fees can be fixed for a block of three years
or on a year to year basis and the fee so fixed for a student
joining a college in a particular year stood remain the same for
the entire duration of his study in the college, subject to
inflation adjustment, as considered appropriate by the State Fee
Regulatory Authority.
50.2.In terms of Clause 7, all private teaching
institutions should be advised to adopt operation segment
reporting in accordance with the Ministry of Corporate Affairs,
Government of India, notified Indian Accounting Standards (Ind
AS) 108 in respect of expenses.
50.3.Clause 8 states that all hospital expenses are not
to be included in computing the cost for providing medical
education and a portion of hospital expenses arrived at on the
basis of usage of hospital facilities and equipments for
imparting the medical education may be added for arriving at the
fees.
50.4.Further, in Clause 9, salaries of the teaching staff
and other non-teaching staff should be taken into account for
the purpose of determination of fees for medical education.
50.5.Clause 23 would state that some of the State
Authorities fix the fee for MBBS and other Courses college-wise
separately while in some other States, it is fixed on the basis
of the median costs of all the medical colleges on consensus
basis. It further states that in case a State Fee Regulatory
Authority desires to adopt uniform fee structure in the State,
it could do so, provided there is consensus among the colleges
and the range between the minimum fees and the maximum fees
calculated for colleges in the State is nominal and does not
cause unnecessary financial hardship to the students.
50.6.In Clause 24, it is proposed that the fees
determined on the basis of the guidelines should not be more
than the existing fees determined by the State Fee Regulatory
Authority.
50.7.Clause 25 would be very relevant which states that
in States, where more than 50% seats in private medical colleges
are already regulated under the relevant State Act by way of
Government Quota and other quotas with concessional fees, such
higher percentage of Government Quota seats should be
maintained.
50.8.In Clause 26, it is proposed that the same set of
guidelines applicable to private medical colleges under the
purview of the State Fee Regulatory Authorities should be
applicable to the deemed to be Universities also and an enabling
amendment to the relevant State Fee Regulation Act, as deemed
necessary, should be considered.
Thus, the argument on behalf of the Association and the
Student that there can be no differential fee for the Government
Quota and Management Quota is an argument which cannot be
accepted, more particularly when, Article 15(5) of the
Constitution having been held to be valid, the question of cross
subsidy would not arise.
51.Furthermore, the NMC Act also gives power to the
Commission only to fix the fee for fifty per cent of the seats.
At this juncture, it would be beneficial to refer to the
decision of the Hon'ble Supreme Court in Modern Dental College
and Research Centre vs. State Madhya Pradesh [AIR 2016 SCC
2601], wherein it was held as follows:-
“87.In any case, since this Court in P.A.
Inamdar [P.A. Inamdar v. State of Maharashtra,
(2005) 6 SCC 537 : 2 SCEC 745] has held that
there cannot be any fixation of quota or
appropriation of seats by the State, reservation
which inheres setting aside quotas, would not be
permissible. It is, thus, argued that the
provisions seek to bring back the Unni Krishnan
[Unni Krishnan, J.P. v. State of A.P., (1993) 1
SCC 645 : 1 SCEC 523] system of setting up State
quotas which has been expressly held by this
Court to be impermissible. This argument is to
be noted to be rejected. In fact, as can be seen
from the impugned judgment [Assn. of Private
Dental and Medical Colleges v. State of M.P.,
2009 SCC OnLine MP 760] having regard to the
provisions of clause (5) of Article 15 of the
Constitution, there was no serious challenge
laid to Section 8 read with Rules 4(2), 7 and 15
of the 2008 Rules. In fact, the counsel for the
appellants conceded that they had not challenged
the 93rd Constitutional Amendment vide which
Article15(5)wasinsertedintothe
Constitution. In any case, there is hardly any
ground to challenge the said constitutional
amendment, which has already been upheld by a
ConstitutionBenchjudgmentin Pramati
Educational and Cultural Trust [Pramati
Educational & Cultural Trust v. Union of India,
(2014) 8 SCC 1 : 6 SCEC 699]. The only other
argument raised was that a reading of the
reservation provisions in Rule 7 of the 2009
Rules would show that it would be difficult to
work out said percentage having regard to the
fact that number of seats in the postgraduate
dental and medical courses in different
specialised disciplines are few. The High Court
has successfully dealt with this argument by
appropriately demonstrating, by means of
charges, that not only was it possible to work
out extent of reservation provided for different
categories, sufficient number of seats were
available for general categories as well. We,
thus, do not find any merit in the challenge to
the reservation of seats for SCs/STs and OBCs,
etc. which is in consonance with Article 15(5)
of the Constitution.”
Therefore, in the light of the above decision, we are to
necessarily hold that when there are differential quotas, viz.,
the Government Quota and the Management Quota, a differential
fee structure would also be permissible.
52.Having steered clear of the above issue, the next
issue to be examined is whether under the guise of charging a
differential fee, whether the Management is collecting
capitation fee and is there profiteering. On going through the
proceedings of the Fee Committee dated 23.03.2017, 12.07.2017
and 19.06.2018, we find that the procedure adopted by the Fee
Committee is largely in tune with the Draft Guidelines proposed
by the NMC, which is now under circulation and comments have
been invited from all stakeholders.
53.In Vasavi Engineering College Parents Association vs.
State of Telengana [(2019) 7 SCC 172], the fee structure
notified by the State Government based on the recommendations of
the Fee Regulatory Committee was put to challenge. The Hon'ble
Supreme Court while examining the challenge to the fee fixation
order, pointed out the scope of judicial review, that it lies
against the decision-making process and not the merits of the
decision itself and the Court in the garb of judicial review,
cannot usurp the jurisdiction of the decision maker and make the
decision itself. Further, it was held that complex executive
decisions in economic matters are necessarily empiric and based
on experimentation and its validity cannot be tested on a rigid
principle or the application of any straitjacket formula and the
Court while adjudging the validity of an executive decision in
economic matters, must grant a certain measure of freedom or
play in the joints to the executive. Further, it was pointed
out that the recommendations made by a statutory body consisting
of domain experts not being the satisfaction of the State
Government is entirely a different matter with which the Court
was not concerned and that the Court should be loath to
interfere with such recommendation of an expert body and
accepted by the Government, unless it suffers from vice of
arbitrariness, irrationality, perversity or violates any
provisions of the law under which it is constituted. It was
further held that the Court cannot sit as an appellate
authority, entering the arena of disputed facts and figures to
opine with regard to the manner in which the Fee Fixation
Committee ought to have proceeded without finding any violation
of rules or procedure. Further, after noting the decisions in
Islamic Academy of Education and T.M.A.Pai Foundation, it was
observed that fee fixation by the Committee is not an
adversarial exercise but is meant to ensure balance in the fee
structure between the competing interest of the students, the
institution and the requirement and the desire of the society
for accessible quality education. It was further held that it
is but a part of the high concept of fairness in opportunities
and accessibility to education, which is avowed constitutional
goal. Thus, the order of the High Court interfering with the
recommendation of the Fee Fixation Committee was held to be
excessive of its jurisdiction and the orders of the High Court
were set aside. It would be beneficial to refer to the
following paragraphs of the judgment:-
“25.Islamic Academy of Education [Islamic
Academy of Education v. State of Karnataka, (2003) 6
SCC 697 : 2 SCEC 339] was a sequel to T.M.A. Pai
Foundation v. State of Karnataka [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 :
2 SCEC 1] , which was being understood in different
perspectives leading to several litigations. The
fixation of fee by TAFRC is not an adversarial
exercise but is meant to ensure balance in the fee
structure between the competing interest of the
students, the institution and the requirement and
desire of the society for accessible quality
education. It is but a part of the high concept of
fairness in opportunities and accessibility to
education, which is an avowed constitutional goal.
But to equate it to the extent of a right to
challenge and interference only on basis of a
different view being possible, cannot be a
justification to interfere with the recommendation of
an Expert Committee. It is nobody's case that TAFRC
has acted contrary to principles of accounting and
economics or any fundamental precincts of the same.
In this context, the following observations in Modern
School v. Union of India [Modern School v. Union of
India, (2004) 5 SCC 583 : 2 SCEC 577] , are
considered relevant in the necessary extract :
(Modern School case [Modern School v. Union of India,
(2004) 5 SCC 583 : 2 SCEC 577] , SCC pp. 602 & 614,
paras 20 & 51)
“20. We do not find merit in the above
arguments. Before analysing the rules herein,
it may be pointed out, that as of today, we
have Generally Accepted Accounting Principles
(GAAP). As stated above, commercialisation of
education has been a problem area for the
last several years. One of the methods of
eradicating commercialisation of education in
schools is to insist on every school
following principles of accounting applicable
to not-for-profit organisations/non-business
organisations. …
51. Indisputably, the standard of education,
the curricular and co-curricular activities
available to the students and various other
factors are matters which are relevant for
determining of the fee structure. The courts
of law having no expertise in the matter
and/or having regard to their own limitations
keeping in view the principles of judicial
review always refrain from laying down
preciseformulaeinsuchmatters.
Furthermore, while undertaking such exercise
the respective cases of each institution,
their plans and programmes for the future
expansion and several other factors are
required to be taken into consideration. The
Constitution Bench in Islamic Academy of
Education [Islamic Academy of Education v.
State of Karnataka, (2003) 6 SCC 697: 2 SCEC
339] which as noticed hereinbefore subject to
making of an appropriate legislation directed
setting up of two Committees, one of which
would be for determining fee structure. This
Court, both in T.M.A. Pai Foundation [T.M.A.
Pai Foundation v. State of Karnataka, (2002)
8 SCC 481 : 2 SCEC 1] and Islamic Academy of
Education [Islamic Academy of Education v.
State of Karnataka, (2003) 6 SCC 697 : 2 SCEC
339] had upheld the rights of the minorities
and unaided private institutions to generate
a reasonable surplus for future development
of education.”
26.Before concluding the discussion, in view of
the reasons stated by the High Court for fixation of
the appropriate fee structure by itself, reference
may usefully be made to the observations in D.N.
Jeevaraj v. State of Karnataka [D.N. Jeevaraj v.
State of Karnataka, (2016) 2 SCC 653 : (2016) 2 SCC
(Civ) 171] , as follows : (SCC p. 671, para 43)
“43. To this we may add that if a court is of
the opinion that a statutory authority cannot
take an independent or impartial decision due
to some external or internal pressure, it
must give its reasons for coming to that
conclusion. The reasons given by the court
for disabling the statutory authority from
taking a decision can always be tested and if
the reasons are found to be inadequate, the
decision of the court to by-pass the
statutory authority can always be set aside.
If the reasons are cogent, then in an
exceptional case, the court may take a
decision without leaving it to the statutory
authority to do so. However, we must caution
that if the court were to take over the
decision taking power of the statutory
authority it must only be in exceptional
circumstances and not as a routine.”
27.The High Court relied on CAG v. K.S.
Jagannathan [CAG v. K.S. Jagannathan, (1986) 2 SCC
679 : 1986 SCC (L&S) 345] and Badrinath v. State of
T.N. [Badrinath v. State of T.N., (2000) 8 SCC 395 :
2001 SCC (L&S) 13] to justify the taking over of the
decision-making process by itself from TAFRC on four
grounds. In our opinion, both the judgments are
completely distinguishable on their own facts and
have no relevance to the question for consideration
in the present case. K.S. Jagannathan [CAG v. K.S.
Jagannathan, (1986) 2 SCC 679 : 1986 SCC (L&S) 345]
concerned promotion to the Subordinate Accounts
Service. Badrinath [Badrinath v. State of T.N.,
(2000) 8 SCC 395 : 2001 SCC (L&S) 13] related to a
claim for promotion to super-time scale. Both the
cases have no relevance to the present controversy
concerning economic recommendations made by a
statutory committee consisting of domain experts, and
approved by the Government. We are, therefore, of the
considered opinion in the facts of the present case,
as demonstrated from the available records that none
of the four grounds set out by the High Court can be
considered as making out an exceptional case to
warrantusurpationofthedecision-making
jurisdiction of TAFRC by the High Court.”
54.In the writ petitions before us, the challenge to the
tentative fee is both for and by the students and the Colleges.
Merely using the words irrational, arbitrary and unreasonable
cannot brand a quasi judicial order to be so. All these three
contentions which have been raised have to be established to
make out a case of arbitrariness, irrationality or
unreasonableness. In the preceding paragraphs, we have noted
the findings recorded by the Fee Committee in the proceedings
dated 12.07.2017. The Government of Puduchery on 23.06.2017
addressed the Committee stating that prior to the said date, the
fees for the Management Quota for Under Graduate Programme has
not been fixed in the Union Territory of Puducherry. The
Committee took into consideration the letter given by the
Government of Puducherry. As in its opinion, the fees for the
Management Quota seats also required to be regulated and as a
matter of fact, there was no such regulation of the fee
structure by the Fee Committee earlier to 2016. It is an
undisputed fact that until the fee fixation order dated
12.07.2017, the Institutions were fixing their own fees
structure and notifying it in their website and the Government
themselves have advised the students to acquaint themselves to
the fees fixed by the respective Institutions and pay the same.
This fact has been clearly set out by the Government in their
counter affidavit filed in W.P.No.23732 of 2017. Therefore,
there is no dispute to the fact that no separate fee structure
was fixed for the students admitted under the Management Quota
in MBBS Course up to the year 2016-17.
55.What is crucial is the date of the letter sent by the
Government which is 23.06.2017. In terms of the directives
issued by the Hon'ble Supreme Court, the admissions to MBBS
course has to be completed by 30th September of every year and
beyond the said period, no Institution or Government is entitled
to admit students to MBBS course, unless and until specific
orders are obtained from the Hon'ble Supreme Court. Therefore,
when the Government addressed the Fee Committee by letter dated
23.06.2017, the admission process would have commenced or in the
process of being commenced and a clarity was required for the
students who are desirous of joining MBBS course in the
Management Quota seats. The Institutions took advantage of the
meeting convened by the Committee on 12.07.2017 and sought for
reviewing the proceedings of the Fee Committee dated 23.03.2017
which was rightly rejected by the Committee. Thereafter, the
Committee proceeded to consider the request made by the
Government of Puducherry as well as the Management of the
Colleges for fixing the fee for the students to be admitted in
the Management Quota from the academic year 2017-18 onwards.
The particulars and data furnished by the Institutions were
found to be inadequate. The technical member, namely, the
Chartered Accountant had suggested that the Institution should
submit proposals and data and since the same was not readily
available, the Institutions sought for time.
56.Thus, considering that the request made by the
Government to regulate the fees structure for the Management
Quota seats and also bearing in mind that the admission process
has to begin, the Fee Committee took a decision to tentatively
fix the fee for the Management Quota seats. The Institutions
readily agreed to such tentative fixation of fees and also gave
it in writing. As it was found that the particulars and data
produced were inadequate, as an interim arrangement the Fee
Committee was enjoined upon a duty to proceed rationally and
reasonably keeping in mind that the interest of the student
which was paramount. As and when a tentative decision is
required to take place, there has to be a reasonable approach
leading to the tentative decision. In other words, the tentative
decision cannot be manifestly arbitrary and wholly untenable.
It is not as if there were no details or particulars available
before the Committee but in the opinion of the technical member
[Chartered Accountant], the particulars and details were
inadequate. The Institutions agreed to provide the details, but
sought time to do so. Thus, the Committee had to take a decision
in the matter as to what has to be done in the given facts and
circumstances. As pointed out by the Hon'ble Supreme Court in
P.A.Inamdar, the Committee was required to be sensitive and to
act rationally and reasonably with due regard to realities. The
reality in the instant case was that for the first time for the
academic year 2017-18, the fee for the Management Quota seats
was to be regulated. The fee had to be regulated at the
earliest before commencement of the admission process which had
to be completed before 30th September. In such circumstances,
the Committee took note of the ground realities, examined as to
the procedure adopted by the Government of Tamil Nadu based on
the fee fixation orders of the Committee for the State of Tamil
Nadu and accordingly fixed the tentative fee of Rs.12 Lakhs for
the Management Quota seats for the academic year 2017-18 and
Rs.20 lakhs for the NRI Quota seats. The order passed by the
Committee clearly states that the fixation is tentative and the
final fixation will be done after evaluating the necessary
particulars, proposals, data, information, etc. to be received
from the Colleges and therefore, the Committee directed that the
Management should inform the students that the fee fixed in the
proceedings dated 12.07.2017 is tentative and subject to
modification and necessary undertaking letters were to be
obtained from the students in this regard. It is not in dispute
that those students who are petitioners also have executed such
undertaking and with their eyes wide open, they have accepted to
the position and joined the course. After having joined the
course and paid the fees as fixed by the Committee for three
academic years, the present attempt of the students by filing a
writ petition in December 2020 has to be rejected as a clear
after thought. It was argued by Mr.V.B.R.Menon, learned counsel
that there can be no estoppel when the Committee had no
jurisdiction to fix differential fee for Management Quota and
Government Quota seats. In the preceding paragraphs, we have
upheld the differential fee fixation and hence such argument is
rejected. In the case on hand, we are taking note of the
conduct of the students who have executed letters of undertaking
stating that the fees fixed is only tentative. Therefore, the
students are estopped by their own conduct in now challenging
the order passed by the Government in G.O.Ms.No.24 dated
03.07.2018.
57.Thelearnedcounselappearingforthe
Association/students placed reliance on the decision in
Subharati K.K.B. Charitable Trust vs. Abhishek Kadian [2010 SCC
OnLine All 1904], to support his contention that there can be no
estoppel merely because the student/parents have executed
Letters of Undertaking while they joined the course based on the
tentative fee fixed by the Fee Committee and pursuant to the
Government Order dated 19.07.2017.
58.In Subharati K.K.B. Charitable Trust, the students
were allotted to the said college pursuant to counselling held
on 15.04.2003 and deposited the fee on 24.05.2003 as claimed by
the institution both for Government Quota and for Management
Quota seats. The students contended that they have been
allocated the seats, they had no choice since non-payment of
fees, as claimed by the College, would have resulted in denial
of admission to the students and before the fee for the second
year on the same rate could be realised, they filed the writ
petition challenging the entitlement of the college to realise
the fees as fixed by it. The Hon'ble Court pointed out that the
question as to what fee the students were liable to pay, is a
question which was dependent on the consequence of the judgment
of the Apex Court and the interpretation of the judgment and the
power of the State Government to regulate the fee structure (to
be noted that the case related to admission to MBBS Course for
the year 2003-04). On facts, the Hon'ble Court held that the
principle of estoppel may not apply. The Court referred to and
relied upon a decision of the High Court of Kerala in Sandeep V.
& Ors. vs. State of Kerala [AIR 2005 Kerala 148], which was the
case where students were admitted in self-financing medical
college in the academic year 2003-04. After they completed the
first year, when they entered the second year, there was a
demand for higher fee as fixed by the Fee Fixation Committee for
the academic year 2004-05. The students had also executed a
bond promising to adhere to the fixation of fee. The colleges
contended that the students cannot wriggle out from their bond.
This contention was rejected on the ground that the State
Government had issued Government Order dated 12.09.2003 and also
the clarification dated 09.01.2004 and the same is applicable
only for the year 2003-04, but for the subsequent year, the fee
as approved by the Committee appointed pursuant to Islamic
Foundation is payable. Furthermore, in the said decision, the
advertisement issued by the Director of Medical Education was to
inform the students to obtain the details of “other fee” from
private college of their own and this did not pertain to tuition
fee and the Court held that “other fee” cannot be read to mean
the fee fixed by the State Government as tuition fee. The
decision in Subharati K.K.B. Charitable Trust, as well as the
decision relied thereon in Sandeep V. are clearly
distinguishable on facts.
59.The learned counsel appearing for the Association placed
reliance on the decision in Vivekananda Institute of
Professional Studies vs. Government of NCT [(2018) SCC OnLine
Del 12287], largely to support his contention that differential
fees cannot be levied. The Court after noting that there is no
ingrained rule, inflexible in application, that if there are two
methods of admission to private colleges, there must be a
differential fee structure. After the said observation, the
Court took into consideration Section 7 of the Delhi
Professional Colleges or Institutions (Prohibition of Capitation
Fee, Regulation of Admission, Fixation of Non-Exploitative Fee
and other measures to ensure equity and Excellence) Rules, 2007
and it was observed that Section 10 under the said Act enjoins
that a college or institution cannot collect any amount for
admission in excess of what is determined by the Committee. We
find the said judgment to be wholly inapplicable to the facts of
the case on hand.
60.As mentioned above, ever since 2006, the distinction in
the fee structure has been in vogue and in the light of the
decision in Pramati Educational & Cultural Trust, the creation
of a Government Quota and Management Quota is no longer open to
challenge. The only method on which the challenge can be
maintained is by establishing that the fees fixed for Management
Quota seats are in the nature of a capitation fee and amounting
to profiteering. This has not been the case of the
Association/students who are before us, but would seek to
implement the proceedings of the Fee Committee dated 23.03.2017,
which was not the fee fixed for Management Quota seats, as for
the first time, in the Union Territory of Puducherry, fee was
fixed for Management Quota and NRI Quota tentatively by
Government Order dated 19.07.2017.
61.As mentioned above, the students who are said to be
aggrieved have secured admission pursuant to the fee fixation
order dated 19.07.2017. They have reconciled with the fact that
the fee fixation is tentative and to the said effect, they have
also given it in writing. Thus, the students/parents were well
aware that there would be a final fixation of the fee which
ultimately was done in G.O.Ms.No.24 dated 03.07.2018. Thus, on
facts, the principle of estoppel is squarely apply and would
bind the students. An objection was raised on behalf of the
students that they were not made parties to the writ petitions
filed by the colleges challenging the Government Fee Order dated
19.05.2017. Likewise, colleges argued that the Association,
which was formed in the year 2018 with seven members, none of
whose ward were students of any of the Medical Colleges.
Firstly, the students, who were admitted pursuant to the
Government Fee Order 19.07.2017 cannot claim that they should be
made party to a writ petition filed by the Colleges challenging
the Government Fee Order dated 19.05.2017. It is stated that
the seven members who initially formed the Association, all of
them are parents of the students studying in the various
colleges. Since we have dealt with the larger issue, these
contentions become inconsequential and in any event, the
students admitted for the academic year 2017-18 cannot seek to
apply the fee structure which was fixed much earlier to their
admission, which admittedly was only in respect of Government
Quota seats. That apart, we find that all the students, who were
admitted to the Management Quota in the colleges before us, had
not filed the writ petition and it is submitted that out of 95
students in the 5th respondent college/Sri Venkateshwara Medical
College Hospital and Research Centre, only one student has
approached the Court, that too, after paying the fee in terms of
the Government Fee Order dated 19.07.2017 and also executing the
Letter of Undertaking. In one of the writ petitions, viz.,
W.P.No.19466 of 2020, none of the students of Sri Manakula
Vinayagar Medical College and Hospital are concerned. We have
observed earlier that the attempt of the Association/students is
a belated attempt. Undoubtedly, the attempt made by the Students
and filing a writ petition in the year 2020 cannot in manner
improve their case as by then, they had already paid the fees
for three years.
62.One more aspect, we need to point out is that NRI
Quota was introduced in the year 2006. Admittedly, the
institutions were fixing the fees for the said quota by
themselves. It is not known as to whether the Government of
Puducherry or any authority of the Government were aware of the
fee fixed for NRI Quota from the year 2006. The fact that in the
proceedings of the Fee Fixation Committee dated 23.03.2017,
there have been more specific mention about NRI Quota seats is a
fact which would also go to prove that until the said date, no
fee was fixed for Management Quota or NRI Quota seats.
63.The Association and the petitioner would state that
the fee fixed by the Committee in its proceedings dated
19.06.2018 is arbitrary. As mentioned above, the Committee was
empowered to fix the final fee as the earlier Committee by
proceedings dated 12.07.2017 had fixed only a tentative fee.
The Colleges produced the audited statement for the year 2016-
17, provisional statement for 2017-18, projected statement for
2018-19 and the cost per student for the 2016-17 [produced by
one College only]. They submitted the cost per student for the
allowed intake and actual intake of students. The Committee
considered the proposal submitted by the Colleges and found that
the proposal was on a higher side and it needs to be pruned. In
the process of fixation, the Committee took into account the
inspection reports prepared by the previous Committee which was
done after comprehensive inspection of the Colleges concerned.
The Chartered Accountant who was a member of the Committee in
his report observed that the cost of living in Puducherry is
more than in Tamil Nadu. Taking note of these factors, the
Committee observed that it has the responsibility of ensuring
that the interest of students on one hand and that of the
Management on the other hand has to be protected. Further, it
has to be borne in mind that commercialization and profiteering
are prohibited. It observed that no undue burden should be
allowed to be cast upon the students and at the same time, the
Management should not be put to any hardship and they are
entitled to the actual cost of imparting education as the
Institution exists for the students. Further, the Committee
observed that it is equally important that only if the
Institutions keep going, the students would be beneficiaries.
Therefore, the Committee thought fit to find a mean between the
interest of the Management and that of the students as one
cannot co-exist without the other.
64.The Committee keeping in view the principles laid down
in the judgments of the Hon'ble Supreme Court with the aid of
the Chartered Accountant, member who had scrutinized all the
materials produced by the Management and taking note of the fact
that only one Medical College submitted the detailed working of
cost per student and the other two Colleges have submitted a
proposal which are not verifiable. Therefore, the projections
and provisional statements were re-worked with disallowance of
expenditure on a percentage basis for arriving the cost per
student. The workings presented by the College were rejected as
they were not supported by required data certified by a
Chartered Accountant along with books of accounts and other
materials as requested to be submitted as per Islamic Academy.
Therefore, the Committee decided to rationalize the fee on a
uniform and reasonable basis for all Colleges. The Committee
took note of the observation in Islamic Academy that better
working conditions will attract better teachers, better
amenities will ensure better students to seek admission to the
Institution and providing good amenities and competent teaching
faculty and other infrastructure costs money. The Committee
also took into consideration that the Colleges run several
courses and there are several batches of students, they have
common staff and other infrastructural facilities and the fee
collected for the Government Quota seats varies between Rs.2.99
lakhs to Rs.3.5 lakhs and thus having regard to the attendant
circumstances and taking into consideration the views expressed
by the members of the Committee and the representative of the
Institutions, the Committee fixed the fee at Rs.16 lakhs for
Management Quota seats and Rs.20 lakhs for NRI Quota seats in
all the three Colleges for the academic years 2017-18, 2018-19
and 2016-2020. With regard to the students who have been
admitted for the academic year 2017-18, on payment of tentative
fee of Rs.12 lakhs plus Rs.50,000/- towards development charges,
they were directed to pay the difference in the amount at the
rate of Rs.50,000/- per semester commencing from the third
semester, so that it should not be a burden for the students.
65.In the considered view of this Court, the Committee
while fixing the fee vide their proceedings dated 19.06.2018
cannot be stated to have acted assuming such powers and
performing functions which were never given or intended to be
given to them. Admittedly, when the Committee fixed the fee by
proceedings dated 23.03.2017 the infrastructural facilities were
thoroughly examined and the same has been brought on record.
The Government Order fixing the fee dated 19.05.2017 continued
to hold the field and only in June 2017, the Government
addressed the Committee to regulate the fee for the Management
Quota and NRI Quota seats.
66.As pointed out earlier, a reasonable approach taking
note of the realities the then Committee fixed the tentative
fees. The petitioners/students were fully aware that the fee
which is collected from them at Rs.12 lakhs for Management Quota
seats is only tentative and they have also given a letter of
undertaking to the said effect. During the final fixation, the
stand taken by the Management were rejected by the Committee.
The Committee noted that only one of the three Colleges had
furnished the details with regard to cost of education per
student. Therefore, the Committee had to rationally approach
the matter and accordingly, the projections and provisional
statements were re-worked with disallowance of expenditure on
percentage basis for arriving the cost per student.
67.In our considered view, this exercise cannot be stated
to be irrational or unreasonable. The Committee rightly took
note of the observations made in Islamic Academy that providing
better facilities involves cost and better facilities in terms
of infrastructure and faculty will attract better students.
What would be the consequence of this. Naturally it will
produce better Doctors to serve this Country. Therefore, while
testing the correctness of the Government Order in G.O.Ms.No.24,
what is required to be examined is whether there is any manifest
arbitrariness or total non-application of mind on the part of
the authority while arriving at the decision. The scope of
judicial review under Article 226 of the Constitution of India
is largely on the decision making process than the decision
itself. It may not be justifiable for this Court to decide
whether the fees for the Management Quota seats should have been
fixed at Rs.16 lakhs or Rs.14.5 lakhs or Rs.17.5 lakhs.
Precisely for such reason when the Committee was constituted by
the Hon'ble Supreme Court, the technical person of the Committee
was to be a Chartered Accountant of repute. This was because
the financials of the Institution needs to be analysed and it is
a technical task that could be performed only by a qualified
Chartered Accountant. The Hon'ble Supreme Court added a further
rider by observing that the Chartered Accountant so nominated to
the Committee should be a reputable person. There is no
allegation against the Committee of any incompetence or bias
either individually or collectively and therefore, we have to
necessarily hold that the Chartered Accountant who was nominated
to the Committee would satisfy the qualification as desired by
the Hon'ble Supreme Court.
68.That apart, the Committee has maintained a fine
balance between the Institution and the students and rightly
observed that one cannot exist without the other. During the
course of argument on behalf of the Association, there is no
allegation that the Colleges have been collecting capitation fee
and if that was the allegation, the matter would have been
different. Thus, for the above reasons, we are of the clear
view that there is nothing irrational or unreasonable in the
manner in which the Committee proceeded to fix the final fee in
G.O.Ms.No.24 and the challenge to the tentative fee both by the
Institution as well as the students has to necessarily fail as
the tentative fixation was as a result of the Institutions
unable to produce material and data for the Committee to examine
coupled with the fact that admissions had to be completed by 30th
of September and before the commencement of the admission
process, the fees structure had to be determined as that was the
first year where the fee for the Management Quota and NRI Quota
seats were to be regulated. The challenge to the tentative
fixation by and on behalf of the students also has to fail as
they have accepted the tentative fixation and joined the course
and a letter of undertaking was also executed by them fully
knowing well that they may be called upon to pay further fee
when the final fixation takes place. In the exercise of its
jurisdiction, the procedure adopted by the Committee is found to
be reasonable and fair and decision taken with due regard for
realities. Therefore, the proceedings of the Fee Committee
fixing the tentative fees dated 12.07.2017 and the consequential
Government Order dated 19.07.2017 and the final fee fixation by
the proceedings of the Committee dated 19.06.2018 which was
notified by the Government in G.O.Ms.No.24 dated 03.07.2018 are
held to be valid in law and the challenge to the same fails.
69.The consequential prayer sought for by the
Association/students is to fix the fee in terms of the
proceedings of the Committee dated 23.03.2017 as notified by the
Government in the order dated 19.05.2017. In the preceding
paragraphs, we have held that the Committee in its order dated
23.03.2017 had no occasion to fix the fee for the Management
Quota seats as the fixation was only restricted to the
Government Quota seats. Consequently, the contention of the
Association/students that the Government Order dated 19.05.2017
should be made applicable to them is not tenable. In the
present writ petitions, the argument before us is that there is
no mention in the fee fixation proceedings dated 23.03.2017 that
it is only for Government Quota seats and therefore, it should
be taken it applies for all seats irrespective of quota. This
argument was rejected by noting the factual position that for
the first time the fees structure for the Management Quota seats
were fixed [tentatively] by order dated 12.07.2017 and in such
circumstances, we cannot infer that the fee fixed by the
proceedings dated 23.03.2017 is for the Government Quota as well
as the Management Quota seats. Such inference is impermissible
as it is factually otherwise.
In the result, all writ petitions fail and they are
dismissed. No costs.
Assistant Registrar (CCC)
// True Copy //
Sub Assistant Registrar
abr/cse
To
1.The Secretary to Government (Health), Department of Health, Government of Puducherry, Chief Secretariat (Health) – 605 001.2.The Secretary, Medical Council of India, Pocket-14, Sector 8, Dwaraka, New Delhi – 110 077.3.The Secretary,Ministry of Health & Family Welfare, New Delhi.4.The Under Secretary to Government (Health), Department of Heath, Government of Puducherry, Chief Secretariat (Health) – 605 001.5.The Chairman, Fee Committee Puducherry,
Unaided Self Financing Medical, Dental Colleges,
No.AA-67, 1st Street,
Near Rountana Nalli Silk House,
Anna Nagar, Chennai-40.
6.The Secretary to Government,
The Union Territory of Puducherry,
Health Department,
Office of the Chief Secretariat,
Puducherry-605 001.
7.The Secretary, The Fee Committee, In respect of Self-Financing Medical, Dental and Nursing Colleges, Puducherry.8.The Chief Secretary to Govt. of Puducherry, Secretariat, Goubert Avenue, Puducherry-605 001.9.The Deputy Secretary to Government of Puducherry, Health and Family Welfare Services Department, Secretariat, Beach Road, White Town, Puducherry-605 001.10.The Director, Department of Health and Family Welfare Services (DHFWS), Victor Samuel Street, Puducherry-605 001.
11.The Chairman, Puducherry Fee Committee, No.7 (NCB), Greenways Road, Chennai-600 028.12.The Registrar, Pondicherry University,
R.V.Nagar, Kalapet, Puducherry-605 014.
13.The Chairperson,
National Medical Commission,
Pocket-14, Sector-8,
Dwarka Phase-I, New Delhi-110 077.
14.The Chairman, Pondicherry Institute of Medical Sciences,
Kalathumettupathai, Ganapathichettikulam,
Village No.20, Kalapet, Puducherry-605 014.
15.The Registrar,
Pondicherry Institute of Medical Sciences,
Kalathumettupathai, Ganapathichettikulam,
Village No.20, Kalapet, Puducherry-605 014.
+1cc to Mr.A.V.Bharathi, Advocate SR.No.47995
+1cc to Mr.Q.Rubina, Advocate SR.No.47744
+6ccs to Mr.Abishek Jenasenan, Advocate SR.No.47766,47765,47764
+4ccs to Mr.V.B.R.Menon, Advocate SR.No.48279, 48278
+1cc to Mr.B.Balavijayan, Advocate SR.No.48471
+1cc to the Government Pleader SR.No.48267, 48266, 48265
W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
RLD(CO)
RVM(13/10/2021)
3 issues framed by the court
Could separate fees lawfully be fixed for Government Quota and Management Quota seats in unaided medical and dental colleges?
Were the tentative and final fee determinations arbitrary, irrational or otherwise liable to judicial interference?
Could Management Quota students who accepted tentative fees and executed undertakings demand application of the earlier Government Quota fee?
Colour shows how this judgement treated each authority
Unni Krishnan J.P. vs. State of Andhra PradeshExplained¶120
Unni Krishnan J.P. vs. State of Andhra Pradesh [(1993) 1 SCC 645 (SC)] · Who else cites this
T.M.A.Pai Foundation vs. State of KarnatakaRelied on¶120
T.M.A.Pai Foundation vs. State of Karnataka [(2002) 8 SCC 481 (SC)] · Who else cites this
Mohini Jain (Miss) vs. State of Karnataka and Ors.Referred¶120
Mohini Jain (Miss) vs. State of Karnataka and Ors., [(1992) 3 SCC 666] · Who else cites this
Islamic Academy of Education vs. State of KarnatakaApplied¶131
Islamic Academy of Education vs. State of Karnataka [(2003) 6 SCC 697] · Who else cites this
P.A.Inamdar vs. State of MaharashtraApplied¶134
P.A.Inamdar vs. State of Maharashtra [(2005) 6 SCC 537] · Who else cites this
W.P.No.23732 of 2017, etc. batch dated 18.07.2019Distinguished¶204
Review Application Nos.194 to 198 of 2019 and 8 of 2020Referred¶183
Sucheta Das Das vs. State of MaharastraReferred¶187
S.L.P.(C) No.41475 of 2017 dated 22.12.2017 (Sucheta Das Das vs. State of Maharastra)
Modern College and Research Centre vs. State of Madhya PradeshReferred¶199
Modern College and Research Centre vs. State of Madhya Pradesh [(2010) 14 SCC 186] · Who else cites this
Pramati Educational & Cultural Trust vs. Union of IndiaApplied¶217
Pramati Educational & Cultural Trust vs. Union of India [W.P(C)No.416 of 2012, dated 06.05.2014]
Ashoka Kumar Thakur vs. Union of IndiaReferred¶218
Ashoka Kumar Thakur vs. Union of India [(2008) 6 SCC 1] · Who else cites this
Modern Dental College and Research Centre vs. State Madhya PradeshApplied¶248
Modern Dental College and Research Centre vs. State Madhya Pradesh [AIR 2016 SCC 2601] · Who else cites this
Vasavi Engineering College Parents Association vs. State of TelenganaApplied¶256
Vasavi Engineering College Parents Association vs. State of Telengana [(2019) 7 SCC 172] · Who else cites this
Subharati K.K.B. Charitable Trust vs. Abhishek KadianDistinguished¶280
Subharati K.K.B. Charitable Trust vs. Abhishek Kadian [2010 SCC OnLine All 1904] · Who else cites this
Sandeep V. & Ors. vs. State of KeralaDistinguished¶280
Sandeep V. & Ors. vs. State of Kerala [AIR 2005 Kerala 148] · Who else cites this
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4 provisions across 3 enactments
Sri Manakula Vinayagar Medical College and Hospital
Sri Venkateswara Dental College
Sri Venkateswara Medical College Hospital and Research Centre
Pondicherry Medical Colleges Students and Parents Association
The Union Territory of Puducherry
The Fee Committee, In respect of Self-Financing Medical, Dental and Nursing Colleges
T.S.SIVAGNANAM
SATHI KUMAR SUKUMARA KURUP
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court