Dismissed

Mahima Sharma v. State of Raj and Ors.

Rajasthan HC10 Dec 2013SAW/1648/2012

Case brief

AI extract

What is this about?

In an intra-court appeal, the Divisional Bench affirmed the Single Judge's order declining the appellant's refund of tuition fees. The court held that the management's stipulation preventing fee refunds for NRI candidates who relinquish admission before the start of classes is valid, as such fees are intended for institutional development.

What did the court decide?

None; the intra-court appeal was dismissed and the Single Judge's order refusing the tuition fee refund was affirmed.

Mahima Sharma Vs State of Raj and Ors. — Education and Admissions | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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JUDGMENT

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D.B. Civil Special Appeal (Writ) No.1648/2012

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Mahima Sharma Versus State of Rajasthan & Ors. Date of Judgment :: 10^th December, 2013 PRESENT

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HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Mr.Sanjeev Prakash Sharma, Senior Counsel with Mr. Ankit Sethi, for the appellant.

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Mr.Kishore Gaur, for respondent No.3. Mr.R.P. Singh, Additional Advocate General with Mr. Shashi Kant Sen for the State.

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BY THE COURT : (Per Hon'ble Veerendr Singh Siradhana, J.)

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The appellant/writ petitioner (for short 'the appellant') in the present intra-court appeal has challenged the judgment and order dated 18^th September, 2012 passed by the learned Single Judge; declining to interfere with the action of the respondents in not refunding the tuition fee deposited by the appellant on her admission to First Year of MBBS Course against Non-resident Indians (for short, 'NRI') seats.

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Shorn of the unnecessary details, the relevant facts essential for adjudication of the controversy are that the appellant in response to advertisement dated 23^rd July, 2008; submitted her application for consideration of her candidature for admission to First Year MBBS

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Course against 15 seats reserved for NRIs for the academic session 2008-09. The appellant was declared successful as her name appeared at Serial Number 12 in the list of selected candidates notified vide order dated 18^th August, 2008. The appellant deposited the tuition fee of Rs.22,04,635/- and attended the classes with effect from 2^nd of September, 2008. Subsequently, on her admission in Army College of Medical Sciences, New Delhi (for short 'the Army College') run by Guru Govindsingh Indraprasth University, New Delhi wherein the last date for submission of the original testimonials, which were deposited with the respondent College were to be furnished. The appellant having secured admission in Army College of Medical Sciences informed the respondent College on 30^th September, 2008 of her relinquishment of the seat against NRI quota with the respondent College and further stating that she has no objection, if the seat is allotted to another student by the respondent College against the NRI quota. Later on, the appellant claimed refund of the tuition fee from the respondent College, which was declined and therefore, approached this Court by way of writ application, which has been dismissed by the learned Single Judge vide impugned order dated 18^th September, 2012.

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The learned counsel for the appellant reiterating the contents of the writ application submitted that there was no condition or any stipulation in the advertisement dated 23^rd July, 2008; as contained in communication dated 5^th August, 2008, stipulating that the fees paid by the students seeking admission against the NRI seats will not be entitled to refund of any kind of fee; though the same communication allowed refund of tuition fee after deduction of 10% and hostel fee after deduction of one month fee, on conclusion of 2^nd counseling. Thus, certainly action of the respondents is discriminatory. The learned

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counsel further submitted that the appellant, as NRI student, had the option either to deposit the fee in single payment or in part payment scheme and since the appellant deposited first installment in part payment scheme, but the amount that may be deducted in a given situation will defer as per the option availed by the student and therefore, the action of the respondents in withholding the entire tuition fee is bad in the eye of law.

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The learned counsel for the appellant referring to the instructions issued by statutory bodies like UGC and/or All India Council for Technical Education; in the event of withdrawal of the admission by the students, prior to commencement of the course; emphasized that withholding of the entire fees paid by the student could not be justified and therefore, the action of the respondents is bad on that count as well. Relying on the opinion of the Hon'ble Supreme Court, the learned counsel made an attempt to highlight the difference between the statutory levy i.e., 'tax', 'duty' or 'cess' and 'fees', which is to be tested on the anvil of quid pro quo . Further, since the appellant withdrew her admission before commencement of the course on 30^th September, 2008, therefore, the action of the respondents in not refunding the entire fee deposited on the pretext of stipulation under communication dated 5^th August, 2008; is illegal, arbitrary and violative of the provisions of Article 14 of the Constitution of India.

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Mr. R.P. Singh, the learned Additional Advocate General, for the respondent-State supporting the impugned judgment and order dated 18^th September, 2012; reiterated the stand before the learned Single Judge pointing out that the respondent number 2 is a registered Society registered under the Registration of Societies Act and the Principal Secretary, Medical and Health Department is an ex-officio

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Chairman of the governing body of the Society. The learned counsel further stressed that vide communication dated 5^th August, 2008, the Principal Secretary, Medical and Health Department, well before the last date of submission of the application with reference to the admission against the NRI seats, made it clear that the fees deposited by the NRI students shall not be refunded. Further, the appellant submitted her joining report on 28^th August, 2008 and was allotted hostel accommodation allotting room number 113 to her and she attended the classes with effect from 2^nd September, 2008 to 26^th September, 2008. She submitted her application to relinquish the seat in view of her admission in Army College of Medical Sciences, New Delhi at 4.20 p.m. on 30^th September, 2008; which was the last date on which the students were supposed to join, consequent upon admission in the medical course. Since there was a clear stipulation in the communication dated 5^th August, 2008 about the non-refund of the fee to the NRI students, therefore, declining her claim for refund of the fee is perfectly legal and valid.

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Learned counsel further pointed out that admissions against NRI seats are privileged admissions wherein parameters of academic qualification and merit are not strictly enforced as in cases of admissions based on open competitive merit through Pre Medical Test i.e. RPMT or CPMT. The learned counsel further emphasized that the instructions for refund of fee consequent upon counseling are not attracted in case of admission accorded against NRI seats, which are not transferable.

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The learned counsel in order to reinforce his submissions placed reliance on the judgments of the Hon'ble Supreme Court in case of TM Pai Foundation Versus State of Karnataka : (2002) 8 SCC 481; Islamic

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Academy of Education Versus State of Karnataka : (2003) 6 SCC 697; highlighting that limited number of seats not exceeding 15%, made available to NRIs depending upon the discretion of the Management, is a special quota carved out with the object sought to be achieved, which also finds some reference in the fee structure as spelt out in the advertisement dated 23^rd July, 2008 that such receipts of fee as against NRI seats of MBBS Course will be used only for development of the college/hospital and cross subsidizing for the benefit of students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of fee.

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We have heard the learned counsel for the parties and with their assistance perused the material available on record as well as impugned order dated 18^th September, 2012.

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The advertisement dated 23^rd July, 2008 inviting application from eligible candidates for admission to MBBS Course for academic session 2008-09, though did not mention about the forfeiture of the fees as against NRI seats but before the last date of submission of the application i.e. 14^th August, 2008, the Chairman of the respondentSociety vide communication dated 5^th August, 2008 made it clear in unambiguous terms that the students, who were accorded admission against NRI seats, will not be entitled to refund of any kind of fee. The issue of counseling raised by the learned counsel for the appellant is of no relevance in view of the fact that a candidate admitted against NRI seat, is not allowed to participate in counseling and therefore, refund of fee subject to deductions, simply did not arise in the case of the appellant. Be that as it may, even in the case of candidates admitted through Pre-Medical Test, after 25^th September, 2008; were not alloted

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refund of fee of any kind.

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In the instant case at hand, the appellant after having secured admission in Army College of Medical Sciences, New Delhi on 30^th September, 2008 submitted an application relinquishing her seat with the respondent College.

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Mr. R.P. Singh, learned Additional Advocate General, referring to the opinion of the Hon'ble Supreme Court in case of T.M.A. Pai Foundation (supra) highlighted the object underlinged the 'free seats' and in respect of 'payment seats' and the reason being that the gape in the fees paid by the 'free students' and 'payment students' was too large and most of the students from well-to-do families were taking away the free seats and after a careful consideration of the issue, the NRI quota has been left it open to the Management to admit NRI students and foreign students within this quota to the extent of 15% and in case of NRI or foreign students were not available, in that eventuality the institute could admit students on their own, in the order of merit within the said quota. In this reference, the relevant paragraphs reads thus:-

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“ 2. In Unni Krishnan, J.P. v. State of A.P .¹ a Constitution Bench of this Court framed a scheme governing admissions to professional colleges. This was done with a view to eliminate the evil of capitation fee and the absolute discretion which the managements of these colleges were exercising in the matter of admission of students. The main objective was to ensure that merit prevails in the matter of admissions, both in respect of what were called “free seats” as well as in respect of “payment seats”. This judgment was rendered on 4-21993. The scheme was to be effective from the Academic Year 1993-94 onwards.

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3. Review petitions were filed by several institutions

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against the said judgment. They were dismissed by the Constitution Bench on 14-5-1993 subject to one clarification, viz., that it shall be open to the professional colleges to admit non-resident Indian students to the extent of five per cent of the total intake in a given year. These five per cent seats were to be out of fifty per cent payment seats.

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14. Over the last two years, several problems and difficulties in the matter of implementation of the said scheme were brought to our notice by the governments, managements, students and their parents. In particular, it was being complained that the gap in the fees paid by ‘free students’ and ‘payment students’ is too large and that contrary to the intention of the scheme, most of the boys from the well-to-do families were taking away free seats leaving the payment seats to students from the rural areas and backward communities. The managements also complained that the fees prescribed by this Court are not sufficient to meet the necessary expenditure. Keeping these representations in mind, we made the following order on 27-4-1995 suo motu:

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“A Constitution Bench of this Court in Unni Krishnan, J.P. v. State of A.P .¹ framed a scheme regarding admission of candidates to the private professional colleges. In terms of the scheme 50% seats were free seats and the remaining 50% seats have (?) were payment seats. By a subsequent order part of the payment seats were also allocated as NRI quota. The scheme has now been operative for over two years. We would like to have the suggestions and comments from the State Governments and Union of India regarding the functioning of the scheme. The Ministries of the Government concerned shall indicate in case any modification/change in the working of the scheme is required at this stage. Copy of this order be sent to the Advocate Generals of all the States, Attorney General of India, Indian

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Medical Council, University Grants Commission, Dental Council of India, All India Council for Technical Education. The response of the above shall be filed before 31-7-1995.”

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27. We have also taken note of the grievance relating to the gap between the fees payable by the “free student” and “payment student” and the uniform demand for increasing the NRI/foreign students quota. Hence the following directions, confined no doubt to Academic Year 1995-96 only and limited to medical and dental colleges only:

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(1) So far as NRI quota is concerned, it is fixed at fifteen per cent for the current academic year. It shall be open to the management to admit NRI students and foreign students within this quota and in case they are not able to get the NRI or foreign students up to the aforesaid specified percentage, it shall be open to them to admit students on their own, in the order of merit, within the said quota. This direction shall be a general direction and shall operate in the case of all the States where admissions have not been finalised. It is, however, made clear that by virtue of this direction, no student who has already been admitted shall be disturbed or removed.

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(2) So far as Minority Educational Institutions are concerned, the orders made on 18-8-1993 shall continue to govern them for this academic year. This shall also be a general direction applicable to all States. It is made clear that the above direction applies equally to colleges in Maharashtra imparting ‘Unani’ medicine courses. (3) So far as State of Karnataka is concerned, the following additional directions are made:

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( a ) The restriction placed by the 1995 amendment to the Karnataka Selection of Candidates for Admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules, 1993, viz., that only Karnataka students (as defined by the said Rules) shall be admitted against the payment seats

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shall not operate for the current academic year. Among the fifty per cent payment seats, we have allocated fifteen per cent to NRI/foreign students [direction ( i )]. Out of the balance thirty-five per cent seats, twenty per cent shall be reserved for Karnataka students and remaining fifteen per cent for non-Karnataka students — as was done during the previous academic year. The admission of Karnataka students against the payment seats shall be made in accordance with the scheme framed in Unni Krishna n¹ out of the students who have appeared in the entrance test already held. If any of the seats in this twenty per cent remain vacant, they shall be added to the fifteen per cent quota of nonKarnataka students and shall be filled in accordance with clause ( b ) below.

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( b ) Since there is no sufficient time left for conducting a fresh common entrance test for nonKarnataka students for admission to the aforesaid fifteen per cent seats specified in clause ( a ) above, the following direction is made: a press note shall be issued by the Government of Karnataka on or before 15-8-1995, to be published in all the national dailies, calling for applications from non-Karnataka students for admission to payment seats in private medical and dental colleges in Karnataka, to be submitted on or before fifth day of September, 1995. The applications shall be accompanied by the memorandum of marks in the qualifying examination, apart from other relevant documents. All the applications so received shall be tabulated and admissions made on the basis of merit determined on the basis of the marks obtained by them in the qualifying examination. The students admitted shall remit the requisite fee, as specified hereinbelow, within ten days of the order of allotment. The remitting of amount by the student into the

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Government account in the specified bank or the Government treasury, as the case may be, shall be treated as acceptance of allotment of seat by the student and the same shall be binding upon all concerned.

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( c ) All free seats, hereinafter to be called “merit seats” shall be reserved for Karnataka students. Allotments against these free/merit seats and the payment seats meant for Karnataka students shall be completed on or before 16-9-1995. The allotment of seats to non-Karnataka students shall be completed on or before 9th day of October, 1995. Any seats remaining unallotted after that date or remaining unfilled as on 30-10-1995 shall be allowed to be filled by the Management on its own.

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The Hon'ble Supreme Court while examining the matter of fees structure in the case of Islamic Academy of Education (supra) while answering the question as to whether educational institutions are entitled to fix their own fees structure; allowed liberty to do so in view of consideration of the needs to generate funds to run the institute and to provide the facility necessary for the students. The Hon'ble Supreme Court while examining the issue of the educational institution charging, in advance, the fees for the entire course if the students would leave the institute in midstream and the seat would lie vacant in that case, for such a situation the institute may require that student to give bond/bank guarantee that the balance fee for the whole course would be received by the institute even if the student left in midstream. The observations of the Hon'ble Supreme Court in this reference reads thus:-

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6. In view of the rival submissions the following questions arise for consideration:

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( 1 ) whether the educational institutions are entitled to fix their own fee structure;

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( 2 ) whether minority and non-minority educational institutions stand on the same footing and have the same rights;

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( 3 ) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and

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( 4 ) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission.

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Question 1

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7. So far as the first question is concerned, in our view the majority judgment is very clear. 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 which must be used for the betterment and growth of that educational institution . In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or

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purpose and cannot be used for personal gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in T.M.A. Pai case¹ the respective State Governments/concerned authority 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, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short “MCI”) or the All India Council for Technical Education (in short “AICTE”), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/coopt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this 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 for their scrutiny. The Committee shall then 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. 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. If any other amount is charged, under any other head or guise e.g. donations, the same would

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amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation.

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8. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.

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Keeping in view the object underlining the fee structure in case of NRI seats, as observed by the Hon'ble Supreme Court, to run the institution and to provide facilities necessary for the benefit of the

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students and betterment as well as for the growth of the institution has a nexus with the object sought to be achieved. The instructions referred to and relied upon by the learned counsel for the appellant, issued by the statutory authorities, have no binding force and are not at all relevant with reference to the admission on NRI seats of MBBS Course.

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In the instant case at hand, the appellant after having submitted her joining report on 28^th August, 2008 and having attended the classes with effect from 2^nd September, 2008 to 26^th September, 2008 and having secured admission in Army Medical College, New Delhi; decided to relinquish her seat against NRI quota with the respondent College on 30^th September, 2008, which was the last date for admission to the course and even on that date, the students who have been accorded admission are not entitled to refund of any kind of fee. Even in their case the last date is 25^th September, 2008, though their case cannot be equated to that of the appellant. The contention raised by the learned counsel for the appellant that the appellant received no corresponding service from the respondent College and therefore, she deserves the refund of fee, is without any substance in the peculiar facts and circumstances of the case at hand.

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We have given our anxious consideration to the rival submissions made by the learned counsel for the parties and have also perused the record carefully as well as the impugned judgment and order dated 18^th September, 2012 passed by the learned Single Judge. We are not persuaded to take a different view than the one arrived at by the learned Single Judge. The intral-court appeal is without any substance and deserves to be dismissed. Ordered accordingly.

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In the result, the intra-court appeal is hereby dismissed.

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However, in the facts and circumstances of the case, there shall be no order as to costs.

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(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ.

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Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the
judgment/order being emailed.
(Sunil Solanki)
P.A.

Mahima Sharma v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Mahima Sharma v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

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