Allowed

Vivekananda College of Education, v. The Acharya Nagarjuna University

Telangana HC4 Sept 2012WP/13709/2012

Case brief

AI extract

What is this about?

This batch of writ petitions challenged the Acharya Nagarjuna University's decision to levy and collect admission/registration/service fees from B.Ed. institutions. The High Court held that under the Andhra Pradesh Educational Institutions Act, the admission and fee regulatory committee (AFRC) has exclusive jurisdiction to fix fees. Consequently, the University lacked authority to independently im

What did the court decide?

The Writ Petitions were allowed. The levy of the fee prescribed by the University was held not legally enforceable, and collected fees were directed to be refunded to students.

Vivekananda College of Education, Vs The Acharya… — Education and Admissions | Telangana HC (2012)

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*HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + W.P.Nos.26798 of 2010, 18598, 18579, 21173, 21532, 21604, 21634, 29509, 25462, 24273, 24221, 23525, 22649, 22646, 22636, 21649, 21633, 21603, 21530, 20864, 20829, 20826, 20820, 28704 of 2011, 13679, 13709, 14475, 14479, 16243, 16589, 16594, 16598, 17072, 19804, 20774, 20197, 20198, 21430 & 21834, 23731 of 2012

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% 4-9-2012

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W.P.No.26798/2010

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# Islamia Educational Society, Represented by its Secretary Mr. Khadar Khan, Secunderabad .. Petitioners and 2 others

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vs.

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$ Government of Andhra Pradesh, Represented by its Principal Secretary, School Education Department, Hyderabad and 2 others .. Respondents

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<GIST:

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>HEAD NOTE:

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! Counsel for petitioners : Sri P. Pandu Ranga Reddy ^ Counsel for respondent No.1 : Government Pleader for School

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Education

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Counsel for respondent No.2: Sri Srinivas Mantha, Standing Counsel Counsel for respondent No.3:

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?CASES REFERRED:

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1. W.P.No.27195/2007 & Batch, dated 8-2-2010 2. 2009(8) SCC 492 3. (2004) 8 SCC 139

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HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY

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W.P.Nos.26798 of 2010, 18598, 18579, 21173, 21532, 21604, 21634, 29509, 25462, 24273, 24221, 23525, 22649, 22646, 22636, 21649, 21633, 21603, 21530, 20864, 20829, 20826, 20820, 28704 of 2011, 13679, 13709, 14475, 14479, 16243, 16589, 16594, 16598, 17072, 19804, 20774, 20197, 20198, 21430 & 21834, 23731 of 2012

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Date : 4-9-2012

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W.P.No.26798/2010 Between :

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Islamia Educational Society, Represented by its Secretary Mr. Khadar Khan, Secunderabad .. Petitioners and 2 others

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and

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Government of Andhra Pradesh, Represented by its Principal Secretary, School Education Department, Hyderabad and 2 others .. Respondents

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Counsel for petitioners : Sri P. Pandu Ranga Reddy Counsel for respondent No.1 : Government Pleader for School

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Education

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Counsel for respondent No.2: Sri Srinivas Mantha, Standing Counsel Counsel for respondent No.3:

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The Court made the following:

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COMMON JUDGMENT:

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This batch of Writ Petitions is filed by some of the Educational Institutions imparting B.Ed. education and the B.Ed. students, assailing the decision of respondent No.2The Acharya Nagarjuna University (for short “the University”), to levy and collect “admission/registration/recognition /University Services Fee” from each student on annual basis to be collected by the Institutions and remitted to the latter.

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W.P.Nos.13609, 13679, 16594, 16598, 17072, 20197, 20198 and 21430 of 2012 have been filed by the B.Ed. students of various Institutions and the other Writ Petitions

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have been filed by the Educational Institutions running the B.Ed. course.

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In their pleadings, the petitioners have averred that respondent No.2-University has no power or authority to unilaterally fix the impugned fee for being collected from the students. They have averred that the provisions of the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short the “1983 Act”) authorized the State Government to regulate tuition fee or any other fee that may be levied and collected by any Educational Institution in respect of each class of students; that the Admissions and Fee Regulatory Committee (AFRC) constituted by the State Government is vested with the power to prescribe fee payable by the students of professional courses offered in private unaided professional Institutions and that therefore the University has no power or authority to fix and collect any fee other than that prescribed by the AFRC. Alternatively, the petitioners averred that even if the University has the power or authority to prescribe the impugned fee, the same can be exercised only by making an ordinance or a statute and that the University has not made any such ordinance or statute for prescribing the fee. The petitioners have placed reliance on the Judgment of the learned single Judge of this Court in Adarsha College of Education Vs. The Acharya Nagarjuna

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University^[1] wherein the learned Judge has set-aside the levy of “development fee and infrastructure fee” on the ground that the University has not made any ordinance or statute for levy of such fee.

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Counter-affidavits have been filed by the Registrar of the University in some of these cases wherein the levy of the impugned fee is sought to be supported. It is inter alia pleaded that in exercise of its power under clause (20) of Section 5 of the A.P. Universities Act, 1991 (for short "the 1991 Act"), the University has laid down the fee to be collected by itself, the fee to be collected by the individual Institutions and the fee to be deposited as caution deposit, refundable after the course under various heads; that since the year 2005, the University has not revised the fee; that in the year 2010, a Committee was constituted by it to go into the various heads of fee to be charged for the various services it extends to the students and the Institutions concerned and to recommend the revised rates of fee and that the Committee so constituted submitted its report dated 9-2-2010 to the University which in turn has placed the same before its Executive Council. It is further pleaded that meanwhile, the State Government issued G.O.Ms.Nos.63 and 64, Higher Education (EC.2) Department, dated 16-72009 prescribing Special Fee for the academic year 200910 for five courses; that whenever the Government issues

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orders for collection of fee for the services provided by the University, the same is being adopted and in respect of other courses such as B.Ed. course, the University itself is prescribing the fee. The University sought to support its decision both under Sections 5(20) and 19(12) and (13) of the 1991 Act besides paragraph-2 of G.O.Ms.Nos.63 and 64, dated 16-7-2009.

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It is further averred that while the said G.Os. have prescribed Rs.2500/- to be collected from each student of the five courses and remitted to the University concerned, respondent No.2-University has decided to collect only Rs.2000/- from the B.Ed. students. The counter-affidavit relied upon the Judgment in Jantia Hill Truck Owners Association Vs. Shailang Area Coal Dealer and Truck

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Owner Association^[2] in pleading that where the statute requires certain things to be done subject to Rules, an action taken without framing such Rules would not render that action invalid. The counter-affidavit denied the plea of the petitioners that collecting any fee in excess of the one prescribed by the AFRC would amount to collecting capitation fee as what is being collected by respondent No.2-University is only the service fee for the services rendered by it to the students.

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At the hearing, the learned counsel appearing for the parties have advanced their submissions on the basis of the

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rival pleadings of the parties. In order to deal with the respective submissions, it is necessary to notice the relevant provisions of the 1991 as well as the 1983 Acts.

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Respondent No.2-University was constituted under the Nagarjuna University Act 1976. There were in all six Universities constituted under different Acts in the State of Andhra Pradesh. With a view to maintain uniformity of administration in respect of all the six Universities, they were consolidated into one Act and accordingly the 1991 Act was passed bringing into its fold all the six Universities, including the University. The University has been accordingly reconstituted under the 1991 Act.

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Section 5 of the 1991 Act prescribes powers, functions and objects of the Universities, which inter alia include, to provide for instruction and training in such branches of learning as they may think fit; to confer degrees and other academic distinctions; to confer honorary degrees and other academic distinctions; to affiliate or recognize colleges and institutions; to withdraw such affiliation or recognition; to fix fees and to demand and receive such fees and other charges as may be prescribed etc. Under Section 6(3) thereof, every college or institution which was affiliated to, or associated with, or recognized, or maintained by any of the Universities in the Schedule at the commencement of the Act, shall continue to be affiliated to, or associated with, or recognized, or maintained by that University. Section 17

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ordained that the Board of Management; the Academic Senate; the Faculties; the Boards of Studies; and such other bodies as the statutes may declare, to be authorities of the University. Section 18 envisaged Executive Council and its composition. Section 19 adumbrates the powers and duties of the Executive Council, which include control over all colleges, hostels, libraries, laboratories, museums and the like; to conduct University examinations and to approve and publish the results thereof; to prescribe the fees to be charged for admission to the examinations, degrees, diplomas and oriental titles of the University; to affiliate colleges; to direct inspection of the affiliated or recognized colleges or Institutions; to direct fees to be charged for affiliation and recognition of the colleges etc.

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Chapter IX of the 1991 Act deals with Statutes, Ordinances and Regulations. Under Section 51 thereof, the Board of Management is conferred with the power to make statutes for the matters mentioned in clauses (a) to (j) thereof. Section 52 provided for the procedure for making statutes. Under this provision, every statute passed by the Board of Management shall be submitted to the Chancellor who may give or withhold his assent thereto, or refer it back to the Board of Management for reconsideration. It further ordains that no statute passed by the Board of Management shall be valid or shall come into force until assented to by the Chancellor. Section 53 of this Act deals with

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Ordinances, whereunder the Board of Management has been empowered to issue such ordinances for various purposes mentioned in clauses (a) to (l) thereof. Clause (a) of Section 53 relates to levy of fee in the University and the constituent colleges; and clause (b) relates to the fees to be charged for admission to the examinations, degrees and diplomas of the University. Under Section 54(2), all ordinances made by the Board of Management shall take effect from such date as may direct, but every ordinance as made shall be submitted as soon as may be, after it is made, to the Chancellor. Under Section 55, Academic Senate shall have the power to make Regulations subject to the provisions of the Act and such Regulations may provide for all or any of the matters specified in clauses (a) to (d) thereof.

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The 1983 Act was made for regulation of admission into Educational Institutions and to prohibit collection of capitation fee in the State of Andhra Pradesh. Section 2(b) thereof defined ‘capitation fee’ as any amount collected in excess of the fee prescribed under Section 7. Section 2(e) defined ‘educational institution’, which means a college, a school imparting education upto and inclusive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying on the activity of imparting education

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therein, either technical or otherwise, and includes a polytechnic, Industrial Training Institute and a Teachers’ Training Institute, but does not include a tutorial institution. Section 3 specified the criteria for admission into the Educational Institutions. Section 5 prohibits collection of capitation fee by any Educational Institution or by any person who is in-charge of, or is responsible for the management of the Institution. Section 7 empowers the Government to regulate the tuition fee or any other fee by notification that may be levied and collected by any Educational Institution in respect of each class of students. Sub-section (2) of Section 7 prohibits any Educational Institution from collecting any fees in excess of the fee notified under sub-section (1).

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T h e Apex Court in P.A. Inamdar Vs. State of

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Maharashtra^[3] gave a direction to all the State Governments to constitute an independent Committee for admission and fee regulation in the professional courses. Following the said direction and in exercise of its powers under Section 15 r/w. Sections 3 and 7 of the 1983 Act, the State Government has framed Rules which are called the Andhra Pradesh Admission and Fee Regulatory Committee (For Professional Courses offered in Private Un-aided Professional Institutions) Rules, 2006 (for short “the AFRC 2006 Rules”). These Rules were notified by G.O.Ms.No.6,

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Higher Education (EC.2) Department, dated 8-1-2007. Under these Rules the AFRC was constituted. Rule 2(h) defined “fee” as all fees including tuition fee and development charges. Rule 2(l) defined ‘professional education’ as any course in Engineering, Pharmacy, Planning and Architecture, Agriculture, Medicine (including Dental), MBA, MCA, Law, Education or any other course as notified by the Government in this behalf at Undergraduate, Postgraduate or above levels. Rule 3 provided for composition of the AFRC with a retired Judge of the High Court as its Chairman and several members, including the representatives of the AICTE/MCI/BCI/NCTE, as the case may be. The AFRC is inter alia empowered to require a Private Un-aided Professional Educational Institution to furnish by the prescribed date, information as may be necessary for enabling it to regulate the conduct of admissions and to fix the fee in respect of each professional course offered in the Institution. Under Rule 4, the AFRC shall call for from each Institution the proposed fee structure well in advance before the date of issue of notification for admission for the academic year along with all the relevant documents and books of accounts for scrutiny and the AFRC shall decide whether the fee proposed by the Institution is justified and the same does not amount to profiteering or charging of capitation fee. Under clause (vii) of Rule 4, the fee determined by the AFRC shall be

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applicable to a candidate who is admitted to an Institution in that academic year and shall not be altered till the completion of his course in the Institution in which he was originally admitted. It created a specific bar on the professional Educational Institutions to collect at a time fee which is more than one year’s fee from a candidate.

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Contemporaneously, the State Government has framed Rules called the A.P. Colleges of Education (Regulation of Admissions into B.Ed. Course through Common Entrance Test) Rules, 2006 (for short “the B.Ed. Admission Rules”) in supercession of A.P. Private Minority (Aided/Unaided) Colleges of Education (Regulation of Admissions into B.Ed. course through Common Entrance Test) Rules 2005 as subsequently amended. These Rules are also framed in exercise of the powers under 1983 Act. These Rules inter alia laid down the qualifications for admission into the B.Ed. course, the method and procedure of admissions. Under Rule 9 of the said Rules, the fee payable per student per annum for each discipline in each Institution shall be as prescribed by the AFRC.

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A perusal of the record would reveal that upon constitution of the AFRC, it has held a meeting for fixation of fee structure for B.Ed. course in the Private Unaided B.Ed. colleges (Minority and Non-Minority) for the academic years 2006-07, 2007-08 and 2008-09. After discussing various relevant aspects, the AFRC has fixed the tuition fee for ‘A’

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and ‘B’ category seats at Rs.10,500/- per annum for each student in all the Private Unaided B.Ed. colleges, both Minority and Non-Minority, in the State, for the said academic years. It has also fixed Special Fee at Rs.2000/per annum for each student under various heads such as laboratory, library, games, cultural association etc. However, for the academic year 2008-09, the AFRC has revised the tuition fee to Rs.12,400/- per annum for ‘A’ and ‘B’ categories on account of inflationary impact on the Institutions. On the recommendations of the AFRC, the State Government issued G.O.Ms.No.46, Secondary Education (Genl.II) Department, dated 6-8-2010 whereunder it has fixed Rs.13,500/- per annum for each student for ‘A’ and ‘B’ categories in the B.Ed. course in all the Private Unaided B.Ed. colleges (Minority and Non-Minority) in the State for the academic years 2010-11, 2011-12 and 201213. The Government also fixed Special Fee of Rs.3000/per annum for each student under various heads as referred to above. Clause (2) of paragraph-2 of G.O.Ms.No.46, dated 6-8-2010, reads as under:

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“The Institutions shall not charge any capitation fee or any amount unauthorisedly or illegally under any other head or guise (e.g. donation etc)., either directly or indirectly, other than the fee fixed by the Committee, as collection of any such unauthorized amounts would amount to charging of Capitation Fee, and that the surplus (profit) that is generated from the collection of the Fee must be for the benefit of the

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Institution, and cannot diverted for other purposes or for personal gain.”

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The sheet-anchor of the petitioners’ case is that the whole matter pertaining to the admissions and the fee payable by the students is governed by the provisions of the 1983 Act and the various Rules made thereunder by the State Government and that the University has neither power nor authority to fix any fee in excess of the fee fixed by the AFRC.

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Respondent No.2-University has not disputed the authority of the AFRC to prescribe the fee payable by the students of various professional courses comprehended by the provisions of the 1983 Act and the Rules made thereunder. The plea of the University, however, is that under the provisions of the 1991 Act in general and Sections 5(20) and 19 thereof in particular, it also has the power to fix the fees. Clause (20) of Section 5 and clauses (12) and (13) of Section 19 of the 1991 Act, read as under:

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Section 5: Every University established under this Act shall have the following powers, functions and objects, namely:(1)… (2) …

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… (20) to fix fees and to demand and receive such fees and other charges as may be prescribed.

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Section 19: The Board of Management shall be the Executive Authority of the University and shall have

power, -

(1) …

(2) …

… (12) to prescribe the fees to be charged for admission to the examinations, degrees, diplomas and oriental titles of the University;

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(13) to charge and collect such tuition and other fees as may be prescribed by the Ordinances for admission to courses to study in the colleges and institutions of the University;

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Let me first consider the provisions of Section 19(12) and (13) of 1991 Act. Section 19 of the said Act enumerated the powers and duties of the Executive Council/Board of Management. Under clause (12) thereof, it is empowered to prescribe fees to be charged for admission to the examinations, degrees, diplomas and oriental titles of the University. It is not the case of respondent No.2University that the fee which is in dispute in the present cases falls within the ambit of the category of fees included in the said clause. As the very nomenclature itself suggests, what is now prescribed by the University is a totally different kind of fee viz., admission/registration/recognition/University services fees. Hence, this clause per se has no application to the cases on hand. Coming to clause (13) of Section 19, in my opinion, the same pertains to admission into courses to study in the colleges or Institutions of the University. In other words, if

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the University established any colleges or Institutions, it can charge and collect the tuition and other fees. Admittedly, the Institutions from which the impugned fee is sought to be collected, are not established by the University. Hence, this clause also does not apply to the cases on hand.

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Coming to Section 5(20) of the 1991 Act, this provision, no doubt, empowers the University to fix fees and to demand and receive such fees and other charges as may be prescribed. This provision, in my considered view, is generic in nature and considered in isolation, it would certainly empower respondent No.2-University to fix, demand and receive any fees, provided the same is ‘prescribed’. But, while considering the power of the University under this provision, one cannot be oblivious of the radical developments that have taken place by the intervention of the State Government, bringing forth various pieces of subordinate legislation, as noted above, under the provisions of the 1983 Act. Here, one needs to notice the areas of operation covered by the 1983 Act and the 1991 Act. While the 1991 Act vests in them the over all control over the Institutions which are affiliated to the Universities, the 1983 Act specifically deals with the fees payable by the students to the respective Institutions. Further, while the 1991 Act contains general provisions regarding the power of the Universities to fix the fees, the 1983 Act is a special Enactment which specifically covers

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the aspect of fee payable by the students. Therefore, it is necessary to harmonise the provisions of both these Acts. Even if there is any overlapping between the two Acts with reference to the fees payable by the students, the provisions of 1983 Act would prevail over that of the 1991 Act on the application of the maxim “generalia specialibus non derogant”, which means special law prevails over the general law. It is not in dispute that at least from the year 2006, the AFRC, which is constituted under the provisions of the 1983 Act, has been fixing the fee payable by the students of different courses to the Institutions. Except when the University has sought to impose additional fee over and above that is fixed by the AFRC in the name of development fee/infrastructure fee, the former has neither fixed nor collected any fee on its own. As noted above, the University has not been disputing the authority of the AFRC to fix the fee payable by the students of the Institutions affiliated to it.

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It is significant to note that the AFRC, while fixing the fee for ‘A’ and ‘B’ categories of seats in MBA/MBA courses, has fixed Special Fee for the academic year 2009-10 comprising Rs.2000/- as one time payment per student at the time of admission/registration/recognition, out of which half of the amount so collected by the Institution shall be remitted to the University concerned and also a sum of Rs.1500/- per annum per student during the course towards

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the common services rendered by the University to all the colleges and such amount collected by the colleges shall be remitted to the University concerned. The heads under which these amounts are stipulated by the AFRC are as under:

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Sl.No.	Services		Amount (Rs.)
1	Examination related		500-00
2	Academic audit		200-00
3	Curriculum revision content development	&	300-00
4	Staff training		200-00
5	Coordinating meeting		50-00
6	University publications		50-00
7	Website maintenance		200-00
	TOTAL		1500-00

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At the hearing, it is stated by the learned counsel that G.O.Ms.No.63, dated 16-7-2012, was issued on similar lines governing the Engineering courses. Significantly, G.O.Ms.No.46, dated 6-8-2012, which was issued much subsequent to G.O.Ms.No.64, dated 16-7-2012, while fixing the fee for B.Ed. course for the academic years 2010-11, 2011-12 and 2012-13, did not include the above mentioned Special Fee. It is therefore reasonable to presume that the AFRC, which provided for the Special Fee to be collected from the students for being remitted to the Universities in the

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State in respect of MBA/MCA courses, has not thought it fit to prescribe such fees for the students of the B.Ed. course. Interestingly, respondent No.2-University which claimed that it has been following the fee pattern fixed by the AFRC, and as notified by the Government from time to time, has taken its own decision through its Executive Council’s Resolution No.5.07 dated 20-3-2010 deciding to collect Special Fee for the B.Ed. course. In other words, respondent No.2University has created a dichotomy by prescribing on its own the Special Fee in respect of the courses for which the AFRC has not fixed such Special Fee. This, in my opinion, cannot be permitted. The provisions of Section 7(2) of the 1983 Act are couched in mandatory terms by ordaining that no Educational Institution shall collect any fees in excess of the fees notified under sub-section (1) thereof. By the definition of capitation fee under Section 2(b) of the said Act, any amount collected by any Educational Institution from its students in excess of that fixed under Section 7(1) thereof amounts to collection of capitation fee, which is prohibited by the 1983 Act. Though the University does not fall within the definition of the educational institution, it cannot force the Educational Institutions to collect fees from the students contrary to the provisions of the 1983 Act. Even if there is any justification for the University to collect the Special Fee as is sought to be done by it, that can be fixed only by the

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AFRC, which is exclusively vested with such power under the AFRC Rules 2006 r/w. the B.Ed. Admission Rules, to the extent of fixation and collection of fees from the students. Any other interpretation of these two Acts and the respective Rules made thereunder would only frustrate the very object with which the State Government has created the special mechanism by constituting the AFRC for fixation of the fees. If the University feels that it is entitled to collect fees from the students of B.Ed. course also, the only option left to it is to move the AFRC for fixing the Special Fees as in the cases of Engineering, MCA and MBA courses.

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On the analysis as above, it is not necessary for this Court to deal with the alternative submission of the learned counsel for the petitioners that unless the Special Fee is prescribed by respondent No.2-University by way of a statute, its resolution is not enforceable.

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For the above mentioned reasons, the levy and collection of the admission/registration/recognition/University Services Fee prescribed by respondent No.2-University in pursuance of its Executive Council’s Resolution No.5.07, dated 20-3-2010, is not legally enforceable and the same is not binding on the Educational Institutions imparting the B.Ed. course and the students pursuing the said course. If the University has collected any fees, the same shall be refunded to the respective Institutions with the direction that the fees so refunded shall be paid back by the Institutions to

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the students and submit proof of such refund to it. If any Institution does not show such proof, the University shall be entitled to take appropriate action in accordance with law against such Institution. If any Institution has paid the fees to the University without collecting the same from the students, they can approach the University by making appropriate representation and if the latter is satisfied that the Institutions have not collected fees from the students, it shall not insist on such Institutions to refund such fees to their students.

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Subject to the above directions, the Writ Petition are allowed.

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________________________ Justice C.V. Nagarjuna Reddy

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Date : 4-9-2012

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L.R. copies to be marked YES / NO

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[1] W.P.No.27195/2007 & Batch, dated 8-2-2010 [2] 2009(8) SCC 492

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