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HIGH COURT OF HIMACHAL PRADESH
A.M.KHANWILKAR, KULDIP SINGH, JJ.
Bhojia Dental College And Hospital - Appellant
VERSUS
STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY - Respondents
CWP No. 1235 of 2007 with CWP No. 384 of 2008
Decided On: September 17, 2013
The Himachal Pradesh Private Unaided Dental Colleges (Regulation of Admission and Fixation of Fee for Academic Year 2003-04) Act, 2006 (First Act of 2006) is declared illegal, invalid, and null and void. The decision of the Review Committee in its meeting held on 13.5.2008 and notified vide notification dated 2.6.2008 is quashed and set aside. The petitioners are relegated before the same Review Committee for reconsideration of the entire matter afresh in accordance with law, expeditiously, and not later than 8 weeks from today after giving fair opportunity to the petitioners. Until the Review Committee finally determines the fee structure for the academic years 2003-04, 2004-05, and 2005-06, respectively, the petitioners shall not recover any further amount from the students admitted in the concerned academic years 2003-04, 2004-05, and 2005-06 save and except the fees already collected. However, in the event, the Review Committee determines the final fee structure for the concerned academic years and if the same is in excess of the prescribed amount already collected by the petitioners, the petitioners would be free to recover such excess amount from its students, in accordance with law.
Fact of the Case:
The petitioners, private unaided dental colleges in Himachal Pradesh, challenged the validity of the Himachal Pradesh Private Unaided Dental Colleges (Regulation of Admission and Fixation of Fee for Academic Year 2003-04) Act, 2006 (First Act of 2006), which revived a notification setting fees for government-sponsored students at a lower rate than that approved by the Fee Structure Committee. They also challenged the decision of the Review Committee constituted under the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (Second Act of 2006), which determined the fee structure for the academic years 2004-05 and 2005-06.
Finding of the Court:
The Court held that the First Act of 2006 was invalid as it purported to overturn judicial decisions and not to remove the basis of those decisions. The Court also held that the Review Committee's decision was untenable and could not be sustained in law as it failed to discharge its legal obligation to assess the actual expenditure incurred by the College and to provide a speaking order with reasons for its decision.
Issues: 1. Whether the First Act of 2006 was valid in reviving a notification setting fees for government-sponsored students at a lower rate than that approved by the Fee Structure Committee. 2. Whether the decision of the Review Committee determining the fee structure for the academic years 2004-05 and 2005-06 was valid.
Ratio Decidendi: 1. The State cannot determine fees of Private Unaided Educational Institutions. It can only regulate the fees fixed by the Private Unaided Educational Institutions to ensure that it does not result in profiteering and commercialization or collection of capitation. Further, the fee structure of both categories of students admitted against merit seats or paid seats must be uniform. The First Act of 2006, therefore, purports to do what is not within the domain of the Legislation. 2. The Review Committee is not supposed to act as a post office. It is its bounden duty to evaluate the factual basis about the actual expenditure incurred by the concerned College for imparting education to its students entitling it to charge commensurate fees and keeping in mind the dictum of the Apex court in paragraph 155 of Islamic Academy and paragraph 149 of P.A. Inamdar (supra). In other words, the Review Committee is expected to assess as to whether the fees to be charged by the College would result in profiteering, commercialization, or collection of capitation fees.
Final Decision: The Court declared Section 4 of the First Act of 2006 illegal, invalid, and null and void. It also quashed and set aside the decision of the Review Committee. The petitioners were relegated before the same Review Committee for reconsideration of the entire matter afresh in accordance with law, expeditiously, and not later than 8 weeks from the date of the judgment. Until the Review Committee finally determines the fee structure for the academic years 2003-04, 2004-05, and 2005-06, respectively, the petitioners were not to recover any further amount from the students admitted in the concerned academic years 2003-04, 2004-05, and 2005-06 save and except the fees already collected.
A.M.KHANWILKAR, J. -
1. BOTH these petitions are filed by the Management of Bhojia Dental College and Hospital, Chandigarh-Nalagarh road at Bhud (Baddi). In the former writ petition (CWP No. 1235 of 2007), the petitioners have challenged the validity of the Himachal Pradesh Unaided Dental Colleges (Regulations of Admissions and Fixation of Fee for Academic Year 2003-04) Act, 2006, which has come into force w.e.f. 15.9.2003 and in particular, Section 4 thereof. It is further prayed that the tuition fees as was notified by the State and upheld by this Court in relation to . academic session 2003-04 be held to be applicable qua the petitioner-College. Alternatively, the fees prescribed as per notification dated 15.9.2003, may be held to be applicable in respect of both the categories of students. In the second petition (CWP No. 384 of 2008), it is prayed that the order dated 8.12.2006 (Annexure P-9) issued under the signature of Additional Secretary (Health) Government of Himachal Pradesh, as also the decision taken in the meeting of the Review Committee held on 13.5.2008, notified under the signature of Additional Secretary (Health)-cum- Principal Secretary, Review Committee, dated 2.6.2008 (Annexure P-11) and any other consequent order passed by the State of Himachal Pradesh on the basis of the said recommendation, be quashed and set aside. It is further prayed that the fee structure, as was fixed by the respondents, vide communication dated 28.7.2005 (Annexure P-6) be restored.
2. TO put it differently, the first petition is filed in relation to fees determined for academic session 2003-04 under the Act of 2006, which in turn validates the notification dated 15.9.2003, allowing the College to collect fees as prescribed therein from its students admitted against merit seats. The second petition, however, pertains to the fee structure determined by the Review Committee, in relation to academic years 2004-05 and 2005-06 to be collected by the College from its students pursuing BDS courses.
In the first petition, after adverting to the exposition of the Constitution Bench of the Apex Court in TMA Pai Foundation and others versus State of Karnataka and others1, and the subsequent Constitution Bench (2002) 8 SCC 481 decision in Islamic Academy of Education versus State of Karnataka2, it has been asserted that the proposal regarding fee structure of the petitioner-Private Dental College, which is un-aided and non-minority College, was placed before the Fee Structure Committee alongwith all the relevant documents and books of accounts. It is stated that prior to issuance of notification dated 13.2.2004 (Annexure P-1) constituting the Fee Structure Committee for Private Dental Colleges and after the later judgment of the Supreme Court was delivered, the State of Himachal Pradesh issued notification dated 15.9.2003, whereby the fee structure for Private Dental Colleges for academic session 2003-04 was determined. The relevant portion of the said notification reads thus:
"Government of Himachal Pradesh Department of Medical Education No.HFW-B(F)5-10/94-loose Dated:Shimla-171002, the 15-9-2003 NOTIFICATION In pursuance to the judgment delivered by the Hon'ble Supreme Court of India in Writ Petition (Civil) No.350 of 1993 i.e. Islamic Academy of Education and another Vs. State of Karnataka and others on dated 14.8.2003, the Governor, Himachal Pradesh is pleased to notify the Fee Structure/Admission Procedure for the academic session 2003-2004 in respect of BDS Courses for Private Dental Colleges in Himachal Pradesh as under:- 1. 50% seats for Government sponsored Rs.20,000/- per student per annum Candidates out of merit list. Including all charges except (Free Merit seats) refundable security. 2. 50% seats for management quota Rs.2.5 lacs per student per annum (payment seats) Including all charges except refundable security. ..................."
3. LATER on, the Fee Structure Committee constituted in terms of notification dated 13.2
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