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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Jyotsna Rewal Dua, J.
Maharishi Markandeshwar University & Anr. - Appellants
Versus
State Of H.P. & Ors. - Respondents
C.W.P. No. 626 of 2021
Decided On : 24-06-2021
FEE STRUCTURE - PRIVATE MEDICAL COLLEGE - APPROVAL - RETROSPECTIVE FIXATION OF FEE - FEE STRUCTURE COMMITTEE - RECOMMENDATIONS - TIMELY DECISION - PROSPECTUS - FEE PROPOSAL - ADMISSION - STUDENTS - FEE DEPOSIT - ACADEMIC SESSION - UNAIDED INSTITUTE - FINANCIAL IMPLICATIONS - CONSTITUTIONAL AMENDMENT ACT 2019 - 10% RESERVATION - EWS CANDIDATES - FREE-SHIP SEATS - SELF FINANCING INSTITUTES - SUPER SPECIALTY COURSES - STAY OF OPERATION - SECTION 8(A) OF THE ACT.
Fact of the Case:
Petitioners, a private university running a medical college, challenged four conditions imposed by the respondent State in the fee approval letter for certain new disciplines of MD/MS courses for the academic session 2019-20. The conditions included retrospective fixing of fee for the academic session 2019-20, reservation of 10% seats for Himachali Bonafide BPL/IRDP candidates free of tuition fees, and charging of 1% fee under Section 8(a) of the Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act, 2010.
Finding of the Court:
The court held that the respondents could not impose the conditions under the impugned clauses 10, 13, 21, and 22 while approving the fee structure in the petitioners' institute. The court found that the respondents delayed in finalizing the fee structure for the new courses, and the petitioners were justified in commencing the courses before the fee approval. The court also held that the retrospective fixation of fee for the academic session 2019-20 was not permissible, and the 10% reservation for EWS candidates free of tuition fees could not be applied to the petitioners' medical college as there was no provision for the same in the MMU Act 2010 or in the prospectus issued for the concerned courses. The court further held that the respondents could not charge 1% fee from the petitioners under Section 8(a) of the HP Private Educational Institutions (Regulatory Commission) Act 2010, as the operation and implementation of the section were stayed by the courts.
Issues: 1. Whether the respondents could lawfully impose conditions under impugned clauses 10, 13, 21, and 22 while approving the fee structure in petitioners' institute? 2. Whether the petitioners could be directed to charge annual tuition fees in two equal installments? 3. Whether the fee approved on 22.04.2020 could be retrospectively applied to the academic session 2019-20? 4. Whether 10% reservation for EWS candidates free of tuition fees could be applied to the petitioners' medical college? 5. Whether the respondents could charge 1% fee from the petitioners under Section 8(a) of the HP Private Educational Institutions (Regulatory Commission) Act 2010?
Ratio Decidendi: 1. The respondents could not impose the conditions under the impugned clauses 10, 13, 21, and 22 while approving the fee structure in the petitioners' institute. 2. The petitioners could not be directed to charge annual tuition fees in two equal installments, as they were entitled to charge and collect advance fee for the year/semester, as the courses in question were being run on a yearly basis for a total of three years. 3. The fee approved on 22.04.2020 could not be retrospectively applied to the academic session 2019-20, as the courses had already started in June 2019 and the students had deposited the fee as reflected in the prospectus. 4. 10% reservation for EWS candidates free of tuition fees could not be applied to the petitioners' medical college, as there was no provision for the same in the MMU Act 2010 or in the prospectus issued for the concerned courses. 5. The respondents could not charge 1% fee from the petitioners under Section 8(a) of the HP Private Educational Institutions (Regulatory Commission) Act 2010, as the operation and implementation of the section were stayed by the courts.
Final Decision: The writ petition was allowed. Clause 10 ordering the petitioners to charge annual tuition fee in two equal installments, Clause 13 applying the fee approved on 22.04.2020 retrospectively to the academic session 2019-20, Clause 21 directing the petitioners to reserve 10% seats for Himachali bonafide BPL IRDP-EWS candidates free of tuition fee, and Clause 22 charging 1% fee from the petitioners under Section 8(a) of the Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act 2010 were quashed and set aside.
JUDGMENT
Jyotsna Rewal Dua, J. - Petitioner No.1 is a private university, running petitioner No. 2 medical college. Their proposal, sent on 2.2.2019 seeking fee approval for certain new disciplines of MD/MS in the medical college for academic session 2019-20, was finally approved by the respondent State on 22.4.2020, wherein besides fixing/approving the fee for the already started academic session 2019-20 and for upcoming sessions 2020-21, 2021-22, certain other conditions were also imposed. Four such conditions, including retrospective fixing of fee for academic session 2019-20, are not acceptable to the petitioners. Therefore, they have preferred this petition.
2. Facts
2(i) Petitioner No.1-University was established under the Maharishi Markandeshwar University (Establishment and Regulation) Act 2010 (in short MMU Act). It is running petitioner No.2 medical college in the State, which is the only private medical college in the respondent State.
2(ii) In 2018, Medical Council of India (MCI) granted permission to the petitioners for starting new MD/MS courses in 12 new disciplines from academic session 2019-20 onwards. H.P. Private Educational Institutions Regulatory Commission also gave its approval for these courses on 31.12.2018. The fee for these new courses was to be approved by the respondent State.
2(iii) On 02.02.2019, petitioners submitted their proposed fee structure for 12 new disciplines of MD/MS for academic session 2019-20 for approval to the State. The proposal was sent in terms of Section 32 of the MMU Act 2010, which reads as under:-
"32. (1) the University may, from time to time, prepare and revise, its fee structure and send it to the Government for its approval before 31st December of every preceding academic year alongwith the approval of courses granted by the Regulatory Commission and the Government shall convey the approval within three months from the receipt of the proposal. Provided further that the fee structure for each course shall be decided before the issue of prospectus and shall be reflected in the prospectus:
Provided further that the fee structure shall not be revised or modified during the academic year.
(2) The fee structure prepared by the University shall be considered by a committee to be constituted by the State Government, in the manner as may be prescribed, which shall submit its recommendations to the Government after taking into consideration whether the proposed fee is:.
(a) sufficient for generating (i) resources for meeting the recurring expenditure of the university; and (ii) the savings required for the further development of the University; and
(b) not unreasonably excessive.
(3) After receipt of the recommendations under sub-section (2), if the Government is satisfied, it may approve the fee structure.
(4) The fee structure approved by the Government under sub-section (3) shall remain valid until next revision."
In terms of Section 32, the fee structure was to be decided for each course before the issuance of prospectus and was to be reflected as such in the prospectus. State had to convey the approval for the fee structure within three months from the receipt of fee proposal. Apart from Section 32 of MMU Act 2010, Sections 3 & 7 of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2006 also pertain to fixation of fee in private medical colleges. These read as under:-
"3.Regulation of admission, fixation of fee and madding of reservation
(1) The State Government may regulate admission, fix fee and make reservation for different categories in admissions to Private Medical Educational Institutions.
(2) The State Government shall ensure that the admission under all the categories in an institution is done in a fair and transparent manner;
(3) The State Government, may constitute an Admission and Fee Committee, (hereinafter referred to as the 'Committee') consisting of such members as may be specified by the State Government by no
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