W.P.(MD)No.3575 of 2007
and
W.P.(MD)No.4743 of 2006
&
W.P.(MD)No.5283 of 2006
and
M.P(MD)Nos1,2 of 2007 and 1,1,2 and 2 of 2006.
1. The President/Correspondent,
ATSVS Siddha Maruthuva Kalloory and
Hospital, Anandasramam,
Pudukkottai Post, Munchirai,
Kanyakumari District - 629 171.
...Petitioner in W.P.3575/07
2. The Chairman,
Sree Ramakrishna Medical College of
Naturopathy and Yogic Sciences,
Kulasekaram - 629 161
Kanyakumari District. ...Petitioner in W.P.4743/06
3. The Correspondent,
Sri Sankara College of Ayrveda,
Sannasipatti,
Poolankulathupatti post,
Tiruchirappalli - 620 009. ..Petitioner in W.P.5283/06
Vs
The Tamil Nadu Dr.M.G.R Medical University,
represented by its Registrar,
No.69/40, Anna Salai, Guindy,
Chennai - 600 032. ..Respondent in all W.Ps'
Common Prayer
Writ Petitions filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of declaration declaring the
impugned ordinance No.1 of 2005, dated 12.04.2005 announced by the respondent
University particularly the enhancement of fee under the various heads like
Inspection fee, University Administrative expenses fee, provisional affiliation
fee and continuance of provisional affiliation fee as illegal, unreasonable and
void.
!For Petitioner ... M/s.Issac Mohanlal
in all W.Ps'
^For Respondent ... M/s.C.Karthik
in all W.ps'
:COMMON ORDER
The petitioners have invoked the writ jurisdiction of this Court, praying
for issuance of writs in the nature of declaration to quash the impugned
ordinance No.1 of 2005, dated 12.04.2005, issued by the respondent University in
enhancement of fee under various heads i.e., Inspection fee, University
Administrative expenses fee, Provisional affiliation fee and continuance of
provisional affiliation fee to be illegal, unreasonable and void.
2. The President/Correspondent of ATSVS Siddha Maruthuva Kalloory and
Hospital, Anandasramam, Pudukkadai Post, Munchirai, Kanyakumari and two other
colleges have filed these Writ Petitions, the pleading in W.P.No.3575/2007 are
that ATSVS Siddha Maruthuva Kallory and Hospital is a recognised medical
college for indian medicine which was established in the year 2001. The college
was permitted to intake of 30 students each year, but in the year 2006-07, the
intake was enhanced to 40 students.
3. The college is affiliated to respondent University and the course and
curriculum of the college are governed by the regulation framed by University.
The Standing Academic Board of University issued the impugned ordinance to
enhance, various types of fees as under:
--------------------------------------------------------------
Sl.No. ITEM EXISTING FEE AMENDED FEE
--------------------------------------------------------------
1 Inspection fee for
affiliation Rs.25,000/- Rs.40,000/-
II University administrative
expense Rs.20,000/- Rs.30,000/-
IV Provisional Affiliation fee Rs.2,00,000/- Rs.3,00,000/
V Continuance of provisional
affiliation Rs.30,000/- Rs.1,00,000/-
--------------------------------------------------------------
4. The case of the petitioner is that besides fees referred to above,
the respondent/University is collecting fee and other charges, at all levels
towards registration of students, examination fee as also fees for awarding
degree etc,.
5. The petitioners under threat of withdrawal of affiliation, deposited,
the demanded fee on 12.04.2006. The University thereafter is demanding
additional fee towards inspection and other fee for the academic year 2006-07.
6. The petitioners have requested the University to get adjusted the
excess fee paid for the academic year 2006-07.
7. The ordinance is challenged on the ground, that introduction of heavy
and exorbitant fee under various heads is arbitrary, unreasonable, thus is
violative of Article 14 of the Constitution of India. That exorbitant fees as
prescribed is violative of fundamental rights of the petitioners to establish
and administer their educational institutions. It is also the ground of
challenge that by levy of heavy and exorbitant fees, the object for which the
institution has been established stands defeated and that the action of the
respondent/University affects the growth of the establishment.
8. It is also one of the ground that the impugned ordinance is violative
of the regulations of Council for Indian Medicine(Regulation),1989 as also the
University regulation. In the pleadings, nothing has been pointed, out as to
which of the regulations are violated.
9. The Writ Petition is opposed by the respondent/University by placing
reliance on the judgement of this Court, in the case of Vivekananda Educational
Society .vs. The Pondicherry University and two others(2009-1-L.W-615), wherein,
the following questions were answered:
"(1) Whether the University is empowered to increase the endowment fund as
well as affiliation fee?
2. Whether the University is right in collecting corpus fund at the rate
of 5% towards tuition fee from each students received by the affiliated colleges
and demanding 50% or 100% of the legal fee?
3. Whether the University is justified in imposing penalty at the rate of
Rs.10,000/- per student of the petitioner institution in W.P.No.19382 of 2006
for admitting students prior to the grant of affiliation?"
7. The answer to the questions raised reads as under:
"22. The reason stated by the University to increase the affiliation fee
is that the colleges are getting certain privileges due to the grant of
affiliation. There is increase of expenditure incurred in processing and
granting affiliation of colleges and courses. The number of colleges and
courses have increased substantially since 1999. The growing number of colleges
and introduction of more and more courses have caused heavy burden on the
University for handling affiliation matters with the existing staff and
machinery. The University has to employ additional personnel on temporary and
on contract basis to attend to the increasing workload for ensuring timely
completion of affiliation procedures. The works in the affiliation section, the
academic section and examination wing have grown many-fold, for which additional
infrastructure and personnel to manage the higher quantum of work due to
affiliation of various courses and large number of enrollment of students is
required.
23. The contention of the petitioner institutions are that the University
is authorised to fix the endowment fund as well as affiliation fee and they are
not questioning the right of the University in fixing the amount. However, by
steep increase of the endowment fund as well as affiliation fee, the colleges
are facing financial difficulties. The said stand of the petitioner management
cannot be countenanced in view of the increase of expenditure in the
administration of the University for the grant of affiliation, fixing of
syllabus, conduct of examinations, making inspection etc and the managements
cannot dispute the increase of expenses towards the above heads. Hence the
increase of affiliation fee cannot be treated as unreasonable. It is also in
consonance with the Wednesbury Principle of unreasonableness. It is well
settled in law that the Court can interfere only if the decision taken by the
authority was arbitrary, unreasonable or not taken in public interest. In the
decision reported in (1996) 2 SCC 405(Delhi Science Forum .vs. Union of India)
the Supreme Court held thus:
11.....Central Government while exercising its statutory power under first
proviso to section 4(1) of the Act, of granting licences for establishment,
maintenance and working of telecommunications has a fiduciary duty as well. The
new experiment has to fulfill the tests laid down by courts for exercise of a
statutory discretion. It cannot be exercised in a manner which can be held to be
unlawful and which is now known in administrative law as Wednesbury principle,
stated in Associated Provincial Picture Houses Limited .vs.Wednesbury
Corporation ((1947) I ALL.ER 680: (1948) 1 KB 223). The aforesaid principle is
attracted where it is shown that an authority exercising the discretion has
taken a decision which is devoid of any plausible justification and any
authority having reasonable persons could not have taken the said decision. In
the case of Bromley LBC((1982) 2 WLR 62: (1982) 1 AII ER 129) it was said by
Lord Diplock:
"Powers to direct or approve the general level and structure of fares to be
charges by the LTE for the carriage of passengers on its transport system,
although unqualified by any express words in the Act, may nonetheless be subject
to implied limitations when expressed to be exercisable by a local authority
such as the GLC..." As such Central Government is expected to put such
conditions while granting licences, which shall safeguard the public interest
and the interest of the nation. Such conditions should be commensurate with the
obligations that flow while parting with the privilege which has been
exclusively vested in the Central Government by the Act.
24. Insofar as the endowment fund is concerned, it is the specific case
of the University that it is the statutory requirement and it is like a security
deposit to protect the interest of students in the event of closure of the
college. The interest accruing from the said endowment fund is availed by the
college for their maintenance. The endowment fund of B.Ed colleges has been
raised from Rs.5,00,000/- to Rs.25,00,000/- which consists of two components (1)
by way of fixed assets. The value of the land has increased considerably and
therefore there will be no hardship to any of the institution due to the fixing
of the said quantum of endowment fund and creation of endowment fund with the
University is a statutory requirement and it is the responsibility of the
University by taking care of the interest of the students in the event of
closure of the college. The object of asking for an endowment to be created is
to ensure the financial stability of the institution. The said fund can be
utilized for emergency expenses and therefore the enhancement of the said fund
is to be treated as 'for the best interest of the institution and its students'.
The said increase is also made taking into consideration the present day money
value. The concerned managements are getting the accrued interest from the
endowment fund and the University is not in any way benefited due to the
increase in the endowment fund. Hence the said increase of endowment fund is
also found invalid.
25. The contention with regard to non approval of the Academic Council
and Executive Council for the increase of endowment fund as well as affiliation
fee cannot be countenanced in view of the fact that the original minutes of the
Academic Council and the Executive Council were produced before even though the
same is disputed in some of the writ petitions. The Honorable Supreme Court in
the decisions reported in (2007) 7 SCC 309(Municipal Corporation of Delhi .vs.
Qimat Rai Gupta) held that when high ranking authority passed an order, law
presumes that it was passed in regular course of business. The University being
statutory authority, having vested with the power to fix the endowment fund as
wellas affiliation fee and the same having been approved by the respective
council, the procedural violation alleged against the University has no
substance.
33. In view of the above findings, all the writ petitions are disposed of
holding as follows:
(a) Respondent/Pondicherry University is justified in enhancing the
affiliation fee, endowment fund and the demand of Rs.10,000/- per student for
admitting students by the management in W.P.No.19382 of 2006, without
affiliation.
(b) The demand of 5% of tuition fee as Corpus Fund from the petitioner
Institutions as well as the provision for demanding 50% or 100% of the legal fee
for meeting legal expenses against the University are declared as invalid.
All the above Writ Petitions are disposed of accordingly. No costs.
Connected Miscellaneous Petitions are closed"
10. The learned counsel for the petitioner states that the issue involved
in these cases, is entirely different from the case of Vivekananda Educational
Society .vs. The Pondicherry University and two others(Supra), as in the case of
the petitioners have not admitted any student without affiliation, whereas, the
judgement referred to this Court upheld the right of the university to enhance
the affiliation fee and endowment fund, as the petitioner in the that cases were
admitted without affiliation, and above admitted intake.
This contention is totally misconceived, that enhancement of fee was upheld, as
the decisions was not held to be arbitrary, unreasonable or against public
policy.
11. The learned counsel for the petitioner contended, that unreasonable
enhanced fee shows it to be arbitrary, and while imposing additional fee no
additional facility is being provided which no fee can be enhanced. That there
is no justification whatsoever for enhancing the fee for inspection for
affiliation, without disclosing the cost, which is likely to be incurred by the
University, in carrying out the inspection. Similarly is the position with
regard to the administrative fee as all the burden is likely to be passed on
the students. The reading of the decision of this Court, shows that the
University wile charging fee is providing services, quid pro quo is proved
without doubt, as observed earlier the action is neither arbitrary, or
unreasonable or against public policy which may call for interference by this
Court.
12. On consideration,I find that the right of the University to enhance
the fee is upheld. There is no force in the contention of the learned counsel
for the petitioner, that the University is not providing any services, which can
bar the imposition of fee or enhancing the fee..
13. The University in providing services, has to incur expenses. The
Writ Petition lacks total material particulars to support the contention, that
the enhancement is arbitrary or unwarranted.
14. Once the jurisdiction of the University to fix fee cannot be
questioned, and the enhancement is not held to be arbitrary or violative of
fundamental rights of the petitioner to run medical institution,and furthermore
the enhancement is necessary to maintain the standard of education of the
students; the challenge deserves to be rejected.
15. The learned counsel for the petitioners challenged the imposition of
the University Administrative Expenses by placing reliance on the judgment of
the Honourable Supreme Court in the case of Judgement Gupta Modern Breweries
.vs. State of J and K and others ((2007) 6 Supreme Court Cases 317), wherein,
the Honourable Supreme Court,was pleased to lay down as under:
"28. It is, thus, clear from the aforesaid decisions that imposition of
administrative services(sic charges) is a tax and not a fee. Such imposition
without backing of statutes is unreasonable and unfair."
16. The learned counsel for the respondent rebuts this contention by
placing reliance on Section 43 of the Dr.M.G.R.Medical University, Chennai
which reads as under
"43(1) The Governing Council may, from time to time, make ordinances and
amend or repeal the same.
(2) subject to the provisions of this Act and the statues, the ordinances
may provide for.--
(a) the admission of the students to the University and is its affiliated
colleges and the levy of fees for admission to the University colleges and
University laboratories;
(b) the courses of study leading to all degrees, diplomas and other
academic distinctions of the University;
(c)the conditions under which the students shall be admitted to the
courses of study leading to degrees, diplomas and other academic distinctions of
the University;
(d)the conduct of examinations of the University and the conditions
subject to which students shall be admitted to such examinations
(e) the manner in which exemption relating to the admission of students to
examination may be given;
(f) the conditions and mode of appointment and duties of examining bodies
and examiners;
(g) the maintenance of discipline among the students of the University
(h) the fees to be charged for courses of study, research, experiment and
practical training and for admission to the examinations for degrees, diplomas
and other academic distinctions of the University and
(i) any other matter expressly required or allowed by this Act or the
statutes."
17. The statute thus give powers to the University to lay down fee for
different activities. The administrative functions to perform duties under the
Act therefore will be covered under the statute. The judgment relied upon by
the petitioner thus has no application to the facts of this case. The Honourable
Supreme Court, rejected the administrative charges for want of facility of
students, which is not the case here as the statute gives powers to the
University to impose fees in exercise of statutory power which cannot be
interfered with, in exercise of Writ jurisdiction in the absence of any
pleadings and definite material showing the violation of any constitutional,
statutory rights.
18. No merit. Dismissed.
19. Consequently, connected Miscellaneous Petitions are dismissed. No
costs.
vsn
To
The Tamil Nadu Dr.M.G.R Medical University,
represented by its Registrar,
No.69/40, Anna Salai, Guindy,
Chennai - 600 032.
No comments:
Post a Comment