1. In these writ petitions, the petitioners which are deemed universities, the petitioners have questioned the orders of the the Fee Regulatory Committee (hereinafter referred to as 'the Committee' for short) constituted under the Karnataka Professional Educational Institution (Regulation of Admission and Determination of Fee) Act, 2006 (hereinafter referred to as 'the 2006 Act' for short) dated 27.06.2018 & 09.07.2018 fixing the fee for the different courses for the academic year 2018-19 in the colleges run by the petitioners and seek a declaration that provisions of Section 2(g), 2(p), 2(q), 2(u) and Section 6 and 7 of theare not applicable to the petitioners. Common question of law arises for consideration in this batch of writ petitions, therefore, they are heard analogously and are being decided by this common judgment.
2. The State Legislature enacted an Act viz., 2006 Act. The said Act is an Act to provide for regulation of admission and determination of fee in professional educational institutions in the State of Karnataka and to provide for reservation of seats to persons belonging to Scheduled Castes and Scheduled Tribes and other Backward Classes in the professional educational institutions. Section 6 of theprovides for constitution of Fee Regulatory Committee for admission to professional educational courses in private unaided institutions. It appears that the did not apply to the deemed universities initially. Thereafter, the was amended by Amending Act No. 22 of 2017 and brought the petitioners within the purview of the with effect from 06.04.2017.
3. The petitioners are deemed universities which have been notified to be so by virtue of notifications issued under Section 3 of the Universities Grant Commission Act, 1956 (hereinafter referred to as 'the 1956 Act' for short). Clause 3(d) of the notification requires the petitioners to appoint an expert committee for fixation of fee in consultation with Universities Grant Commission.
4. For the sake of convenience, the facts from W.P. Nos. 32778-79/2018 are being referred to. The petitioner by a communication dated 10.02.2015 made a request to the UGC to nominate an expert committee for fixation of fee, in respect of the institution run by the petitioner for the academic year 2016-17, 2017-18 and 2018-19. The UGC by a communication dated 24.03.2015 informed the petitioner that there is no provision to nominate a person in the committee of experts for fixation of fee. The petitioner on 24.08.2015 constituted a Fee Fixation Committee which was headed by Former Chief Justice of Punjab and Haryana High Court. The Committee fixed the fee for different courses in the colleges run by the petitioner.
5. The Universities Grant Commission framed regulations viz., UGC (Institution Deemed to be University) Regulation, 2016 (hereinafter referred to as 'the Regulations' for short). Regulation 2.08 defines the expression 'Government' to mean Central Government unless context so specifies. Similarly, Regulation 2.10 defines the expression institution' to mean an institution for higher education engaged in teaching and research at the Under Graduate, Post Graduate or Higher levels. Regulation 6.1(b) of the Regulations specifies that deemed to be university shall not accept the payment of fees other than such fee or charges which has been declared by it in the prospectus for admission against any such seat. Regulation 6.5 of the Regulations mandates the institution to publish before expiry of 60 days prior to date of commencement each component of fee, deposits and charges payable by the students.
6. The fee in respect of various courses was fixed on 24.08.2015 by the committee of experts, constituted by the petitioner. Thereafter, the petitioner published the calendar of events and started the process of admission with effect from 13.06.2018.
7. Thereafter, the Fee Fixation Committee, was constituted by the Government of Karnataka under 2006 Act. The said committee sent a notice dated 02.06.2018 to the petitioner for personal hearing on 23.06.2018. The petitioner submitted a reply stating that the petitioner being a deemed university falls within the scope and ambit of Entry 51 of List 1 and not under Entry 25 of List 3 and therefore, the State has no competence to form a Fee Fixation Committee in respect of the petitioner which is a deemed university. However, the aforesaid objection was not adjudicated and by orders dated 23.06.2018 and 09.07.2018, the Fee Fixation Committee fixed the fee in respect of various courses conducted by the Colleges of the petitioner. In the aforesaid factual background, these petitions have been filed.
8. Learned Senior counsel for the petitioners submitted that the fixation of fee is an issue, which is within the jurisdiction of the petitioners, which are required to constitute an expert committee for fixation of fee and the State Government has no jurisdiction to fix the fee. It is alternatively submitted that by a notice dated 02.06.2018, the petitioners were required to appear before the Fee Fixation Committee constituted by the State Government on 23.06.2018. The petitioners had raised an objection with regard to jurisdiction of the committee to fix the fee on the said date. However, the same was not adverted to and without there being any material on record, fee in respect of various courses in the colleges of the petitioners have been fixed. It is also submitted that the committee ought to have granted an opportunity to the petitioners to produce the material with regard to fixation of fee. It is also submitted that uniform fee could not have been fixed in respect of various courses in the colleges run by the petitioners. It is also submitted that the orders dated 23.06.2018 and 09.07.2018 suffer from the vice of non application of mind. It is also pointed out that the committee was not constituted in accordance with law. In support of aforesaid submissions, reliance has been placed on decisions in 'TMA PAI FOUNDATION VS. STATE OF KARNATAKA', (2002) 8 SCC 481, [LQ/SC/2002/1144] 'ISLAMIC ACADEMY OF EDUCATION VS. STATE OF KARNATAKA', (2003) 6 SCC 697, [LQ/SC/2003/785] 'P.A. INAMDAR VS. STATE OF MAHARASHTRA', (2005) 6 SCC 537 [LQ/SC/2005/806] and 'MODERN DENTAL COLLEGE & RESEARCH CENTRE VS. STATE OF M.P.', (2016) 7 SCC 353 [LQ/SC/2016/619] .
9. However, learned Senior counsel for the petitioners however submitted that their grievances in these batch of writ petitions is confined only to the validity of the orders dated 27.06.2018 and 09.07.2018 passed by the Committee constituted under the 2006 Act.
10. On the other hand, learned counsel for respondent No. 2 submitted that Committee constituted by the State Government has issued notices dated 02.06.2018 to the petitioners, by which the petitioners were asked to submit the documents to enable the Fee Regulatory Committee to take a decision with regard to the fixation of for different courses in the colleges run by the petitioners. It is further submitted that the petitioners did not submit the requisite documents viz., documents, books of account and the form of enclosures attached to the notice. It is pointed out that the petitioners had merely submitted their objections to the constitution of the Committee and its jurisdiction to fix the fee for different courses in the colleges run by the petitioners. The aforesaid objections were duly considered by the Committee and thereafter, by orders dated 27.06.2018 and 09.07.2018, an order was passed fixing the fee in respect of different courses in the colleges run by the Universities. The order fixing the fee has been passed on the basis of the fee fixed by the petitioners for the academic year 2017-2018. Therefore, no interference is called for with the impugned orders.
11. By way of rejoinder, learned Senior counsel for the petitioners have submitted that the orders dated 27.06.2018 and 09.07.2018 do not disclose any basis for fixation of fee in respect of various courses in the colleges run by the petitioners. It is also pointed out that the order has been passed by the Committee in violation of Section 7(1) of the 2006 Act.
12. We have considered the rival submissions made by the learned counsel for the parties and have perused the record.
13. In view of the stand taken by the learned Senior counsel for the petitioners that the challenge in these petitions is only in respect of the validity of the orders dated 27.06.2018 and 09.07.2018 passed by the Fee Fixation Committee constituted by the State Government, it is not necessary for us to advert to other contentions.
14. Section 7 (1) of the 2006 Act prescribes the factors which are to be taken into account by the Committee constituted by the State Government while fixing the fee. Section 7(3) of theprovides that the Fee Regulatory Committee may determine different fee in respect of different courses of professional education being offered at different institutions. Section 7(1) to (3) of the 2006 Act reads as under:
“7. Factors for Determination of Fee:- (1) The Fee Regulatory Committee shall determine the fee or fees to be charged by a private aided or unaided professional educational institution affiliated to an University taking into consideration the factors, such as:-
(a) the location of the professional educational institution;
(b) the nature of professional course;
(c) the available infrastructure;
(d) the expenditure on administration and maintenance;
(e) a reasonable surplus required for the growth and development of the institution [not more than eight percent]
(f) any other factors as the Committee may deem fit.
(2) No professional educational institution shall collect any fee by whatever name or form called from the candidate for admission to professional educational courses over and above the fee determined by the Fee Regulatory Committee and the fee prescribed by the university concerned.
(3) The Fee Regulatory Committee may determine different fees in respect of different courses of professional education being offered at different institutions depending upon the facilities available and for this purpose it may place similarly placed institutions in broad groups."
15. Thus, it is evident that the Committee is required to take into account the factors which are enumerated under Section 7(1) to (3) of the while taking a decision with regard to fixation of fee, the committee has the discretion to fix different fees in respect of different courses. In the instant case, the notice was issued to the petitioners on 02.06.2018, by which the petitioners were asked to appear before the Committee on 23.06.2018 and place before the Committee all the relevant documents viz., books of account, etc. for scrutiny by the Committee and the form of enclosures to the notice. Admittedly, the petitioners did not produce the documents as sought for by the Committee, but raised objections, that the Committee constituted by the State Government had no jurisdiction or authority to fix the fee in respect of petitioners which are deemed Universities. However, on appearance of the petitioners on 23.06.2018, the Committee considered the objections raised and thereafter by orders dated 27.06.2018 and 09.07.2018 fixed the fee on the Universities in respect of the various courses offered in the institutions run by various petitioners. It is pertinent to note that the Committee did not give any opportunity to the petitioners to place the relevant material on record, to enable it to fix the fee.
16. In the absence of any material on record, the Committee on the basis of the fee fixed for academic year 2017-2018, fixed the fee in respect of different courses colleges run by the petitioners for academic year 2018-19. The relevant extract of the order dated 27.06.2018 reads as under:
"xxx
In so far as Medical & Dental institutions are concerned in respect of these institutions which are attached to an University notified under the State Act, the Committee found that their submissions or other statement of accounts are not accurate, the Committee rejected their statement of accounts and proceeded to regulate their fee on the basis of voluntarily agreed upon fee for the last year for the academic year 2017-2018, added an additional amount of 8% on such fee collected for the last year and accordingly fixed the fee for the first year of Medical institutions Rs. 6,83,100/-"
17. Thus, from the aforesaid narration of facts, it is evident that the order has been passed in violation of the principles of natural justice and in violation of the statutory mandate contained in Section 7(1) of theand merely on the basis of the fee fixed for academic year 2017-2018.
18. The Hon'ble Supreme Court in P.A. INAMDAR VS. STATE OF MAHARASHTRA supra has held that the cost of education may vary from institution to institution and in turn depends on many variable factors i.e., quality of education, etc., It has been further held that it is also recognised that the educational institutions may charge the fee that would take care of the various expenses incurred by these educational institutions in addition to making provisions for the expansion of education for future generation. Thus, in fixing the fee structure, the various factors like infrastructure facilities available, investment made, salaries paid to the teachers and staff and future plans for expansion and/or betterment of institutions, all these exceptions has to be taken into account. Thus, aforesaid factors necessarily indicate that there cannot be uniform fee for various courses run in different educational institutions. In the instant case, the Committee has fixed the uniform fee in respect of various courses run by different educational institutions. The aforesaid findings depicts non-application of mind by the Committee while passing the impugned orders and therefore, the impugned orders cannot be sustained in the light of the mandate contained in Section 7(1) of the 2006 Act.
19. Ordinarily, we would have remitted the matter for afresh consideration to the Committee. However, taking into account the fact that the orders were passed by the Committee after the process of admission had commenced and the fact that more than four years have lapsed, we are not inclined to do so, in the peculiar circumstances of the case. However, it is clarified that we have not adverted to other issues raised in the writ petitions, in view of the specific stand taken on behalf of the petitioners and the same are kept open to be agitated in an appropriate proceeding.
20. In view of the preceding analysis, the orders dated 27.06.2018 and 09.07.2018 passed by respondent No. 2 - Fee Regulatory Committee in so far as it pertains to the petitioners are hereby quashed. In the result, the writ petitions succeeds and are hereby allowed to the extent mentioned above.
