Parents Association For The Medical/dental Students v. Justice R.j. Shah Fee Committee (medical)

JAYANT PATEL, J.

(1) AS in all the petitions, common question arise for consideration, they are being considered by this common judgement.

(2) LEAVE to delete Sardar Patel university as party respondents since in any case, the presence of the University may not be required for deciding the controversy raised in the present petitions.

(3) I have heard Mr. Yagnik, learned counsel for the petitioners, Mr. Sunit Shah, for respondent No. 1, Mr. Dave for respondents Nos. 2 and 3 and Mrs. Nanavati for respondent No. 6 for final disposal.

(4) THE short facts of the case appears to be that the petitioners who are students of pramukhswami Medical College, respondent No. 2 herein, being run by respondent No. 3, have approached to this court challenging the action of the respondent No. 1 Committee for fixation of the fee structure for the course of MBBS.

(5) IT appears that for the academic year of 2003-2004 to 2005-2006, initially, the fee approved by the Fees Committee was of rs. 1. 45 Lakhs. The respondent Nos. 2 and 3 (hereinafter referred to as "the college/ institution")had challenged the said decision of the Fee Committee before this Court and this Court had not interfered with the said decision. The matters were carried before the Letters Patent Bench and the Letters patent Bench also dismissed the appeal. Ultimately, the matters were earned before the Apex Court and the Apex Court has by setting aside the decision of the Committee directed the Committee to take a fresh decision. It appears that thereafter, the committee reconsidered the matter and fixed the fee structure at Rs. 1. 90 Lakhs per year for the period upto 2005-2006.

(6) IT appears that for the period from 2006-2007 onwards, the respondent college submitted the proposal for approval before the Fee Committee for fee structure without quantifying the amount. It appears that later on as per the respondent College, the cost structure was undertaken by S. B. Billimoria and Co. , a firm of Chartered Accountant and as per the respondent college, 50% of the cost of the hospital, viz. Krishna Hospital which is attached to the Medical College was also required to be included in the fixation of fee structure. Therefore, 50% of the cost of the Krishna Hospital (hereinafter referred to as "hospital") was included and the actual cost as per the Trust per student was Rs. 3. 08 Lakhs, but the fee structure suggested was Rs. 2. 90 Lakhs. It appears that the information in prescribed format were supplied before the Committee by the respondent College at the initial stage for fixation of fee structure, but two aspects which may have the relevance at the later stage deserves to be recorded; one is that the building is 18 years old and the another is that the net value of the building of the college shown in the information supplied to the Committee for Medical college is rs. 53. 03 Lakhs and for academic block is rs. 86. 28 Lakhs (total Rs. 139. 31 Lakhs). The another relevant aspect is that in the very report of S. Billimoria and Co. , in the institution details submitted by the College to the said Chartered Accountant, it is mentioned inter alia as under:

"all the buildings are owned by Charutar arogya Mandal and rent is not charged for the building to the respective institutions".

(7) IT appears that the respondent committee, ultimately after hearing the institution as well as the petitioner students who were represented through its association has sanctioned the fee structure for the year of 2006-2007 of Rs. 2. 20 Lakhs; for the year 2007-2008 of Rs. 2. 45 Lakhs; and for the year 2008-2009 of Rs. 2. 75 lakhs. It deserves to be recorded that as submitted by Mr. Shah, learned counsel for the Fee Committee, the Committee considered the record produced by the institution and the same is also tendered by mr. Shah during the course of hearing for perusal of the Court. Further, it appears from the decision of the Committee that the committee has included 50% of the cost of hospital attached to the medical college in the fee structure sanctioned by it. It is under these circumstances, the petitioner students through its Association of Parents and others, have approached to this Court by preferring the present petitions.

(8) THE first aspect which may be required to be considered would be the role of the committee in exercise of the power for approval of the fee structure. At this stage, it would be worthwhile to extract certain observations of the Apex Court in the case of Islamic Academy v. Union of India reported at (2003) 6 SCC 697 [LQ/SC/2003/785] . The Apex court in the said decision while considering the question of as to whether the education institutions are entitled to fix their own fee structure inter alia at para 7, observed as under:

"the fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teacher and the staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgement imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or puipose and cannot be used for personal gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/ regulations, we direct that in order to give effect to the judgement in T. M. A. Pai case the respective State Governments/ concerned authority shall set up, in each state, a committee headed by a retired High court Judge who shall be nominated by the chief Justice of that State. The other member, who shall be nominated by the judge should be a Chartered Accountant of repute. A representative of the Medical council of India (in short "mci") or the All india Council for Technical Education (in short "aicte"), depending on the type of the institution, shall also be a member. The secretary of the State Government in charge of Medical Education or Technical education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/ co-opt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the committee for their scrutiny. The committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at the liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at the liberty to apply for revision. Once fees are fixed by the committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e. g. Donations, the same would amount to charging of capitation fee. The Governments/ appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/ affiliation. " (Emphasis supplied)

In the very Judgement, at para 147 onwards, there are additional observations under the head of Fee Structure, wherein at para 155 it was inter alia observed as under:"155. While determining the fee structure, safeguard has to be provided for so that professional institutions do not become auction houses for the purpose of selling seats. Having regard to the statement of law laid down in paragraph 56 of the judgement, it would have been better, if sufficient guidelines could have been provided for. Such a task which is a difficult one has to be left to the Committee. While fixing the fee structure, the Committee shall also taken into consideration, inter alia, the salary or remuneration paid to the members of the faculty and other staff, the investment made by them, the infrastructure provided and plan for future development of the institution as also expansion of the educational institution. Future planning or improvement of facilities may be provided for. An institution may want to invest in an expensive device (for medical colleges) or a powerful computer (for technical college). These factors are also required to be taken care of. The State must evolve a detailed procedure for constitution and smooth functioning of the Committee. (Emphasis supplied)

156. While this Court had not laid down any fixed guidelines as regards fee structure, in my opinion, reasonable surplus ordinarily vary from 6% to 15% as such surplus would be utilized for expansion of the system and development of education. (Emphasis Supplied)

157. The institutions shall charge fee only for one year in accordance with the rules and shall not charge the fee for entire course.

158. Profiteering has been defined in blacks Law Dictionary, 5th Edn. "taking the advantage of unusual or exceptional circumstances to make excessive profits;"

159. With a view to ensure that an educational institution is kept within its bounds and

does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in their absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf.

160. The respective institutions, however, for the aforementioned purpose must file an appropriate application before the Committee and place before it all documents and books of accounts in support of its case. " (Emphasis Supplied)

(9) THE aforesaid aspects on the functioning of the Committee and fixation of the fee structure etc. together with other aspects once again came up for consideration before the Apex Court in the case of P. A. Inamdar v. State of maharashtra reported at (2005) 6 SCC 537 [LQ/SC/2005/806] , and it was inter alia observed at para

149 as under: "however, we would like to sound a note of caution to such Committees. The learned counsel appearing for the petitioners have severely criticised the functioning of some of the Committees so constituted. It was pointed out by citing concrete examples that some of the Committees have indulged in assuming such powers and performing such functions as were never given or intended to be given to them by Islamic academy. Certain decisions of some of the committees were subjected to serious criticism by pointing out that the fee structure approved by them was abysmally low which has rendered the functioning of the institutions almost impossible or made the institutions run into losses. In some of the institutions, the teachers have left their job and migrated to other institutions as it was not possible for the management to retain talented and highly qualified teachers against the salary permitted by the committees. Retired High Court Judges heading the Committees are assisted by experts in accounts and management. They also have the benefit of hearing the contending parties. We expect the committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalizing fee structures and, where needed, should go into accounts, schemes, plans and budgets of an individual institution for the purpose of finding out what would be an ideal and reasonable fee structure for that institution. (Emphasis Supplied)

150. We make it clear that in case of any individual institution, if any of the committees is found to have exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review. " (Emphasis Supplied)

(10) THE Apex Court in the above referred decision under the head of NRI seats had observed as under:

"131. Here itself we are inclined to deal with the question as to seats allocated for non-Resident Indians (nri, for short) or nri seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term nri in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are nris. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs, to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academys direction to regulate. " (Emphasis Supplied)

(11) THEREFORE, in light of the aforesaid observations of the Apex Court, the matter is required to be considered for undertaking the judicial scrutiny to the decision of the fees Committee for approval of the fee structure as recommended of Rs. 2. 20 Lakhs per year onwards.

(12) IT may be recorded that the scope of judicial scrutiny for examining the legality and validity of the decision of the quasi judicial authority or a quasi judicial body is by now well settled.

(13) THE error of law on the face of the record is one of the aspects on which the judicial scrutiny may be undertaken. Further if the lower authority or the Tribunal has acted on evidence, which is legally inadmissible or has refused to consider the admissible evidence or if the finding is not supported by any evidence at all, the same can be considered in exercise of writ power by this Court. Not only that, but if a ground or a material germane to the exercise of the power is not considered, it may result into a jurisdictional error. In the same manner, if a ground or a material which was not germane to the exercise of power, if considered and the decision or the finding is based on the same, it would also result into jurisdictional error, which can be considered by writ Court under Article 226 of the Constitution of India while undertaking the judicial scrutiny. If the finding is recorded by the lower authority without their being any evidence on record, then such finding can be said as perverse and the same would also be subject to the scope of judicial review by a writ Court against the decision of a quasi judicial authority.

(14) IT would be worthwhile to extract certain observations made by the Apex court in the case of Rameshwar Prasad and ors. v. Union of India and Ann reported at JT 2006 (1) SC 457 [LQ/SC/2006/63] , wherein the Apex court had an occasion to examine the action or dissolution of the Legislative Assembly of State of Bihar. In the said decision, the apex Court (speaking through Mr. Justice arijit Pasayat) observed at para 239 to 242 as under:

"239. A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person person could ever dream that it may law within the powers of the authority.

240. It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to the apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See, Smt, Shalini soni and Ors. v. Union of India and Ors.)" 241. The Wednesbury principle is often misunderstood to mean that any adminis-trative decision which is regarded by the court to be unreasonable must be struck down. The correct understanding of the wednesbury principle is that a decision will be said to be unreasonable in the Wednes-bury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached to it. 242. As observed by Lord Diplock in ccsus case (supra) a decision will be said to suffer from Wednesbury unreasona-bleness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"

(15) ON the factual aspects, following appears to be an undisputed position. 1. The requisite informations at the time when the proposal was submitted in Column no. 2 for the building of college/hospital, the total cost as on 31. 03. 2005 of the building was shown in Annexure-II as under:

Sr. No.

Particulars Area

in Sq. Mtr.

Gross Value

Depreciation (Rs. In Lakhs)

Net Value (Rs. In Lakhs)

1.

Medical College

13065. 98

139. 99

86. 96

53. 03

2.

Academic Block

4538. 20

100. 88

14. 60

86. 28



TOTAL



240. 87

101. 56

139. 31

In Column No. II, the age of the building is shown as 18 years. Therefore, the net value of the building as shown by the institution is of 139. 31 Lakhs and the age of the building is 18 years. 2. The building is not owned by pramukhswami Medical College, respondent No. 2 herein, but is owned by charutar Arogya Mandal, which is the parent body of the college/institution.

3. In the fee structure, at Part-IV, the existing fee structure is shown as Rs. 1. 45 lakhs. Similarly, in NRI quota, blank is shown. No fee structure whatsoever is mentioned. In Part-VIII of the details of new investment for building, unaudited for the accounting year of 2005-2006 is shown as addition of only Rs. 3. 13 Lakhs.

4. In the compilation of S. B. Billimoria and Cos. , for institutional details, it has been mentioned that all buildings are owned by charutar Arogya Mandal and rent has not been charged for the buildings to the respective institution.

5. In the audited books of accounts, copy of which was produced by Mr. Shah, learned counsel for the fees Committee with the declaration that these details were produced before the Committee, the depreciation claimed as on 31. 03. 2005 in the books of accounts of Pramukhswami medical College, is Rs. 15,07,701. 54 ps. (roughly rounded figure of Rs. 15 Lakhs). Similarly, in the audited books of accounts, for the year ending on 31. 03. 2004, of pramukhswami Medical College, the depreciation claimed is Rs. 10,43,631/- (roughly rounded figure of Rs. 10 Lakhs).

6. In the report of S. B. Billimoria and co. , which is considered by the Committee as it is, under the head of Cost of Medical college shown as fee based on the audited books of account for the year 2003-2004, depreciation included is Rs. 31,98,000/- (rounded figure is Rs. 32 Lakhs) and for the accounting year of 2004-2005, it is shown as Rs. 32,53,000/- (rounded figure is Rs. 32 lakhs).

7. In the aforesaid S. B. Billimorias report for the year of 2005-2006, towards cost of the medical education (Pramukhswami Medical College), depreciation shown is Rs. 33,11,000/- (roughly Rs. 33 Lakhs) as against in the audited books of accounts, which were produced before the Committee of prakukhswami Medical College, depreciation claimed is Rs. 22,83,327/- (roughly Rs. 22 Lakhs).

8. As per the instructions issued by the committee, the depreciation is to be claimed on straightline method @ 5% p. a. and it is not clear as to whether such depreciation is to be claimed with gross value as existed at the time when the construction was made or the cost incurred or the net value.

9. The Committee has included 50% of the cost of Shri Krishna Hospital which is attached to the Pramukhswami Medical college on the basis that the students are occupying 50% of their study time in attending hospital and therefore, 50% of the cost of the hospital is required to be borne by the students being part of the cost of medical education. The aforesaid is with the clarification that certain cost of the hospital which is not concerned to the medical education viz. , the Blood Bank, laboratory, etc. , are not included in the cost of hospital for attribution to the fees.

10. Even while considering the cost of the hospital under the head of depreciation, the figures do not tally with the audited books of accounts, which were submitted before the Committee. For example, for the accounting year of 2005-2006, the depreciation claimed by Krishna Hospital in the audited books of accounts is 90,36,972/- (rouhgly Rs. 90 Lakhs). As against the same, in the report of S. B. Billimoria, though in the estimated figure, depreciation shown is of Rs. 1,56,49,000/- (roughly Rs. 1. 50 Crore) as against the figure of Rs. 90 Lakhs shown in the books of accounts. Same is the position for the accounting year of 2004-2005 inasmuch as in the books of accounts of Krishna hospital, depreciation claimed is Rs. 1,05,80,199/- (roughly Rs. 1 Crore), whereas in the figure considered in the S. B. Billimorias report, is Rs. 2,83,28,000/- (roughly Rs. 2. 80 Crores). In the same manner, for the accounting year of 2003-2004, in the audited books of accounts, the amount of depreciation claimed by Krishna hospital is Rs. 1,15,80,192/- (roughly rs. 1. 15 Crores), whereas the amount shown in the report of S. B. Billimoria is Rs. 1,32,43,000/- (roughly Rs. 1. 32 Crores).

11. No comparative study is undertaken by the Committee after undertaking any exercise through the Member of the medical Council on the aspects about the additional costs which may be required to be undertaken by a hospital on account of the students getting education for practical and clinical in hospital, except that as per the opinion of the Member of Medical council of India. (MCI), students are spending 50% of time in hospital while studying and therefore, required to bear 50% of the cost of the hospital.

12. Earlier, the very Committee had taken the view for the academic year of 2003-2004, 2004-2005, 2005-2006 that the college/institution is not entitled to any additional amount towards the cost of maintenance of the hospital as fees but the said decision of the Committee was not accepted in the past by the respondent college.

13. The Committee either itself or through the member of the MCI, did not call for the information of MCI regarding any material for incurring of the additional cost by a hospital, if attached to the medical college.

(16) IN view of the aforesaid factual scenario, keeping in view the scope of judicial review against the decision of a committee to be treated as the quasi judicial authority or a quasi judicial body, can be considered as discussed hereinafter. However, before it is considered, the language used by the Apex Court deserves to be reiterated again for the role of the committee to be more sensitive and to act rationally and reasonably with due regard for realities. As observed by the Apex court, the Committee should refrain from generalizing the fee structure and are required to go into the accounts, schemes, plans and objects of an individual institution for the purpose of finding out as to what would be an ideal and reasonable fee structure for that institution.

(17) IT appears to the Court that the following aspects germane to the exercise of powers by the Committee while deciding the fee structure are not considered:

1. In the information which was submitted by the institution to the committee for deciding the fee structure vide Item No. 2 it is mentioned as per annexure-II which if considered shows the net value of the medical college is of rs. 53. 03 Lakhs and of the academic block is of Rs. 86. 28 Lakhs, total 139. 31 Lakhs. If straightline method of depreciation @5% already decided by the Committee in its policy is considered, the depreciation would come to Rs. 6. 96 Lakhs for one year towards the building. Whereas in the cost statement as per Annexure-IX being Part-vi, the depreciation claimed for the accounting year of 2004-2005, i. e. as on 31. 03. 2005, is of Rs. 17. 38 Lakhs. The pertinent aspect is that, even in the statement at Annexure-A, which is an estimated figure, the depreciation claimed to be included in the cost is Rs. 13. 19 Lakhs. Therefore, the cost of depreciation which is sought to be included in the cost structure as against the net value of the asset and net value of the medical college and the academic block, is roughly more by Rs. 10. 41 Lakhs (Rs. 17. 38 lakhs figure shown minus Rs. 6. 96 Lakhs permissible depreciation). If the cost as shown vide Annexure-IX for the accounting year of 2004-2005 is considered for the accounting year of 2005-2006, is more by rs. 6. 23 Lakhs (Rs. 13. 19 Lakhs figure shown as per Annexure-A minus Rs. 6. 96 lakhs permissible depreciation) as against the actual net value of the building. Therefore, the institution has shown cost of depreciation more than the actual, had the details considered and cross-checked through its account member of the committee. The Committee has without cross-checking the details of Annexure-IX with the details of Annexure-II in the information supplied, has been unduly impressed and wrongly guided by the figures supplied at Annexure-IX.

2. The aforesaid is coupled with the circumstance that in the audited books of accounts of the Pramukhswami Medical college, in none of the year, any depreciation is claimed towards the building; the reason being not that the property is owned by Charutar Arogya mandal, but is due to the fact that Charutar arogya Mandal has given property for use to the college as free from rent and no cost is being incurred. The said aspect is apparent from the compilation of the S. B. Billimorias report under the head of institutional details.

3. As such, if the institution/college has not incurred any expenses for construction of the college/academic block, and has received free the use of the building, no expenses towards rent or even depreciation could be claimed being part of the cost to the college, more particularly when even in the books of accounts of such college, duly audited for income tax purpose, such amount is neither claimed nor deducted. The learned counsel for the respondent college did attempt to submit that in the books of accounts of Charutar Arogya manda, such depreciation has been claimed and therefore, the same could be included in the cost structure for the fees. No data is produced before the committee for which the contention is sought to be relied upon by the learned counsel. Further, even if considered for the sake of examination, the same cannot be permitted to travel beyond the information which has been supplied at the initial stage for providing cost of the building. Even if the contention of the learned counsel is accepted, then also, as observed earlier, there is exaggeration shown under the head of the depreciation for the cost structure by about 10 Lakhs for the accounting year of 2004-2005 and more than Rs. 6 lakhs for the accounting year of 2005-2006. Therefore, the aforesaid shows that the committee has apparently committed jurisdictional error in not cross-checking the information and ignoring the basic information supplied by the institution at the time when the proposal was submitted for sanction of the fee structure.

4. In the information supplied to the committee, at the time when the fee structure was proposed to be sanctioned, part-iv for fee structure provided for: a-State Quota b-Management Quota c-NRI Quota under the said head, the present fees shown is of Rs. 1. 45 Lakhs for State quota, and Management quota with the note that the same is under challenge before the honble Supreme Court and the final fee would, if would be, subject to the directions of the Honble Supreme Court. The pertinent aspect is that under the head of proposed fee, the amount is shown as blank and no fee structure whatsoever is proposed either for State quota or for Management quota. The same is the situation for NRI quota. The fees is kept blank.

5. The aforesaid shows that the institution at the time when submitted proposal for approval of the fee structure, did not propose any tee structure at all for state quota or management quota nor had disclosed the fee structure for NRI quota. If the aforesaid is considered with Part-IX of the scholarship/aid to students for academic year of 2004-2005 (Actual shown is as nil) and 2005-2006 (actual it is shown nil). Hence, it is apparent that no scholarship/aid to the student whatsoever has been extended or disbursed to any of the students.

6. The aforesaid if bifurcated for the purpose of fixing the cost structure and for the NRI separately, it was required for the committee to bear in mind and consider that the institution has to propose its own fee structure by quantifying the figure. In absence thereof, the Committee could not have been guided by a subsequent report of s. B. Billimoria and Co. for proposal of the fee structure at the later stage. Further, in the very information supplied at the time when the fee structure was proposed for approval, part-iv provides for cost statement as per Annexure-IX. In the very cost structure submitted at Annexure-IX by the institution itself, as observed earlier, under the head of depreciation, has claimed an amount which is not tallying with the annexure-II for the net value of the building and the academic block.

7. Apart from the above, the important aspect is that, the college itself has also not included any cost whatsoever in the cost structure proposed for sanction towards the cost of hospital. There is no reference whatsoever for inclusion of the cost of hospital in the proposed fee structure at the time when the application was submitted by the institution to the Fees Committee.

8. In absence of the same, at the initial stage, it was required for the Committee to act with sensitivity based on the sound principles for exercise of quasi judicial power inasmuch as if in the application for sanction of the fee structure, the cost of hospital is not claimed by the institution itself, the same could not have been permitted to be claimed by the Committee at the later stage by submission of the report of S. B. Billimoria and Co. , a firm of chartered Accountant. If the Committee was to act as per the sound principles of quasi judicial power, the Committee could not have permitted the institution to take somersault by altering the fee structure and thereby including the cost of the hospital in the fee structure.

9. The aforesaid is coupled with the circumstance that even as per the report of s. B. Billimoria and Co. , the figures under the head of Depreciation is neither supported by the information supplied in Annexure-II of the application for sanction of the fee structure nor is tallying with the audited books of accounts of Pramukhswami medical college as well as Krishna Hospital (refer para Nos. 5,6. 7 and 10 of the admitted facts are referred to hereinabove) Therefore, the Committee by considering the report of s. B. Billimoria and Co. , has practically allowed the college to claim the cost of the hospital which was not at all claimed by the institution and thereby, not only the committee has exceeded in exercising of its jurisdiction, but has acted against the sound principles of exercise of judicial power for sanction of the fee structure.

10. If considered for fixation of fees of nri quota, the observations of the Apex court for utilisation of the fund can be reconsidered as under: "the amount of money in whatever form collected from such NRIs should be utilised for benefiting students such as from economically weaker sections of the society. On well defined criteria the educational institutions may admit on subsidized payment of their fee. "

11. The information supplied in the application for NRI quota, as observed earlier, is kept absolutely blank and if the conduct of the institution is considered in light of the scholarship/aid to the student, as per the institution itself, in the academic year of 2004-2005 or for 2005-2006, the same is absolutely Nil.

12. It deserves to be recorded that even if the institution had the liberty to fix the fees for NRI students, the same was subject to the intimation to the fee committee. Further, as per the observations of the Apex Court, the surplus fees, if any, was to be utilised for the student of economically weaker section as per the well defined criteria. Therefore, when the Committee is to fix the fee structure, it is also required for the committee to simultaneously consider the matter for surplus of the amount available from the fees of NRI quota and the manner or mode or mechanism suggested by the institution to extend scholarship/aid to the students of weaker sections simultaneously.

13. There is absolutely no information and the past record as per the institution itself is that, it has not spent a single rupee for scholarship and for aid to the students. Hence, it was not required for the committee to conclude the matter by just making observation for NRI fees and the surplus of the amount from the NRI without considering the quantum of the NRI students fees; the surplus amount, if any, and the utilisation thereof towards the students of economically weaker section etc. during the relevant academic year. The aforesaid shows that the Committee on such aspects has remained insensitive towards the utilisation of the surplus fund of NRI seats for the students of the weaker section. To say the least, not meeting with the expectations as observed by the Apex Court on the aforesaid aspects.

(18) THE aforesaid shows that not only the committee has committed jurisdictional error, but has forgotten to exercise the power for which duty is cast upon it and thereby, ex facie jurisdictional error. The learned counsel for the respondent institution did attempt to contend that the present petition is by the students who are on State or Management quota and none is on NRI quota and therefore, it was submitted that the aspect of NRI quota and the utilisation of surplus amount is outside the scope of the petition. I am afraid such contention can be countenanced by this Court from the mouth of the institution which has not used a single rupee as per the information supplied towards scholarship or aid to the students for the academic year of 2004-1005 and 2005-2006. Further, since no mechanism whatsoever is considered by the committee for the surplus amount available and the utilisation thereof, the existing students who may be falling in the category of economically weaker section could be said as deprived of the benefit thereof. Apart from the above, the Committee is enjoined with the duty to implement the observations of the Apex Court in true spirit. If by non-consideration of such aspects, the students are deprived of for consideration of the benefit of scholarship/ aid to the students under the head of economically weaker section or other reserved category, and are consequently required to pay the full amount of fees, it can hardly be said that such would fall outside the scope of the petition, more particularly when the whole order of the committee for fixing the fee structure and the mechanism thereof including the utilisation of the fund is under challenge in the present petition.

(19) IT deserves to be recorded that in the earlier decision of the Committee, for the academic year of 2003-2004 to 2005-2006. towards use of hospital by the students, it had considered lumsum amount of rs. 10,000/- on ad hoc basis and had fixed up the fee structure of Rs. 1. 45 Lakhs. It is true that ultimately, pursuant to the orders passed by the Apex Court, the matter was remanded and the Committee had to undertake the exercise for fixation of iee structure. However, while fixing such fee structure, the Committee could have been guided with information as was available on record, which came to be submitted by the institution for fixing the said fee structure then. The Committee could have been guided by information as was available on record which came to be submitted by the institution for fixing of the fee structure. But it appears that the Committee in view of the inclusion of the cost of hospital in fixation of the fee structure, for the academic year of 2006-2007 onwards, included the cost of hospital in the fee structure of 2003-2004 to 2005-2006. As the fee structure for the academic year of 2003-2004 to 2005-2005 is not the subject matter nor the informations are available, the same may not assume much importance except observing that once the Committee took the decision in principle of attributing a particular cost of Rs. 10,000/- towards use of hospital infrastructure, it could have revised the figure, but sharing of the cost of hospital by the student is a new concept introduced by the Committee in the fixation of fee structure even for the academic year of 2006-2007 onwards, though was not proposed at the time when the application were submitted, but on account of the report of S. B. Billimoria and Co.

(20) EVEN if the cost of hospital could be one of the relevant consideration for fixing the fee structure, it would a caveliar approach, if not absurd, to attribute the cost on the basis of the time spent by the students in the hospital. Even for time spent by the student, the total clinical hours and the teaching hours are required to be taken into consideration as per the information of the MCI. If the Committee was to consider the time factor of clinical hours spent by the student while undertaking medical education vis-a-vis, the teaching hours, comparative study as per the syllabus of mci was required to be undertaken and then only a definite conclusion could be recorded and not just by ipsi dixit of the member of the MCI that the students spent 49% of the time in the hospital without their being any scientific data put forward before the Committee and considered by the Committee based on the syllabus prescribed by the MCI. Further, though time may be one of the consideration for attribution of the cost of hospital, the same can hardly be said as the sole and only consideration for attributing the cost of hospital in the medical education. It was required for the committee to undertake the mechanism, if required, with the assistance of MCI and accountants for ascertaining the actual expenses which a hospital management is required to undertake for facilitating the students to have the clinical study. Merely because the medical college must be attached with the hospital as per the MCI guidelines, it cannot be said that the full cost of the hospital can be attributed nor the cost can be attributed based on the time consumed by the students in the hospital. As such, running of a hospital is an independent activity of a trust for treatment to patients and its attachment for medical education to the students can at the most be considered as a subsidiary aspect. Further, the hospital is to bear the cost for treatment of the patient and the patient is to pay for expenses of the cost of treatment by way of a normal rule. If the hospital is subsidising the cost to the patient on account of its fund available for charity, such can hardly be attributed towards the cost of medical education to the students. At the same time, if the students while attending clinical hours, is to observe the treatment and to treat the patients, the hospital management is likely to be benefited thereof, but can hardly be said that any loss would be caused to the hospital management on account of the students treating the patients or watching the treatment to be undertaken. It is only the cost of amount by way of additional expenses incurred by the hospital management for permitting the students to observe the treatment or to make use of the machineries etc. , which could be considered as additional cost by the hospital management for the medical education. Further, if the teachers of the medical i college are to treat the patients in a hospital, the hospital management is bound to be benefited. The same can be attributed on the basis of the time consumed by the teachers in college for imparting education in comparison to the time consumed in the hospital for treatment of the patients. The aforesaid are only some of the relevant aspects, but cannot be termed as exhaustive. The adhoc or lumsum attribution of cost based on the time consumed by the student in the hospital, can hardly be said as the sole consideration for attribution of the cost of hospital to the medical education.

(21) AS such, as observed earlier, in absence of such claim by the college/ institution, it was not required for the committee to permit the college to make out claim for inclusion of the cost of hospital. Further, even if such grounds were to be considered for the sake of examination, the relevant consideration which were germane to the inclusion of the cost of hospital in fee structure are not considered by the Committee and the attribution of cost only on the time consumed by the students in the hospital can be said as jurisdictional error in not considering the relevant circumstances germane to the exercise of power and thereby, remaining insensitive to the field of education keeping in view the realities in the hospital and of the students.

(22) THE learned counsel for the respondent college did submit that as per the study undertaken by MCI for the cost of medical education of AF Ferguson and Co, which has been submitted by learned counsel for MCI during the course of hearing, the cost of medical education was much higher in the year 1997 than the fees approved by the Committee. Therefore, he submitted that the amount of fee structure fixed by the Committee cannot be said as unreasonable or arbitrary. Whereas on behalf of the Committee it was fairly conceded that no comparative data is studied in detail except the time consumed by the student in the hospital. The learned counsel for MCI submitted that the study was undertaken in response to the questions raised in Rajya Sabha by one of the member. However, she fairly conceded that the actual attribution of the cost in a hospital for its attachment to the medical student for medical education was not undertaken.

(23) IT appears to the Court that the report is for the cost of medical education on the premise that full cost of the hospital is to be considered for all cost incurred by the medical college and hospital and it is not a study undertaken for separating expenses of running a hospital independently and additional cost to be incurred by the hospital for permitting the students to have clinical study in the hospital. The report only speaks that the professional staff salary can be bifurcated between the college and hospital in the ratio of 68:32 per cent based on the MCIs for the time spent in the college and the hospital. But, it does not speak reverse so far as the students are concerned. Therefore, the said report cannot be considered as concluded for attributing of cost of hospital towards the medical education to be borne by the student nor the same cannot be said as conclusive.

(24) IN view of the aforesaid, the only inevitable conclusion is that the Committee has committed the above referred jurisdictional error in exercising the power for deciding/recommending/approving the fee structure as per the impugned decision. Therefore, the impugned decision of the committee cannot be sustained in the eye of law and deserves to be quashed and set aside.

(25) HOWEVER, as the students are already undergoing the study, they may be required to pay the adhoc amount so as to enable the institution to meet with the expenses for medical education. As observed earlier, the committee had fixed up an amount of Rs. 1,45,000/- per year on the basis that the adhoc cost of Rs. 10,000/- is to be borne by the students concerned for attachment to the hospital. It is true that the said decision is quashed ultimately by the Apex Court and the matter is reconsidered and the Committee has fixed up the amount of Rs. 1,90,000/ -. But the pertinent aspect is that while fixing the amount of Rs. 1,90,000/-, the Committee has been guided by the inclusion of cost of hospital on the basis of time criteria, as considered in the present matter, which is not accepted as proper exercise of jurisdiction by this Court in the present judgment. Therefore, it would be just and proper to go by the amount fixed by the Committee for the academic year of 2003-2004 to 2005-2006 plus reasonable rise in the cost by way of inflation or otherwise.

(26) THEREFORE, considering the facts and circumstances, it was just and proper to direct the adhoc payment of Rs. 1,60,000/-per annum by way of interim measure. However, it appears that earlier, vide interim order passed in Special Civil application No. 17856/06, this Court had directed for payment of Rs. 1,80,000/- per annum by way of interim measure and the same arrangement was continued when the matter was remanded to the Committee for its consideration vide Judgement dated 07. 12. 2006 in the aforesaid Special Civil application, subject to filing of the undertaking. Such arrangement can be continued until the Committee reconsiders the matter and decides afresh.

(27) HENCE, the impugned order of the committee for fixation of the fee structure including on the aspects of surplus of NRI fees are quashed and set aside with the further direction to the Committee to reconsider the matter in light of the observations made by this Court in the present Judgement and to finalise the fee structure as early as possible preferably within a period of four months from the receipt of the order of this Court.

(28) IT is further directed that until the committee finalises the aspects of fee structure, as indicated earlier, the students shall pay the fees at Rs. 1,80,000/- per annum for each academic year with the undertaking that they shall pay the remaining amount if required after the decision of the Committee and the amount of Rs. 1,80,000/- shall also be accepted by the institution with the direction that the balance, if any, after the decision of the committee shall be refunded to the respondents or the surplus, if any, shall be adjusted in the next academic year, if the students are to prosecute the study further for the remaining year.

(29) PETITIONS are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.

(30) MR. Dave, learned counsel appearing for the respondent Institution prayed that the operation of the Judgement be stayed for four weeks, so as to enable the respondent Institution to approach before the Higher Forum. Considering the facts and circumstances, as the matter is remanded to the Committee, the said prayer is declined. Direct Service permitted. Petitions Allowed