Akshay S/O Ashok Dhobley & Ors. vs Maharashtra University Of Health Sciences Thr. Reg. & Ors.

R.K. DESHPANDE, J

The challenge in this writ petition is to the Direction No.3 of 2007 issued by the respondent no.2 â€" ViceÂChancellor, Maharashtra University of

Health Sciences, Nashik on 16/6/2007, enhancing the registration and eligibility fees from Rs.8,000/Â to Rs.30,000/Â for admission of the students in

private Dental colleges with effect from the academic session 2007Â08. The petitioners were admitted to Dental course in a private college prior to

cut off date of 31/5/2007 and all of them paid registration and eligibility fees of Rs.8,000/Â, which were then prevailing as per the Direction no.2 of

2007. They were required to pay the enhanced fee of Rs.30,000/Â​ as per the directive No.3 of 2007 which was brought into force on 16/6/2007.

In the light of the aforesaid factual position, we proposed to decide the question of competency of the ViceÂChancellor to issue Direction No.3 of

2007, in exercise of power under Sub Section (8) of Section 16 of the Maharashtra University of Health Sciences Act, 1998 (for short, hereinafter

referred to as “the Act of 1998â€). A specific question was put to Shri Abhijit Deshpande, the learned Counsel representing the University as to

whether it is permissible in law to the ViceÂChancellor to repeatedly exercise this power, in the absence of there being any statute or ordinance

prevailing on the subject, more particularly when the power stood exhausted by issuance of Direction No.2 of 2007. We adjourned the matter and

granted him time to address this Court on this issue. He has accordingly placed before us the earlier Directions issued in exercise of the same powers.

According to Shri Abhijit Deshpande, the learned Counsel for the University, the ViceÂChancellor was competent to issue such direction and such

repeated exercise is permissible. He has also invited our attention to the justification recorded in the minutes of the meeting of Registration and

Eligibility Fees Revenue Committee held on 13/6/2007. We reproduce the said justification as under :Â​

“Justification :Â​ 25% Rise in Reg. & Eli. Fees for Govt. Colleges.

i. 10% for Administrative expenses

ii. 10% tuition fees

iii. 5% Examination expenses loss.

Conventional Universities having large No. ofColleges as well as Students also.

Conventional Universities are getting fundsfrom UGC

Conventional Universities getting funds fromGovt. also.

Simultaneously Colleges are taking Development funds from students also.

MUHS is not getting any fund from UGC

MUHS getting small funds from Govt. ofMaharashtra State recently for salary 2006Â​07

MUHS not taking any University Campusdevelopment fund.

MUHS cannot be compared with ConventionalUniversities

The Fees or any amount should be consideredin the purview of future development of the University.â€​

He submits that even on the ground of equity the action of the University is required to be maintained.

Undisputedly, Clause (v) of Section 27 of the Act of 1998 dealing with the powers and functions of the Management Council, deals with the

prescription of fees and other charges and according to Shri Abhijit Deshpande for the University, the registration and eligibility fee covered by the

impugned direction would fall within the competence of the Management Council. He submits that the subject of the registration and eligibility fee

would be covered by the subject matter of Ordinance under Section 50 (ii) of the Act of 1998. It is thus apparent that the registration and eligibility fee

is required to be prescribed by framing the Ordinance by the Management Council.

It is not in dispute that no such Ordinance was framed by the University on the subject covered by Section 50 (ii) of the Act of 1998, which was in

force at least from the academic session 2007Â08. In this situation, according to Shri Abhijit Deshpande, the ViceÂChancellor was competent to

invoke his power under Sub Section (8) of Section 16 of the Act of 1998 to issue the Direction

No.2 of 2007 and Direction No.3 of 2007 on 11/4/2007 and 16/6/2007 respectively on the subject matter of registration and eligibility fee covered by

Section 50 (ii) of the Act of 1998 for post graduate courses. According to him, the Direction No.2 of 2007 dated 11/4/2007 stands repealed by

Direction No.3 of 2007 with effect from 16/6/2007.

The Direction Nos.2 of 2007 and 3 of 2007 were issued in exercise of power of the ViceÂChancellor under Sub Section (8) of Section 16 of the

Maharashtra University of Health Sciences Act, 1998, which is reproduced below :Â​

 “16. Powers and duties of ViceÂ​Chancellor.

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Where any matter is required to be regulated by Statues, Ordinances, Rules or Regulations but not Statutes, Ordinances, Rules or Regulations are

made in that behalf, the ViceÂChancellor may, for the time being, regulate matter by issuing such directions as the ViceÂChancellor for thinks

necessary, and shall at the earliest opportunity thereafter, place them before the Management Council or other authority or body concerned for

approval. The ViceÂ​Chancellor may, at the same time place before such authority or body for consideration the draft of Statues, Ordinances, Rules or

Regulations, as the case may be, required to be made in that behalf.â€​

In terms of the aforesaid provision, the power is required to be exercised where any matter is required to be regulated by Statues, Ordinances,

Rules or Regulations but no Statutes, Ordinances, Rules or Regulations are made in that behalf. The power is emergency in nature and the ViceÂ‐

Chancellor is competent to regulate it by issuing directions for the time being as are found necessary. After such directions are issued, the same are

required to be placed before the Management Council, along with its draft at the earliest opportunity, being the competent authority under Clause (v)

of Section 27 of the Act of 1998, for consideration so as to convert such direction in the Ordinance.

Shri Abhijit Deshpande, the learned Counsel for the University, has invited our attention to the minutes of the meeting of the Management Council

held on 16/6/2007 to urge that the approval is granted to the draft of the Direction No.3 of 2007. What we find is that this was a approval by the

Management Council to issuance of the Direction No.3 of 2007 to revise the fees in question. It was not an approval to the draft ordinance on the

subject. Therefore, this was not a step to be taken under Sub Section (8) of Section 16 of the Act of 1998 after issuance of such Direction, as it is not

in dispute that the said Direction has till this date not been converted into an ordinance by following procedure.

Be that as it may, in our view, the power under Sub Section (8) of Section 16 of the Act of 1998 is an emergency power to be exercised for the

time being, in the absence of any statute, ordinance, rules and regulations on the same subject matter. Once such directions are issued the power gets

exhausted and in the absence of any power to alter, amend, modify or repeal the direction so issued, the ViceÂChancellor becomes functus officio

and incompetent to issue another direction on the same subject matter. Thus, the power under Sub Section (8) of Section 16 of the Act of 1998 cannot

be repeatedly exercised on the same subject matter. The Direction issued remain in force till the Ordinance is framed. Once the field gets occupied,

the power gets exhausted, the ViceÂ​Chancellor becomes incompetent.

In view of above, giving justification for enhancementof fees would be of no relevance, if the ViceÂChancellor does not possess competence to

revise or enhance the fees prescribed under the direction in force. The registration and eligibility fee continues to be governed by Direction No.2, even

during the entire academic year 2007Â08. The insistence upon the petitioners for payment of such fees over and above Rs.8,000/Â cannot be

sustained and they are entitled to refund of it, if they have already deposited the amount with the University or the Colleges concerned.

In view of above, the writ petition is allowed. Thedirection No.3 of 2007 issued on 16/6/2007 along with Circular No.4/2007 dated 5/7/2007 are

hereby quashed and set aside. The respondent â€" University is directed to refund the fee over and above Rs.8,000/ paid by the petitioners under

protest, as per the order passed by this Court.

Rule is made absolute in the aforesaid terms. No order as to costs.Â