C.G. Dental College & Research Institute vs State Of Chhattisgarh And Ors

Ajay Kumar Tripathi, CJ

Heard counsel for the parties.

Chhattisgarh Dental College & Research Institute is a private institution imparting education in BDS and MDS course. They have decided to

challenge the notification dated 15.10.2012 issued by the Admission and Fee Regulatory Committee (hereinafter called 'the AFRC') of the State of

Chattisgarh fixing the tuition fee which an institution can charge from the students of the MDS course for the academic session 2009-2010, 2010-

2011 and 2011-2012.

Based on the guidelines and the decision rendered by the Hon'ble Supreme Court in case of Islamic Academy of Education and Others v. State of

Karnataka and Others {(2003) 6 SCC 697}, every State was required to put in place a mechanism where the fee structure of private professional

institutions was required to be worked out and notified. In terms of the above direction of the Apex Court, even for the State of Chattisgarh, AFRC

was constituted.

The power of AFRC to fix fee for private professional institutions is not the subject matter of challenge in the present writ application. It is the

manner in which they have taken a decision, especially at a belated stage. Because of the delayed decision, the institution may be compelled to refund

certain fees already collected by them which was authorized in terms of the so-called Rules issued by the Directorate of Medical Education for

admission in Post-Graduate courses in Dental Colleges of Chhattisgarh. The rule in question was notified on 15.05.2010.

Counsel for the Petitioner drew attention of this Court to Rule 10.2 of the Chhattisgarh Dental Stnatakottar Pravesh Pariksha Niyam, 2010,

(hereinafter called 'the Rules') which talks of the kind of fee which the institution in question was entitled to demand or beget and the stand of the

counsel for the Petitioner is that the fee has been collected strictly in terms of the notified Rules dated 15.05.2010. Rule 10.2 of the Rules reads as

under:

10.2 After selection, the candidate shall pay all fees payable in the College (at private Dental Rajnandgaon Tuition Fee 5 Lakh Per year for 3 years

& other fee e.g. Hostel fee, Library fee etc. Extra as applicable).

Submission of the counsel for the Petitioner is that the students were granted admission and the fee in terms of the Rules notified by the Directorate

was accepted. But after almost two years thereafter, the AFRC issues a notification contained in Annexure P/1, dated 15.10.2012 wherein they have

scaled down the fee which this institution could demand for the sessions 2009-2010, 2010-2011 and 2011-2012 to be only Rs. 3,10,000/-. A stand is

taken that even if this notification is accepted to be valid, this can only have prospective effect and not retrospective effect. The fee which have

already been accepted and collected now cannot be refunded because the sessions are over long back, the students have completed their courses and

gone home. There was obvious delay in taking a decision by the AFRC and the Petitioner- Institution cannot be made to suffer for their indecision or

non-decision for a long period of time.

The Petitioner also relies on Annexure P/6 which is dated 02.06.2012 which is again an order issued by the Department of Health and Family

Welfare, Government of Chhattisgarh, wherein the institutions were allowed to collect certain fee and an undertaking was required to be given by the

students that in case, a decision on the quantum of fee payable to them is decided by the AFRC, the students would be liable to pay the difference.

Onus is sought to be placed on the AFRC that it is they who did not take a decision for the sessions in question till the year 2012 and by the time

they took the decision, the sessions were over, fees were collected and therefore, the clock cannot be put back.

On a deeper consideration, it seems that there is no suo moto power conferred upon the AFRC to fix the fee for an institution. The institution in

question have to approach the AFRC. Since the parameters based on which such decisions are required to be taken varies from institution to

institution therefore, the ball has to be set rolling by the said institution. They have to produce the necessary details based on which the fixation of fee

is required to be made. In this regard, observation of a seven Judges Bench of the Hon'ble Supreme Court in case of P.A.Inamdar v. State of

Maharashtra (2005 AIR SCW 3923) has relevance and in terms of Section 9 of the Act which is the Chhattisgarh Niji Vyavasayik Shikshan Sanstha

(Pravesh Ka Viniyam Evam Shulk Ka Nirdharan) Act, 2008, the following factors are required to be considered:

Section 9 of the Act prescribes factors required for fixation of fee and those factors are as below:

the location of the private unaided professional educational institution;

the nature of professional course;

the cost of land and building;

the available infrastructure, teaching, non- teaching staff and equipments;

the expenditure on administration and maintenance;

a reasonable surplus required for growth and development of the professional institution;

any other relevant factor

The AFRC considered the fixation of fee of the private institutions including the Petitioner and their decision has been brought on record as a part

of the additional return filed on behalf of the State as Annexure R/1. From perusal of the same, it seems that the Institution i.e. the Petitioner chose

not to approach the said Regulatory Committee in time and it was because of the delay on their part that decision could not be taken earlier, as to the

quantum of fee they were entitled to charge from the students. In fact, what also emerges from reading of the said decision dated 01.08.2012 is that

while on one hand, the institution was engaging the AFRC by raising various objections and providing materials selectively, on the other hand, they

approached the State Government, specially the Department of Health stating that the said authority has failed in its duty to fix the fee and therefore,

some stop-gap arrangement is required to be made. It was in this background and for this purported reason that the notification was issued by the

State Government on 15.05.2010, which facilitated collection of a much higher fee by the Petitioner-Institution. In fact, to pre-empt, may be fixation of

a more modest or reasonable fee by AFRC, which the institution could demand or accept, this modality was worked out in league with some State

official.

The stand of the State, in their return, does not seriously contest the mechanism which is supposed to be in place and the power and the authority

vested in the AFRC to fix tuition fees for each and every institution. But, instead of explaining as to how and under what authority or power could the

Department of Health issue a notification fixing a fee, no clear answer or explanation is coming from them. They decide to maintain a discrete silence

on this aspect of the matter. In fact, the counsel for the State submits that the facts are before the Court and they would not like to submit anything

over and above the same.

Even if for the sake of argument that a notification was issued by the State, which facilitated collection of fee of higher order by the Petitioner,

such notification was issued without any authority or power vested in them. The body which had been constituted and was very much in place i.e. the

AFRC is the only authority having the necessary power to fix fees for such institutions. Obviously, the concerned authorities of the State, in

connivance with the institution or institutions, issued a notification which facilitated making a kill by charging a much higher fee from the students for

the sessions in question. In fact, the institutions have rewarded themselves by their own inaction and not setting in motion the mechanism for fixation

of the fee, well in time. Delay, if any, was caused by them and they cannot be allowed to retain the unjust enrichment which they have made by

collecting excess fee from the students in connivance with some State functionary.

A feeble kind of effort was also made to argue that may be a similar kind of matter had already been dealt with and decided by a Division Bench

in Writ Petition No. 5393/2005 (Smita Jangde & Others v. State of Chhattisgarh & Others), on 06.04.2010 and in a Special Leave Petition against the

said decision is pending before the Hon'ble Supreme Court.

We are not inclined to keep the matter pending awaiting the position which may emerge in relation to the said case. But so far as the issues and

question of law are concerned, we are satisfied that the institution in question i.e. the Petitioner cannot be permitted to take advantage of an otherwise

illegal notification issued by the State by usurping authority or power not vested in them. The statutory body i.e. AFRC is the only body which can fix

fee for different institutions and since we are satisfied that the institution or the institutions including the Petitioner themselves have manipulated things

and delayed the decision making, therefore, the notification issued by the AFRC on 15.10.2012 will relate back to the sessions and the period for

which the fees have to be collected. The argument that the notification has to be prospective, is fit to be rejected because the deliberations and the

notifications are the result of an exercise done in relation to the sessions in question and since no decision earlier was allowed to be taken, for

whatever reasons, including the conduct of the Petitioner, therefore, they cannot be allowed to wriggle out for the sessions 2009-2010, 2010-2011 and

2011-2012.

The writ application, therefore, has to fail and is fit to be dismissed because the notification dated 15.10.2012 has to be enforced as a statutory

notification based on a decision taken by a statutory body. Since no infirmity in the said decision making as such is the subject matter of challenge, but

only its applicability, we hold that the notification is a valid piece of notification and the fee which has been fixed by the statutory body can only be

charged from the students and nothing more. The notification of the State cannot be used to retain the excess fee which has been charged by the

Petitioner-Institution. The notification of the State which surprisingly limits itself to the Petitioner's College alone would be non-est as it is dehors the

power of the State. It is only the notification issued by the competent body i.e. AFRC that will be applicable and permissible.

The writ application stands dismissed, in view of the above.