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Judgment
These two appeals have been filed by several privately managed and unaided institutions affiliated to the Chhatra Pati Sahu Ji Maharaj University, Kanpur.
The dispute raised in these two appeals is about the imposition and realization of examination fee enhanced to Rs.685/- from Rs.250/- for the examinations of the current session of 2016-2017.
The writ petition has been filed by these institutions contending that the examination fee has to be charged only through a draft ordinance prepared by the University to be approved by the State Government keeping in view the provisions of U.P. State Universities Act, 1973. It is urged that such approval has been given by the State Government on 26.09.2016 and, therefore, the same could apply prospectively i.e. for the next session of 2017-18 and not for the current session inasmuch as the admissions are complete as per the time table of the admission prescribed by the institution itself and consequently, after the closure of the last date of admission, the fee, which has now been approved of by the State Government through the ordinances cannot be charged retrospectively. The contention, therefore, is that the aforesaid issue has escaped the notice of the learned Single Judge and hence, the impugned judgment relying on a concessional judgment cannot be pressed into service to decline the reliefs as prayed for by the appellants.
Learned counsel submits that apart from this, it is clear that according to Section 46 of the U.P. Universities Act, 1973, the charging of a fee is subject to the rates laid down in the ordinance and this should be at the time of admission as indicated above. The rate of fee, therefore, which was prescribed at the time of the admissions was not the enhanced rate of fee as the ordinance had not yet received the approval of the State Government and consequently, the institutions now cannot be compelled to charge higher fee from the students so as to transmit it to the respondent university. The argument, therefore, is that since there is a statutory bar in realizing the higher fee, therefore, the appellants cannot be compelled to now realize it from the students, hence, the impugned judgment is vitiated on this count as well.
Learned counsel for the University Sri Savitra Vardhan Singh contends that the charging of fee at the time of admission is subject to the condition that admission will be granted on payment of such fee as may be prescribed and not only this, the continuance of such student on the University Roll is also subject to the charge of such fee. According to Sri Singh, the enhancement of fee had already been decided previously but the same was subjected to a challenge before the High Court and the challenge succeeded on the ground that the ordinances had not been framed for charging the enhanced fee in accordance with the U.P. State Universities Act, 1973 nor was there any approval of the State Government.
The learned Single Judge in the case of Basant Mahavidyalaya and others vs. State of U.P. and others decided on 08.01.2016, therefore, observed that the Executive Council had the power to do so but the same can be done only after a proper ordinance is framed and the same has the approval of the State Government. It is in order to meet the aforesaid legal contingency that the University proceeded to pass a resolution and frame a draft ordinance that was dispatched to the State Government on 30.06.2016 requesting the State Government to implement the same in the coming session of 2016-2017. The said draft ordinances were approved on 26.09.2016 for the current session of 2016-2017 as proposed and therefore, the university was well within its authority to charge the enhanced fee from the students of these affiliated colleges in relation to the examinations to be conducted for the session 2016-2017 as the ordinances had been duly approved by the State Government. The examinations are scheduled to be held shortly in March, 2017.
The bone of contention, therefore, between the parties is in relation to the realization of the fee for the current session of 2016-2017.
We have gone through the records and we find that the writ petition filed by the appellants seeks quashing of the order dated 17.11.2016 whereby the University had called upon the appellant institutions to realize and charge the enhanced examination fee for the session 2016-2017. A perusal of the relief clause nowhere indicates any challenge having been raised either to the proposal of the University dated 30.06.2016 for charging the enhanced fee or to the approval to the said draft ordinances by the State Government dated 26.09.2015. It is only the communication of the University, which has been challenged. The appellants, therefore, failed to question the legality of the framing of the ordinances or its applicability for the Session 2016-2017 before the learned Single Judge and consequently, the arguments, which have now been advanced at this appellate stage cannot be entertained by us.
Apart from this, it is also on record that the fee, which has been enhanced is after almost 22 years. Consequently, this being a clear matter of income and expenditure of the University, the same squarely falls with the autonomous authority of the University and we do not find any error in the decision making process so as to entertain any argument with regard to the quantum of the fee and the manner in which it is sought to be realized. The argument, therefore, of the learned counsel for the University has to be accepted and there is no reason to interfere with the judgment of the learned Single Judge.
However, learned counsel for the appellant Sri Jaideep Narain Mathur, Senior Advocate submits that some more breathing time may be granted so that the appellants may be able to realize the fee from the students and then deposit it with the University. To that extent, the prayer is accepted and the appellants shall be at liberty to deposit the enhanced fee by 01.03.2017. The appeals, accordingly, disposed of.