Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2022
(@ Special Leave Petition (Civil) Nos. 29692970 of 2021)
Narayana Medical College ...Appellant(s)
Versus
The State of Andhra Pradesh & Ors. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
Leave granted.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Andhra
Pradesh at Amravati in Writ Petition Nos. 33656/2018 and
8210/2019 the medical college/institution has preferred
the present appeals.
2. Pursuant to the judgment and order passed by this Court
in the case of
P.A. Inamdar and Ors. Vs. State of
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2022.11.07
17:07:01 IST
Reason:
Maharashtra and Ors.; (2005) 6 SCC 537 , the State of
Andhra Pradesh framed Rules called the Andhra Pradesh
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Admission and Fee Regulatory Committee (for Professional
Courses offered in Private UnAided Professional
Institutions) Rules, 2006 (hereinafter referred to as the
Rules, 2006). Rule 4 of the Rules, 2006 is with respect to
the fee fixation. Following the report of the Admission and
Fee Regulatory Committee (hereinafter referred to as the
AFRC), the State Government issued G.O. dated
18.06.2011 fixing and enhancing the fee for the academic
years 201112 to 201314. However, for the subsequent
years, more particularly, for the block years 2017 to 2020
(period in question) without waiting for the report from the
AFRC and on the representations made by the private
medical colleges, the State Government issued G.O. dated
06.09.2017 and enhanced the tuition fee payable by the
MBBS students. At this stage, it is required to be noted
that under the said G.O. the State Government enhanced
the tuition fee at an exorbitant rate of Rs. 24 lakhs per
annum i.e., almost seven times the tuition fee notified for
the previous block period. The G.O. dated 06.09.2017 was
the subject matter of writ petitions before the High Court.
By the impugned common judgment and order the High
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Court has set aside the G.O. dated 06.09.2017 by
observing and holding that considering the provisions of
the Rules, 2006 the fee cannot be enhanced/fixed without
the recommendations/report of the AFRC. Therefore, the
High Court by the impugned common judgment and order
has held that the recovery of enhanced tuition fee by the
respective private medical colleges is bad in law.
Consequently, the High Court has set aside the G.O. dated
06.09.2017 to the extent of enhancement of fee. The High
Court has also directed that if any fee already fixed by the
Government vide G.O. dated 06.09.2017 dehors the G.O.
dated 18.06.2011, the same shall be refunded by the
colleges to the students after adjusting the amounts
payable under G.O. dated 18.06.2011.
2.1 Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court,
the respective medical college/institution qua who now is
required to refund the amount collected pursuant to G.O.
dated 06.09.2017 has preferred the present appeals.
3. Having heard Shri K.V. Viswanathan, learned Senior
Advocate appearing on behalf of the appellant, Shri Basava
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Prabhu S. Patil, learned Senior Advocate appearing on
behalf of the original writ petitioners, learned counsel
appearing on behalf of the State of Andhra Pradesh and
Shri Krishna Dev Jagarlamudi, learned counsel appearing
on behalf of A.P. Admission and Fee Regulatory Committee
and on considering the impugned common judgment and
order passed by the High Court, we are of the opinion that
the High Court has not committed any error in quashing
and setting aside the G.O. dated 06.09.2017 enhancing
the tuition fee for the block years 20172020. Even Shri
K.V. Viswanathan, learned Senior Advocate appearing on
behalf of the appellant – medical college has fairly
conceded that the tuition fee could not have been
enhanced by the State Government unilaterally and
without report/recommendations by the AFRC under the
provisions of the Rules, 2006.
3.1 Even otherwise considering the relevant provisions of the
Rules, 2006 the fixation could have been only on the
recommendations/report by the AFRC and under Rule 4 of
the Rules, 2006 a duty is cast upon the AFRC to
recommend the fee fixation. Under the relevant provisions
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of the Rules, 2006, the AFRC while fixing the fee is
required to undertake detailed enquiry as provided in Rule
4 of the Rules, 2006. Rule 4 of the Rules, 2006 reads as
under:
“4. Fee Fixation. (i) The AFRC shall call for, from
each Institution, its proposed fee structure well in
advance before the date of issue of notification for
admission for the academic year along with all the
relevant documents and books of accounts for
security,
(ii) The AFRC shall decide whether the fees proposed
by the Institution is justified and does not amount to
profiteering or charging of capitation fee.
(iii) The AFRC shall be at liberty to approve or alter the
proposed fee for each course to be charged by the
Institution. Provided that it shall give the Institution
an Opportunity of being heard before fixing any fee or
fees.
(iv) The AFRC shall take into consideration the
following factors while prescribing the fee: (a) the
location of the professional institution, (b) the nature
of the professional course, (c) the cost of available
infrastructure, (d) the expenditure on administration
and maintenance, (e) a reasonable surplus required for
growth and development of the professional
Institution, (f) the revenue foregone on account of
waiver of fee, if any, in respect of students belonging to
the Schedule Caste, Schedule Tribes and wherever
applicable to the Socially and Educationally Backward
Classes and other Economically Weaker Sections of
the society, to such extent as shall be notified by the
Government from time to time. (g) Any other relevant
factor. Provided that, no such fees, as may be fixed by
the AFRC, shall amount to profiteering or
commercialization of education,
(v) The AFRC shall communicate the fee structure as
determined by it, to the Government, for notification.
(vi) The fee or scale of fee determined by the AFRC
shall be valid for a period of three years.
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(vii) The fee so determined shall be applicable to a
candidate who is admitted to an institution in that
academic year and shall not be altered till the
completion of his course in the Institution in which he
was originally admitted. No Professional Educational
Institution shall collect at a time a fee which is more
than one year's fee from a candidate.”
Therefore, the G.O. issued by the State Government
enhancing the tuition fee for the private medical colleges
on the representations made by the private medical
colleges was wholly impermissible and most arbitrary and
only with a view to favour and/or oblige the private
medical colleges. The same is rightly set aside by the High
Court. The State could not have issued the G.O. enhancing
the tuition fee for private medical colleges dehors the
recommendations of the AFRC. Any enhancement of the
tuition fee without the recommendations of the AFRC shall
be contrary to the decision of this Court in the case of P.A.
(supra) and even the relevant provisions of the
Inamdar
Rules, 2006. Therefore, the High Court has rightly
quashed and set aside G.O. dated 06.09.2017.
4. Now so far as the directions issued by the High Court to
refund the amount collected under G.O. dated 06.09.2017
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after adjusting the fee fixed by the Government vide G.O.
dated 18.06.2011 by the colleges to the students is
concerned, Shri K.V. Viswanathan, learned Senior
Advocate appearing on behalf of the appellant – private
medical college has submitted that it is true that the State
Government could not have enhanced the tuition fee
without recommendations/report of the AFRC. It is true
that in the present case the tuition fee was lastly fixed in
the year 2011 and thereafter the process for
determination/fixation of tuition fee for the block period
2017 to 2020 was in progress by the AFRC. It is submitted
that between 2011 and 2017 the costs/expenses of the
colleges had increased and the requirement of paying
stipend to students has been introduced in the year 2016
and therefore, the fee fixed in the year 2011 would cause
significant loss to the colleges and the tuition fee is bound
to be increased and therefore, the increase which the
respective college is entitled to recover (enhanced fee). It
is, therefore, prayed that at this stage the respective
colleges may not be directed to refund the amount i.e.,
tuition fee collected pursuant to G.O. dated 06.09.2017
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after adjusting the amount of tuition fee to be paid as per
G.O. dated 18.06.2011. Shri K.V. Viswanathan, learned
Senior Advocate has pointed out that in many cases
students have adjusted the difference in the subsequent
fees.
4.1 The prayer on behalf of the medical college not to refund
the amount at this stage is vehemently opposed by Shri
Basava Prabhu S. Patil, learned Senior Advocate appearing
on behalf of the students. It is submitted that with respect
to the similar G.O. issued by the State of Telangana the
same has been set aside by the High Court and the High
Court has directed to refund the amount paid in excess,
paid pursuant to illegal G.O. issued by the State
Government. It is vehemently submitted that the private
medical colleges who are the beneficiaries of illegal G.O.
which was issued on the representations made by the
private medical colleges cannot be permitted to retain the
amount which they have recovered illegally on the basis of
the illegal G.O.
4.2 It is submitted that under G.O. dated 06.09.2017 there
was an exorbitant increase of tuition fee of Rs. 24 lakhs
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i.e., seven times the tuition fixed earlier by the AFRC and
many students/their parents were required to avail the
bank loan to pay the exorbitant tuition fee and were
required to pay the higher rate of interest. Therefore, it is
prayed not to interfere with the impugned common
judgment and order passed by the High Court including
the order of refund passed by the High Court.
4.3 Learned counsel appearing on behalf of the AFRC has
submitted that during the enquiry/proceedings to
determine the tuition fee for the block period 20172020,
the State Government unilaterally and without waiting for
the report/recommendations by the AFRC increased the
tuition fee. It is submitted that in fact the AFRC vide
notification dated 08.12.2016 proposed to review and
determine the fees’ structure and call for relevant
materials from the medical colleges and the students and
the review and determination of fees was pending, the
association of the colleges addressed a letter to the
Government seeking revision which the State Government
granted/permitted in clandestine manner.
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5. As observed hereinabove no error has been committed by
the High Court in quashing and setting aside G.O. dated
06.09.2017 enhancing the tuition fee for the private
medical colleges. The Government of Andhra Pradesh on
the representations made by the private medical colleges
enhanced the tuition fee for private medical colleges
though the revision of fees was pending consideration with
the AFRC. The State Government enhanced the tuition fee
exorbitantly to Rs. 24 lakhs per annum which was seven
times the fee fixed earlier. Once the State Government
enacted the Rules, 2006 which provides determination and
fixation and the review of the tuition fees by the AFRC, the
State Government was bound by the Rules, 2006 and
could not have enhanced the fee during the review pending
with the AFRC. To enhance the fee unilaterally would be
contrary to the objects and purpose of Andhra Pradesh
Educational Institutions (Regulation of Admissions and
Prohibition of Capitation Fee) Act, 1983 as well as the
Rules, 2006 and the decision of this Court in the case of
P.A. Inamdar (supra). To enhance the fee to Rs. 24 lakhs
per annum i.e., seven times more than the fee fixed earlier
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was not justifiable at all. The education is not the business
to earn profit. The tuition fee shall always be affordable.
Determination of fee/review of fee shall be within the
parameters of the fixation rules and shall have direct
nexus on the factors mentioned in Rule 4 of the Rules,
2006, namely, (a) the location of the professional
institution; (b) the nature of the professional course; (c) the
cost of available infrastructure; (d) the expenditure on
administration and maintenance; (e) a reasonable surplus
required for growth and development of the professional
Institution; (f) the revenue foregone on account of waiver of
fee, if any, in respect of students belonging to the reserved
category and other Economically Weaker Sections of the
society. All the aforesaid factors are required to be
considered by the AFRC while determining/reviewing the
tuition fees. Therefore, the High Court is absolutely
justified in quashing and setting aside G.O. dated
06.09.2017.
6. Now so far as the directions issued by the High Court to
refund the amount of tuition fee collected under G.O.
dated 06.09.2017 and to refund the balance amount after
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adjusting the fee paid pursuant to the earlier
determination as per G.O. dated 18.06.2011 is concerned,
we are of the opinion that the High Court has not
committed any error in issuing such directions. The
management cannot be permitted to retain the amount
recovered/collected pursuant to the illegal G.O. dated
06.09.2017. The medical colleges are the beneficiaries of
the illegal G.O. dated 06.09.2017 which is rightly set aside
by the High Court. The respective medical colleges have
used/utilized the amount recovered under G.O. dated
06.09.2017 for a number years and kept with them for a
number of years on the other hand students paid the
exorbitant tuition fee after obtaining loan from the
financial institutions/banks and paid the higher rate of
interest. If at all the AFRC determines/fixes the tuition fee
which is higher than the tuition fee fixed earlier it will be
always open for the medical colleges to recover the same
from the concerned students, however, the respective
medical colleges cannot be permitted to retain the amount
collected illegally pursuant to G.O. dated 06.09.2017.
Therefore, even the directions issued by the High Court to
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refund the amount of tuition fee collected pursuant to G.O.
dated 06.09.2017 after adjusting the amount payable as
per the earlier determination is not required to be
interfered with.
7. In view of the above and for the reasons stated above both
the appeals fail and the same deserve to dismissed and are
accordingly dismissed, however, with cost which is
quantified at Rs. 5 lakhs to be equally paid by the
appellant(s) as well as the State of Andhra Pradesh (i.e.,
Rs. 2.5 lakh by the appellant(s) and Rs. 2.5 lakh by the
State of Andhra Pradesh) to be deposited with the Registry
of this Court within a period of six weeks from today and
on such deposit the same be transferred to National Legal
Services Authority (NALSA) and Mediation and Conciliation
Project Committee, Supreme Court of India (MCPC)
equally.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
NOVEMBER 07, 2022 [SUDHANSHU DHULIA]
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