CWP No.16436 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 17 .9.2010 Kavita Devi … Petitioner Versus State of Haryana and others …Respondents CORUM HON’BLE MR.JUSTICE PERMOD KOHLI Present: None for the petitioner Mr.Sameer Sachdeva, Advocate Mr.RKS Brar, Addl.A.G., Haryana Mr.Balram Gupta, Sr.Advocate with Ms.Anamika Negi, Advocate Mr.Harkesh Manuja, Advocate Mr.RK Malik, Sr.Advocate with Ms.Aditi Dogra, Advocate PERMOD KOHLI, J. Respondent no.4 is a private self aided institution established to impart B.Ed./D.Ed education in the State of Haryana. The petitioner was admitted to respondent no.4-College in two years D.Ed course during the Session 2008-2009. The petitioner paid a sum of Rs.34,500/- as admission fee, Rs.5000/- as security for library and building fee and an amount of Rs.600/- per month on account of tuition fee. Thus, total amount paid by the CWP No.16436 of 2009 2 petitioner for the said year was Rs.46,700/-. This excludes the examination fee which was separately payable. For the second year, respondent no.4 again demanded the same amount. Some students filed CWP No.9152 of 2008 before this Court alleging charging of higher fee by the Private Self- Financing Colleges. Notice of motion was issued in the said writ petition. During the pendency of the writ petition, Haryana Government issued order dated 23.6.2009 prescribing fee for the D.Ed course for the Private Self- Financing Colleges. Following fee structure was prescribed for the years 2009-2010 to 2011-2012:- “(i)Total annual fees chargeable from each D.Ed student in private self-financing institutions shall not exceed Rs.18,400/- including Rs.14,400/- as tuition fee and Rs.4,000/- as annual charges on various accounts. (ii)The tuition fees shall be taken in four quaterly instalments of Rs.36,00/- each and the annual charges may be taken in one instalment at the beginning of the year alongwith first quaterly instalment of the tuition fee. If the admission takes place in the month of August, the second instalment of the tuition fee should be taken in the month of November, third instalment in the month of January and fourth instalment in the month of March. CWP No.16436 of 2009 3 (iii)The actual examination fees charged by the examining imitations can be charged extra. (iv)The affiliating institutions shall separately specify the fines chargeable from the students on various accounts in the prospectus itself. Since the prospectus for the year 2009-10 has already been issued, the affiliating institutions may issue a separate notification for this purpose. (v)It shall be mandatory for all the institutions to take fees from the students through commercial banks only. For this purpose the institutions shall open a fee account and suitable fee slips shall be issued by them to the students for depositing the fees in the designated bank account on quaterly basis.” This fee structure was being prescribed pursuant to the recommendation of the Committee constituted by the Government under the directions of the National Council for Teachers Education. In the above mentioned writ petition alongwith connected writ petitions, a Division Bench of this Court vide order dated 13.8.2009 made following directions/observations:- “In the writ petitions filed by the petitioners, we do not see any specific averment against any of the institutions regarding excess charging of fee in violation of the fee CWP No.16436 of 2009 4 structure stipulated by the Committee. We are not, therefore, in a position to verify the correctness of the allegations made at the bar. This would not, however, prevent the petitioners in these writ petitions from filing the suitable representation before the Director, Higher Education, who is said to be the Administrative Head for matters concerning such institutions pointing out the alleged excess demands of the institutions concerned, in which event the Director, Higher Education such very true facts from the institutions concerned and in case it is found that the fee structure stipulated by the statutory Committee is not being adhered to by institutions or any one of them, take up the matter with the National Council for Teacher Education for withdrawal of recognition of any such institution. It shall also be open to the Director, Higher Education to bring the violation of the fee structure to the notice of the University with whom the institution is affiliated to consideration withdrawal of affiliation on account of violation of the relevant statutory provisions including the fee structure. With the above liberty and observations, we leave the issue regarding excess charge of fee by the institutions open in the present petitions. We give liberty to the petitioners to bring up this aspect again, if so CWP No.16436 of 2009 5 advised, by filing an affidavit to that effect.” The petitioner cleared the first year of D.Ed course. When she was to take admission in the second year, it is alleged that respondent no.4-College demanded the same fee of Rs.43,500/- as admission fee and Rs.7600/- + Rs.5000/- as library and building fee and Rs.600/- per month towards tuition fee. The petitioner resisted the demand. It is stated that the petitioner was threatened of deletion of her name from the rolls of the college and also shortening of her attendance. The petitioner made a complaint dated 1.10.2009 to the Director, Higher Education, Haryana for initiating action against respondent no.4-College. Copy of this complaint has been placed on record as Annexure P-9. It is stated that no action was taken by respondents no.1 to 3 against respondent no.4 which has forced the petitioner to file the present writ petition. The petitioner has sought a writ of mandamus to respondents no.1 to 3 to take action against respondent no.4-College for charging the excess fee for D.Ed course than the fee prescribed by the Government vide order dated 23.6.2009 and has also prayed for refund of the excess fee charged from the petitioner and to permit the petitioner to continue with the course. In view of the allegations made in the writ petition, while issuing notice of motion, following order was passed on 28.10.2009:- “…In the meantime, respondent no.2-Director, Higher Education, Haryana will hold a discreet inquiry regarding the allegations made in the writ petition and if, on such inquiry, it is found that respondent no.4 has CWP No.16436 of 2009 6 violated the Govt. order and has demanded the more fee, respondent no.2 will take action against respondent no.4 after observing the principles of natural justice. Till further orders respondent no.4 will not charge more than the prescribed by the State of Haryana.” Pursuant to the aforesaid order passed by this Court, the Director Higher Education, conducted an enquiry and submitted report dated 7.2.2010 before this Court alongwith the record. In the report submitted by two member-committee appointed by the Director, Higher Education, it is specifically mentioned that the College has charged Rs.34500/- as admission fee, Rs.5000/- as refundable security and Rs.7200/- as tuition fee at the rate of Rs.600 per month for the year 2008-2009 from the students admitted to D.Ed course in the said year. This fee was charged from the petitioner as well. It is also reported that the Haryana Government issued notification dated 23.6.2009 fixing the fee at Rs.18400/- payable in four quaterly instalments of Rs.3600/- each and annual charges of Rs.4000/-. The Committee has found that the fee structure fixed by the Government was not applicable in the first year i.e. 2008-2009 and thus College was entitled to charge a higher fee. After issuance of the government instruction, it was applicable from the Session 2009-2010. However, the College again demanded Rs.5000/- in excess of the prescribed fee from the petitioner and charged Rs.500/- from other students in excess of the fee, without even issuing any receipt for the same. It has also come in the report that the College Management has admitted charging of Rs.5000/- in excess of the CWP No.16436 of 2009 7 prescribed fee, but claimed the same to be refundable security which they assured the Committee to refund within one week to the students. Some of the students also made a statement before the Committee regarding charging of Rs.5000/- in excess of the prescribed fee. Statement of the petitioner and accounts of the College have also been produced. On filing of this report before the Court, it seems that the Management prevailed over the petitioner and accordingly, the petitioner filed CM No.277 of 2010 for withdrawal of the writ petition. The prayer of the petitioner for withdrawal of the petitioner was declined vide order dated 11.2.2010 and Mr.Sameer Sachdeva, Advocate was asked to assist the Court. Respondent no.4-College has filed its written statement. It is admitted that for the Session 2008-2009, the College charged an amount of Rs.34500/- as admission fee and Rs.7600 + Rs.5000/- as Library and Building fee and Rs.600/- per month as tuition fee as per the old schedule. While denying the allegation that the petitioner has been forced to pay the higher fee, it is stated that after the issuance of the new fee structure by the Government of Haryana, only Rs.18400/- is being charged in quaterly instalments of Rs.7600/-, Rs.3600/-, 3600/- and Rs.3600/-. It is further stated that 13 out of 50 students admitted by the College for the second year 2009-2010 did not deposit fee and they were issued notices by the College. The petitioner is one of the 13 students who did not deposit the fee. It is denied that any threat was extended to the students for deletion of their names or shortening of their attendance. The College has, however, filed an additional affidavit after the report was submitted by the Committee CWP No.16436 of 2009 8 pursuant to the direction of this Court for which opportunity was given to the College to respond. In the affidavit of Dr. Vikas Kundu, Principal/Secretary, Geeta College of Education-respondent no.4, it is admitted that after the issuance of the new fee structure vide notification dated 23.6.2009 fixing the annual fee of Rs.18,400/- including Rs.14,400/- as tuition fee and Rs.4000/- as annual charges, the College has charged Rs.5000/- as refundable security from the students to provide them Library facility, including the books and tools required for the training Course. It is stated that this was done in the interest of the students. It is stated that this amount shall be refunded back to the students on completion of their course. Charging of capitation fee by the institution has been subject of debate for quite some time. In the case of Mohini Jain (Miss) vs. State of Karnataka and others, (1992) 3 SCC 606, it has been held that charging of the capitation fee in consideration of admission to educational institutions is impermissible, the capitation fee is nothing but price for selling education and amounts to denial of citizens’ right to education and is arbitrary and violative of Article 14 of the Constitution of India. In the case of Unni Krishnan, J.P. and others vs. State of Andhra Pradesh and others, (1993) 1 Supreme Court Cases 645, the Hon’ble Supreme Court laid down the circumstances where under the unaided institutions can charge the fee higher than prescribed for some courses in government institutions. Though the unaided institutions have been allowed to charge higher fee than is being charged in government institutions, however, commercialization of education has been prohibited. The relevant directions CWP No.16436 of 2009 9 contained in paragraph 226 of the judgment are as under:- “226. For the above reasons the writ petitions and civil appeals except W.P. (C) No.855 of 1992,CA No.3573 of 1992 and the civil appeals arising from SLP Nos.13913 and 13940 of 1992 are disposed of in the following terms:- XXX XXX XXX 2.The obligations created by Articles41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognizing and/or granting affiliation to private educational institutions. Where aid is not granted to private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private educational institution shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein- set out in Part III of this judgment…….” These directions were in respect of the professional institutions imparting medical and engineering courses. In the cases of Modern School vs. Union of India and others, (2004) 5 Supreme Court Cases 583, T.M.A. Pai Foundation and others vs. State of Karnataka and others, (2002) 8 Supreme Court Cases 481, it has been observed by Hon’ble Supreme Court that there could not be any rigid fee structure. Each institute must have liberty to fix its own fee structure after taking into account, the need to run the institution and to provide facilities necessary for the benefits of the students. The fee must be fixed keeping in mind the infrastructure and other facilities, investments made, salaries paid to the teachers and staff, future expansion and/or betterment of institutions, CWP No.16436 of 2009 10 subject to two restrictions, namely, non-profiting and non-charging of a capitation fee. Hon’ble Supreme Court directed the respective state governments to set up a Committee headed by a retired High Court Judge to be nominated by the Chief Justice of that State to approve the fee structure or to propose some other fee which could be charged by the Institute. In the case of Modern School (supra), while approving the ratio in the cases of T.M.A. Pai Foundation (supra) and Islamic Academy of Education and another vs. State of Karnataka and others, (2003) 6 Supreme Court Cases 697, it was reiterated that the fee can be regulated despite preventing commercialization of education. In various other judgments, charging of capitation fee or fee in excess of the prescribed one is deprecated. Hon’ble Supreme Court has also upheld the right of the affiliating and recognizing authorities to regulate the fee. Every State has constituted Committee to fix the fee for educational institutions. From the notification dated 23.6.2009 also it appears that the Committee has been constituted in terms of NCTE notification for fixation of fee. Thus the fee has been fixed in accordance with the regulations framed by the National Council for teachers’ education. No educational institution is entitled to charge more than the prescribed fee. Even if it is assumed that for the first year i.e. 2008-2009, the College was entitled to charge Rs.34,500/- and other components, the College was not entitled to charge more than Rs.18,400/- for the year 2009-2010. It has not only been established in the enquiry conducted by the Committee constituted by the Director Higher Education, but also admitted by the College that it has CWP No.16436 of 2009 11 charged Rs.5000/- in excess of the prescribed fee though it is claimed that it is in the nature of library security. No receipt for this excess fee of Rs.5000/- has been issued to the students. The intention seems to charge capitation fee by under-hand means. It is impermissible in law as is held by the Hon’ble Supreme Court in various judgments referred to here-in-above. In view of the above, this petition is disposed of with the following directions:- (i)Respondent no.4 will refund Rs.5000/-charged from each students in excess of the prescribed fee for the year 2009-2010 or any other period by account payee cheques/bankdrafts within a period of one month, if not already paid; (ii)The affiliating University or NCTE shall initiate action against respondent no.4-College for violation of the regulations and notification dated 23.6.2009, in accordance with the rules after affording opportunity of being heard to respondent no.4-College; (iii) Since it is not possible to calculate the interest on the amount illegally recovered from the students, the College will compensate the students by additional amount of Rs.1000/- per student in addition to Rs.5000/- to be refunded. This amount shall also be paid through account payee cheques/drafts to each student within a period of one month. (Permod Kohli) Judge 17.9.2010 MFK Note:Whether to be referred to Reporter or not:YES