IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 W.A.No.2221 of 2007 ------------------- --------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.26703/2005 DATED 28/08/2006 .................... APPELLANTS/RESPONDENTS 2 & 3:- ----------------------------------------------------- 1. MAHATMA GANDHI UNIVERSITY, UNIVERSITY BUILDING, KOTTAYAM REPRESENTED BY ITS REGISTRAR 2. MAHATMA GANDHI UNIVESITY COLLEGE OF ENGINEERING, MUTTOM, THODUPUZHA, REPRESENTED BY ITS PRINCIPAL BY STANDING COUNSEL SRI. T.A. SHAJI. RESPONDENTS/PETITIONERS 1 TO 6 & 1ST RESPONDENT:- ------------------------------------------------------------------------------------- 1. ABY ELDHO, IIIRD SEMESTER, B.TECH MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING MUTTOM, THODUPUZHA. 2. JOHN PAUL BABU, IIIRD SEMESTER, B.TECH, MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING, MUTTOM, THODUPUZHA 3. ALLEN FRANCIS, IIIRD SEMESTER, B.TECH, MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING, MUTTOM, THODUPUZHA 4. MIDHUN G.NATH, IIIRD SEMESTER, B.TECH MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING MUTTOM, THODUPUZHA 5. SARATH.P., IIIRD SEMESTER, B.TECH, MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING, MUTTOM, THODUPUZHA 6. MATHEW MAKIL, IIIRD SEMESTER, B.TECH MAHATMA GANDHI UNIVERSITY COLLEGE OF ENGINEERING, MUTTOM, THODUPUZHA W.A.NO.2221 OF 2007 - 2 - 7. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM R1 TO R6 BY ADV. SRI.V.M.KURIAN SRI.A.V.THOMAS SRI.MATHEW B. KURIAN SRI.K.T.THOMAS R7 BY SENIORGOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/02/2008, ALONG WITH W.A.NO. 2859 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu, C.J. & K.M.Joseph, J. --------------------------------------------------------------- W.A.Nos.2221 of 2007, 2529 of 2007, 2859 of 2007 and 81 of 2008 --------------------------------------------------------------- Dated, this the 29th day of February, 2008 JUDGMENT K.M.Joseph,J. The questions raised in these appeals being connected, they are disposed of by this common judgment. 2. Mahatma Gandhi University and its Engineering College at Thodupuzha are the appellants in all these appeals. The respondents were students who were admitted to a degree course in Engineering in the merit quota in the year 2004-05. They were charged fees at the rate of Rs.38,700/- per year. Their complaint in the writ petition was that the students who were admitted in the previous year, viz., 2003-04, and what is more in the succeeding year, viz., 2005-06, were charged fees only at the rate of Rs.25,000/-. Complaining of discrimination and arbitrariness, and consequently violation of Article 14 of the Constitution, respondents-students approached this Court claiming reliefs on the basis that they are to be treated equally with students admitted in the previous year and succeeding year. They drew support from a Bench decision of this Court reported in Thomas P.John v. Cochin University of Science & Technology & Others [2003 (1) KLJ 903]. The learned Single Judge accepted the submissions made on behalf of the respondents-students and took the view that their case is covered by the principle enunciated by the Division Bench in Thomas P.John's case (supra) and he directed the appellant-University to refund the excess amount collected to the respondents-students. In the alternative it was directed that the said amount be adjusted towards the tuition fee payable by the students for the subsequent years. Orders in that regard were directed to be passed within two W.A.No.2221 of 2007 & connected cases. - 2 - weeks, failing which it was directed that the said amount would carry interest at the rate of 10% per annum. Feeling aggrieved by the said judgment passed by the learned Single Judge, these appeals are filed. 3. The entire matter hinges around the central question as to whether, on the facts present in the writ petition which led to the filing of the appeals, the principle enunciated by the Division Bench is squarely applicable or not. 4. Sri.T.A.Shaji, learned counsel appearing for the University would submit that it was inapposite for the learned Single Judge to have drawn any support from the Bench decision referred to above. In the circumstances, it is necessary to refer to the facts of the said Bench decision. The said case was a case where writ petitions were filed by students who were admitted to the B.Tech. course in the NRI quota in the years 1997-98 and 1998-99. The respondent-University in the said case had commenced the course in the year 1995-96. For the seats reserved for the Non Resident Indian students, they had to make deposit of US $ 5000 by way of development charges at the time of admission in 1995-96. Thereafter, they had to pay Rs.20,000/- per semester. As far as the other category of students were concerned, they had to pay fee at the rate of Rs.20,000/- per semester. From the year 1996-97, however, the University decided to charge a fee of US $ 4000 per annum from Non Resident Indian students. The general category of students had to pay at the rate of Rs.20,000/- per semester. This practice continued for three years, viz., 1996-97, 1997-98 and 1998-99. However, from the years 1999-2000, the position obtaining in the year 1995-96 was restored. It was, therefore, alleged by the writ petitioners in the said case that the action of the University was arbitrary and unfair. It was further contended that when the University itself had decided to reduce the fees even in respect of NRI students W.A.No.2221 of 2007 & connected cases. - 3 - from the year 1999-2000 onwards, the writ petitioners were entitled to parity of treatment. The Division Bench held as follows: “9. It is true that there is always a presumption in favour of the validity of an order. It is also true that the burden of proving that the provision offends Article 14 lies on the person who raises the challenge to it. However, in the present case, the petitioners have categorically alleged that there is no rational basis for subjecting them to a higher rate of fee than the rate fixed in the years 1995-96 and 1999-2000. In the written statement filed on behalf of the University no basis for a differential treatment has been disclosed. No facts or figures have been given to indicate as to why the three batches of students were treated differently from the persons who preceded them or those who succeeded them. The only averment made in the written statement filed on behalf of the University is that reducing the fee will lead to difficulty not required to be shared by others? Why have the petitioners been subjected to a differential treatment? There is no answer. xx xx xx 13. There is another aspect of the matter. Each NRI student admitted during the period from 1996-97 to 1998-99 has been charged at the rate of US $16000 for the course. As against this, if any NRI student had been admitted in the year 1995-96 he would have paid US $ 5000 plus Rs.1,20,000 for the full course. Even the students admitted after the petitioners in the year 1999-2000 have to actually pay US $ 5000 plus Rs.1,60,000 for the full course. In other words, while the petitioners have been called upon to pay an amount of Rs.8 lakhs approximately, the persons before and after them are required to pay a much lesser amount. There is, thus, an apparent disparity in the rate of fees charged from the persons who are similarly situated. 14. The University may have a right to fix the fee. It may also have the right to classify the students into different categories. However, no authority, much less than a statutory body, can act arbitrarily. Every decision of a statutory authority has to be based on consideration of relevant facts. The process of decision making must indicate that relevant facts have been taken into consideration. No irrelevant consideration has weighed with the authority. The action must be founded on good reason. In the present case, the test is not satisfied. No reason for a differential treatment has been disclosed in the written statement or at the hearing of the case.” 5. A counter affidavit has been filed by the University in W.P.(C). No.7429 of 2006, from which W.A.No.81 of 2008 has been filed. In the counter W.A.No.2221 of 2007 & connected cases. - 4 - affidavit, it was inter-alia stated as follows:- “3. Petitioners were admitted in various branches in this College as per the allotment by the Commissioner for Entrance Examination, Trivandrum. They were directed to pay the tuition fee at the rate of Rs.38,700/- (Thirty Eight Thousand and Seven Hundred only) by the Commissioner for Entrance Examination and the Tuition fee for the first year was collected by the Commissioner for Entrance Examination and forwarded to this institution. In 2004 the peculiar situation prevailed that the Hon'ble Supreme Court had directed in the famous case of Islamic Academy of Education and another v. State of Karnataka and others that different rates of fees should not be levied on students studying the same course. Hence the allegation by the Petitioners is incorrect and the fees collected from them and other students admitted in the same year was Rs.38,700/- strictly complying to the orders/directions of the Hon'ble Supreme Court of India and Justice K.T.Thomas Commission. 4. The fees collected from the Petitioners admitted to first year during the academic year 2004-05 were strictly in accordance with the principles/directions stipulated by Justice K.T.Thomas Commission constituted by the State Government as per the Supreme Court direction. True copy of the relevant page from the Prospectus 2004 is produced herewith and marked as Exhibit R-2(a). No exorbitant amount has been collected from the Petitioners. As to the difference in the rate of fees, it has been so since many years and the College has no influence in fixing the fees by the State Government. In the year 2001 tuition fee for free seat was Rs.1200/- and for Payment Seat R.50,000/-. In 2002 the rate of tuition fee again changed to Rs.3,000/- and Rs.50,000/- for Free and Payment seats respectively. In the 2003 the rate of tuition fee again changed and the fee for Government seat was Rs.25,000/- and for Management seat Rs.36,000/-. In the year 2004-05 i.e. the year under consideration, the tuition fee was fixed at the rate of Rs.38,700/- per annum for both Government and Management seats without any discrimination among the students and as recommended by Justice K.T.Thomas Commission. This year the Mahatma Gandhi University has decided to grant scholarship to students admitted during the year 2005 under State merit whose annual family income does not exceed Rs.2,50,000/-. xx xx xx 7. In the year 2004, only 173 students sought admission in the College against the sanctioned strength of 300 and any reduction in fees, the only source of income, could make the course economically unviable and would adversely affect the quality of education and also the infrastructural development of the institution.” 6. As far as the year 2005-06 is concerned, it is submitted by W.A.No.2221 of 2007 & connected cases. - 5 - Sri.K.T.Thomas, learned counsel appearing for the respondents-students that the number of students who were admitted was 258. Thus, an analysis of the factual matrix of the present cases would produce the following results.- For the year 2003-04, following the recommendations of the Government, the University was permitted to charge fees in respect of the merit students at the rate of Rs.25,000/- per year. Accordingly, it was apparent that the University proceeded to charge Rs.25,000/- per year for the batch 2003-04. For the year 2004-05, the Justice K.T.Thomas Committee recommended the fees for the merit students at the rate of Rs.38,700/-. By the time the admissions were closed, it was found that 173 students alone had been admitted. The University which runs the self financing college is having a capacity of 300 students. In the year 2005-06, the University decided, however, to collect fees at the rate of Rs.25,000/- per year. The learned counsel appearing for the respondents-students points out Exhibit P2 in all these writ petitions, dated 12.7.2005. It is a communication addressed by the University to the commissioner for Entrance Examination. In view of the fact that much emphasis is made on the said communication by the learned counsel appearing for the respondents-students, the same is extracted below: “I am to inform you that this university has decided to fix the tuition fees for merit seat as Rs.25,000 (Twenty five thousand only) per year and Rs.38,700 (Thirty eight thousand seven hundred only) for management seats for the academic year 2005-2006 and other fees as in the year 2004-2005 for B-TECH students at the University College of Engineering, Thodupuzha. I therefore request you kindly inform concend rate of tuition fees ie Rs.25,000 per year to the candidate seeking admission to the Govt. quota seats in the University College of Engineering, Thodupuzha at the time of counselling”. 7. Relying upon this, it is contended that when the University itself proceeded to reduce fees for the year 2005-2006, there is no rhyme or reason or W.A.No.2221 of 2007 & connected cases. - 6 - rationale for the University to resist the demand of the students admitted in the year 2004-05 to refund the fees collected in excess of Rs.25,000/-. He also points out that at the time when Exhibit P2 was issued, the University would not have possibly known the number of students who could have been admitted at the time when the admissions were closed and it could not be contended by the University that it is because 258 students were admitted for 2005-06 the decision to charge lower fees from students who were admitted for the year 2005-06 was taken. 8. Sri.T.A.Shaji, learned counsel appearing for the University would submit, after getting instructions in the matter, that actually the reason for the decision taken by the University on 12.7.2005 to charge reduced fee was as follows.- There was an agitation spanning nearly a month. There was gherao by the students. They were demanding reduction of fees. Apparently, the University had the experience of previous year with the fee of Rs.38,700/-. The number of students admitted was 173 against the capacity of 300. Therefore, it is submitted that in view of the demand for reduction of fees, the decision was taken to reduce the fees. It is emphasized by the learned counsel appearing for the University that the Court should not have overlooked the fact that the 2nd appellant College is a self financing institution and the demand of the writ petitioners in this case is to refund the amounts paid which have been received from the students on the basis of the fee fixed by the Justice K.T.Thomas Committee. 9. The learned Single Judge, we notice, has proceeded to reject the contention raised on behalf of the University that the fee was fixed at Rs.38,700/- for the year 2004-05 having regard to the fact that only 173 students were admitted and in the year 2003-04, the entire capacity was filled as 300 students were admitted by holding that at the time when the fee was fixed by the appellant University for the year 2004-05, they would not have known that they would be in a W.A.No.2221 of 2007 & connected cases. - 7 - position to admit only 173 students. 10. We would think that the principle which was enunciated by the Division Bench which we have referred to may not be apposite to the facts of the present case. It was a case which relate to NRI students who were admitted in the year 1997-98 and 1998-99. They had been charged at the rate of US $ 4000 per annum. In the year 1995-96 for the students belonging to the said category, US $ 5000 plus Rs.20,000/- per semester was fixed. From the year 1996-97, the University decided to charge fee from NRI students at the rate of US $ 4000 per annum. Thus for the years 1996-97, 1997-98 and 1998-99, students belonging to NRI stream were directed to pay huge amounts as would be clear from paragraph 13 of the Bench decision, which we have extracted above. More importantly, the Court took note of the fact that no reasons were forthcoming from the University by way of justification for this discriminatory and arbitrary treatment being meted out to the writ petitioners therein. It was in such circumstances the Court proceeded to take the said view. 11. As far as the cases on hand are concerned, when the fees were fixed by the University for the 2004-05 batch with which we are concerned, by no stretch of imagination it could be said that the said fixation was illegal or arbitrary. If the attack by the respondents-students is premised with regard to the previous year 2003-04, we would think that the challenge is highly vulnerable for the reason that for the year 2003-04 it is the admitted case that Rs.25,000/- was the fee which was permitted by the Government which was in fact charged by the University. Then the only premise that was available would be the decision of the University, evidenced by Exhibit P2 for the year 2005-06 to reduce the fees to Rs.25,000/-. In this context, it is pertinent to notice a submission made by the learned counsel appearing for the respondents-students that arbitrariness is rendered more palpable W.A.No.2221 of 2007 & connected cases. - 8 - as for the succeeding year the University further reduced the fee to Rs.6,000/-. In answer to a query by the Bench as to what would be the position if the students of 2005-06 batch were to approach this Court alleging discrimination and violation of Article 14 of the Constitution vis-a-vis the students admitted in the next succeeding batch and claim reduction of fees to the amount of Rs.6,000/-, his submission was only that the University would have to justify its action. We cannot ignore the submission made by the learned counsel appearing for the University regarding the circumstances in which Exhibit P2 was issued. We cannot also overlook the fact that for the year 2005-06 there were 258 students who were admitted, while for the year in question, viz., 2004-05, only 173 students were admitted. There is no dispute also that self financing institutions look to the fees to be charged from the students alone for running the institution. In such circumstances, we would think that the plea of arbitrariness and discrimination based on the Bench decision of this Court may not be available to the respondents-students. In the above circumstances, we are of the view that the judgment of the learned Single Judge in all these cases are to be overturned. Therefore, the appeals are allowed and the writ petitions stand dismissed. All pending interlocutory applications are dismissed. H.L.Dattu Chief Justice K.M.Joseph vku/- Judge