Prajyot Jagtap and Others Vs State of Maharashtra and Others <BR> Ismail Kasam Mulla and Others Vs Krishna Institute of Medical Sciences and Others <BR> Parag Pundlik Pawar and Another Vs K.J. Sommaiya Medical College and Research Centre and Others

H.L. Gokhale, J.@mdashAll these writ petitions (except Writ Petition No.999 of 2005) are filed by various medical students studying in three private medical colleges and one private Dental College in State of Maharashtra. One of these writ petitions is filed by a Parents Association of Medical Students. All of these petitions seek to challenge the report of Shikshan Shulka Samiti (Educational Fee Structuring Committee) headed by Hon''ble Justice S.D. Pandit (Retired) dated 17th January 2005 and the consequent demand of increased fee by the four colleges. These four colleges are:-

(1) K.J. Somaiyya Medical College & Research Centre, Mumbai.

(2) Krishna Institute of Medical Science, Karad, Dist. Satara.

(3) Jawaharlal Nehru Medical College, Wardha

(4) Tatyasaheb Kore Dental College & Research Centre, New Pargaon, Dist. Kolhapur.

2. Writ Petition No.999 of 2005 is a writ petition by above referred K.J. Somaiyya Medical College which also seeks to challenge the said report, but for its own reason, viz. that the report does not approve the rise in fees as demanded by the said medical college. This petition also seeks to set aside the report and seeks a rise in fees as demanded by the said college.

3. From amongst the petitions filed by students and parents, there are principally two broad groups, viz.

(A) those espousing the cause of the students who were admitted to the Medical or Dental Course prior to 31st October 2002, i.e. prior to the decision of the Apex Court in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, ; and

(B) those admitted thereafter.

In Group (A), i.e. from amongst those admitted prior to 31st October 2002, also there are two Sub-Groups, i.e.

(I) those who are still studying in either of the three academic years or (II) those who have completed their education and are presently undertaking internship or have even completed internship. This Group (A)(I) consists of the following writ petitions:-

(1) Writ Petition No.537 of 2005

(2) Writ Petition (L) No.416 of 2005

(3) Writ Petition No.957 of 2005

(4) Writ Petition (L) No.610 of 2005

Out of these petitions, first three are filed against the Somaiyya Medical College, whereas the fourth one i.e. Writ Petition (L) No.610 of 2005 is filed against Krishna Institute of Medical Science.

Group (A)(II) consists of the following four petitions:-

(1) Writ Petition No.958 of 2005

(2) Writ Petition No.943 of 2005

(3) Writ Petition (L) No.414 of 2005

(4) Writ Petition (L) No.918 of 2005

Out of these petitions, first three are against Somaiyya Medical College, whereas the fourth one i.e. Writ Petition (L) No.918 of 2005 is against Krishna Institute of Medical Science. Writ Petition No.958 of 2005 is by those students who have completed their internship, whereas Writ Petition No.943 of 2005 and Writ Petition (L) No.414 of 2005 are by students who are presently undergoing their internship.

In Group (B), we have Writ Petition No.893 of 2005 which is filed by the Parents Association of Medical Students which is filed against all the four medical colleges.

It is filed on behalf of students of various categories, i.e. those who had joined prior to the T.M.A. Pai judgment as well as those who have joined subsequently. Writ Petition No.942 of 2005 is by a student who has joined the first year of the medical course in the academic year 2004-2005 in Krishna Institute of Medical Science.

4. S/Shri Mukesh Vashi, V.M. Thorat, I.S. Thakur have appeared for the student and parent Petitioners. S/Shri Shashank Manohar, Smt. Salgaoncar / Radia have appeared for Jawaharlal Nehru Medical College, Wardha. Shri Subramaniam has appeared for the Somaiyya Medical College, Mumbai and Tatyasaheb Kore Dental College. Shri R.V. Govilkar has appeared for Krishna Institute of Medical Science.

5. Counsel for both the parties have taken us extensively through the relevant judgments, namely Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, and Islamic Academy of Education and Another Vs. State of Karnataka and Others, as also some of the orders of the Apex Court referring the controversy once again to a Constitution Bench of the Apex Court. They emphasised the observations in paragraphs 54, 56, 69, 70 and 72 of S.C.C. report of T.M.A. Pai judgment and paragraphs 7, 19 and 21 of S.C.C. report of Islamic Academy judgment. They also referred to us to the relevant judgments of this court including Association of Management of Unaided Private medical Colleges and Ors. v. State of maharashtra - 2004 (2) BCR 208 and Supertex Industries Ltd. and Another Vs. Union of India (UOI) and Another, . We shall advert to these judgments and orders at a later point of time.

6. Mr.Vashi, learned counsel appearing for some of the Petitioners, submitted that the law laid down in the judgment in the case of T.M.A. Pai Foundation will have to be applied prospectively inasmuch as the judgments of the Apex Court are expected to apply prospectively as per Article 141 of the Constitution of India. Since this judgment was rendered on 31st October 2002, in his submission, the students, who were admitted in the earlier batches, cannot be governed under this judgment and will continue to be governed under the law laid down in Unni krishnan''s case. He pointed out that under the scheme as laid down in Unni krishnan (supra), 50% of the seats were free seats, 15% were meant for NRI students and 35% were the payment seats. There were two State Government Resolutions dated 17th July 1997 and 23rd January 2001 which operated during the earlier period. They laid down the fees for the private medical and dental colleges in the State. Thus, the G.R. dated 17th July 1997 laid down the fee of Rs.12,000/- for the merit seat in the medical college and Rs.8,000/- for the merit seat in a dental college. As against that, the fees for the payment seats are Rs.1,05,000/- and Rs.52,000/- respectively. The G.R. stated that the said fee structure "shall remain valid for 3 years commencing from academic year 1997-98". Clause 3 of this G.R. specifically refers to the G.R. remaining operative with effect from 1977-78 for all the students pursuing their studies in the respective courses. Similarly, subsequent G.R. dated 23rd January 2001 specifically laid down in clause (2) thereof "that the fee structure will be applicable for 3 years from 2000-01 onwards, i.e. for 2000-01, 2001-02 and 2002-03". Here the fees for the free seats in the medical and dental colleges were revised to Rs.14,950/- and Rs.9,200/-respectively, whereas the fees for the payment seats were Rs.1,26,500/- and Rs.86,250/-. This G.R. also states in clause 1 thereof as follows:-

".... Taking this into consideration the Govt. approves the following fees to be levied per annum for free and payment seat students undergoing the academic courses in the pvt. Medical and Dental Colleges."

7. The submission of Shri Vashi was that all those students, who were admitted during all these academic years, will continue to be governed by this fee structure for the entire academic course running into 4 1/2 years and the judgment in the T.M.A. Pai Foundation case will have to be applied to the students who were admitted in the academic year 2003-04 or thereafter. The fees based on that judgment could not be collected from the students who were admitted in the earlier academic years. The academic year of a medical or a dental college consists of 3 terms going into 1 1/2 calender years and the entire course goes into 4 1/2 years. His submission was that all those who were admitted prior to October 2003 will have to be governed by whatever was the fee structure then prevailing as prescribed by the State Government under the judgment in Unni krishnan''s case. He referred to a Division Bench judgment concerning the engineering course in the case Nirmal v. Director of Technical Education being Writ Petition No. 7267 of 2003 decided on 15th July 2004. In para 4 of this judgment, the Division Bench has held that it was not open for the management to increase the fees till the completion of the entire course. In para 9, the Division Bench has observed that there was nothing in the T.M.A. Pai judgment or the Islamic Academy judgment that the students, who had already admitted against merit seats, would be required to pay enhanced fees in the midst of the course.

8. Shri Vashi secondly submitted that the students also had a right to audience and the committee had erred in not giving any notice or an opportunity to the students in the matter of determination of fees. He relied upon the judgment of the Apex Court in the case of Raghunath Thakur Vs. State of Bihar and Others, . As far as the merits of the report are concerned, he pointed out that the committee had not fixed any particular norms and had practically gone by the statements of accounts which were tendered by the college managements except making some deductions here and there. In his submission, there was no application of mind on the part of the committee to the problem which it had before it. As far as the two academic years subsequent to the judgment in T.M.A. Pai Foundation case viz. academic year 2003-04 and 2004-05 are concerned, Shri Vashi referred to the judgment of the Division Bench in N.K.P. Salve Institute of Medical Science and Research Centre Vs. The State of Maharashtra and Others, . That was the judgment where the college management had challenged the fee fixation by the then committee under the chairmanship of Justice R.A. Jahagirdar (Retired). The said judgment set aside the report and sent the matter back to the committee which has since then come to be decided by the committee under the chairmanship of Justice S.D. Pandit (Retired). In the academic year 2003-04, the college managements had charged 60% of the fees that they had fixed. Although the report of Jahagirdar J. was set aside, as far as the academic year 2004-05 is concerned, the Division Bench directed the college managements to charge the fees as settled by Jahagirdar J. It is material to note that this judgment is under challenge through an SLP filed by the college management. Shri Vashi, therefore, submitted that as far as the batches which were admitted prior to October 2003 are concerned, the fees settled by the State Government will have to be collected from the students for the entire course and for the batches which started in 2003-04 onwards, at the most the fees settled by the committee under the chairmanship of Jahagirdar J. be collected. He submitted that though the report of the committee was set aside for the academic year 2004-05, the High Court did direct the colleges to charge fees on the basis of the report of the committee. He submitted that since the report made by the committee under the chairmanship of Pandit J. was under challenge and until the challenge is decided, the same course ought to be adopted, namely to charge the fees as per the report of Jahagirdar J.

9. Shri Thakur, learned counsel for some of the Petitioners, adopted the arguments of Shri Vashi. He submitted that as per the judgment in the Islamic Academy case, profiteering and capitation was prohibited. In the instant case, the committee has not exercised its function as expected in this behalf. He submitted that the Somaiyya College did not canvass for the earlier years and, therefore, the committee had erred in allowing the increase in fees from 2003-04 onwards. In his submission, the committee had not laid down any particular methodology and that being so, its report was vulnerable. No proper accounts with affidavits were submitted before the new committee and, therefore, which portion of the expenses is to be passed over to the students had not been determined correctly. As against that, Jahagirdar J. Committee had called for 3 years revenue expenditure. It had also noted that some of the teachers engaged by the institution were for diverse courses and, therefore, their salaries could not be shifted only to the medical or the dental students. Besides, there was error in taking the figure of intake capacity and, therefore, the division of the total expenditure by the total number of students was erroneous.

10. Shri Thorat, learned counsel for the students as well as the Parents'' Association, submitted that a distinction had to be made between the capital expenditure and the revenue expenditure. A college building and a hospital with 300 beds was a pre-condition as per the Medical Council of India. If that was so, the expenditure of setting up these minimum requirements could not be transferred to the students. If one considers that the college building and the hospital are going to be available for good number of years, can the cost of setting up be transferred to only a few batches of students? In his submission, it was in fact a case of profiteering and charging capitation fee which aspect had to be looked into. He then submitted that the income of the medical college has not been considered by the committee. The colleges were simultaneously running many other courses such as nursing, physiotherapy, etc. The teachers were common. Therefore, their salaries had to be shared amongst all the students and not merely by M.B.B.S. or B.D.S. students. Then what is to be charged were salaries actually paid and not payable. Similarly, if the intake capacity of a college goes down, as it had happened in some of the cases, students are not responsible for that. One must divide the revenue expenditure by actual number of students. He also objected to the addition of 7% inflationary expenditure as without any basis.

11. The counsel for the Respondents, on the other hand, submitted that the scope of judicial review in a matter like this was very limited. It was for the colleges to decide what fees they should charge and students cannot be heard to object to the same. Only aspect to be examined was as to whether there was profiteering or charging of capitation fee. Beyond that, this court should not look into it. That apart, the Medical Students Parents'' Association had no locus. Shri Shashank Manohar, learned counsel appearing for the Medical College at Wardha, raised some preliminary objections including that there cannot be a composite petition for four different colleges and that the Petitioners are in fact in contempt since they have not paid the fees as per the undertaking they were required to give under the N.K.P. Salve judgment (supra). No particulars are given about the Parents Association and as far as Jawahar Nehru Medical College at Wardha is concerned, it was within the jurisdiction of the Nagpur Bench.

12. Shri Manohar referred to the reply filed by Shri Sagar Meghe, Treasurer of the Trust running the said college, To this reply, a statement is annexed at page 117 which gives the average cost of medical expenditure per student per year in Government Medical College in State of Maharashtra. This is as per the statement prepared by the Government and the average cost per student comes to Rs.4,37,913/-. Shri Manohar submitted that the State had the capacity to grant subsidies and the private managements did not have that. They have to give the same facilities on par with the Government or else the M.C.I. will be recognise it. He submitted that the Jawahar Nehru Medical College at Wardha had been recognized as the best medical college in the State and that is why the committee had also give a good revision as sought by the management though the college was not completely satisfied with the revision. He emphasised that the T.M.A. Pai Foundation judgment clearly lays down that the students must pay for their higher education and the jurisdiction given to the committee under the Islamic Academy judgment was a limited one.

14. Smt. Salgaonkar Radia, learned counsel assisting Shri Manohar, supplemented his arguments. She firstly submitted that once a Division Bench of this Court in N.K.P. Salve''s case held that whatever that is decided by the committee on remand will be binding, that judgment will operate as res judicata. She referred to the following judgments in this behalf.

(1) Gorie Gouri Naidu (Minor) and another Vs. Thandrothu Bodemma and others,

(2) U.P. State Road Transport Corporation Vs. State of U.P. and Another,

(3) S. Sriramulu v. Govt. of Andhra Pradesh (2005) 2 SCALE 227

Thereafter she submitted that the judgment of a Coordinate Bench has to be honoured by another Bench. It cannot comment upon the discretion exercised by the judgment rendered by any Coordinate Bench. In support of her contention, she referred to the following judgments.

(1) Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others,

(2) Jawahar Lal Sazawal and Others Vs. State of Jammu and Kashmir and Others,

(3) Council for Indian School Certificate Examination Vs. Isha Mittal and Another,

Lastly, she submitted that final relief cannot be granted at an interim stage. Allowing students to pay fees lesser than what was recommended by Justice Pandit Committee without interfering with the report and allowing them to complete their education would almost mean granting them final relief at this stage. She relied upon the judgment in the case of Union of India (UOI) and Others Vs. Modiluft Ltd., for that purpose. Lastly, she submitted that although as far as interlocutory orders are concerned, the principle of binding precedent did not apply, yet the need for consistency in approach required courts to adopt uniform treatment in similar matters. She referred to the judgment in Vishnu Traders v. State of Haryana and Ors. in that behalf.

15. Shri Subramaniam, learned counsel appearing for Somaiyya Medical College and Tatyasaheb Kore Dental College, submitted that the committee did not have the power to decide the fee structure. The management has to decide the fees and the role of the committee was limited. He submitted that the committee ought to have permitted higher fees but whatever that was permitted by the committee was totally justified. The colleges were expected to have maximum autonomy and the role of the committee was only as a sort of a watch dog.

16. Shri Subramaniam submitted that the judgment in Unni Krishnan''s case had been set aside. That being so, the scheme cannot operate any more. He relied upon para 49 and 50 of the judgment of the Apex Court in the case of Behram Khurshed Pesikaka Vs. The State of Bombay, . In his submission, once the judgment was set aside and the law was declared, the law laid down will apply retrospectively. He relied upon the judgment in the case of Dr. Suresh Chandra Verma and others Vs. The Chancellor, Nagpur University and others, . He submitted that therefore the Govt. Resolutions of 17th July 1997 and 23rd January 2001 could not hold the field after the T.M.A. Pai judgment. He disputed the submission that the fees fixed thereunder were meant for the entire academic course. He thereafter took us through the petition filed by Somaiyya Medical College to seek interference in the report of the committee and to seek higher fees of Rs.3,90,000/- as demanded by the college management. He pointed out as to how the fees sought by the college were fully justified. In the case of Tatyasaheb Dental College, he submitted that the college had given a bank guarantee of Rs.1.2 crore when it was started. If the fees were not permitted to be enhanced, the college will have to be closed.

17. Shri Govilkar, learned counsel for Krishna Institute of Medical Science, adopted the arguments of Shri Manohar and Shri Subramaniam. He submitted that the college was running a hospital of 450 beds which had collected monies from the farmers and giving medical education to the students coming from affluent families without charging proper fees will be unfair to the farmers who have contributed to the setting up of the hospital. The salaries were being paid to the teachers as per the Fifth Pay Commission. He submitted that the college had filed its own petition on the Appellate Side seeking higher fees, but, in any case, there should not be any interim order restraining whatever enhancement that was given by Justice Pandit Committee.

18. Although the matters were argued before us for admission and interim relief, we have noted the submissions of the counsel appearing for all the parties in somewhat details. As far as the preliminary objection raised by Shri Manohar is concerned, we do not find any merit therein. As far as the Jawaharlal Nehru Medical College at Wardha being within the jurisdiction of the Nagpur Bench is concerned, it is permissible for the Chief Justice to allocate matters appropriately. The petition by the Parents Association is a composite petition. There is no bar to file any such petition so long as the issues involved are common. It is along with other colleges that the medical college at Wardha is joined as a Respondent in this petition. Similarly, a grievance was made that the students are in contempt for not paying higher fees in spite of an undertaking. The students are not absolved of their undertaking. Question however is as to what they should pay when the final determination is not arrived at? They cannot be said to be in contempt for not paying any such increased fee in the meanwhile. The question raised by him with respect to locus of the students or the parents and the scope of interference will however have to be gone into when the petition is heard finally. Having noted the submissions of the parties, following questions require a determination:-

(A) What is the scope of interference in a writ jurisdiction in the determination of fees by the committee in the matter of fixation of fees for the medical colleges? When the committee is expected to look into the question of profiteering and charging excessive fees, whether a limited review of its decision is impermissible?

(B) Whether the students and parents have any right of audience before the committee? (Even the Unni Krishnan judgment had held that the committee to be appointed under that judgment was not bound to give any personal hearing - para 210(6)(a) of SCC). Secondly, even if the students and the parents do not have right of personal audience before the committee, can they not have a right to challenge its decision on the basis of the material that was placed before the committee?

(C) Whether the Government Resolutions dated 17th July 1997 and 23rd January 2001 regarding fee structure continue to hold the field at least till the completion of the academic years / courses mentioned therein or they cease to have any legal effect after the judgment in T.M.A. Pai''s case?

(D) Whether on the facts of the case the revision granted by Justice Pandit Committee in the case of each of the four colleges was justified? If not, what order?

19. All these questions are important questions governing the medical education of the students in the State. Hence, all these petitions will have to be admitted. Therefore, Rule on all the petitions. Counsel for the Respondents waive service in all the petitions. They will be at liberty to file their reply.

Though the petitions are with respect to the fees of the earlier years, they have a bearing for the future years also. Hence, hearing of the petition is expedited.

20. We were informed that the question with respect to fixation of fee structure consequent upon the judgment in Islamic Academy case has been referred to a Constitution Bench of the Apex Court. Our attention was drawn to para 2 of the order in Pushpagiri Medical Society v. State of Kerala - : (2004)8SCC135 . We are also told that the matter has been heard. This being the position, it would be desirable to await the judgment of the Apex Court for the guidelines in that behalf. That would enable the issues raised herein to be resolved finally. We are told that the judgment is expected any day. Therefore, it would be better that the matter is decided after receiving that judgment. We therefore direct that the matters be placed for direction on 8th June 2005 for fixing the date of final hearing. The parties may file their further affidavits and documents in the meanwhile.

21. Then comes the question of interim relief. The Petitioners have strenuously contended that the batches, which were admitted earlier prior to the judgment in T.M.A. Pai Foundation case, cannot be made to pay the fees as per that judgment. As against that, it was stated on behalf of the Respondents that the fees, which were fixed by the State Government under the two G.Rs., were for 3 calender years respectively. They could not be read as applicable for the full course of the batches which were admitted during those 3 years. That apart, it was also submitted that the judgment in Unni Krishnan''s case having been set aside, the fee structure framed thereunder could not continue thereafter.

22. In this connection, it is material to note that all these judgments speak of three academic years. However, they do not note that each of the academic years is of one and half years. They do not also discuss the question as to whether the fees could be revised subsequently and that too substantially after a student is admitted in the first year. This is because, the students, who join the various academic courses, are expected to join them knowing fully well as to what are going to be the fees till the end of the course subject to minor revision. This aspect requires examination. Hence, although we are not pronouncing the verdict on this aspect at this stage, we find quite a force in the submission of the Petitioners that the batches admitted prior to T.M.A. Pai judgment will have to be governed by the fee structure announced at that time. Similarly, as far as the batches subsequent to the judgment are concerned, it cannot lie in the mouth of those students to say that they should be governed by the fee structure under which the earlier batches were governed. They knew fully well that the managements of the private medical colleges were asking for fees in the range of Rs.3,90,000/-. This being so, by way of interim relief, the students admitted to the various batches including First Year Course of M.B.B.S. or B.D.S. prior to October 2002 will not be required to pay enhanced fees. They are however put to notice that in the event this Court takes a view that they are liable to pay the enhanced fees, they will have to make the difference good.

23. As far as the students, who joined the medical or dental course during the academic year 2003-04 and 2004-05 are concerned, they have paid 60% of the fees as demanded by the college management in the first year. They were required to pay the fees as decided by Justice Jahagirdar Committee during the academic year 2004-05. They have given an undertaking that they will make the difference good. The counsel for the college management have all stated that in the event the decision finally goes against the college management, they will return the excess fees collected from the students. This being the position, as far as these two academic years are concerned, the students will be required to pay the fees as per the determination by Justice Pandit Committee. They knew that they had taken admission to the medical course after the judgment in T.M.A. Pai Foundation case. Though we are admitting the petitions challenging the decision by Justice Pandit Committee, until the same is set aside, the said report will hold the field. We cannot allow those students, who have joined after October 2002, to pay the fees, as directed under the Unni Krishnan''s judgment or by Justice Jahagirdar Committee. As far as these two batches are concerned, there will not be any interim relief with respect to payment of fees as decided by the committee.

24. Thus, although we are confining the interim relief to the earlier batches, as far as the subsequent batches are concerned, i.e. those admitted in 2003-04 and 2004-05, the college management will give time till 31st May 2005 to the students to make the difference good. Inasmuch as we are fixing the matters for final hearing in the month of June 2005, we however expect the college management not to discontinue anybody''s education in the interregnum on that count.

25. As far as the students who are doing their internship and who are going to appear for further examination after completion of their internship, we have already passed an interim order that they will be permitted to appear for their examination and their documents will be made available to them on their filing an undertaking to honour additional financial burden if the decision finally goes against them. That order has been passed in the case of Somaiyya Medical College. Mr.Govilkar is fair enough to state that as far as Krishna Institute of Medical Science is concerned, it is agreeable for a similar order for the students who are doing their internship or who have completed internship. That order will govern the similarly situated students of Jawaharlal Nehru Medical College at Wardha and Tatyasaheb Kore Dental College at Kolhapur.