Fee Regulatory Committee vs Kalol Inst.Of Mgt

Fee Regulatory Committee ...... Appellant

Versus

Kalol Institute of Management, Etc. ...... Respondents

WITH

CIVIL APPEAL NO. 8544 OF 2011

(Arising out of S.L.P. (C) NO.34200 OF 2010),

CIVIL APPEAL NO. 8545 OF 2011

(Arising out of S.L.P. (C) NO.1396 OF 2011),

CIVIL APPEAL NO. 8546 OF 2011

(Arising out of S.L.P. (C) NO.1383 OF 2011),

CIVIL APPEAL NO. 8547 OF 2011

(Arising out of S.L.P. (C) NO.1431 OF 2011),

CIVIL APPEAL NO. 8548 OF 2011

(Arising out of S.L.P. (C) NO.1478 OF 2011),

CIVIL APPEAL NO. 8549 OF 2011

(Arising out of S.L.P. (C) NO.1494 OF 2011),

CIVIL APPEAL NO. 8550 OF 2011

(Arising out of S.L.P. (C) NO.1502 OF 2011),

CIVIL APPEAL NO. 8551 OF 2011

(Arising out of S.L.P. (C) NO.1507 OF 2011),

CIVIL APPEAL NO. 8552 OF 2011

(Arising out of S.L.P. (C) NO.1531 OF 2011),

2

CIVIL APPEAL NO. 8553 OF 2011

(Arising out of S.L.P. (C) NO.1565 OF 2011),

CIVIL APPEAL NO. 8554 OF 2011

(Arising out of S.L.P. (C) NO.1738 OF 2011),

CIVIL APPEAL NO. 8555 OF 2011

(Arising out of S.L.P. (C) NO.1750 OF 2011),

CIVIL APPEAL NO. 8556 OF 2011

(Arising out of S.L.P. (C) NO.1789 OF 2011),

CIVIL APPEAL NO. 8557 OF 2011

(Arising out of S.L.P. (C) NO.1851 OF 2011),

CIVIL APPEAL NO. 8558 OF 2011

(Arising out of S.L.P. (C) NO.1874 OF 2011),

CIVIL APPEAL NO. 8559 OF 2011

(Arising out of S.L.P. (C) NO.1897 OF 2011),

CIVIL APPEAL NO. 8560 OF 2011

(Arising out of S.L.P. (C) NO.1952 OF 2011),

CIVIL APPEAL NO. 8561 OF 2011

(Arising out of S.L.P. (C) NO.1960 OF 2011),

CIVIL APPEAL NO. 8562 OF 2011

(Arising out of S.L.P. (C) NO.2058 OF 2011),

CIVIL APPEAL NO. 8563 OF 2011

(Arising out of S.L.P. (C) NO.2090 OF 2011),

CIVIL APPEAL NO. 8564 OF 2011

(Arising out of S.L.P. (C) NO.2214 OF 2011),

CIVIL APPEAL NO. 8565 OF 2011

(Arising out of S.L.P. (C) NO.2224 OF 2011),

CIVIL APPEAL NO. 8566 OF 2011

(Arising out of S.L.P. (C) NO.2308 OF 2011),

3

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. These are appeals by special leave against the

impugned orders of the Division Bench of the Gujarat High

Court.

3. The facts very briefly are that the respondents are

different unaided private professional and educational

colleges and institutions in the State of Gujarat. The fees

for admission to the private unaided professional and

educational colleges and institutions in the State of Gujarat

are regulated by the Gujarat Professional Technical

Educational Colleges or Institutions (Regulation of

Admission Fixation of Fees) Act, 2007 (for short `the Act'),

which came into effect on 30.04.2008. Section 9 of the Act

provides that the State Government shall, for the purpose of

determining the fees for admission of students in the

professional educational colleges or institutions, constitute

a Fee Regulatory Committee with a retired judge of the High

Court nominated by the State Government as its

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Chairperson. Section 10(1) of the Act provides that the Fee

Regulatory Committee shall determine the fee structure for

admission of students in the professional course and

different fee structure may be determined for admission of

students in different professional courses and in different

professional educational colleges or institutions. Section

10(3) of the Act states that the fee structure so determined

by the Fee Regulatory Committee shall be binding on the

unaided professional educational colleges or institutions for

a period of three years and the fee so determined shall be

applicable to a student who is admitted to a professional

educational college or institution in that academic year and

shall not be revised till the completion of his professional

course in that college or institution. Section 11(1) of the Act

provides that the Fee Regulatory Committee shall determine

and fix the fee or fees to be charged by an unaided

professional education college or institution taking into

consideration the factors mentioned therein and one of the

factors mentioned therein is the expenditure on

administration and maintenance. In accordance with these

provisions of the Act, the Fee Regulatory Committee

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determined the fees for the students of the unaided

professional educational colleges and institutions in the

State of Gujarat for the three academic years 2008-2009,

2009-2010 and 2010-2011 by different orders for different

colleges and institutions passed in the years 2009 and

2010. When the State Government accepted the

recommendations of the Sixth Pay Commission for revision

of the pay and allowances of the employees with effect from

01.01.2006, different private engineering and technical

colleges and institutions sought revision of the fees for

students admitted in their colleges and institutions before

the Fee Regulatory Committee on the ground that they have

to pay their teaching and non-teaching staff the revised pay

and allowances as per the recommendations of the Sixth

Pay Commission, but the Fee Regulatory Committee

declined to revise the fees.

4. The respondents-colleges/institutions then moved the

High Court in different writ petitions under Article 226 of

the Constitution and by the impugned orders, the High

Court held that the Self-Finance Institutions, like the

institutions of the respondents, are liable to pay salary and

6

allowances to its teaching and non-teaching staff on the

basis of the recommendations made by the Sixth Pay

Commission and the revision of pay of Teachers in

accordance with the recommendations of the Sixth Pay

Commission is one of the criteria to be taken into

consideration for determination of fee by the Fee Regulatory

Committee. The High Court, relying on its orders passed in

similar cases, set aside the orders of the Fee Regulatory

Committee and remitted the matters to the Fee Regulatory

Committee for fresh consideration and decision in

accordance with the observations made in the impugned

orders. The High Court also held that if the respondents file

undertaking that they will actually implement the

recommendations made by the Sixth Pay Commission for

their teaching and non-teaching staff, such additional

burden on account of implementation of the

recommendations of the Sixth Pay Commission shall also be

taken into consideration while deciding the fee structure

afresh by the Fee Regulatory Committee. The High Court

observed that till such orders are passed by the Fee

Regulatory Committee, the respondents shall continue to

7

collect the same fees from the students as are collected

presently under the orders of the Fee Regulatory Committee.

Aggrieved by the impugned orders of the High Court, the

Fee Regulatory Committee has filed these appeals.

5. The only contention raised before us by Dr. Rajiv

Dhavan, learned counsel appearing for the appellants, is

that the direction of this Court in Islamic Academy of

Education and Another v. State of Karnataka and Others

[(2003) 6 SCC 697] is that the fee fixed by the Committee

shall be binding for a period of three years and at the end of

the period of three years, the institution would be at liberty

to apply for revision and accordingly it has been provided in

Section 10(3) of the Act that the fee structure determined by

the Fee Regulatory Committee shall be binding on the

unaided professional educational colleges or institutions for

a period of three years and the fee so determined shall be

applicable to a student who is admitted to a professional

educational college or institution in that academic year and

shall not be revised till the completion of his professional

course in that college or institution. He submitted that

despite this statutory provision in Section 10(3) of the Act,

8

the High Court has directed to revise the fees for the

academic years 2008-2009, 2009-2010 and 2010-2011,

which had already been determined by the Fee Regulatory

Committee and which could not be revised for a period of

three years.

6. Mr. Dushyant A. Dave, learned counsel appearing for

the respondents, on the other hand, submitted that unaided

private engineering and professional colleges have to pay the

revised pay and allowances as per the recommendations of

the Sixth Pay Commission and, therefore, they are entitled

to recover the additional cost on account of payment of

revised pay and allowances from the students by enhancing

fees in accordance with the judgments of this Court in

T.M.A. Pai Foundation and Others v. State of Karnataka and

Others [(2002) 8 SCC 481], Islamic Academy of Education

and Another v. State of Karnataka and Others (supra) and

P.A. Inamdar and Others v. State of Maharashtra and Others

[(2005) 6 SCC 537].

7. We have considered the submissions of the learned

counsel for the parties and we find that Section 10(3) of the

Act reads as follows:

9 "10(3). The fee structure so determined by the

Fee Regulatory Committee shall be binding to the

unaided professional educational colleges or

institutions for a period of three years and the fee

so determined shall be applicable to a student

who is admitted to a professional educational

college or institution in that academic year and

shall not be revised till the completion of his

professional course in that college or institution."

8. Obviously, the Fee Regulatory Committee cannot

overlook the aforesaid statutory provisions in Section 10(3)

of the Act that the fee structure so determined by the Fee

Regulatory Committee shall be binding on the unaided

professional educational colleges or institutions for a period

of three years and the fee so determined shall be applicable

to a student who is admitted to a professional educational

college or institution in that academic year and shall not be

revised till the completion of his professional course in that

college or institution. The High Court, therefore, could not

have directed revision of the fees already fixed by the Fee

Regulatory Committee for the academic years 2008-2009,

2009-2010 and 2010-2011 contrary to the aforesaid

statutory provisions. Nonetheless, the unaided private

professional and technical colleges or institutions were

entitled to recover the extra cost on account of payment of

10

revised pay and allowances to the teaching and non-

teaching staff through the fees collected from the students

and this could be done only by enhancing the fees from the

students for the academic years 2011-2012, 2012-2013 and

2013-2014 and for period of three years thereafter. Exactly

how much of this cost would be recovered through the fees

collected from the students during the first period of the

three years and how much of this cost would be recovered

through fees collected from the students during the second

period of three years can only be appropriately worked out

by the Fee Regulatory Committee keeping in mind both the

interest of the colleges/institutions and the students.

9. We accordingly set aside the impugned orders of the

High Court and direct that the increase in cost suffered by

the respondents-colleges/institutions on account of the

higher pay and allowances payable to the teaching and non-

teaching staff on the basis of the recommendations of the

Sixth Pay Commission will be taken into consideration by

the Fee Regulatory Committee while determining the fees for

the academic years 2011-2012, 2012-2013 and 2013-2014

and subsequent period of three years in accordance with the

11

provisions of the Act and the observations made herein.

These appeals are allowed. There shall be no order as to

costs.

.............................J.

(R. V. Raveendran)

.............................J.

(A. K. Patnaik)

New Delhi,

October 11, 2011.