YAGYA DUTT Vs. STATE OF U P

JUDGEMENT

(1.) ON 25-9-04, we had allowed the special appeal and passed the following order: "for the reasons to be recorded later, we allow the special appeal and fix an amount of Rs. 48,125/-as average, fee for students of 2003-04 batch of MBA/mca course for their first and second year course, which fee is inclusive of the average Tuition Fee, Development Fee and Other Fee. The aforesaid fee does not take into account the internal examination fee, University examination fee and insurance charges and the security and admission fee, if it has not already been paid, which amount is to be paid by the students in addition to the aforesaid amount. The students who have paid any amount towards the fee for the academic session 2003-04 (first year of the course), they shall only be required to pay the difference of amount, if any, becomes due, as per the amount which we have fixed for each of the academic years 2003-04 and 2004-05. The students, who are now pursuing the second year course and have not paid any fee, shall pay the entire amount of Rs. 48, 125. We further direct that the students, who have not paid any fee in their second year course, they shall pay the entire amount of Rs. 48,125 by 30th November, 2004. The students who have paid any amount in their second year also, the same shall be adjusted keeping in mind the average fee determined by us by the college authorities. In respect of any difference of amount of fee, which the students are required to pay for the average fee of the academic year 2003-04, the difference of the amount as against the amount paid by them in the said session and the amount determined by us aforesaid shall be paid by them within a reasonable time, say before they undertake the final examination. This provisional or tentative determination of fee is subject to final determination which may be made by the Committee and would be open to adjustment on either side i. e. in case if the determination by the Committee is less than the fee paid by the students, the respondent institution shall refund the excess amount without any delay, say within maximum period of three weeks from such determination, but in case the fee determined by the Committee is found more than the fee paid by the students, they would make the deficiency good within a maximum period of one month from the date of the said determination. All the appellants and other like students of 2003-04 batch of MBA/mca course shall give an undertaking along with a notarized affidavit of the aforesaid fact within a maximum period of three weeks from today before the Director/principal of the institution, failing which the benefit of this interim arrangement made by the Court would not be available to them and it will be open to the respondent institution to realise the fee as has been determined by them".

(2.) WE now proceed to give our reasons.

(3.) THE question has been considered by the Apex Court in various cases and/guidelines and directions have also been issued regarding the manner and the factors, which should be taken into consideration for determining such fee. In T. M. A. Pai Foundation v. State of Karnataka, 2002 (2) LBESR 933 (SC) : (2002) 8 S. C. C. 481, the Supreme Court laid down certain guidelines and issued directions for determination of fee in pursuance of which a GO. dated 2-7-03 was issued. By means of this G. O. , the fee of MBA and MCA courses was fixed at Rs. 19000/-per year per student. This G. O. was challenged by filing writ petition No. 29756 of 2003, wherein the operation of the G. O. dated 2-7-03 was stayed and the educational institutions were permitted to realise the fee from the students which they were charging in the previous year. Another writ petition was filed bearing number 3590 (MS) of 2003 before a learned Single Judge, (A. N. Varma, J.), who while asking for the affidavits, passed an order that the petitioner shall pay an amount of Rs. 7000/- (remaining fee) within 15 days. This order was apparently passed by taking into consideration the information brochure which indicated that a total amount of Rs. 40,000/- was to be deposited by a student against a free seat, wherein the fee under other categories was not considered but as a matter of fact the students were required to pay only Rs. 33,120/-at the time of admission. THErefore, this amount of Rs. 7000/-was ordered to be paid. THE interim order also took note of the interim order passed by a Division Bench (Jagdish Bhalla, J. and P. K. Chatterjee, J.) in Writ Petition No. 4326 (MB) of 2003: Babu Banarsi Das National Institute of Technology and Management and another v. State of U. P. and others, in which the Division Bench of this Court had directed that in the meantime average fee be realized. Few other writ petitions were also filed in which the learned Single Judge passed the same interim order. THE interim orders so passed made the collection and realisation of such fee subject to the decision of the Committee constituted for the purpose, with a clear direction that adjustment shall be made in accordance with the determination of fee made by the Committee. A special appeal was filed against the interim order dated 25-9-03 in Writ Petition No. 3590 (MS) of 2003; Manish Kumar Verma and others v. State of U. P. and others, which was disposed of by a Division Bench by saying that ordinarily no special appeal lies against the interim orders, and providing that appellants may file a stay vacation application alongwith counter affidavit before the learned Single Judge, which may be decided within two weeks. However, the application for vacation of the stay order could not be decided till dale. THE present writ petition being Writ Petition No. 3444 (MS) of 2004 raising the same dispute by a different set of students, was also filed which has been dismissed by the learned Single Judge and against which judgment the present special appeal has been filed.