NAITIK Vs. STATE OF HARYANA

JUDGEMENT

(1.) The forty-seven (47) petitioners are students, who have taken admission in respondent Nos. 5 to 7 private medical institutions affiliated with respondent No. 4-University, in the MBBS course from the session 2020-21. The challenge in the present petition is, inter alia, to Sec. 7 of Haryana Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Maintenance of Educational Standards) Act, 2012 (in short "the 2012 Act"), which permits the State Government to constitute a Fee and Admission Committee consisting of such members as may be notified by the State Government, on the ground that the same is ultra vires Article 14 and Article 19 (1) (g) of the Constitution of India. Further challenge is to the order dtd. 29/7/2015 (Annexure P-16/A), whereby the State of Haryana, while exercising powers under Sec. 7 of the 2012 Act, have constituted Fee Fixation Committee which consists only of the Government Officials as members. Since the petitioners have assailed the very constitution of the fee fixation committee, consequently, the fee determined vide notification dtd. 30/10/2017. The petitioners have even further assailed the Notifications dtd. 30/10/2017 (Annexure P-l), 29/10/2020 (Annexure P-2), 13/11/2020 (Annexure P-3) and Notification dtd. 29/12/2020 (Annexure P-4), whereby the fees for the private unaided medical colleges has been determined by the Fee Fixation Committee, as constituted by the State of Haryana vide order dtd. 29/7/2015.

(2.) In addition to above, the Notification dtd. 29/12/2020 (P-4) has been assailed on the grounds of interfering with the process of admission session 2020-21 mid-stream, as majority of the admissions had already taken place under the notification (P-4) as amended vide corrigendum dtd. 13/11/2020 (P-3).

(3.) To the extent vires of Sec. 7 of the 2012 Act is under challenge, prima facie, we are not impressed with the arguments so raised in support of challenge to Sec. 7, to the effect that comprising of only the Government Officials makes the Fee and Admission Committee illegal. The Hon'ble Supreme Court in T.M.A. Pai Foundation vs. State of Karnataka, 2002 (8) SCC 481 has held that a rational fee structure should be adopted by the management which would not include any capitation fee or intention of profiteering. The State is empowered to devise appropriate machinery so as to ensure that no capitation fee is charged and there is no profiteering by the institutions. In Islamic Academy of Education vs. State of Karnataka 2003 (6) SCC 697, case also the Hon'ble Supreme Court observed that there can be no fixing of any rigid fee structure by the Government and that each institute must have freedom to fix its own fee structure. But at the same time, it was observed that the Government/appropriate authorities should consider framing appropriate regulations, if not already framed to ensure that no profiteering or capitation fee is charged by an Institute. The committees so constituted in the Islamic Academy's case (supra) by the Hon'ble Supreme Court were only transitionary in nature, as held by the Hon'ble Supreme Court in P.A. Inamdar vs. State of Maharashtra, 2005 (6) SCC 537. In P.A. Inamdar's case (supra), it has been observed that the committees constituted in Islamic Academy's case (supra) are as an ad hoc arrangement until a suitable legislation or regulation is framed by the State. Further in paragraph 141 of P.A. Inamdar's case (supra), it has been observed that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. Similar view has been taken in Modern Dental College and Research Centre vs. State of Madhya Pradesh, 2016 (7) SCC 353, wherein it has been observed that though no rigid fee is can be forced upon an Institute, however, the State is to act as a regulator and satisfy itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee etc. is charged. The Hon'ble Supreme Court further observed that to ensure that neither the merit is compromised nor any capitation fee is charged, the State should introduce regulatory measures at the initial stage itself. The Hon'ble Supreme Court deprecated the argument by the private institutions to the extent that post audit measures would meet the regulatory requirements, as control is required at the initial stage itself.