Rajeev Gandhi Memorial College Of … vs The State Of Andhra Pradesh on 14 July, 2020


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Supreme Court of India

Rajeev Gandhi Memorial College Of … vs The State Of Andhra Pradesh on 14 July, 2020

Author: Rohinton Fali Nariman

Bench: Rohinton Fali Nariman, Navin Sinha, B.R. Gavai

                                                          1

                                                                                   REPORTABLE

                                           IN THE SUPREME COURT OF INDIA

                                            CIVIL APPELLATE JURISDICTION

                                           CIVIL APPEAL NO. 2739 OF 2020
                                      (Arising out of SLP (C) No. 20049/2019)


                      RAJEEV GANDHI MEMORIAL COLLEGE OF ENGINEERING
                      AND TECHNOLOGY & ANR.                                        Appellant(s)

                                                         VERSUS

                      THE STATE OF ANDHRA PRADESH & ORS.                           Respondent(s)

                                                          WITH

                                          CIVIL APPEAL NO. 2740 OF 2020
                                     (Arising out of SLP (C) No. 20148/2019)



                                                 J U D G M E N T

R.F. Nariman, J.

                      1)    Leave granted.

                      2)    Applications for Intervention are allowed.

                      3)    The Andhra Pradesh Educational Institutions (Regulation

of Admission and Prohibition of Capitation Fee) Act, 1983

(for short “the Act”), inter alia, deals with fee fixation

insofar as unaided institutions like the present two

institutions are concerned.

4) For the years 2016-2019, so far as the petitioner in

Signature Not Verified
the first matter is concerned, the fee was fixed at
Digitally signed by
SUSHMA KUMARI
BAJAJ
Date: 2020.07.16
14:21:01 IST
Rs.86,800/-, and so far as the Petitioner in the second
Reason:

matter is concerned, it was fixed at Rs. 59,500/- per

student. Thereafter for the next block of two years i.e.
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2019-2020, proposals were made by both the petitioner in the

first matter and in the second matter asking for an increase

up to Rs. 1.35 lakhs and Rs.72,000/- respectively.

5) Rule 4 which is made under the said Act provides as

follows:-

“4. FEE FIXATION:

(i) The AFRC shall call for, from each
Institution, its proposed fee structure well in
advance before the date of issue of
notification for admission for the academic
year along with all the relevant documents and
books of accounts for scrutiny.

(ii) The AFRC shall decide whether the fees
proposed by the Institution is justified and
does not amount to profiteering or charging of
capitation fee.

(iii) The AFRC shall be at liberty to approve
or alter the proposed fee for each course to be
charged by the Institution.

Provided that it shall give the Institution
an opportunity of being heard before fixing any
fee or fees.

(iv) The AFRC shall take into consideration
the following factors while prescribing the
fee:

(a) the location of the professional
institution.

(b) the nature of the professional course,

(c) the cost of available infrastructure,

(d) the expenditure on administration and
maintenance,

(e) a reasonable surplus required for
growth and development of the
professional Institution.

(f) the revenue foregone on account of
waiver of fee, if any, in respect of
students belonging to the Schedule Caste,
Schedule Tribes and wherever applicable
to the Socially and Educationally
Backward Classes and other Economically
weaker Sections of the society, to such
extent as shall be notified by the
Government from time to time.

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(g) Any other relevant factor.

Provided that, no such fees, as may be fixed
by the AFRC, shall amount to
profiteering or commercialization of
education.

(v) The AFRC shall communicate the fee
structure as determined by it, to the
Government, for notification.

(vi) The fee or scale of fee determined by
the AFRC shall be valid for a period of three
years.

(vii)The fee so determined shall be applicable
to a candidate who is admitted to an
institution in that academic year and shall not
be altered till the completion of his course in
the institution in which he was originally
admitted. No Professional Educational
Institution shall collect at time a fee which
is more than one year’s fee from a candidate.”

6) Instead of following the drill of Regulation 4, the

State, by an order dated 23.07.2019, fixed, as an interim

measure, that the earlier fee that was prescribed for the

years 2016-19 would govern the block period of 2019 onwards

as well. A writ petition was filed dated 29.07.2019 by the

petitioners in which this interim fixation was challenged as

being violative of the aforesaid Regulation 4 set out by us

herein above.

7) After hearing all concerned parties, the learned Single

Judge’s order dated 31.07.2019 prima facie found that the

contentions of the petitioners were correct, and therefore

passed the following order:

“Having regard to the facts and circumstances
of the case considering the submissions of the
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learned counsel for the petitioners, and on
perusal of the record, in the interest of
justice, this Court felt it appropriate to
grant interim direction, as the petitioners
have shown prima facie case, balance of
convenience and irreparable loss.

Therefore, the impugned G.O.Ms.No.38 dated
23.07.2019 is suspended, pending disposal of
the writ petition.

Further, the respondents are directed to
permit the petitioners to collect the Fee
determined and submitted by the 2nd respondent,
pending adjudication of the writ petition.”

8) The Division Bench, by the impugned order dated

08.08.2019, interfered with the aforesaid Single Judge’s

interim order and “modified” the aforesaid order as follows:

“20. For the aforesaid reasons, the order of
the learned Single Judge suspending the
impugned G.O. is modified as follows:

The writ petitioners herein are permitted to
collect the fee fixed for the block period
2018-2019 for the engineering and other courses
and obtain a bank guarantee from the students
admitted in those professional courses to an
extent of 50% of the difference of fee claimed
by the writ petitioners-colleges or the fees
recommended by AFRC to the Government,
whichever is less, for the block period, 2019-
2020 to 2021-2022, which will be in force till
the new fee structure is notified by the
Government. The Advocate General informs that
the State Government will inform to the
colleges as well as to the appropriate
authorities about the fees claimed by the
colleges and recommended by AFRC. Students
shall be informed about the pendency of the
writ petition before this Court regarding fees
structure and they are not entitled to claim
any equities thereafter. We hope that the new
fee structure taking care of the students and
management shall be notified at the earliest
preferably by the end of this year. In case,
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the fee recommended and notified by the
Government is more than the fee collected
pursuant to this order, the petitioners-

educational institutions are at liberty to
invoke the bank guarantee to the extent of
difference between fee paid and in case it is
less, the petitioners shall return the amount
to the students or adjust the same, if
permissible.”

9) We have been informed that the Andhra Pradesh Higher

Education Regulatory and Monitoring Commission Act, 2019 has

since come into force on 14.08.2019, under which a Commission

is set up to determine fees, inter alia, relating to unaided

institutions. This Commission, we are reliably informed, has

been constituted with effect from October, 2019.

10) Mr. K.V. Viswanathan, learned Senior Advocate,

appearing on behalf of the Intervenor, has pointed out that a

learned Single Judge, by an order dated 07.05.2020, has

stayed the operation of fees that has been fixed by the

Government under this Act relating to the year 2019-20.

11) Mr. Mahfooz Nazki, learned counsel for the Respondent,

points out that the Single Judge’s order has since been

clarified to exclude a number of institutions. Be that as it

may, we are not today directly concerned with the 2019 Act,

which appears to be prospective in nature. The interim fee

fixed by the Andhra Pradesh Government without following the

drill of Rule 4 has correctly been found to be prima facie

illegal and has therefore correctly been suspended by the
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learned Single Judge’s order of 31.07.2019. The Division

Bench ought not to have interfered with the aforesaid order

by the impugned order dated 08.08.2019. The appeals are

allowed and the impugned order is set aside and the learned

Single Judge’s order will now continue to operate insofar as

the period of 2019 onwards is concerned until a final fee is

fixed in accordance with the requisite Act and Rules.

…………………….J.

(ROHINTON FALI NARIMAN)

…………………….J.

(NAVIN SINHA)

…………………….J.

(B.R. GAVAI)

New Delhi;

July 14, 2020.



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