1. Office orders dated 27.9.2012 and 9.5.2013 notifying the enhancement of examination fees by Chhatrapati Sahuji Maharaj University, Kanpur in respect of the students of under graduate level of the affiliated colleges from Rs.250/- to Rs.685/- and imposition of practical/oral examination fees of Rs.100/- per student is subject matter of challenge in the instant batch of writ petitions. In some cases, relief for quashing the decision of the Executive Council dated 30.3.2012, in pursuance whereof fees was enhanced, has also been sought. Since common questions of fact and law arise for consideration and therefore, with consent of learned counsel for the parties, these writ petitions were heard together and are being decided by this common judgment.
2. Chhatrapati Sahuji Maharaj University, Kanpur1 is an 'existing University' within the meaning of Section 2(8) of the Uttar Pradesh State Universities Act, 19732. Until the year 2010, the University was charging examination fee of Rs.250/- per student uniformally from government aided colleges and colleges which do not receive grant-in-aid and are self financed institutions. For the academic session 2011-12, the University enhanced the examination fees for students of self financed courses to more than four times, whereas the fees for government aided colleges remained unchanged. It was subject matter of challenge in a writ petition3. This Court being satisfied that the action of the University in imposing higher fee for students studying in colleges not receiving government aid is exfacie discriminatory, stayed the imposition of such fees. The Court, while granting interim order, noted the stand taken by the University that Executive Council, in its meeting dated 20.1.2012, had resolved to reduce the fees and the matter had been referred to the Finance Committee. It seems that thereafter the Finance Committee, in its meeting held on 28.3.2012, decided to charge a uniform examination fees of Rs.685/- from all students irrespective of whether they were studying in affiliated colleges receiving grant-in-aid or those which were being run under the self financed model. The decision of the Finance Committee dated 28.3.2012 was endorsed by the Executive Council in its meeting dated 30.3.2012. The decision in that regard was to be enforced since the academic session 2012-13, after the final decision in Writ-C No.46324 of 2011. Thus, the fees for the academic session 2011-12 remained unchanged. In view of it, the writ petition aforesaid was allowed on 29.8.2012 taking note of the decision of the Finance Committee. The enhancement of fee for the students studying in self financed courses was quashed. After the disposal of the writ petition, the decision of the Finance Committee dated 28.3.2012 and Executive Council dated 30.3.2012 were effectuated by issuing office order dated 27.9.2012 prescribing examination fee of Rs.685/-, and oral/practical examination fees of Rs.100/- per student. The aforesaid fee structure came into force from academic session 2012-13 and is in vogue as on date.
3. Later on, the Executive Council of the University imposed an additional fee of 5% of the fees realised, as administrative charges, on the students of self financed institutions. The same was again subject matter of challenge in several writ petitions before this Court and ultimately, the University was compelled to withdraw the impost in view of interim orders passed in those petitions.
4. The petitioners, who are self financed institutions and in one petition, two of the students studying in these institutions, have assailed the aforesaid fee structure primarily on the ground that no Ordinance has been framed by the University as contemplated by Section 52 (3) of the Act and thus, the demand is dehors the provisions of the Act. It is urged that enhancement of fees could only be made in pursuance of an Ordinance framed by virtue of power under Section 51 (2) (j), in the manner provided by Section 52. In the submission of learned counsel for the petitioners, an Ordinance relating to the fees pertains to the income of the University and thus, in view of proviso to sub-section (3) of Section 52, it requires a prior approval of the State Government. It is submitted that in the instant case, no approval of the State Government having been obtained by the University, it was not competent to issue the impugned office order merely on the basis of the decision of the Executive Council. It is further submitted that the decision of the Executive Council dated 30.3.2012 approving the proceedings of the Finance Committee dated 28.3.2012 does not amount to framing of an Ordinance as contemplated by the Act. Consequently, issuance of office order dated 27.9.2012 merely on the basis of the decision of the Executive Council dated 30.3.2012 does not have any legal sanctity, nor could be made basis for realising enhanced fees.
5. On the other hand, Sri Ravi Kant, learned senior counsel assisted by Sri Neeraj Tiwari appearing on behalf of the University submitted that the Executive Council of the University is competent to amend and frame new Ordinances and the impugned decision has been taken by the Executive Council in recourse to such power conferred on it. In his submission, an ordinance framed by the Executive Council is referable to Section 51 (2) (j) and for framing such an Ordinance, the approval of the State Government is not required, inasmuch as charging of the fees is ancillary to the essential function of the University to hold examinations under Section 7 (4) and would thus not fall under clause (c) of the proviso to sub-section (3) of Section 52. To buttress the aforesaid submission, he placed reliance on various other provisions of the Act, particularly Sections 7, 21, 26, 51 and 52.
6. For appreciating the controversy, certain provisions of the Act which are relevant may be noted. Section 7 deals with the powers and duties of the University and clause (4) thereof empowers the University to hold examinations and to confer degrees, diplomas and other academic distinctions, inter alia, on persons who have pursued a course of study in the University or an affiliated college. Clause (14) empowers the University to "demand and receive such fees and other charges as may be fixed by the Ordinances". Section 9 enumerates the officers of the University. Section 19 speaks about the Authorities of the University which, inter alia, includes the Executive Council and the Finance Committee. The Executive Council is the principal executive body of the University and its constitution is provided under Section 20. Section 21 enumerates the powers of the Executive Council to be exercised subject to the provisions of the Act. Clause (7) of sub-section (1) of Section 21 empowers the Executive Council to fix the fees, emoluments and traveling and other allowances of the examiners. Clause (xvii) invests in the Executive Council the residuary powers to regulate and determine all other matters concerning the University as well as affiliated colleges in accordance with the Act, the statutes and the Ordinances. The constitution of the Finance Committee is provided under Section 26. A proposal having financial implication cannot be taken up for consideration by the Executive Council unless it has been recommended by the Finance Committee.
7. Section 51 of the Act deals with Ordinances. The relevant part whereof is as under:-
"51. Ordinances.- (1) Subject to the provisions of this Act and the Statutes the Ordinances may provide for any matter which by this Act or the Statutes is to be or may be provided for by the Ordinances.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Ordinance shall provide for the following matters, namely-
(a).....................................
(j) the fees which may be charged by the University or by an affiliated or associated college for any purpose;
(o) all other matters which by this Act or the Statutes are to be or may be provided for by the Ordinances."
8. Section 52 embodies the procedure according to which Ordinances are to be framed. Sub-section (1) stipulates that First Ordinances of each existing University shall be the Ordinances as in force immediately before the commencement of the Act. The Chancellor has been given power to make such adaptations and modifications by way of repeal, amendment or addition, as may be necessary. Sub-section (2) permits the State Government to frame First Ordinances for the Universities of Kumaun and Garhwal and of any other University that may be established after the commencement of the Act. Sub-section (3) to (7) of Section 52 provide the manner in which new or additional Ordinances could be made or the existing one amended or repealed. For convenience of reference, these provisions are reproduced below:-
"Ordinance how made:- ......... ...............................
(3) Save as otherwise provided in this section, the Executive Council may, from time to time, make new or additional Ordinances or may amend or repeal the Ordinances referred to in sub-sections (1) and (2):
Provided that no Ordinance shall be made-
(a) affecting the admission of students, or prescribing examinations to be recognized as equivalent to the University examinations or the further qualifications mentioned in sub-section (1) of Section 45 for admission to the degree courses of the University, unless a draft of the same has been proposed by the Academic Council; or
(b) effecting the conditions and mode of appointment and duties of examiners and the conduct or standard of examinations or any course of study except in accordance with a proposal of the Faculty or Faculties concerned and unless a draft of such Ordinance has been proposed by the Academic Council; or
(c) effecting the number, qualifications and emoluments of teachers of the University or the income or expenditure of the University, unless a draft of the same has been approved by the State Government.
(4) The Executive Council shall not have power to amend any draft proposed by the Academic council under sub-section (3) but may reject it or return to the Academic Council for reconsideration either in whole or in part together with any amendments which the Executive Council may suggest.
(5) All Ordinances made by the Executive Council shall have effect from such date as it may direct and shall be submitted as soon as may be to the Chancellor.
(6) The Chancellor may, at any time signify to the Executive Council his disallowance of such Ordinances other than those referred to in clause (c) of the proviso to sub-section (3) and from the date of receipt by the Executive Council of intimation of such disallowance, such Ordinances shall become void.
(7) The Chancellor may direct that the operation of any Ordinance other than those referred to in clause (c) of the proviso to sub-section (3) shall be suspended until he has an opportunity of exercising his power of disallowance. An order of suspension under this sub-section shall cease to have effect on the expiration of one month from the date of such order."
9. It is no more res-integra that the fees could only be imposed by the University by framing an Ordinance. A Division Bench of this Court in Special Appeal No.5 of 2015 M.J.P. Rohilkhand University Vs. Self Financed Colleges Welfare Association decided on 3.8.2015 has held that a development fee could be imposed by M.J.P. Rohilkhand University, which is governed by the Act, only by framing an Ordinance. It is held as under:-
"In the present case, the Development fee which is being charged from the students of self financed institutions clearly does not fulfill the description of a fee of an examiner under clause (viii) of Section 21 (1). While undoubtedly the Executive Council has the power to regulate and determine all other matters concerning the University and its constituent and affiliated colleges, this power has to be exercised in accordance with the provisions of the Act, Statutes and Ordinances. Under Section 51 (1) subject to the provisions of the Act and the Statutes, the Ordinances may provide for any matter which by the Act or the Statutes is to be or may be provided for by the Ordinances. Without prejudice to the generality of that power in sub-section (1), clauses (a) to (o) to sub-section (2) of Section 51 provide for the matters in respect of which Ordinances can be framed. Clause (j) to sub-section (2) of Section 51 covers the fees which may be charged by the University or by an affiliated or associated college for any purpose. Hence, fees which can be charged by the University or, for that matter, by affiliated or associated colleges have to be regulated by Ordinances under Section 51 (2) (j). The proviso to sub-section (3) of Section 52 stipulates that no Ordinance can be made effecting the income or expenditure of the University, unless a draft thereof has been approved by the State Government. A draft Ordinance proposing to enhance the fees of the University would therefore require the approval of the State Government before the Ordinance is made effective. Admittedly no Ordinance has been made for the levy of a Development fee. Hence, having adverted to the legal position which was expounded by the learned Single Judge, we see no reason to differ with the view which has been taken."
(emphasis supplied)
10. It is not in dispute between the parties that fees, by whatever name called, could only be imposed by framing an Ordinance. The real issue between the parties is whether for framing Ordinance in that regard, prior approval of the State Government is required or not. According to learned counsel for the University, the fees which may be charged by the University or an affiliated or associated college, is not covered by the phrase "income or expenditure of the University" as employed in Section 52(3) and thus, does not require prior approval of the State Government. In his submission, holding of examinations is integral part of the duties of a University and demand of fees in that regard does not amount to an income of the University. In order to fortify the said submission, reliance has been placed on clause (14) of Section 7, which empowers the University to demand and receive fees and other charges. It is submitted that in respect of demand for other charges which may constitute income of the University, approval of the State Government may be required, but not for charging the fees. It is urged that in respect of matters which require prior sanction or approval of the State Government, the same is specifically provided under sub-sections (2), (3), (3-A) and (4) of Section 21. However, for enhancing the fees or for imposing an additional fees, no approval is required to be obtained from the State Government. It is submitted that any other interpretation will lead to unnecessary complications in the running of the University and the affiliated or associated colleges. It is urged that the Division Bench judgment in the case of M.J.P Rohilkhand University (supra) was in relation to development fees, which is quite different from the examination fees and other fees that are under consideration in the instant matter. It is further pointed out that the aforesaid judgment proceeds on the assumption that fees is covered by the phrase "income and expenditure" and thus, cannot be considered to be an authority on the issue in hand.
11. Section 52 prescribes different procedures for making new or additional Ordinances or for amending or repealing the existing Ordinances. The procedure to be adopted is dependent on the subject matter of the Ordinance. An Ordinance affecting the admission of students or prescribing examinations to be recognised as equivalent to the University examination or further qualifications mentioned in sub-section (1) of Section 45 for admission to degree courses of the University, those effecting the conditions and mode of appointment and duties of examiners and the conduct or standard of examinations or of any course of study should emanate from the Academic Council. It interalia comprises of the Vice Chancellor, Dean of all Faculties, Head of Departments of the University, Professors of the University, Principals of constituent colleges, affiliated colleges, associated colleges, Dean of Student Welfare, Librarian of the University, 15 teachers to be selected in the manner prescribed and five persons of academic eminence. The Academic Council is thus an expert body of the University conferred with the power to control and regulate the standard of instruction, education and research. Consequently, matters touching upon these subjects should emanate from the Academic Council in the shape of a draft Ordinance and then only the Executive Council can deliberate over it and give shape of Ordinance to it.
12. An Ordinance effecting the number, qualifications and emoluments of teachers of the University or the income or expenditure of the University could only be made after a draft of the same has been approved by the State Government. All these subjects, except qualifications of teachers, have financial implications. In these matters, the State Government has reserved the power to approve the draft Ordinance before it is taken up for deliberation by the Executive Council. It is clear from the scheme of the Act that the State Government has reserved with it the power to accord sanction/approval to the University in discharge of some of its important functions. Under sub-section (2) of Section 21, no immovable property of the University could be transferred except with the prior sanction of the State Government. Similarly, no money could be borrowed or advance taken on security except as a condition of receipt of any grant-in-aid without the previous sanction of the State Government. Sub-section (3) of Section 21 forbids expenditure in respect of which approval of State Government is required under the Act, the Statutes or the Ordinances. It also forbids creation of any post in the University or constituent college except with the prior approval of the State Government. The pay and allowances of various categories of the employees of the University or any Institute or constituent college or affiliated or associated college shall be such as would be approved by the State Government. Sub-section (5) of Section 21 forbids the Executive Council from exceeding the limits of recurring and non-recurring expenditure to be incurred in each financial year fixed by the Finance Committee.
13. Sub-section (4) of Section 26 places a restriction on the power of the Executive Council to take any decision in matters having financial implication without there being a recommendation by the Finance Committee. In case of difference of opinion, the matter has to be sent back to the Finance Committee and if Executive Council again disagrees with the recommendations of the Finance Committee, the matter has to be referred to the Chancellor, whose decision thereon is final. The Finance Committee, by virtue of Section 26, comprises of two representatives of the State Government namely, the Secretary to the State Government in the Higher Education Department and the Secretary to the State Government in the Finance Department. Thus, it is amply borne out from the scheme of the Act that in all matters having financial implications, the State Government exercises control over the authorities of the University either directly or through its representatives in the Finance Committee.
14. Concededly, in the instant case, the proposal for enhancement of fees emanated from the Finance Committee in its meeting dated 11.2.2010, whereby it proposed to enhance examination fees of students pursuing self financed courses in affiliated colleges. Subsequently, in view of challenge laid to the enhancement in Writ-C No.46324 of 2011, the matter was once again sent for reconsideration by the Finance Committee. This was definitely for the reason that enhancement of fee or imposition of any new fees had financial implications affecting the income and expenditure of the University. Although, the examination fees realised by the University may not have an element of profit but nonetheless it constitutes a part of the income of the University. The mere use of the word 'fees and other charges' in clause (14) of Section 7 does not lend support to the argument of learned counsel for the respondents that fees has been used in contradistinction to the phrase 'income'. In fact, such argument may be true in respect of 'other charges' which the University can impose apart from fees but in the opinion of the Court, both these impost constitute part of the income of the University. They both have financial implications and thus, for framing an Ordinance touching upon these subjects, the recommendation has to emanate from the Finance Committee as provided under Section 26 (4) and the draft Ordinance should have prior approval of the State Government by virtue of clause (c) of the Proviso to sub-section (3) of Section 52 of the Act. The phrase "income or expenditure" is wide enough to take within its ambit all sources of income including the income derived from fees. There is nothing in the Scheme of the Act which could lead to the inference that "fees" is a separate category, not covered by the phrase "income or expenditure".
15. In the instant case, concededly, the recommendation though had the backing of the Finance Committee but was not got approved from the State Government. In such view of the matter, the office orders dated 27.9.2012 and 9.5.2013 cannot have any legal force, nor can the decision of the Executive Council taken in its meeting dated 30.3.2012 result in framing of a valid Ordinance. Consequently, the decision of the University to enhance the fees, cannot be sustained.
16. Irrespective of what has been held above, assuming that the Ordinance regulating fees does not require prior approval of the State Government, the procedure prescribed under sub-section (5) of Section 52 is to be followed. Thereunder, all Ordinances made by the Executive Council shall have effect from such date as it may direct and are required to be submitted as soon as may be to the Chancellor. The Chancellor is invested with the power to signify his disallowance of such Ordinance and from the date of receipt by the Executive Council of intimation of such disallowance, such Ordinances are rendered void. Sub-section (7) confers power on the Chancellor to suspend operation of an Ordinance pending decision relating to disallowance.
17. In the instant case, the decision of the Executive Council taken in the meeting held on 5.3.2010, whereby it approved the recommendation of the Finance Committee to enhance fees of students of only self financed courses was communicated to the Chancellor by letter dated 29.4.2010. However, the aforesaid decision of the Academic Council was rolled back. The Finance Committee made fresh recommendations on 28.3.2012 proposing levy of uniform examination fees on all students, irrespective of whether the course is self financed or government aided. It was approved by the Executive Council in its meeting held on 30.3.2012. There is no material on record, nor even the case of the respondent University that the decision of the Executive Council taken in the meeting dated 30.3.2012 was communicated to the Chancellor as required by Section 52 (5) of the Act. Since thereafter, considerable time had elapsed and thus, it can safely be inferred that the decision of the Executive Council dated 30.3.2012 was never communicated to the Chancellor.
18. Under the scheme of the Act, the framing of the Ordinance is an exercise to be held by the Executive Council but it is hedged with a mechanism of check and balance. In matters relating to the academics and maintenance of standard of instructions, the proposal for framing an Ordinance has to emanate from the Academic Council. The same is the position in relation to the matters relating to conditions and mode of appointments and duties of examiners and the conduct or standard of examinations. In cases effecting the number, qualifications and emoluments of teachers or income or expenditure of the University, the draft Ordinance should have prior approval of the State Government. There is a further mechanism of check and balance on the power of the Executive Council to frame Ordinances in all matters except those referred to in clause (c) of proviso to sub-section (3) by conferring power on the Chancellor to disallow an Ordinance framed by the Executive Council. Thus, even in case it is assumed that the Ordinance in relation to fees is not covered by clause (c) of the proviso to sub-section (3), it should have been communicated to the Chancellor so as to give him an opportunity to exercise his power of disallowance. The same having not been done in the instant case, in the opinion of the Court, the decision of the Executive Council was not sufficient for giving birth to a valid Ordinance.
19. The question that would still require to be considered is the relief to which the petitioners are entitled to. In the writ petitions, the petitioners have prayed for refund of the examination fees which they have deposited. In all the writ petitions, barring one petition where two of the students are also before this Court, the petitioners are affiliated colleges. The students, who have allegedly deposited the fees, are not before this Court. The date relating to the deposit of fee by the institutes and other material particulars in that regard are lacking. It is also not clear as to how the institutes would refund the fees to the students from whom it had already been realised. In the absence of these material particulars, in case the University is directed to refund the fees already realised, it would result in unjust enrichment by the petitioners. This Court, while deciding Special Appeal No.5 of 2015 relating to imposition of development fee by the respondent University, had not approved the direction issued by learned Single Judge to refund the fees to the students.
20. Following the course adopted by the Division Bench in the aforesaid special appeal, this Court, while declines to grant the relief of refund of fees already deposited, upholds the challenge laid to the decision of the Executive Council and the consequential office orders relating to enhancement of fees under various heads. However, in respect of petitioners no.14 and 15, who are students of B.A. II Year and B.Sc. Part I respectively in the institute petitioner no.13 in Writ Petition No.55652 of 2015, will be entitled to refund of excess fees deposited in pursuance of the impugned orders.
21. The writ petitions consequently stand allowed to the extent indicated above.
22. In the facts and circumstances of the instant case, there shall be no order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 8.1.2016 SL