# Indian Instt. Of Mangement & Engineering Society & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 1329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-20
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indian-instt-of-mangement-engineering-society-anr-v-state-of-u-p-ors-44197
- **Pages:** 13

## Headnote

Education Law - Private Technical Institutions - Fee fixation - Statutory obligation of
Committee - Fee Fixation Committee failed to determine fee for session 2016-17 and directed institutions to
continue with fee fixed for 2013 citing paucity of time - Held, Committee is under statutory obligation under
U.P. Act, 2006 and Regulations, 2015 to determine fee periodically - Failure to exercise such jurisdiction
arbitrary and unsustainable.

Education Law - Fee regulation - Scope - Freedom of institutions - Private unaided institutions
have autonomy to propose fee structure subject to regulation against profiteering and capitation fee -
Committee's role is regulatory and not to impose outdated fee structure affecting quality of education -
Fixation must consider infrastructure, expenditure and reasonable surplus.

Education Law - Standard Fee - Concept - Validity - Attempt to apply previously determined fee
uniformly as "Standard Fee" without fresh determination - Held, concept misconceived and contrary to
statutory scheme and Supreme Court precedents - Fee must be institution-specific.

Administrative Law - Non-application of mind - Arbitrariness - Committee failed to consider
proposal and material submitted by institution - Decision taken without proper evaluation of relevant factors
- Action arbitrary and violative of statutory mandate.

Writ Jurisdiction - Mandamus - Enforcement of statutory duty - Where authority fails to discharge
statutory function, High Court justified in issuing mandamus directing performance of duty - Alternative
remedy not a bar where no determination made.

In Result: Writ petition allowed; impugned order quashed; Committee directed to determine fee for session
2016-17 within stipulated time; fee charged to remain provisional subject to final determination.

Cases cited:
1330 INDIAN LAW REPORTS ALLAHABAD SERIES

T.M.A.Pai. Foundation v. State of Karnataka(2002) 8 SCC 481
Islamic Academy of Education and another v. State of Karnataka and others(2003) 6 SCC 679
P.A. Inamdar and others v. State of Maharashtra and others(2005) 6 SCC 537
U.P. State Spinning Co. Ltd. v. R.S. Pandey and another(2005) 8 SCC 264
Ram and Shyam Co. v. State of Haryana(1985) 3 SCC 267
State of U.P. v. Indian Hume Pipe Co. Ltd.(1977) 2 SCC 724

## Text

8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1329
(2016) 8 ILRA 1329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ C No.- 32744 Of 2016

Indian Instt. Of Mangement & Engineering Society & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Yash Tandon,Anurag Khanna

Counsel for the Respondents:
C.S.C., Neeraj Tiwari

Education Law - Private Technical Institutions - Fee fixation - Statutory obligation of
Committee - Fee Fixation Committee failed to determine fee for session 2016-17 and directed institutions to
continue with fee fixed for 2013 citing paucity of time - Held, Committee is under statutory obligation under
U.P. Act, 2006 and Regulations, 2015 to determine fee periodically - Failure to exercise such jurisdiction
arbitrary and unsustainable.

Education Law - Fee regulation - Scope - Freedom of institutions - Private unaided institutions
have autonomy to propose fee structure subject to regulation against profiteering and capitation fee -
Committee's role is regulatory and not to impose outdated fee structure affecting quality of education -
Fixation must consider infrastructure, expenditure and reasonable surplus.

Education Law - Standard Fee - Concept - Validity - Attempt to apply previously determined fee
uniformly as "Standard Fee" without fresh determination - Held, concept misconceived and contrary to
statutory scheme and Supreme Court precedents - Fee must be institution-specific.

Administrative Law - Non-application of mind - Arbitrariness - Committee failed to consider
proposal and material submitted by institution - Decision taken without proper evaluation of relevant factors
- Action arbitrary and violative of statutory mandate.

Writ Jurisdiction - Mandamus - Enforcement of statutory duty - Where authority fails to discharge
statutory function, High Court justified in issuing mandamus directing performance of duty - Alternative
remedy not a bar where no determination made.

In Result: Writ petition allowed; impugned order quashed; Committee directed to determine fee for session
2016-17 within stipulated time; fee charged to remain provisional subject to final determination.

Cases cited:
1330 INDIAN LAW REPORTS ALLAHABAD SERIES

T.M.A.Pai. Foundation v. State of Karnataka(2002) 8 SCC 481
Islamic Academy of Education and another v. State of Karnataka and others(2003) 6 SCC 679
P.A. Inamdar and others v. State of Maharashtra and others(2005) 6 SCC 537
U.P. State Spinning Co. Ltd. v. R.S. Pandey and another(2005) 8 SCC 264
Ram and Shyam Co. v. State of Haryana(1985) 3 SCC 267
State of U.P. v. Indian Hume Pipe Co. Ltd.(1977) 2 SCC 724

(Delivered by Hon'ble Suneet Kumar, J.)

1. Rejoinder affidavit filed today, is taken on record.

2. Indian Institute of Management & Engineering Society, Ghaziabad, duly registered
under the Societies Registration Act, 1860, has established, in 1998, an Institution in the name &
style 'Ajay Kumar Garg Engineering College, Ghaziabad1, which offers B.Tec, M.Tec and M.C.A.
Courses. The Institution is duly recognized by the All India Council for Technical Education
(AICTE) and affiliated to Dr. A.P.J. Abdul Kalam Technical University, Lucknow2.

3. Students admitted by the Institution for the aforementioned courses for 2016-17 are as
follows:

1. B.Tech - 960 students

2. M.Tech - 114 students

3. M.C.A. - 120 students

4. It is contended that the petitioner-Institution is one of the best and reputed Engineering
Institution in the State of U.P. and offers the highest quality of education; provides state of art
facilities in terms of infrastructure and teaching. The Institution has received the Academic
Excellence Award for the best Engineering College by Technical University from the Governor of
the State of Uttar Pradesh for two consecutive years i.e. 2008 and 2009. Further, the Institution is
accredited by "National Assessment and Accreditation Council (NAAC) which is an autonomous
Institution of the University Grants Commission. The accreditation by NAAC is for a period of five
years with effect from 3 March 2015. B.Tech course is duly accredited by the National Board of
Accreditation (NBA) since 2006 and vide communication dated 14 April 2016, the NBA has again
provided accreditation for two more years w.e.f. 1 July 2016.

5. The petitioner-Institution has approached this Court assailing the order dated 22 June
2016 passed by the third respondent-Special Secretary, Government of Uttar Pradesh, Lucknow,
whereby, the private technical institutions in the State, including the petitioner-Institution, has been
directed to charge fee for session 2016-17 as determined earlier by the Committee for session 201213.
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1331
6. Sri Anurag Khanna, Senior Advocate assisted by Sri Yash Tandon, learned counsel
appearing for the petitioner would submit :

(i) the Committee as required under the Act, Rules and Regulation has not
determined the fee for session 2016-17;

(ii) the last determination was done for session 2012-13, which was valid for three
academic session;

(iii) the Institution has sought enhancement of the fee @ Rs.1,74,000/- per annum
per student for session 2016-17 which has not been considered by the Committee;

7. In rebuttal, Sri Ashok Kumar Pandey, learned Additional Advocate General appearing on
behalf of the State would contend that:

(i) the Committee has determined the fee and in case, the Institution has any
objection, it may approach the Committee under Regulation 4(3) of the Uttar Pradesh Private
Technical Educational Institutions (Regulation of Admission and Fixation of Fee) Regulations,
20153 for enhancement;

(ii) upon decision of the Committee, the petitioner would have an alternative
remedy to prefer an appeal before the Tribunal;

(iii) the fee could not have been determined by the Committee under the Act and
Regulations for paucity of time, therefore, the fee already determined in 2013 for respective
technical institutions has been made applicable for the session 2016-17 alone;

(iv) the Committee has undertaken the task of fee fixation for the session 2017-18.

8. Sri Neeraj Tiwari, learned counsel appearing for the second respondent-Technical
University would contend that the last date for admission of the students in B.Tech, M.Tech and
M.C.A. courses was 15 August 2016, as such, admissions have already been closed; Institution,
therefore, is not entitled for enhancement of fee.

9. Rival submissions fall for consideration.

10. The sole question that arises for determination is as to whether the Committee
constituted under the Regulations has determined the fee to be charged by the private technical
institution for the session 2016-17.

11. Pursuant to decision rendered by the Supreme Court in T.M.A.Pai. Foundation v. State
of Karnataka4, Islamic Academy of Education and another v. State of Karnataka and others5,
and P.A. Inamdar and others v. State of Maharashtra and others6, the State enacted the Uttar
1332 INDIAN LAW REPORTS ALLAHABAD SERIES

Pradesh Private Professional Educational Institutions (Regulation of Admission and Fixation of
Fee) Act, 20067 for the regulation of admission and fixation of fee in private professional
educational institutions and the matters connected therewith or incidental thereto. The Act was
enforced on 10 July 2006. Pursuant thereof, the State Government framed Uttar Pradesh Private
Professional Educational Institutions (Regulation of Admission and Fixation of Fee) (Constitution
of Committee) Rules, 20088. The Government vide order dated 27 June 2008 constituted a Fee
Fixation Committee, which determined the fee at Rs.81,200/- for the Institution for session 2010-11
to 2012-13, by enhancing it from Rs.75,000/- per student charged earlier. Thereafter, the
Committee for session 2013-14 to 2015-16 enhanced the fee by almost 20% and fixed it at
Rs.97,100/- per student per year for the courses. Consequently, the Committee was required to fix
the fee for session 2016-17 to 2019-20, therefore, proposals were invited from the institutions for
determination of the fee. The Chairman of the Committee, Special Secretary, Technical Education,
Government of U.P., Lucknow vide communication dated 2 March 2016 addressed to the Director
of the petitioner-Institution sought details under 10 heads so as to determine the fee for session
2016-17. Pursuant thereof, the petitioner-Institution vide proposal dated 21 March 2016 claimed
enhancement of fee @ Rs.1,74,000/- per student per annum. The details, as sought was furnished,
which include expenses on teaching staff, expenses on non teaching staff, investment on computer
systems, investment on college building, investment on library books, investment on furniture,
investment on lab etc. Depreciation chart for the Financial Year 2014-15 to 2019-20, cash-book for
the year 2014-15 and the details of loan taken by the petitioner-Institution, audited balance sheet,
computation of proposed fee for the period 2016-17 to 2019-20, increase in Direct Operating
Expenditure from 2011-12 to 2014-15 and increase in D.A. rate from July 2012 to July 2015 by the
State Government was furnished with the proposal.

12. The State in the counter affidavit filed on behalf of respondents no. 1 & 3, would
contend that there are 700 technical private institutions in the State, therefore, in order to fix the
Standard Fee for the institutions; on random basis, 24 institutions including that of the petitioner
were asked to furnish the details vide communication dated 2 March 2016. It is contended that only
5 institutions responded to the communication by submitting their proposal as required. This fact
has been noted in the meeting held on 14 June 2016 by the Sub Committee appointed by the
Committee to suggest the fee for session 2016-17. The Sub Committee would record that the fee
fixed for various institutions range between Rs.26,400.00 to Rs.97,100.00 for 24 institutions, which
were communicated to submit their proposal, out of which only five institutions responded. In
respect of the petitioner-Institution it has been noted that the Institution towards salary of teachers
have proposed expenses at Rs.16.92 Crores. As per information furnished to the Technical
University there are 240 teachers, whereas, upon verification, only 215 teachers are qualified who
have a valid PAN card and are working in the Institution, 22 teachers do not fulfill the required
qualification and PAN card of three teachers were not valid. Therefore, an inference was drawn that
the qualification of the teachers, their actual numbers and the sum paid towards salary and other
expenses incurred upon the teachers and staff appears to be doubtful. The actual number of the
teachers working in the Institution is less than the number of teachers that has been proposed by the
Institution, therefore, the Committee was of the opinion that the exercise of fee fixation since being
time consuming, it was not in a position to determine the fee for 2016-17, accordingly, resolved
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1333
that in the interest of the students and considering the paucity of time, the fee already determined
and fixed in 2013 would be charged by the respective institutions for 2016-17. The proposal of the
Sub Committee was accepted by the Fee Fixation Committee in its resolution dated 15 June 2016.
Pursuant thereof, the impugned order has been passed.

13. Per contra, the petitioner-Institution would contend that the Committee has not perused
the proposal submitted by it, rather the Committee has placed reliance on the information available
on the portal of the Technical University which is factually incorrect. The proposal, which is
available on record, would reflect that the Institution has 209 teachers, 211 non teaching staff,
strength of students since 2011-12 to 2014-15 being 3863 which gradually increased from 2942
students. The break up of students in various courses since 2011-12 has gradually increased, details
have been furnished in the proposal. It is, therefore, contended that there has been total non
application of mind by the Committee, the opinion has been expressed without examining the
proposal and documents in support thereof.

14. In the case of Islamic Academy, one of the questions posed before the Supreme Court
was "whether educational institutions are entitled to fix their own fee structure". The Court held
that each institute must have the freedom to fix its own fee structure taking into consideration the
needs to generate funds to run the institution and to provide facilities necessary for the benefit of
the students. They must also be able to generate surplus which must be used for the betterment and
growth of the educational institution, however, there can be no profiteering and capitation fees
cannot be charged.

"So far as the first question is concerned, in our view the majority judgment is very
clear. There can be no fixing of a rigid fee structure by the government. Each institute must have
the freedom to fix its own fee structure taking into consideration the need to generate funds to run
the institution and to provide facilities necessary for the benefit of the students. They must also be
able to generate surplus which must be used for the betterment and growth of that educational
institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on
the fees to be charged must necessarily be left to the private educational institutions that do not seek
and which are not dependent upon any funds from the Government. Each institute will be entitled
to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the
infrastructure and facilities available, the investments made, salaries paid to the teachers and staff,
future plans for expansion and/or betterment of the institution etc. Of course there can be no
profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the
majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit
that can be generated must be only for the benefit/use of that educational institution. Profits/surplus
cannot be diverted for any other use or purpose and cannot be used for personal gain or for any
other business or enterprise. .................. Each educational Institute must place before this
Committee, well in advance of the academic year, its proposed fee structure. Along with the
proposed fee structure all relevant documents and books of accounts must also be produced before
the committee for their scrutiny. The Committee shall then decide whether the fees proposed by
that institute are justified and are not profiteering or charging capitation fee. The Committee will be
1334 INDIAN LAW REPORTS ALLAHABAD SERIES

at liberty to approve the fee structure or to propose some other fee which can be charged by the
institute. The fee fixed by the committee shall be binding for a period of three years, at the end of
which period the institute would be at liberty to apply for revision. Once fees are fixed by the
Committee, the institute cannot charge cither directly or indirectly any other amount over and
above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g.
donations the same would amount to charging of capitation fee."

15. In P.A. Inamdar, Supreme Court while answering question no. 3 held that every
institution is free to devise its own fee structure but the same can be regulated in the interest of
preventing profiteering. No capitation fee can be charged. Leverage was allowed to educational
institutions to generate reasonable surplus to meet cost of expansion and augmentation of facilities
which would not amount to profiteering. The Court upheld the two Committees for monitoring
admission procedure and determining fee structure as held in Islamic Academy was permissible as
regulatory measures aimed at protecting the interest of the student community as a whole as also
the minorities.

16. In the backdrop of the law laid down by the Apex Court, it would be apposite to
examine the statutory provision. Sub-clause (d) of Section 3 of Act 2006 defines "Fee" which
means all fees including tuition fee and development charges"; Sub-clause (i) defines "private
professional educational institution" which means a professional educational institution not
established or maintained by the Central Government, the State Government or any public body;
Sub-clause (o) of Section 3 defines "unaided institution" which means a private professional
educational institution, not being an aided institution.

17. Chapter II provides for constitution of the Fee Fixation Committee. Section 4 would
provide for composition, disqualification and functions of the Committee. Sub-section (8) of
Section 4 provides for determination of fee by the Committee as prescribed under Section 10. Subsection (8) is extracted:

"The Committee may require a private aided or unaided professional educational
institution or, a deemed to be University or a private University to furnish by a prescribed date,
information as may be necessary for enabling the Committee determine the fee as prescribed under
section 10 of the this Act that may be fixed by the institution in respect of each professional course,
and the fee so determined shall be valid for such period as notified by the State Government."

18. Chapter IV provides for Fixation of Fee. The Committee while determining the fee to
be charged by a private aided or unaided professional educational institution will have regard to the
parameters prescribed thereunder. Section 10 is extracted :

"10(1). The Committee shall determine, the fee to be charged by a private aided or
unaided professional educational institution having regard to:―

(i) the nature of the professional course,
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1335

(ii) the available infrastructure,

(iii) a reasonable surplus required for growth and development of the professional
institution,

(iv) the expenditure on administration and maintenance,

(v) the expenditure on teaching and non teaching employees of the institution,

(vi) any other relevant factor,

(2) The Committee, shall give the institution an opportunity of being heard before
fixing any fee :─

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

19. Chapter V provides for miscellaneous matter. Section 11 would confer power upon the
State Government to appoint an Appellate Authority, where any person or professional institution if
aggrieved by an order of the Committee may file an appeal. Section 13 would confer power upon
the State Government to make rules for carrying out the purposes of the Act. Pursuant thereof,
Rules 2008 was framed which only provides the composition of the Committee to determine the fee
of private institutions and appeal therefrom. The details and parameters on how the Committee is to
determine the fee is provided under Regulation 2015 framed under Section 14 of the Act, 2006.
Regulation 3 would provide the composition of the Committee consisting of Principal
Secretary/Secretary Technical Education and two other members. Regulation 4 (1) would provide
that the Committee may fix Standard Fee including tuition fee and development charges for the
private Institution. Sub-regulation (3) would provide that if any institution, referred to in subregulation (1), request the Committee to fix a fee higher than the Standard Fee or if an institution
requests to fix a fee lower than the Standard Fee being an institution of charitable in nature or
involving in philanthropic work or for any reason, the Committee will consider the request of such
institution. Sub-regulation (3) of Regulation 4 is extracted:

"If any institution referred to in sub-regulation (1) request to the Committee to fix a
fee higher than the Standard Fee because it is an institute of excellence offering specific, useful and
job-oriented courses or is purchasing latest equipments for specific course for student welfare, or
for any other reason, then in the interest of growth of technical education and its quality, the
Committee shall considered the institution's request for higher fee. Further, also if an institution
requests to fix a fee lower than Standard Fee because it is an institution of charitable nature or it is
also involved in philanthropic work or for any other reason, the Committee shall consider the
institution's request for lower fee. The Committee shall give the institution an opportunity of being
heard before fixing its final fee."

20. Sub-regulation (4) details the parameter for determining the fee which includes,
expenses on depreciation, expenditure on advertisement, expenditure on development, expenditure
due to inflation, expenditure on salary, expenditure on interest, direct recurring expenses, total
expenses per student and expenditure on electricity. Sub-regulation (4) is extracted:
1336 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) The Committee shall fix the fee having regards to the following :-

(i) Expenses on Depreciation- Straight line method shall be applied and the
revised rates mentioned in the Companies Act, 1956 will be taken into account.

(ii) Expenditure on Advertisement- Maximum 1% of the total expenses of the
institutions on advertisement required for new courses and college related activities through news
papers, hoardings, magazines etc. will be allowed:

(iii) Expenditure on Development- Maximum of 10% development charges will
be allowed.

(iv) Expenditure due to inflation- The basis of the average of the rates of
Consumer Price Index of last three years will be considered for calculating the average rate
applicable for next three years, for the purposes of allowing inflation of expenses.

(v) Expenditure on interest- If the Institution has taken loan from any
nationalized bank for infrastructure and other fixed capital assets and the interest on above loan is
paid by the Institution, than 25% of the interest paid or Rs.3,000 for degree courses/Rs.1,000/- for
diploma courses, per sanctioned number of students, whichever is less, shall be considered as
expenses;

Provided that the interest paid on the loan taken for hostel and other works, for
which the institution is charging money from the students shall not be considered.

(vi) Direct recurring Expenses- The expenses on purchasing periodicals, journals
and lab consumables will be considered as recurring expenses but expenditure on books will be
considered as capital expenses.

(vii) Total expenses per student- The expenses of an institution shall be
determined by considering different types of expenses and dividing it by the number of seats
sanctioned by All India Council for Technical Education.

(viii) Expenditure on electricity- The expenses on electricity utilized in an
administrative building and in laboratories for operating equipments excluding the expenses on
electricity utilized in hostel, staff quarters and mess will be considered.

21. It is averred in the counter affidavit that the fee for the session 2016-17 could not have
been determined by the Committee due to paucity of time. The fee, therefore, determined earlier
(2013) would be the fee for session 2016-17. The delay has not been attributed to the institutions.
Admittedly, five institutions responded, as against 24 Institutions, for fixing Standard Fee,
however, the Committee was unable to determine the fee even in respect of the five institutions.
Petitioner-Institution being aggrieved by non determination of fee has pleaded that it would not be
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1337
possible, even considering the inflation, to run the Institution, maintain quality and pay higher
salary to the teachers upon implementation of the 7th Pay Commission Report, therefore, the
Institution would have to run at expenses less than their revenue, thus, eroding its surplus.

22. The learned Additional Advocate General would contend that presently three
Institutions out of five have approached the Court, therefore, would urge that all the other
Institutions are satisfied with the fee fixed previously, therefore, the Committee would not be in a
position to determine Standard Fee and thereafter the fee of each aggrieved institutions. Three
Institutions are assailing the impugned order for the reason that they would be adversely affected, in
case their fee is not revised. Regulation 4 itself provides that the Committee shall consider the
request of the institutions for fixing the final fees, if they are not satisfied by the Standard Fee. In
the present case, admittedly, Standard Fee has not been determined by the Committee due to
paucity of time though the proposal was submitted by some of the institutions on 21 March 2016.
No plausible explanation has been stated in the counter affidavit as to why the Committee could not
determine the fee of each of the five institutions that had furnished their proposal. No reason has
been assigned as to why the Committee failed to discharge its statutory obligation under the Act
2006 and Regulation 2015. The State is not disputing that the petitioner-Institution is one of the
premier private institution of the State and in order to maintain its quality and reputation, fee
enhancement sought by it is justified. Private Universities in National Capital Region (NCR) viz.
AMITY and JAYPEE are charging @ Rs.2,00,000/- and Rs.2,60,000/- respectively for the same
course, whereas, the petitioner-Institution had proposed Rs.1,74,000/-. It is further contended on
behalf of the petitioner that all the admission for the session 2016-17 are over and fee charged from
the students at Rs.97,400/- has been made subject to the decision of the writ petition.

23. It is admitted position that the Committee had to determine the fee for session 2016-17
which would continue upto 2019-20, however, the Committee skipped 2016-17 and resolved to
determine the fee for 2017-18, therefore, one batch of students for session 2016-17 have been left
out without determination of fee, which in my opinion, would adversely affect on the Institution as
the fee fixed in 2013 would have to be charged from the students for the next three years. In these
circumstances, I find merit in the submission of learned counsel for the petitioner that the
Committee has not discharged its statutory obligation, therefore, the plea that the institution can
prefer an appeal would not arise as there has been no determination of either Standard Fee or fee in
respect of the individual Institutions who had approached the Committee. Reliance has been placed
on a decision rendered in U.P. State Spinning Co. Ltd. v. R.S. Pandey and another9, wherein, the
Supreme Court held where hierarchy of appeals is provided by the statute, party must exhaust the
statutory remedies before restoring to writ jurisdiction.

24. The plea of alternative remedy would not apply in the facts of the present case as
Committee has not gone into the question of determining the fee for the session.

25. In Ram and Shyam Co. v. State of Haryana10 the Supreme Court held that where the
appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage
and an exercise in futility. ................................ When the High Court had entertained a writ petition
1338 INDIAN LAW REPORTS ALLAHABAD SERIES

notwithstanding existence of an alternative remedy this Court while dealing with the matter in an
appeal should not permit the question to be raised unless the High Court's reasoning for
entertaining the writ petition is found to be palpably unsound and irrational. Similar view was
expressed by this Court in State of U.P. v. Indian Hume Pipe Co. Ltd.11

26. It is contended on behalf of the State that the Committee resolved that the fee
determined in respect of each of the Institution in the State may be taken to be the Standard Fee,
therefore, it is urged that in terms of Sub-regulation (3) of Regulation 4 the aggrieved institute
should have approached the Committee for determination of the fee for the session 2016-17. The
submission, in my opinion, lacks merit and is not in sync with Chapter IV of Regulation 2015. On a
plain reading of Regulation (4), it would provide that the Committee would fix the Standard Fee for
the Institutions, and an aggrieved institute may approach the Committee for enhancement or for
lowering the fee fixed. Standard fee is not defined in the Regulation 2015, the Additional Advocate
General failed to explain the concept of Standard Fee, he would urge that the Standard Fee would
mean a fee determined upon random selection of data from some of the institutes, which would be
made applicable upon all the institutions of the State at a flat rate, and thereafter, an aggrieved
institute would have to approach the Committee for enhancement. The resolution dated 14 June
2016 of the Sub-committee would reflect that in order to determine the Standard Fee, 24 out of 700
institutions were required to submit their proposal. The individual fee determined in 2013 in respect
of the said 24 institutions ranged between Rs.26,000/- to Rs.1,00,000/-.

27. In the event of the Committee fixing Standard Fee say at Rs.60,000/- per student, it is
evident that all the institutions who are either far below the said sum or institutions which are at
higher end would have to approach the Committee for determination of the fee for their respective
Institution. In either case, the Committee would have to determine the fee in respect of almost all
the Institutions independently. The fallacy in determination of the Standard Fee, as is being
submitted by the learned counsel for the respondent, is evident from the fact that the Institutions,
which are in the range of Rs.26,000/- and above would have to approach the Committee for
lowering the fee and all the Institutions who are say at Rs.70,000/- and above would have to
approach the Committee for enhancement their fee, therefore, the plea that without determining
Standard Fee, the fee fixation of the institutions cannot be gone into appears to be misconceived.
The very concept of Standard Fee as is being sought to be urged is in teeth of the decisions
rendered by the Supreme Court on the subject of determination of fee of each institutions.

28. The AICTE under the Chairmanship of Justice Srikrishna (Former Justice of the
Supreme Court of India) had come out with a report prescribing guidelines for charging tuition and
other fees for professional courses on 7 May 2015. As per the report, Committee in para (3.1.4)
opined as follows:

"Higher fees than 'maximum' fees
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1339
Institutes who want to excel in technical education are likely to provide facilities
beyond the minimum prescribed standards. Such Institutes may be allowed to charge fees higher
than the prescribed fees as mentioned below.

The Institute, who has got accreditation from appropriate authority for at least two
thirds of their eligible approved programmes/courses, can charge a maximum of 20% additional
tuition fees than prescribed maximum fees.

The Institute, who has been awarded 'Autonomous' status by appropriate authority
can charge a maximum of 10% additional tuition fees than prescribed maximum fees."

29. The maximum tuition and development fees recommended for B.Tech course
city/category wise is as under:

(i) Type X Cities Rs.1,58,300/-

(ii) Type Y Cities Rs.1,50,500/-

(iii) Type Z Cities Rs.1,44,900/-

30. The petitioner-Institution contends that considering their track record and accreditation,
the institute is entitled to a further 20% hike over and above the proposed fee.

31. The learned counsel for the respondent would urge that in continuing the fee fixed
earlier for 2016-17 is in keeping with the interest of the students. The argument on face value
appears attractive, but tested in depth, appears shallow and lacks merit. The interest of the students
is sub-served best by institutions of repute, imparting quality education of international standard.
The students are prepared to pay more on placement in such institutions; if the argument that is
sought to be advanced by the learned counsel for the respondent is accepted then a much lower fee
would serve the student interest but unfortunately the State does not sponsor or assist financially in
either setting up such private institutions or provide working capital. It is for these reasons the Apex
Court held that fixation of fee should be left to the private institutions but should be monitored by a
Committee so as to prohibit profiteering or from charging capitation fee; the role of the Committee
is not that of a 'big brother' to force upon an institution fees determined three years earlier and
compel the institution to run the courses at rates which makes it unworkable, therefore, seriously
undermining quality instructions to the students. The cow cannot be milked for long without
appropriately feeding it.

32. The cut of date fixed for admission would have no bearing, as admittedly the
Committee failed to discharge its statutory duty cast upon it under the Act 2006 and Regulation
2015 framed thereunder. A writ would issue directing the Committee to discharge its legal duty.
The conduct of the Committee has not only been casual as reflected from the record but also
arbitrary which is deprecated. It is not open for the Committee to say that it would not discharge its
statutory duty due to paucity of time.
1340 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In the facts of the present case, out of 24 institutions only 5 institutions had submitted
their proposal and only three institutions have approached this Court for enhancement of their fee
for session 2016-17. The other institutions which have not approached are either not having
students in requisite number or infrastructure to cater the students, therefore, may have preferred to
continue on the fee determined in 2013. The petitioner-Institution being a premium private institute
has sought revision, therefore, it was incumbent upon the Committee to have addressed the issue of
fee review.

34. In these circumstances, the impugned order dated 22 June 2016 passed by the third
respondent-Special Secretary, Government of Uttar Pradesh, Lucknow cannot be sustained,
accordingly, quashed.

35. The writ petition is allowed with the following directions:

(i) Committee shall fix the fee for session 2016-17 in respect of the Institutions
before the Court, after hearing their representative;

(ii) Institutions undertake to submit their proposal before the Committee within one
week from date i.e. by 29 August 2016;

(iii) Committee shall determine the fee for 2016-17 within four weeks thereafter
i.e. by 26 September 2016;

(iv) The fee charged by the Institution for 2016-17 would be provisional fee subject
to the final fee determined by the Committee;

(v) Upon enhancement, the arrears would be payable by the students in installment
(half yearly/quarterly) depending upon the hike recommended by the Committee. Installment to be
determined by the Committee.

(vi) Committee in future to discharge its statutory function in determination of fee
well in advance.

36. No cost.
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8 All. Mohd. Yaseen Vs Union Of India & Ors.
1341
(2016) 8 ILRA 1341
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2016

BEFORE

THE HON'BLE DILIP B. BHOSALE, C. J.
THE HON'BLE YASHWANT VARMA, J.

Writ C No.- 36294 Of 2016

Mohd. Yaseen ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Pramod Kumar Srivastava

Counsel for the Respondents:
A.S.G.I., Piyush Mishra

Passports - Correction of date of birth - Guidelines - Exhaustion of alternative remedy -
Petitioner sought correction of date of birth in passport after issuance - Ministry of External Affairs Office
Memorandum dated 26-11-2015 prescribes detailed procedure and conditions for correction, including
limitation period and requirement of genuine documents - Held, such disputes involve factual determination
and must be first examined by Passport Authorities in accordance with prescribed guidelines - Writ petition
not maintainable at initial stage.
Passports - Change of date of birth - Limitation - Reasonable time - Correction permissible only
in bona fide cases and within reasonable period (normally within five years of issuance of passport) -
Requests beyond prescribed period ordinarily not entertainable except in limited circumstances such as cases
of minors.
Administrative Law - Alternative remedy - Availability of statutory/administrative mechanism
- Where effective grievance redressal mechanism exists including Passport Seva system, Passport Adalats
and recourse before Regional Passport Officer, writ jurisdiction should not be invoked without exhausting such
remedies.
Writ Jurisdiction - Scope - Direction to approach competent authority - High Court declined to
adjudicate factual dispute - Liberty granted to petitioner to approach Regional Passport Officer for
consideration in accordance with guidelines - Authority directed to decide expeditiously.
In Result: Writ petition disposed of with liberty to petitioner to approach Regional Passport Officer for
redressal of grievance in accordance with applicable guidelines.

(Delivered by Hon'ble Dilip B. Bhosale, C. J.
&
Hon'ble Yashwant Varma, J.)

1. Heard Sri Pramod Kumar Srivastava, learned counsel for the petitioner and Sri Piyush
Mishra, learned counsel appearing for the respondents.