the orders passed by the Admission and Fee Regulatory Committee regarding MBBS fee structure in the meetings where all its members were not present were legally invalid- Kerala HC
Kochi: Noting that the decisions were taken without the mandated quorum, the Kerala High Court has set aside an earlier order issued by Admission and Fee Regulatory Committee (AFRC) regarding the MBBS fees structure for academic years 2016-17, 2017-18 and 2018-19.
The division bench of honourable Justices K Surendra Mohan and Justice Annie John came to the decision after hearing a total of 26 petitions filed by a few medical colleges’ management who alleged that the exercise undertaken by the committee far exceeded its powers.
The court, however, made it clear that the while educational institutions had the right to fix its own fee structure, there should not be any profiteering and fee thus fixed should not be exploitative in nature.
According to recent media accounts, the bench also directed the committee authorities to scrutinize whether the fees charged by these concerned medical colleges were reasonable. It further asked to reorganize the committee by decreasing the number of its members.
The Committee had fixed the MBBS tuition fee for per student at Rs 4.15 lakh for the 2016-17; Rs 4.80 lakh for 2017-18 and Rs 5.54 lakh for 2018-19 academic years. The medical college managements moved the state HC challenging this decision, according to TNIE.
Pointing at the Supreme Court’s earlier statement holding that the Committee’s power was only limited to examining whether a college was receiving capitation fees or indulging in profiteering; petitioners came with various contentions during the hearing. Relevant are mentioned below:
- The medical colleges’ management had absolute authority to fix the fee.
- The orders were passed by AFRC while only two or three members were present. In some cases, the matter was heard by two or three members but the orders were signed by five members. None of the orders has been passed by the committee with its full quorum. Though a quorum was fixed in the Act governing AFRC, it was set aside by the high court (in KSF Dental College Management Consortium vs the State of Kerala).
- Fixing annual fee was beyond the panel’s scope
A counsel representing AFRC argued that all members need not be present at its meetings as Section 4 permits the committee to formulate its own procedure.
After hearing all the submissions, on the matter of required quorum which was violated in this case while fixing the MBBS fee structure, the court observed,
“… the orders passed by the committee in the meetings where all its members were not present were legally invalid. No quorum had been prescribed for the meeting of the committee and, therefore, all the members thereof would have to be present…
Adding to its observation, the court said, the division bench in the aforementioned KSF case had found the composition of the committee to be unwieldly.
“However, Section 5(3) that prescribed the quorum to be four has been set aside by the division bench as unsustainable. The resultant position is that, no quorum is prescribed for the meeting of the committee. Therefore, all the members thereof would have to be present.”
According to a recent report by TOI, after referring to Sub Sections 6 and 7 of Section 4, the court stated that they only provide that no act or proceedings of the committee shall be invalid for the reason of any defect or irregularity in its constitution.
“…The said provision is not applicable in this case as there is no irregularity in the constitution of the committee here. Similarly, Sub Section 7, which empowers the committee to regulate its procedures, also cannot replace the provision stipulating the quorum.”
In its conclusion, the bench ordered that the committee should pass fresh orders regarding the fee structure in two months.
“The fee fixed by the committee should continue to be in force as provisional fee until fresh orders were passed by it”
The HC refused to accept the contention that the function of the committee was only to accept the fee that was suggested by an educational institution and it did not possess the power to disallow any expenditure. The court held that the government had the power to direct a college to reduce the fee when the fee charged was found to be excessive.
On the subject of fee fixation, the court made it clear that the while educational institutions had the right to fix its own fee, there should not be any profiteering and fee thus fixed should not be exploitative, reports The Hindu.
“The educational institutions cannot charge a fee that was not required for the purpose of conducting the course. The right of the educational institution to stipulate fee was not a limitless right but a subject to regulation.”
The HC bench further directed the committee to subject the fee suggested by an educational institution to close scrutiny to ascertain whether the fee was reasonable and whether there were elements of profiteering or capitation fee.
“It should also be seen whether the proposed fee was exploitative in nature. It was the duty of the colleges to cooperate with the committee and to comply with its directions in letter and spirit.”
In the background of the above case, the court asked to reorganise the committee by decreasing the number of members.
Consequently, the state health department has planned to speed up procedures to issue ordinance regarding the structure of the fee regulatory committee, reports Mathrubhumi.
It is reported that Kerala Professional Colleges (Regulation and Admission in Medical Colleges) Bill 2017 will be amended and an ordinance issued. The recommendations for amendment is under the consideration of the law department.
With the legal amendment, members in the ten-member committee chaired by Justice Rajendra Babu will be reduced. The ordinance will be issued before the election notification.