Case Note & Summary
The writ petition challenged Direction No.3 of 2007 issued by the Vice-Chancellor of Maharashtra University of Health Sciences, Nashik, enhancing registration and eligibility fees from Rs.8,000 to Rs.30,000 for admission to private dental colleges from academic session 2007-08. The petitioners were students admitted before the cut-off date of 31-5-2007 and had paid Rs.8,000 under the earlier Direction No.2. The University demanded the enhanced fee under Direction No.3. The core legal issue was the competence of the Vice-Chancellor to issue a second direction on the same subject under Section 16(8) of the Maharashtra University of Health Sciences Act, 1998, in the absence of any statute or ordinance. The University argued that the subject fell within the Management Council's power under Section 27(v) and ordinance-making under Section 50(ii), and in the absence of an ordinance, the Vice-Chancellor could regulate by issuing directions, and that Direction No.2 was repealed by Direction No.3. The justification for fee enhancement based on financial needs was also pressed. The Court found that Section 16(8) confers an emergency power to be exercised for the time being when no statute, ordinance, rule or regulation exists on the matter. The power is not intended for repeated exercise; once a direction is issued, the power is exhausted and the Vice-Chancellor becomes functus officio, incompetent to alter, amend, modify or repeal it. The Management Council's subsequent approval was not a step towards framing an ordinance as required. The Court held that Direction No.2 continued to govern and Direction No.3 was ultra vires. The petition was allowed, Direction No.3 and Circular No.4/2007 were quashed, and the University was directed to refund the excess fees paid under protest. No costs were ordered.
Headnote
A) Education Law - Emergency Powers of Vice-Chancellor - Emergency power under S.16(8) MUHS Act cannot be repeatedly exercised; once direction issued power exhausted and V-C functus officio - Maharashtra University of Health Sciences Act, 1998, Ss.16(8), 27(v), 50(ii) - Petitioners, students admitted prior to 31-5-2007, paid Rs.8,000 fees under Direction No.2; Direction No.3 enhanced to Rs.30,000. Court held V-C’s emergency power under S.16(8) does not permit repeated directions; field occupied by Direction No.2, so V-C incompetent to issue Direction No.3. Direction No.3 and Circular quashed, refund ordered of excess amount paid under protest. (Paras 2,5-11)
Issue of Consideration
Whether the Vice-Chancellor was competent to issue Direction No.3 of 2007 under Section 16(8) of the Maharashtra University of Health Sciences Act, 1998, after having already issued Direction No.2 on the same subject matter of registration and eligibility fees, and whether such power can be repeatedly exercised.
Final Decision
Writ petition allowed. Direction No.3 of 2007 dated 16-6-2007 and Circular No.4/2007 dated 5-7-2007 quashed and set aside. Respondent University directed to refund the fee over and above Rs.8,000 paid by petitioners under protest as per earlier court order. Rule made absolute. No order as to costs.
Law Points
- Power under Section 16(8) of Maharashtra University of Health Sciences Act
- 1998 is an emergency power
- cannot be repeatedly exercised on same subject matter
- once direction is issued power gets exhausted and Vice-Chancellor becomes functus officio
- direction must be placed before Management Council with draft ordinance
- justification for enhancement irrelevant if competence lacking
Case Details
2018 LawText (BOM) (08) 155
Writ Petition No.3228/2007
R.K. Deshpande, Arun D. Upadhye
Shri H.V. Thakur (Petitioners), Shri A.L. Deshpande (Respondent nos.1-3), Shri A.A. Naik (Respondent nos.4-5), Ms Tajwar Khan (AGP for Respondent no.6)
Dr. Akshay s/o Ashok Dhobley, Dr. Rohit s/o Balwant Mohril, Dr. Pranav s/o Devrao Ingole, Dr. Hirkani d/o Ravindra Atterde, Dr. Mrs. Indrayani w/o Prabhat Thakur, Dr. Dipti d/o Govindrao Deshmukh, Dr. Seema d/o Ghanshyam Rathi
The Maharashtra University of Health Sciences, Vice Chancellor, Maharashtra University of Health Sciences, The Dean, Dental Faculty, Maharashtra University of Health Sciences, Vidya Shikshak Prasarak Mandal's Dental College & Research Centre, Vidya Shikshak Prasarak Mandal, State of Maharashtra
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Nature of Litigation
Writ petition challenging the enhancement of registration and eligibility fees by the Vice-Chancellor of the Maharashtra University of Health Sciences under Direction No.3 of 2007.
Remedy Sought
Petitioners (dental students) sought quashing of Direction No.3 of 2007 and refund of excess fees paid under protest.
Filing Reason
The Vice-Chancellor issued Direction No.3 on 16-6-2007 enhancing fees from Rs.8,000 to Rs.30,000 after petitioners had already been admitted and paid the lower fee under the existing Direction No.2, and the University demanded the enhanced amount.
Issues
Whether the Vice-Chancellor was competent to issue Direction No.3 of 2007 in exercise of power under Section 16(8) of the Maharashtra University of Health Sciences Act, 1998, after having already issued Direction No.2 on the same subject matter, and whether such power can be repeatedly exercised.
Submissions/Arguments
University argued that Vice-Chancellor was competent to issue Direction No.3 under S.16(8) and that repeated exercise is permissible; the registration and eligibility fee falls within Management Council's power under S.27(v) and S.50(ii), and in absence of an Ordinance, V‑C could regulate; Direction No.2 was repealed by Direction No.3.
University submitted justification for fee enhancement based on committee minutes citing financial needs and administrative expenses.
Petitioners contended that the Vice-Chancellor's power under S.16(8) was exhausted by issuance of Direction No.2, and he became functus officio, rendering Direction No.3 ultra vires.
Ratio Decidendi
The emergency power under Section 16(8) of the Maharashtra University of Health Sciences Act, 1998 cannot be repeatedly exercised on the same subject matter. Once a direction is issued, the power stands exhausted and the Vice-Chancellor becomes functus officio and incompetent to issue another direction on the same subject. The direction remains in force until an ordinance is framed.
Judgment Excerpts
In our view, the power under Sub Section (8) of Section 16 of the Act of 1998 is an emergency power to be exercised for the time being, in the absence of any statute, ordinance, rules and regulations on the same subject matter. Once such directions are issued the power gets exhausted and in the absence of any power to alter, amend, modify or repeal the direction so issued, the ViceChancellor becomes functus officio and incompetent to issue another direction on the same subject matter.
The direction No.3 of 2007 issued on 16/6/2007 along with Circular No.4/2007 dated 5/7/2007 are hereby quashed and set aside.
Procedural History
Petitioners filed writ petition directly before Nagpur Bench of Bombay High Court challenging Direction No.3 of 2007. The High Court passed an interim order permitting payment of enhanced fees under protest. The matter was heard and finally decided on 09-08-2018.
Acts & Sections
- Maharashtra University of Health Sciences Act, 1998: 16(8), 27(v), 50(ii)
