IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5795 of 1999 with SPECIAL CIVIL APPLICATION Nos.1809, 1841, 1849 to 1862, 1866, 1867, 1951, 2032, 2036, 2037, 2082 to 2088, 2114 to 2135, 2183, 2215, 2220, 2236 to 2238, 2240 to 2264, 2266 to 2269, 2275 to 2282, 2292, 2366, 2370, 2440, 2756 to 2759, 3814, 3815, 3821 to 3823 and 4841 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ BAPUUNAGAR VIDYOTEJAK TRUST Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5795/99, 2236, 2237, 2238, 2278, 2279, 2280, 2281, 2282, 2366, 2370, 2440, 1809, 1849 to 1862, 1866, 1867, 1841, 2082 to 2088, 2114 to 2135 and 2275 of 2000. M/S.VYAS ASSOCIATES for Petitioners and with others. Mr SN Shelat, Advocate General with Mr AD Oza, Government Pleader for the respondents. Special Civil Application No.2183, 2215, 2220, 2240 to 2262, 2263, 2264, 2266, 2267, 2268, 2269, 4841, 3841, 3815, 3821, 3822 and 3823, 1951 and 2032 of 2000. M/s. N.C.Shah & MP Prajapati for the petitioners with others Mr SN Shelat, Advocate General with Mr AD Oza, Government Pleader for the respondents. Special Civil Application No.2292, 2756, 2757, 2758 and 2759 of 2000. Mr MM Desai for the petitioners Mr SN Shelat, Advocate General with Mr AD Oza, Government Pleader for the respondents. Special Civil Application No.2276 and 2277 of 2000. Mr KM Sheth for the petitioners Mr SN Shelat, Advocate General with Mr AD Oza, GP, for the respondents. Special Civil Application No.2036 and 2037 of 2000. Mr BT Rao for the petitioners Mr SN Shelat, Advocate General with Mr AD Oza, GP, for the respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT Date of decision: 06/07/2001 ORAL JUDGEMENT In this group of 109 petitions, under Article 226 of the Constitution of India, common questions are involved against the common respondents, and therefore, upon joint request, the entire group is being disposed of by this common judgment. 1. FACTUAL PROJECTION: The petitioners are registered education trusts under the Bombay Public Trusts Act, 1950. They run secondary and higher secondary schools, in different areas of State of Gujarat. Most of the schools of the petitioners are housed in rented premises. The house rent as well as property tax amounts are, also, forming part of the maintenance grant provided by the State Government. Respondent No.1, State of Gujarat, by its resolution No.BMS-1199-741(3)(G) and Resolution No.BMS-1199-741(4)(G), of July 2, 1999, has decided to give 65% for other expenses and 35% for house rent and maintenance of schools. The common grievance raised in this group of petitions is that 35 per cent of the total grant of the schools, towards maintenance is not sufficient for the house rent as well as property taxes. It may, also, be stated that by the said resolution, the petitioner-schools were given option for charging higher fees. The resolutions of the Government were required to be enforced from the academic year beginning from June 1999, though the resolution was issued on July 2,, 1999. 2. RIVAL SUBMISSIONS : The common contention of the petitioners has been that the financial year of the schools run by education trusts had, already, started from 1st April, 1999, whereas, academic year had started from 14th June, 1999. The petitioners-trusts, had, therefore, already provided for expenses which were to be incurred during that year, well in advance. It is, therefore, the case of the petitioners that any alteration or change in the policy or pattern of the grant after the commencement of the academic year would culminate into huge loss to the petitioner-trusts. The academic year 1999 had already been started from June 1999 and, therefore, admissions were, already, given to the students. Therefore, it has been the grievance of the petitioners that as per the changed resolutions dated 2.7.99, if the petitioners trusts-decide to raise fees and charge higher fees, there would be very much adverse impact and effects and there may be confrontation amongst and with the parents and students. The petitioners, have, therefore, invoked the constitutional remedy under Article 226 of the Constitution by filing this group of petitions. Since common questions are involved, individual case-wise facts would not be necessary to be mentioned. The petitioners have, therefore, sought two main reliefs that (1) to quash the Government Resolution No.BMS-1199-741(3)(G) and Resolution No.BMS-1199-741(4)(G), both dated July 2, 1999 and (2) to direct the respondent authorities not to implement the aforesaid two resolutions in any manner whatsoever in the current (1999-2000) academic year. The respondents have appeared and resisted the petitions by filing affidavits. Affidavit in reply on behalf of the respondents is filed by one Shri B.K.Bhatt, Under Secretary, Education Department, in the main matter and it is adopted in remaining petitions. The respondents have, inter alia, raised several contentions against the claims made in the petition. However, following important contentions against the petitions may be highlighted. (1) That the challenge against the policy decision of the respondent authority is not maintainable as the High Court may not interfere with the policy decision of the State Government. (2) That the policy of the Government is to provide grant-in-aid to such institutions has bearing on the State exchequer and budgetary provisions made for it by the State Government. It is, therefore, the contention of the respondents that without any monetary budget, heavy burden will fall on the exchequer and therefore the reliefs should be refused. (3) It is further contended that out of total number of 5242 recognised schools with grant-in-aid facilities, only 183 schools have challenged the grant policy. In all 251 schools outside Ahmedabad city have exercised option in lieu of maintenance grant, whereas, 55 schools out of 399 schools of Ahmedabad city has exercised option of increasing fees in lieu of maintenance grant. Therefore, if the grant-in-aid policy formulated by the Government and challenged by the petitioners is interfered with by the Court, even for a year, then also the State Government shall have to pay 48 crores for that year. (4) The respondents have, also, raised the plea that the Government resolution dated 2.7.99 produced at Annexure A, remodelling and revising the grant-in-aid policy towards maintenance grant was an outcome and based on the recommendation of the Committee of Study group consisting of State Level associations of school management, Association of Principals, Higher Secondary Teachers Association, Secondary Teachers Association, Educationists and Officers of the State Government. The said Committee was asked to examine and review the grant policy in the light of the acceptance of Fifth Pay Commission of the Central Government, due to which there was heavy burden on the State Government for providing salary grant. The State Government, therefore, had taken a decision to economise and reduce the expenses which were not provided in the plan. A copy of the report of the Committee is also placed on record. The Government had taken policy decision by passing resolution, dated July 2, 1999. (5) It was contended that because of the new grant policy, the rate of grant, obviously, would be reduced, but it could not be said that by that way, the institution would run in loss. It was further contended on behalf of the respondents that in lieu of maintenance grant towards other expenses and building grant, the educational institutions have been provided with option to increase fees within the permissible criteria and limit in terms of the said Government Resolution. If the educational institutions do not desire for opting the options available, they were getting grant at reduced rates. Making provision of maintenance grant, by way of option to also a policy decision and the Government authority cannot interfere with the policy matters of the State Government unless it is demonstrated to be arbitrary. (6) It has, also, been contended that on account of the change of policy, certain issues had been raised by certain Associations and the issues were also clarified by publishing a circular, dated November 30, 1999. It was, therefore, pleaded that the petitioners are bound to implement the policy as per the decision with effect from 1st April, 1999 instead of June 1999. (7) One more contention raised is that the option given for the purpose of relieving the institutions from statutory audit and if they opt for increasing fees they are relieved from statutory audit for other expenses and maintenance grant. In short, the respondent authorities, have, seriously questioned, the maintainability and the merits of the petitions. The contentions advanced on behalf of the respondents have been, seriously, countered and opposed by the learned advocates appearing for the petitioners, in this group of petitions. Their main grievance is, whether, legally, during the midst of an academic year, a policy decision could be taken which would have retrospective effect in relation to the grant-in-aid policy, more particularly, when on the basis of the earlier resolutions, financial year having commenced on April 1, 1999, the expenses have been incurred on the basis of the earlier resolutions of the Government for giving maintenance grant. It is, therefore, contended on behalf of the petitioners that the impugned Government resolutions both of July 2, 1999, are 'ex-facie' arbitrary, do not conform to the test of reasonableness and, therefore, violative of the Constitutional parameters and mandates enshrined in the Constitution of India. It is, also, seriously, and strenuously, contended that by resolutions of July 17, 1990 and July 17, 1992, a provision was made for giving grant to the approved secondary/higher secondary schools, which have been reviewed from time to time and by a resolution dated April 22, 1998, the Government decided to continue the pattern of grant till other orders are passed. On the basis of the aforesaid policy of grant as also on the basis of the aforesaid resolutions, the schools have incurred expenses and the aforesaid grant as was admissible as per the resolutions then in force was made available. The expenses were required to be incurred in the financial year starting from April 1999 and before the academic year of the school started from July 14, 1999. It is, also, manifested before us that most of the schools, which are petitioners in this group, are situated in predominantly backward areas and therefore, on the basis of fees structure the prevailed, the admissions were given to the students and they have paid their fees. Under the impugned resolutions, a provision is made, whereby, higher fees than what was earlier prescribed could be charged and, once, fees having been recovered as per the earlier resolutions and policy, long before the impugned resolutions came to be published and to the knowledge of the petitioners, it would not only create administrative problems, but also socio-legal aspects as demand for recovery and asking for additional fees would, only, create chaos and disorder in the academic world which, in all probabilities, would influence the academic environment being polluted and confrontation with the parents of the students and students already admitted as per the earlier resolutions, on one hand, and the management on the other hand, in view of the impugned resolutions. One more contention, which was, vehemently, voiced and raised before this Court is that, even as per the impugned resolutions, options were to be given by October 1999. It is an undisputed fact that in some of the schools which had tried to charge higher fees, including, "Diwan Ballubhai School", there was serious protest on behalf of the students and there was some sort of confrontation which led to violence. This aspect, which is, specifically, pleaded in the petition has not been controverted, specifically, by the respondent authorities in the affidavit in reply, for the reasons not known to us. After having taken into consideration the rival submissions and the material allegations and averments propounded and expounded in para 40 to 44, 50 to 58 and the factual projection emerged from the record of the case, supported by affidavits from the petitioners' side and the common affidavit in reply filed on behalf of the respondents and the relevant proposition of law, it could not be gainsaid that the petitioners have, fairly, reasonable arguable proposition and submissions. Before the rival contentions are examined, evaluated and analysed in further details, it would be expedient and necessary, at this stage, to place on record the relevant constitutional and legal setting, in a group of these petitions, like the one hand, with a view to appreciating the merits and challenge against the petitions. 3. PROFILE OF RELEVANT CONSTITUTIONAL LAW: In this group of petitions, the petitioners have invoked the powers of this Court under Article 226 of the Constitution of India. Undoubtedly, in a most populous democratic set up like ours, the first promise of the Constitution is the rule of law. The concept and philosophy of rule of law has variety of shades. Any adverse effect on the efficient structure of rule of law, would, undoubtedly, result into the downfall of democracy. It is, therefore, rightly said that the rule of law is the lifeblood of throbbing democracy, more so in a democratic set up, which has a pluralistic society and federal structure of administration. Judicial review is implicit in the written constitution and unless expressly excluded by a provision of the Constitution, this power is available in respect of the exercise of powers under the provisions of the Constitution. Article 226, in our Constitution, undoubtedly, constitutes a very vital and vetripotent, promising and palliative legal missile in the armoury of judicial review. It confers extra-ordinary jurisdiction in exercise of its power of judicial review upon the High Court to quash or correct the tainted and polluted decision making process of the administration. Any decision or every action of the State or its instrumentality, which is in violation of the principles of natural justice or illegal or in contravention of the prescribed procedure, unreasonable, irrational or malafide is, always subject to judicial test and resultant review. Every executive or administrative action of the State or other statutory or public bodies, legally characterised to be an authority, which is violative of not only of fundamental rights, but of any statutory right or even in breach of principles of natural justice is, always, open to judicial review. The powers of the High Court are devised and designedly provided by the Parliament in Article 226 of the Constitution of India. Article 226 aims at providing justice in a given situation, in a given case. The main design and desideratum of this provision in the Constitution of India is to see that the flag of justice is kept at the full mast, whenever any action of the State brings down the flag of equality, justice or freedom granted under the Constitution and other enactments to the half-mast. It is necessary, in such a situation, to exercise the writ jurisdiction conferred under Article 226 to see that the lowered flag on the mast is put at the full height. Article 226 in our Constitution is couched in a widest possible terms. Unless there is clear ban or bar to its jurisdiction in the Constitution, its power under this Article can be exercised when there is any act which is against any provision of law or violative of the constitutional provision and when recourse cannot be had to the provisions of the Act for the necessary, appropriate redressel, relief and direction. Article 226, therefore, confers on all the High Courts very wide jurisdiction and powers in the matter of issuing writs. Of course, it must be noted, at this stage, that there are restrictions placed upon the exercise of such powers by the High Court under Article 226, viz. (1) that the power is to be exercised throughout the territories to which it exercises its jurisdiction, i.e. writ issued by the High Court cannot go beyond the territories subject to its jurisdiction and (2) that the persons or authority to whom the High Court is empowered to issue writ must be within those territories and those persons that must be amenable to the jurisdiction of the Court either by residence or location within those territories except where the cause of action arise or whole or in part within he territorial jurisdiction of that High Court. It must, also, be remembered that the exercise of power under Article 226 of the Constitution by the High Court, ordinarily, is not directed against the decision or the quality of the decision impugned before the Court, but it is, essentially, confined to its decision making process. The Court is obliged only to consider as to whether the Authority having taken the decision or the decision making process undertaken by such an authority is, in any way, coloured, influenced, or adversely affected on account of any one of the following concepts or aspects and if the answer is in the positive, the High Court would readily exercise its judicial review power invoking the provisions of Article 226. (1) that it is ultra vires. (2) that it contravenes the mandatory provisions of the Constitution. (3) that it is vitiated by malafides; (4) that it is in colourable exercise of power; (5) that it is being based on extraneous or irrelevant consideration; (6) that the decision is perverse; (7) that it is based on no evidence; (8) that it is violative of principles of natural justice; (9) that it is in breach of fundamental procedural rules; and (10) that where such a decision making process has led to any miscarriage of justice, in the circumstances of a given case. Judicial review is a basic feature of the Constitution, which keeps the flame of rule of law alive and lighting. Therefore, High Court is conferred with wide powers to inquire as to whether the impugned action, inaction, commission, omission, decision or any circular, resolution or administrative action, if found to be affected or polluted by any one of the aforesaid aspects, the High Court would, readily, interfere with the impugned action or decision or order or circular or any direction. All actions of State or its instrumentalities or its authorities or administrators ought to be carried out in accordance with the statutory limits, the constitutional mandates and within the limit prescribed by law. The Court can determine not only the breach of the provisions of the Constitution, or constitutionality of law, but also of the procedural part of administrative action or inaction as a part of judicial review invoking the aids of the provisions of Article 226 of the Constitution. No doubt, therefore, the High Court is, fully, empowered to issue not only writs but in appropriate cases directions so as to see that wrong is remedied and redressel is provided in the ultimate voyage of seeing that the flag of justice flies at the full mast. The challenge against the impugned resolutions of the Government and the merits of the petitions, in this group, undoubtedly, warrant consideration, determination and adjudication in the light of the background of the aforesaid constitutional and statutory propositions of law. It has not been questioned or denied that the implementation or execution of the impugned resolution dated 2nd July 1999 in effect and, also, in reality, would affect the earlier standards prescribed in the resolutions and the previous policy of the Government manifested therein, in such a way that the revised formula or reconsidered standard in relation to the grant in-aid policy of the State would have to be operated retrospectively. No doubt, it is true that out of more than 5400 aided schools, only 183 schools management have questioned the legality and validity of the impugned resolutions and since this factual scenario and proposition which is not disputed is sought to be advanced to frustrate the reliefs claimed by the petitioners, it is necessary to articulate and decide that it is not the numbers that matters, it is the substance. It is not brought out on record as to why others have not questioned the resolutions and such a point is not germane to the merits of the petitions. The contention that most of the schools have adopted the formula without any grievance or objection, even if it is believed to be correct, then it would not tantamount to any impediment for the petitioners in seeking the Constitutional redressel under Article 226 of the Constitution of India. Therefore, halfhearted attempt to convince this Court that the policy and the formula manifested in the impugned resolutions dated July 2, 1999 supposedly have found favour with most of the aided schools and, therefore, the grievance and the challenge made by the petitioners should not be entertained is a contention which requires to be thrown overboard as it has no relevance and material bearing upon the merits of the petitions. If impugned resolutions fall within anyone of the aforesaid parameters and criteria articulated hereinbefore, in this judgment, well, judicial review which is the main remedy in the administration of justice with the help of Article 226 has to be, successfully, employed. Therefore, this contention is rejected. Obviously, next, it would lead to the consideration of other submissions advanced to torpedo the merits of the petitions. Before other contentions are considered and determined, let there be one proposition which could not be countered in course of the marathon submissions, before this Court, in this group of petitions. The financial year commences from 1st April of a given year, whereas, academic session starts from 14th June. There is no dispute that the academic session started on 14th June in 1999, in so far as the merits of the present petitions are concerned. The resolutions which are impugned in this group of petitions are dated July 2, 1999. It, therefore, cannot be gainsaid that the resultant effect for implementation and execution of the standards and parameters revised and reconsidered and manifested in them in so far as the grant-in-aid policy is concerned and, in point of time, the effect would be, undoubtedly, retrospective. It would be, also, interesting to highlight, at this stage, that the option available to the school management for availing or not the new policy or the standard of raising fees was three months from the date of its issuance. If the School Management in a given case waits for three months for the exercise of option, by that time, it would have been about October 1999. This strengthens the view that in the end result and in the net analysis, the impugned resolutions would tantamount to having retrospective effect. The question, therefore, which requires to be adjudicated upon, at this juncture, is, as to whether the petitioners schools which had already recovered fees as per the earlier resolutions of the Government in relation to the grant-in-aid policy, while implementing retrospectively, in reality, could be compelled, and would it be reasonable, would it be just ? No doubt, in this connection, again a faint attempt has been made on behalf of the respondent authorities by the learned Government Pleader that out of 5242 recognised schools with grant-in-aid facilities, 251 schools, outside Ahmedabad City had exercised option in lieu of maintenance grant, whereas, 55 schools out of 399 schools of Ahmedabad city has exercised option of increasing fees in lieu of maintenance grant, and, therefore, the petitioners, also, could have fallen in line with them and could have adjusted. In other words, the emphasis was led that the formula evolved by virtue of the impugned resolutions and challenge by the petitioners in this group of petitions is not required to be interfered with as it is more conducive and useful to