SCA/9184/2005 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9184 of 2005 With SPECIAL CIVIL APPLICATION No. 9186 of 2005 To SPECIAL CIVIL APPLICATION No. 9190 of 2005 With SPECIAL CIVIL APPLICATION No. 9644 of 2005 To SPECIAL CIVIL APPLICATION No. 9647 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? - Yes. 2 To be referred to the Reporter or not ? - Yes. 3 Whether their Lordships wish to see the fair copy of the judgment ? - No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? - No. 5 Whether it is to be circulated to the civil judge ? - No. ========================================= = VINAY N PANDYA - Petitioner(s) Versus UNION OF INDIA & 15 - Respondent(s) ========================================= = Appearance : MR GIRISH PATEL WITH MR AJ YAGNIK for Petitioner(s) : 1, RULE NOT RECD BACK for Respondent(s) : 1, RULE UNSERVED for Respondent(s) : 1, 9, 15, MR JITENDRA MALKAN for Respondent(s) : 1 MR K V SHELAT FOR Respondent no. 2 MR ARUN D. OZA -GOVERNMENT PLEADER for Respondent(s) : 3 - 4. MR PRANAV G DESAI for Respondent(s) : 5, RULE SERVED BY DS for Respondent(s) : 6, 7, 8,10 - 13, 14, 16. MR K M THAKAR WITH MR KUNAN B NAIK for Respondent(s) : 6, KEDAR B BINIWALE for Respondent(s) : 7, MR NILESH P SHAH for Respondent(s) : 7, MR PRABHAV A MEHTA for Respondent(s) : 14, ================================================================== SCA/9184/2005 2/50 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date :4/10/2005 CAV JUDGMENT 1. Vinay N.Pandya, Secretary of New Era Senior Secondary School Parents' Association and others, petitioners have filed this petition under Article 226 and 227 of the Constitution of India for a writ of mandamus, writ in nature of mandamus, directing the respondent no.1, the Union of India, Ministry of Human Resource Development and Central Board of secondary Education to constitute a regulatory authority or body consisting of experts in the field of education, accountancy and related fields and frame regulatory measures to check commercialization of education, profiteering by Private Unaided Self-finance Educational Institutions running Schools from K.G. To Standard-12 all over India. 1.1 Petitioners further prayed that existing fee structure and steep hike in the fee for the academic year 2005-2006 by the New Era Senior Secondary School and Balwadi, respondent no.6, (hereinafter referred to SCA/9184/2005 3/50 JUDGMENT as 'School') and The Gujarat New Era Education Trust, respondent no.7 (referred to as 'Trust') amounts to profiteering, imposition of capitation fee and commercialization of education and therefore, in violation of law laid down by the Hon'ble the Supreme Court of India in the matter of TMA Pie Foundation and others v. State of Karnataka and others reported in (2002) 8 SCC 481, Islamic Academy of Education v. State of Karnataka reported in (2003) 6 SCC 697 and Modern School v. Union of India reported in (2004) 5 SCC 583 and arbitrary irrational, discriminatory, disproportionate, unfair, unjust, unreasonable, violative of conditions of lease deed executed between respondent nos.6 and 7 and respondent Municipal Corporation of Vadodara, violative of trust objectives stated in the approved scheme in view of Bombay Public Trust Act, 1950 and therefore, violative of Article 14, 19 and 21 of the Constitution of India. Petitioners prayed for further prayers in this behalf. 2.The facts giving rise to this petition are as under: 2.1 Petitioners are parents and representative of parents of students of School and Balwadi, which is run SCA/9184/2005 4/50 JUDGMENT by respondent no.7, registered Charitable Trust engaged in the field of education. The Respondent School is a Private Unaided Self-finance School imparting education to students from K.G to Standard-12. 2.2 As stated above, the Municipal Corporation of Vadodara has given on lease to the respondent trust a piece of land admeasuring about 11460 sq. meters in T.P.Scheme No.123, Nizampura at Vadodara bearing Final Plot NO.430. A resolution to this effect was passed in the year 1978 and Lease Deed was executed between the respondent Corporation and the respondent trust on 4/12/1985. Condition No.11 in the Lease Deed categorically states that after the construction of the school is over, the trust shall not demand any building fund or fund for any other purpose by donation or otherwise. If it is found out that the trust is demanding such fund, then the Lease Deed shall be cancelled and the possession of the land will be taken back. And no amount of compensation or damage in any nature will be paid to the trust. The petitioners state that the amount of lease to be paid by the respondent trust as stated in the lease deed is Rs.1240/- per year. SCA/9184/2005 5/50 JUDGMENT 3.It is the case of the petitioners in the petition that for the academic year 2003-2004, the fee charged by the school was Rs.10,740/- per year. For the academic year, 2004-2005, the same was increased to Rs.13,220/- i.e. 23% and in the present academic year the fee has been hiked to 20,370/- i.e 54%. Thus, it is a contention of the petitioners that in last two years the total rise in the fee is Rs.9,630/- and as compared to the previous academic year the rise in the fee is Rs.7,150/-. 4. It is the case of the petitioners that in the name of development and other nomenclature, the school, respondent no.6 and trust, respondent no.7 have continued to impose fees on the students which is directly in contravention of the lease deed which has been referred earlier. In the present academic year, development fund of Rs.5,000/- has been imposed on every student. Looking to the number of students, more than 1250, studying in the respondent School the amount sought to be collected is Rs.62,50,000/- (Sixty two lakhs fifty thousand only). This is in the backdrop of the fact that the respondent Trust has reserved fund of SCA/9184/2005 6/50 JUDGMENT Rs.5 crores with them and every year income from the interest on securities and otherwise is more than Rs.18 lakhs. 5.It is the case of the petitioners that respondent no.6 and 7 have indulged into profiteering and imposition of capitation fee. This is nothing but commercialization of education by a Charitable Trust like respondent no.7. In the trust deed, one of the objectives of the respondent Trust is to serve every economic class and social strata of the society by imparting education amongst the students. 6.It is the case of the petitioners that the respondent no.6 School imparts education to the students of K.G. To Standard-12. It is recognized by affiliating to Respondent Central Board of Secondary Education (hereinafter referred to as 'Board'), as the school is private unaided self-finance educational institute. 7.The petitioner Association comprises of parents of more than 700 students of the school. The main purpose of forming Association is to collectively represent grievances of the member parents against the school SCA/9184/2005 7/50 JUDGMENT management and the trust which runs the school. 8.It is the case of the petitioners that petitioner nos.2, 3, 4, 5 and 6 are parents of respective students who are taking education in the respondent school. 9.In the petition, it was stated that respondent no.1 is Union of India, Ministry of Human Resources Development represented by its Secretary. This Ministry looks after the field of education in the entire country, as it is known. It also supervises, being the supreme authority, the respondent Central Board of Secondary Education. Respondent No.2 is a Central Board of Secondary Education which is an independent and autonomous Board which has given reorganization to and to whom the respondent school is affiliated. It is stated that respondent no.2 is a 'State' being the agency or instrumentality of the State as defined in Article 12 of the Constitution of India. 10.Respondent No.3 is a State of Gujarat represented by its respective Secretary representing Department of Education. Respondent no.4 is a Joint Charity Commissioner and a statutory authority under the Bombay SCA/9184/2005 8/50 JUDGMENT Public Trust Act, 1950. Respondent No.7 is registered in the office of respondent no.4, the Joint Charity Commissioner. It is the statutory responsibility of respondent no.4 to see that respondent no.7 Charitable Trust engaged in the charitable activities of education acts in accordance with the Bombay Public Trust Act, 1950 and the trust approved Trust Deed stating the objective of the trust as well. 11.The petitioners state that the respondent trust owns the respective no.6 school that was established and set up on the land given on lease to it by the respondent Municipal Corporation of Vadodara. The respondent no.6 School has been established for last more than 15 years. It is recognized by and affiliated to the respondent Central Board of Secondary Education. It imparts education in English to more than 1250 students from K.G. To Standard-12. Thus, respondent nos. 6 and 7 do not depend at all on Government aid to conduct the classes in the school and the school is being run exclusively from the tuition fees and other charges paid by the students from time to time and as and when demanded by the respondent School Management. SCA/9184/2005 9/50 JUDGMENT 12.It is the case of the petitioners that respondent no.6, Private Unaided Educational Institution, enjoys greater autonomy in the matter of administration and considerable freedom in evolving fee structure. In other words, the respondent nos.6 and 7 do not have rigid fee structure and are not under control, supervision and administration of the State as much as private aided educational institutions are concerned. However, what is abundantly prohibited for such self- finance institution is: (a) Profiteering, (b) Capitation fee, (c) Commercialization of education, (d) acting against the public and national interest. In other words, right to establish and administer a private educational institution is a fundamental right, as the education now is accepted as an occupation, guaranteed in Article 19(1)(g) of the Constitution of India and same is subject to reasonable instructions envisaged in Article 19(2) of the Constitution of India. 13.The Petitioners state that the respondent school management has its own fee structure based on their own rationals and reasons to which parents are not aware about. Every year the respondent school management SCA/9184/2005 10/50 JUDGMENT keeps on increasing fee which includes tuition fees and other fees without giving any reason whatsoever. Every year there is a substantial hike in the fee under one or other heads. The respondent school management being private institution, though engaged in charitable activity of education, leaves no choice for the parents in this respect. Every year, so far, the parents have paid fee though the hike was not at all acceptable to them and the same has been extremely burdensome. 14.It is the case of the petitioners that imposition of hike in the fee by the respondent school management is always unilateral and without any effective, meaningful and wider consultative process. In other words, the parents are not actually and effectively taken into confidence by the respondent school management before any such steps are taken. Therefore, there has always been lack of transparency and mutual trust in this regard. 15.Petitioners state that the academic year 2004-2005 came to an end on 12/3/2005. On 11/3/2005 took place a cursory meeting of so-called Parent Teachers Association, which always plays to the tune of the SCA/9184/2005 11/50 JUDGMENT respondent School Management. 4-5 parents chosen by the respondent School Management remained present in the same. Among other issues, a decision of the respondent School Management to hike fee was ratified. However, the minutes of the meeting does only mentions fee hike and does not state the amount. The reasons given for hike in the fee are as under: i. Introduction of Science Park ii Use of technology in terms of upgradation of computers and increasing the number of existing computers. iii Number of labs to be increased for teaching, learning process and as resource place. iv. Maintaining quality staff. 16.Comparative statement regarding fees of various schools is alleged to have been placed in th meeting. However, the question remains whether comparative hike in the fee by the other schools have been placed on record or not and whether their respective balance SCA/9184/2005 12/50 JUDGMENT sheets suggest that they are indulging in profiteering and/or imposing capitation fee. 17.It was further stated by the petitioners that the school uniform of the respondent no.6 school is distinct and cannot be used if a student is transferred to any other school in the middle of the term. In all, the books, stationary as well as school uniform has cost around Rs.2,000/- per student. 18.The hike of fees in school from year to year which I have stated earlier is purely based on whims and caprices of the respondent school management without there being any rhyme or reason. Petitioner further submits that in comparison to the academic year 2003- 2004 , the respondent school management has hiked fee of almost Rs.10,000/- in the present academic year 2005-2006. If the hike in the fee is viewed from the perspective of different heads, then the picture that generates from same from same is as under: (1) Tuition fee is hiked from Rs.440/-; to Rs.780/- for one quarter of period. For a whole year it comes to Rs.3,120/-. SCA/9184/2005 13/50 JUDGMENT (2) Lunch fee is hiked form Rs.250/- to Rs.350/- for oner quarter of period. For a whole year it comes to Rs.1,400/-. The students are offered the junk food. (3) Medical fee is hiked from Rs.60/- to Rs.120/- for one year. Whereas medical checkup has not taken place even once in the last two years. (4) Parents Teachers Association fee now being collected is Rs.40/- per student for holding couple of such meetings having so-called representative of parents. In view of the same, petitioners state that numerically if one counts the hike in the fee, it is under: (1) Hike in the total fee in last two years is Rs.9,630/- per student. The total fee collected from approximately 1250 students x Rs.9,630/- comes to Rs.1,20,37,500/-. (2) Hike in the fee in the last one year is Rs.7,150/-. The total fee collected from approximately 1250 SCA/9184/2005 14/50 JUDGMENT students x Rs.7,150/- comes to Rs.89,37,500/-. 19.The Petitioners submit that out of these fees, as on 31/3/2004, the amount of land fund is Rs.92,54,000/- where as the land of the respondent school has been allotted by the respondent corporation on a yearly rent of Rs.1,240/-. 20.The income only from the amount of interest per year is around Rs.18 lakhs. This means that considering the interest rate of 7.5%, the respondent Trust has reserve fund of more than Rs.3 crores. 21.The details of regular rise in the total fund is as under: a. As on 31/3/2002 - Rs.4,45,79,743.76 b. As on 31/3/2003 - Rs.4,84,68,520.89 c. As on 31/3/2004 - Rs.5,36,73,822.34 Meaning thereby that the surplus amount increases at the rate of Rs.40 lakhs per year. 22.The lunch fee collected from the students of the Balwadi of the respondent School for the year 2002-2003 SCA/9184/2005 15/50 JUDGMENT was Rs.6,47,400/-. Whereas the actual expenses towards the lunch for the Balwadi students was only Rs.2,27,361/-. Meaning thereby that only in the year 2002-2003, the profit made out of lunch fee only for the Balwadi students was more than Rs.4 lakhs. 23.It has been further stated that in the audited reports that the respondent trust has income of Rs.7500 by way of rent of the land that is allotted to it by the respondent Corporation on lease. The respondent trust pays Rs.1240/- as an annual rent to respondent Corporation as per the lease deed. To whom the land in question is given by way of subletting or otherwise is not known. But this is a serious issue. 24.It may be further stated that from the present academic year of 2005-2006, the respondent school management has imposed additional fee under head of development fee of Rs.5,000/- per year per student. It is also submitted that why there is a need of collecting development fee of this much amount from every student is not known. If this amount is collected from all the students that will come to rs.62,50,000/- (Sixty two lakhs fifty thousand only). SCA/9184/2005 16/50 JUDGMENT 25.It is the case of the petitioners that the respondent nos.6 and 7 cannot impose such development fee on the students, particularly in view of the lease condition no.11 created between the corporation and respondent nos. 6 and 7. Therefore, the same is absolutely unwarranted and unjustified and in direct violation of lease condition having adverse consequence not only on the respondent school management, but on students as well. 26.It is the case of the petitioners that the fee structure of the respondent school is to be evolved on the basis of rational, logical and appealable process. By such evolving process, the amount of fee is arrived at on the basis of actual expenses, expenditure besides future expenses and expenditure upto reasonable extent. Besides, there are other tangible factors, which are to be kept in mind while arriving at a figure of total fee, which is an end product of a cumulative causation. The infrastructure and facilities available, investment made, salaries paid to the teachers and staff, future plans for expansion and betterment of institution are the factors which ultimately may decide the fee SCA/9184/2005 17/50 JUDGMENT structure. 27.It is the case of the petitioners that if the audited reports and other documents available on record of the respondent nos.6 and 7 are looked into, it becomes very clear that the fee structure of the respondent school management and the hike in the same have no logical, rational and causative relationship with the actual expenses of an accounting year as well as capital expenditure incurred by the respondent nos.6 and 7. Though there is a reasonable surplus available with the respondent nos.6 and 7 with which all the future expenditure, betterment and upgradation can be made with, they keep on hiking fee every year regardless of consequences. The hike as stated hereinabove have no rational relationship with the expenses as well as expenditure. 28.Mr.Girish Patel, learned senior counsel with Mr.A.J.Yagnik, learned advocate appears for the petitioners. For all these contentions of the fee, charged by school, the learned counsels have relied upon following aspects: SCA/9184/2005 18/50 JUDGMENT 28.1 Petitioner stated that the preamble of the Constitution provides that “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];. 28.2 Article 14 of the Constitution of India provides 'Equality of law' - the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 28.3 Article 19(1)(g) of the Constitution of India provides that all citizens shall have right to practice any profession, or to carry on any occupation, trade or business. 28.4 Article 21(A) of the Constitution of India provides Right to 'education'- The State shall provide free and compulsory education to all children of the SCA/9184/2005 19/50 JUDGMENT age of six to fourteen years in such a manner as the State may, by law, determine. 29.The learned Counsel submitted that in view of these constitutional provisions and in view of the judgments of the Hon'ble Supreme Court, right to education is fundamental right or is a occupation and therefore, students who are at the age from 6 to 14 have a fundamental right to education under Article 21A of the Constitution of India and also those students have also a right to education/right to occupation of education among all students and in support of the same, Mr.Girish R.Patel, learned advocate has relied upon following decisions of the Hon'ble Supreme Court. (29.1) Mohini Jain v. State of Karnataka, reported in AIR 1992 SC 1858, particularly para 14 at page 1864, where the Hon'ble Supreme Court has held that “Right to education”, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution.” (29.2) Unni Krishnan, J.P. v. State of A.P., reported in AIR 1993 SC 2178, where the learned Counsel has SCA/9184/2005 20/50 JUDGMENT relied upon para 11 at page 2187 which reads as follows: “The fundamental purpose of Education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumination of the spirit. Education is a preparation for a living and for life, ere and hereafter.” (29.3) The learned Counsel, over and above relied upon para 55 at page 2200 which reads as follows: “Thus, it has to be concluded that the right to free education up to the age of 14 years is a fundamental right.” (29.4) The learned counsel has also relied upon para 81 at page 2206 which reads as follows: “As a sequel to this, an important question arises: what is the nature of functions discharged by these SCA/9184/2005 21/50 JUDGMENT institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires, to act fairly.” (29.5) The learned counsel has also relied upon para 83 at page 2208. He has also relied upon para 94 at page 2211 which reads as follows: “It cannot be gainsaid that profiteering is an evil. If a public utility like electricity could be controlled, certainly, the professional colleges also require to be regulated.” (29.6) The learned counsel has also relied upon paras 105, 109, 142. He has also relied upon para 145 at page 2231 which reads as follows: “The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the SCA/9184/2005 22/50 JUDGMENT directive principles in Part IV of the Constitution.” (29.7) The learned counsel has also relied upon para 146, 174 and 148 of the said judgment. (29.8) The learned counsel has relied upon the judgment in the case of TMA Pai Foundation v. State of Karnataka, reported in 2002 8 SCC 481, (11 Judge Bench of the Supreme Court), particularly para 31 of the said judgment wherein the Hon'ble Supreme Court has held as under: “Counsel for the institutions, as well as the Solicitor-General, submitted that the decision in Unni Krishnan case insofar as it had framed the scheme relating to the grant of admission and the fixing of the fee, was unreasonable and invalid. However, its conclusion that children below the age of 14 had a fundamental right to free education did not call for any interference.” (29.9) The learned counsel has further relied upon para 45 of the said judgment where the Hon'ble Supreme Court SCA/9184/2005 23/50 JUDGMENT has observed as under: “In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled.” Thereafter the learned counsel has relied upon paras 47, 48, 49,50 and 57. In para 57 at page 545, the Hon'ble Supreme Court has observed that “We, however, wish to emphasize one point, and that is that