1 191909 IN THE HIGH COURT OF JUDICTURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON WRIT PETITION NO.1919 OF 2009 Vibgyor High School, through its Principal, situate at Motilal Nagar-1, Srirang Sabde Marg, Goregaon (W), Mumbai 400 104 ... Petitioner V/s. 1. State of Maharashtra, through the Secretary, Department of Education and Employment, Mantralaya Annexe, Mumbai 400 032 2. V.K. Wankhede Deputy Director of Education, Mumbai Division, Greater Mumbai, Jawahar Bhavan, Churni Road, Mumbai 400 007 3. Avisha Gopalkrishnan, residing at Shree, 158, Jain Jainalaya Road, Bangur Nagar, Goregaon (W), Mumbai 400 090 4. Prashant Basrur, residing at C-58, Tarapore Garden, New Link Road, Andheri (W), Mumbai 400 053 5. Sanjita Prasad, residing at 703, Samarkhand, Prathamesh Complex, Andheri (W), Mumbai 400 053 2 191909 6. Vishal Ruia, 1302, Orchid, Vasant Valley, Malad (West), Mumbai 400 097 7. Balchandran Unni, 801, Serenity Complex, Off Link Road, Oshiwara, Mumbai 400 053 .... Respondents WITH WRIT PETITION NO.1925 OF 2009 Rustom Kerawalla Foundation a Public Charitable Trust registered under the Bombay Public Trust Act, 1950 having its address at Kerawalla Chambers, Apollo Bunder, Opposite Radio Club, Colaba, Mumbai 400 001 ... Petitioner Versus 1. State of Maharashtra, through the Secretary, Department of Education and Employment, Mantralaya Annexe, Mumbai 400 032 2. Vithoba K. Wankhede Deputy Director of Education, Mumbai Division, Greater Mumbai, Jawahar Bhavan, Churni Road, Mumbai 400 007 3 191909 3. Avisha Gopalkrishnan, of Mumbai Indian Inhabitant, residing at Shree, 158, Jain Jainalaya Road, Bangur Nagar, Goregaon (W), Mumbai 400 090 4. Prashant Basrur, of Mumbai Indian Inhabitant, residing at C-58, Tarapore Garden, New Link Road, Andheri(W), Mumbai 400 053 5. Sanjita Prasad, of Mumbai Indian Inhabitant, residing at 703, Samarkhand, Prathamesh Complex, Andheri(W), Mumbai 400 053 6. Vishal Ruia, of Mumbai Indian Inhabitant, 1302, Orchid, Vasant Valley, Malad(West), Mumbai 400 097 7. Balchandran Unni, of Mumbai Indian Inhabitant, 801, Serenity Complex, Off Link Road, Oshiwara, Mumbai 400 053 ...Respondents Mr. Aspi Chinoy, Senior Advocate, with Mr.Janak Dwarkadas, Sr.Advocate, Mr. Sanjay Jain, Mr. Ishwar Nankani and Mr. Huzefa Khokhawala i/by M/s. Nankani & Associates for the Petitioner in Writ Petition No. 1919 of 2009 Mr. Navroz Seervai, Senior Advocate, with Mr. Prateek Seksaria i/by M/s. L.J. Law for the Petitioner in Writ Petition No. 1925 of 2009 Ms. I.K. Calcuttawala, A.G.P., for Respondents No. 1 and 2 Captain B.K. Subbarao for Respondent No. 3 in Writ Petition No. 1919 of 2009 4 191909 Respondent No. 3 Writ Petition No. 1925 of 2009, present Mr. Darius B. Shroff, Senior Advocate, with Mr. Sagar Talekar for Respondents No. 4 to 7 in Writ Petition No. 1919 of 2009 CORAM : A.M. KHANWILKAR AND MRS. MRIDULA BHATKAR, JJ. DATE : 16th September, 2011. JUDGMENT (Per A.M. Khanwilkar, J.):- 1. This common judgment will dispose of both the petitions together, as common questions arise for consideration therein. The former petition is filed by Vibgyor High School. The second petition is filed by Rustom Kerawalla Foundation for the same reliefs. 2. By the former petition, viz., Writ Petition No.1919 of 2009, under Article 226 of the Constitution of India, the petitioner- school, which claims to be a minority private unaided school engaged in running a primary and secondary school under affiliation from Council for Indian Certificate of Secondary Examination (ICSE), International General Certificate of Secondary Education, University of Cambridge, U.K. (IGCSE) and offering National Institute of Open 5 191909 Schooling (NIOS) Curriculum, has taken exception to the orders passed by the Deputy Director of Education, respondent No. 2, dated 3rd July, 2009 and 4th September, 2009. Further, the petitioner-school prays for consequential relief of restraining respondents No. 1 and 2 by themselves and/or through their servants, officers, agents or subordinates from interfering with or preventing the implementation of the petitioner’s circulars, which stipulate the school fees payable by students of the ICSE Primary and Secondary Divisions of the petitioner-school in respect of academic year 2009-10. 3. By the impugned decision, respondent No. 2 disallowed the expenses incurred by the petitioner-school towards school building rent in the sum of Rs.2.50 crores per annum. The amount towards other expenses claimed by the petitioner-school, however, was accepted by respondent No. 2 as usual expenditure to entitle the petitioner-school to claim as part of the fee amount from its students. On that finding, respondent No. 2 approved the fees prescribed by the petitioner-school to the extent of Rs. 54,598/- for Primary Section and Rs.61,149/- for Secondary Section from the year 2008-09. 6 191909 4. By the second petition, viz., Writ Petition No.1925 of 2009, under Article 226 of the Constitution of India, the petitioner – a public charitable trust – prays for similar reliefs as in the former petition. 5. The broad relevant facts leading to the filing of the present petitions, including the events unfolded during the pendency of these petitions, for examining the challenge to the impugned decision of respondent No. 2 referred to above are as follows:- 6. Respondents No. 3 to 7, along with other parents of petitioner-school, vide letter dated 19th July, 2007 complained to the Education Minister of the State about the unlawful Parents Teachers Association elections and other issues regarding the maladministration in the school. The said communication reads thus:- “From: Aggrieved parents of Vibgyor High Motilal Nagar, Goregaon (W), Mumbai 19/7/2007 To: Shri Vasant Purkeji, Education Minister, Maharashtra State Respected Shri Purke Saheb, Sub: Unlawful PTA elections and other issues 7 191909 Vibgyor High (Trustee, R. Kerawalla) used to be Billabong High until Aug 2006 – which was under a franchisee agreement with Lina Asher – of KKEL (Kangaroo Kids Education Ltd., who owns and operates the brand-Billabong High) went thru a very messy public fallout and the two separated. Most parents chose to stay with the current school – even though KKEL was a better brand name, since the infrastructure belonged to this school and on meeting with the trustee – most were convinced that this school could go onto become one of the best schools in Mumbai. Parents helped the school ride thru court cases and even filed interventions on behalf of the school to ensure stability. Until end of 2005 – due to the internal bickering between the two partners, and their staffs - the school also did not have a head, no principal lasted more than 3-4 months. Many of these exits were attributed to Ms. Kavita Sahay – who has now been appointed ED of the school. Ms. Sahay, like our current principal, was apparently sacked from two previous schools – is the extra constitutional authority that runs this school. Mr. Shim Mathews, the current principal, was also sacked from his old school Ryan International.... In spite of all this, the school’s biggest strength, that of being one of the most child friendly and of allowing ‘open door’ to parents – was followed, all of last year. The PTA elections for the year 2006-07 were extremely well organised and completely transparent. On hindsight, that was due to the school’s need to have a strong and well networked body of parents to stymie the fears and apprehensions of doubting parents on the issue of curriculum (till that point in time, curriculum was being provided by KKEL and was considered to be one of the biggest selling points for the school). However, to the dismay of the trustee, and the rest of the school management, the PTA consistently took up issues of quality, safety and security, teacher qualification and training, age appropriateness of curriculum and quality of curriculum provided (as they were not following any text books in the junior classes, it was most critical that the people responsible for developing the curriculum were qualified and able to deliver the same). 8 191909 It was pointed out to the school management repeatedly that 1. Curriculum was faulty, sub-standard and at times even absurd. 2. People responsible for this sub-standard curriculum were not qualified and just did not comprehend either the needs of the students or the eventual objective of tying in with the boards requirement. 3. Teacher selection and Training were still murky as good quality teachers kept leaving school and were being replaced by whatever available. 4. Discipline was very loosely enforced and children of celebrity or favoured parents got away with everything. In fact, there have been instances of the teachers being pulled up for trying to discipline such students. 5. Safety issues not addressed at all. The common area for emergencies like fire etc., has been grilled and locked. There is no fire escape, and the staircase is not broad enough for 2000 students in an emergency situation. A hoarding site has been erected on the basketball court and the iron girders are right behind the hoop (basket) can lead to a very severe injury. A student came under the wheels of his own school bus and was badly injured. The parent was not allowed to meet the principal or the trustee till the PTA insisted and organised a meeting. 6. The savings from not having to pay franchisee fees should have revered back to the parents (about 12-15%). The original fee structure was inclusive of a premium paid for the KKEL and Billabong brand. The school has coolly pocketed the savings. 7. Even after these savings, the school has been trying to further increase the fees, which the earlier PTA had successfully ensured that the school did not push through. Due to this constant monitoring of the PTA, the school was made accountable for lapses of omission and commission. Apparently, this was not acceptable. 9 191909 Out of the blue the PTA elections for the year 2007-08, were announced this week without any consultation with the earlier PTA. Monday evening (9th July’07) – circular comes out – Tuesday and Wednesday – (both working days) given for filing nominations, and elections scheduled for Friday evening (13th July’07)- There was No announcement of names of candidates and no interaction permitted between parents to know the new candidates. The biggest mockery of this whole process was that the “so called ballot papers” were sent home with children on Thursday evening – with strict instructions given to children that all of them were to bring back forms duly completed the next morning... Only problem is that these were blank sheets of paper with a small table with just names of nominees, no name of parent required – no sealed envelopes, just a small ‘tick’ mark needed in front of one of the names ... (find copy attached) Further more – Friday when parents showed up for the elections – these ‘votes’ that were collected by the school in the morning were not reflected in the lists that the ‘elections officers’ were holding in the evening! On questioning the officers claimed that they knew exactly which parent had sent their votes in the morning and there was no chance of duplication, needless to say many parents happily voted twice for their candidates... To further this travesty of ‘electing’ ‘the post of CR i.e. class representatives was dropped – so a PTA that should have comprised of about 80 parents or so – was shaved down to 12 in one clean shot. Obviously no parent can hope to look after the interest of 200-250 parents (depending upon number of divisions per grade) so the post that does now exist i.e. GR or grade representative is pretty much toothless. Finally all the candidates that won, except for the grade V candidate, were those who had been asked to file nominations by the school with a clear commitment that if they stood they would win. These are parents whom the school is sure will meekly listen to them do exactly as the school would want them to do. In fact two of the nominated grade reps have taken signatures from their classes and are challenging their loss – since their parents have given them 10 191909 in writing that most of them voted in their favour – it would be interesting to see the outcome of this challenge... The obvious reason for this kind of blatant manipulation is that the school needs to have a dummy PTA in place so that – The school can function just as they want without any interference or monitoring from the parents. – The school can get away with all dubious activities and not allow anybody to question them upfront. – Invariably, the school would now take this opportunity to successfully push the ‘fee hike’ which they have been trying since the last 2 years now. – The fee hike they know that the current body of parents would have never approved.... for the simple reason that the quality delivered today is way below the standard even for the current level of fees that they are charging. Sir, herewith we would like to request to look into the matter and set up a proper enquiry regarding all the issues mentioned above for the sake of future of our children. We are sure, Education ministry will not allow any Education institution to run as a business, profit center. Thanking you, Yours truly, Sd/- On behalf of Aggrieved parents Contact persons: Prashant 9820073692 Bala: 9819137575 Avisha 9821524455 ” (Emphasis supplied) 7. The said representation was pending on the file of the appropriate Authority. Notwithstanding that, the petitioner-school proceeded to issue circular on 19th March, 2008, increasing school fees as prescribed therein. 11 191909 The said circular issued by the school reads thus:- “VH/CIR/FEES/0708/240 March 19, 2008. Dear Parents, This is to inform you that the Fees for the 1st Quarter of the new academic year 2008-09 have to be paid between 1st April (Monday) 2008 to 15th April (Tuesday) 2008 for confirmation of seat/continuity. Fee receipt book will be sent with students on or before 31st March 2008. 1. Fee Amount : Please refer to the enclosed Fee Structure details. 2. Mode of Payment : By cheque or DD only (Please note that payment by cash will not be accepted. 3. Please draw a cross Cheque/DD in favour of : VIBGYOR High – Pre Primary (for Nursery, Jr.KG, Sr.K.G.) VIBGYOR High – Primary (for Grade I to IV, all courses) VIBGYOR High – Secondary (for Grade I to XI, all courses) 4. Please write the Name, Grade, Enrolment Number and the Course (ICSE, IGCSE, NIOS) on the reverse of the Cheque. 5. Please ensure that all details in your child’s Fee Receipt book are precise and complete. Important : * Parents who intend to transfer or apply for a Leaving Certificate are requested to meet the Front Office Manager and submit a Leaving Certification Application Form on or before Friday, 28th March 2008. We wish to inform you that the school management has increased the school fees from academic year 2008-09 due to increase in various administrative and others cost that are beyond our control. Please be assured that the increase in fees has been undertaken after giving a careful consideration to all relevant factors. Thank you for your understanding and support, sd/- Shim Mathew Principal. 12 191909 Encl : Fee Structure Details. FEE STRUCTURE (2008-09) Type of Fees 1st Quarter payable in April 08 2nd Quarter payable in July 08 3rd Quarter payable in Oct 08 4th Quarter payable in Jan 09 Nursery Tuition Fee 20,500 7,100 7,100 7,100 Term Fees 1,250 - 1,250 - Jr.KG & Sr.KG Tuition Fee 20,500 7,100 7,100 7,100 Term Fees 2,250 - 2,250 - Grade I to IV (ICSE) Tuition Fee 22,150 14,400 14,400 14,400 Term Fees 4,000 - 4,000 - Grade V to X (ICSE) Tuition Fee 27,500 14,500 14,500 14,500 Term Fees 5,575 - 5,575 - Grade I to IV (IGCSE) Fees 32,250 20,600 20,600 20,600 Grade V to VII (IGCSE) Fees 38,750 23,750 23,750 23,750 Grade VIII (IGCSE) Fees 40,000 30,000 30,000 30,000 Grade IX & X (IGCSE) Fees 32,500 32,500 32,500 32,500 Grade VI & VII (NIOS) Tuition Fees 30,000 23,300 23,300 23,300 Term Fees 5,000 5,000 Grade VIII to X (NIOS) Tuition Fees 36,000 27,960 27,960 27,960 Term Fees 5,000 5,000 13 191909 TYPE OF FEES 1ST Quarter payable in April 08 2nd Quarter payable in July 08 3rd Quarter payable in Oct. 08 4th Quarter payable in Jan 09 5th Quarter payable in Apr 09 6th Quarter payable in July 2009 A Levels (18 month programme) Fees 70,000 42,000 42,000 42,000 42,000 42,000 8. This has been done on the basis of purported approval granted by the Accounts Officer (Education), in terms of his letter dated 21st February, 2008. The same reads thus:- “Letter No: 34 – AO/Ed/W Accounts Officer (Education) Jogeshwari Mumbai – 60 Dated – 21/02/08 To, The Education Inspector West Zone, Jogeshwari (E) Mumbai – 60 Sub: Audit Inspection Report of Vibgyor High School, Goregaon Ref: Your letter No. 459-61 dated 04/02/2005 Dear Sir, In reference to your above mentioned letter we have conducted an Audit between 6/02/08 and 08/02/08 of the Vibgyor High School, Goregaon which is fully Non-Aided school. The report is as per mentioned below: 14 191909 Vibgyor High School is affiliated to ICSE, New Delhi for the Academic year 2007-08, 2008-09 and 2009-10. The school is Private and fully Un-Aided. As per the complaint submitted by the PTA, our office has conducted an audit of receipts and payments for the period April 07 to Dec 07. It has been observed that during this period the total expenditure incurred is Rs. 6,96,64,787/- whereas the total receipt is Rs.6,31,86,300/-. Though it is impossible to implement the revised fee during this year, we are furnishing herewith the Recommended Expenditure for the year 2008-09 as per the GR dated 22/07/1999, 27/05/2005 and also as per the secondary School Code. A) Recommended Expenditure for 2008-09 10,75,22,351/- Non-Accepted Exp 1) Professional Fee 60,91,264/- 2) Building Repairs 6,03,132/- 3) Staff Welfare 5,00,009/- (-)71,94,405/- ------------------ Sanctioned Expenditure by Education 10,03,27,946/- Inspector B) Other Income (2007-08) support (-) 25,31,046/- ------------------ 9,77,96,900/- C) 5% increase as per GR dated 27/05/2005 (+) 48,89,845/- ------------------ Approved Salary Exp. + Other Expenses 10,26,86,745/- Out of the total expenditure during 2007-08, 54.24% is utilized for primary section and 45.76% for Secondary Section. This year the Recommended Expenditure is to be divided in the proportion of 54% for primary and 46% for secondary section. The revised fee structure has been recommended as shown below . 15 191909 Primary Section Secondary Section 54% Expenditure 46% Expenditure 5,54,40,842.50 4,72,35,903.00 No. of students - 746 No. of students - 575 Annual Fee – 73,347/- Annual Fee – 82,149/- Monthly Fee – 6112.25 Monthly Fee – 6845.75 Approved Monthly Fee – 6112.00 Approved Monthly Fee – 6845.00 Yours truly, sd/- Accounts Officer (Education – West Zone) Mumbai.” 9. Soon after the circular, the parents made representation to the Chief Minister, complaining about the abnormally high rise of school fees, approximately Rs.55,000/- to Rs. 82,500/- by the school, that, too, calling upon the parents to deposit the same within 5 working days. The parents thereafter filed writ petition in this Court, being Writ Petition No. 722 of 2008. Respondents No. 3 to 7 were the petitioners therein, who had filed the said petition in representative capacity, praying for the following substantive reliefs:- “a. That this Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the Circular dated 19th March 2008 (Exhibit B hereto) ; b. That this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Nos. 1 and 2 obtain an 16 191909 approval from Respondent Nos. 3 and 4 and consult the PTA before proposing a fee hike ; c. That this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Nos. 3 and 4 to inspect the financial records of the Respondent Nos. 1 and 2 to determine the actual costs and profits in running the Respondent school; ...... ” 10. It is not necessary to refer to interim orders passed in the said writ petition, including to the order of the Supreme Court at interlocutory stage. The said writ petition was disposed of by Division Bench of this Court on 20th April, 2009 along with companion matters. That order reads thus:- “1. Both the petitions on motion made by the learned counsel appearing for the petitioners permitted to be withdraw. Interim orders, if any, operating stand vacated. The learned counsel appearing for the Dy. Director states that the Dy. Director will pass a reasoned order on the complaint dated 19.7.2007 made by the petitioners, which is marked as Exh. G at page 138 to the reply filed by the respondent No. 1. Statement accepted. In view of this statement, following order is made. ORDER 1. The petitioners shall be at liberty to submit any additional submissions/ material they want to rely on, in support of their complaint with a copy to the respondent No.1 within a period of two weeks from today. The respondent No.1 shall be at liberty to make further submissions including response of the respondent No.1 to the additional submissions of the petitioners within a period of two weeks from the date of receipt of the additional submissions from the petitioners. The Dy. Director thereafter shall take the entire material produced before him for consideration and make reasoned order and communicate the same to the parties within a period of six weeks from the receipt of the submissions from both the sides. By consent of the parties, it is directed that, it is not necessary for the Dy. Director to grant oral hearing to the parties. The parties to the 17 191909 petitions shall be at liberty to adopt appropriate remedy against the order of the Dy. Director that will be made. It is made clear that, according to the petitioners, the complaint referred to above is the only complaint made and it is to be decided by the Dy. Director and till it is decided by the Dy. Director, the petitioners would not approach to any authority. We make it clear that we have vacated the interim order which was operating and therefore, fees shall be paid as per the revised fee structure. However, recovery of the fees shall be subject to the order of the Dy. Director. 2. Both the petitions stand dismissed as withdrawn. 3. In view of the above order, notice of motions are disposed off.” This order is of some significance for examining the matters in issue. We shall deal with that a little later. 11. Pursuant to the abovesaid order, the matter proceeded before respondent No. 2 to pass a reasoned order. After the disposal of the writ petition, however, the school had filed Review Petitions, being Review Petitions No. 19 and 20 of 2009, respectively, on 8th of May, 2009. With reference to the grievance made by the petitioner-school, statement of advocate for the respondent-parents was made and was taken on record. The said order dated 8th May, 2009 reads as follows:- “1. Shri. Mihir Desai, the learned Counsel appearing for original petitioners states that all objectionable statements and the statements inconsistent with the order passed by this Court, made in the additional written submission filed before the Deputy Director of Education and all objectionable documents filed before the Deputy Director of Education shall be withdrawn and copy of that 18 191909 communication will be given to the respondents during the course of the day. Statement accepted. Put up after vacation.” 12. The Review Petitions came to be finally disposed of on 8th June, 2009 on the following basis:- “1. The learned counsel appearing for original petitioners states that the Deputy Director of Education, Mumbai 400 007 can examine whether any part of the submissions made by the petitioners before the Deputy Director are contrary