IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-10-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.No.20336 of 2011 M.P.Nos.1 and 2 of 2011 1. V. Krishnamoorthy 2. C. Ramasubramaniam 3. Sadhish Kumar 4. Vijayasarathy, V.V. 5. P. Senthil Nathan 6. S. Sridhar 7. R. Aarthi Rajesh 8. T. Narmatha 9. Rajusarabaiah 10. E. Nagarajan 11. Nilavarasan 12. Chandrakanth Prabu 13. Gireeshkumar ... Petitioners Vs. 1. The State of Tamil Nadu, rep.by Secretary to Government, Department of Education, Fort St.George, Chennai – 9. 2. The Director of Elementary Education, Tamil Nadu, Office at DPI Campus, College Road, Chennai – 6. 3. The Chief Educational Officer, Chennai. 4. The District Elementary Education Officer, Chennai. 5. The Director, Central Board of Secondary Education, Egmore, Chennai – 8. https://hcservices.ecourts.gov.in/hcservices/ 6. The Commissioner of Police, Chennai City, Egmore, Chennai – 8. 7. The Management of the Chettinad Foundation 'A' School, rep.by its Governor / Administrator, Chettinad Foundation Office, Rani Seethai Hall, 603, Anna Salai, Chennai – 6. 8. Annamalai Chettiar, The Founder, 'A' School Chettinad Foundation, 603, Anna Salai, Chennai – 6. 9. Rajini Clifford 10. Sai Meena Vijayan ... Respondents (RR-9 & 10 are impleaded as per order dated 28.9.2011 in M.P.No.3 of 2011) This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus directing the respondents 1 to 6 to take legal action to discontinue the functioning of the units of " 'A' Schools Chettinad Foundation" and direct respondents 7 and 8 to return the fees amount collected from the petitioners with compensation fixed by this Court. For Petitioners : Ms.A.Arulmozhi For Respondents1to4&6: Mr.A.Navaneethakrishnan, Advocate General, assisted by Mr.P.Sanjay Gandhi, Addl. Govt. Pleader For 5th Respondent : Mr.S.Udayakumar For Respondents 7&8 : Mr.Satish Parasaran For Respondents 9&10: Mr.R.C.Paul Kanagaraj O R D E R This writ petition is filed by 13 parents of the students studying in 'A' School Chettinad Foundation situated at 18th Avenue, Ashok Nagar, Chennai, and in other branches at Chennai, praying for direction to the respondents 1 to 6 to take legal https://hcservices.ecourts.gov.in/hcservices/ action to discontinue the functioning of the Units of "A' School Chettinad Foundation" and direct the respondents 7 and 8 to return the fees amount collected from the petitioners with compensation fixed by this Court. 2. The facts necessary for disposal of this writ petition as per the pleadings are as follows: (a) Petitioners are hailing from Middle Class and Upper Middle Class educated families. They are employed in IT Industries and to educate their children they searched for good school in their residential surroundings. (b) Petitioners came across an advertisement issued by the 7th and 8th respondent made in the name of 'Chettinad Foundation 'A' Schools' by advertisement boards and in their official website. The advertisement contained the list of institutions established by the Chettinad family including Chettinad Vidyashram, Chettinad Hari Shri Vidyalayam, Kumara Rani Meena Muthiah Matriculation Higher Secondary School, Raja Muthiah Higher Secondary School, Kumara Raja Muthiah Higher Secondary School and various other institutions. (c) In the prospectus published in the webside of Chettinad 'A' Schools in www.aschool it was declared that the admissions are open for play group/Pre-KG, LKG, UKG continues on till XII (CBSC) at one of their main schools. It is also stated that the curriculum is based on CBSC syllabus. The framework is built on universally accepted developmental milestones of a child and designed keeping in mind skills that are age appropriate. The method of teaching is built on montessori principle and is oriented to promote Activity Based Learning method. (d) The infraustructural facilities mentioned in the website are, every centre is carefully chosen so that it is located in safe neighbourhood, independent, bright, well ventilated and spacious; the interior and exterior of the centre including stairways, balconies and terrace are made to be child safe and supportive and child friendly, hygienic and functional environment that inspires and allows child development. (e) The teacher-student ratio as mentioned in the website is 1:15. The fees mentioned are Application fee Rs.500/-; Registration fee Rs.9,000/-; Term fee (3 terms in a year) Rs.7,800/- for pre-KG and play school; Rs.9,600/- for Lower KG, Upper KG and standard one. A note was put up stating that the said fee does not include charges for uniform, work sheets, books, play and learning materials, field trips, supplies, etc., and fees once paid cannot be refunded. (f) The petitioners among other parents approached the 7th respondent for admission as they were attracted by the brand name of 'Chettinad Foundation'. The administrator of the School had promissed that classes presently conducted in the individual houses are only for pre-KG students and they will be shifted to bigger and specious structure soon. The parents were also informed that additional sum of Rs.2,000 to Rs.3,000 is to be paid per annum for https://hcservices.ecourts.gov.in/hcservices/ materials and separate cost for uniform will be collected. (g) The petitioners admitted their children in 'A' Schools of Chettinad Foundation. They are studying in various classes viz., LKG, UKG, Standard I, and admissions for the said classes started in the year 2009. According to the petitioners, after collecting a sum of Rs.9,000/- towards admission fee, 7th respondent issued acknowledgement, which do not contain the break-up details of fee structure and it was informed that the same will be issued later. (h) The students were sent to the respective schools and petitioners came to know that no infrastructural facilities are available and there were only few toilets available for all classes. The toilets were unhygienic and unusable by the children. The children were not taken care of by sufficient number of maids. There was no transportation facility as assured. No books were supplied even for reading alphabets. Except activity sheets, no study materials were provided and the children were terrorised by corporal treatment by the teachers and attenders, who claim to be supervising the school. On enquiry by the parents it was learnt that the children are threatened by the teachers stating that they will be put in dark room for any mistake. (i) It is stated in the affidavit that the children developed urinary track infections and the cause was found by the parents through Doctors that they are controlling urinating during School hours as the toilets are not clean. The 7th respondent has not provided ID cards even after collecting registration fee of Rs.9,600/- and term fees. The 7th respondent collected Rs.5,000/- for materials and uniforms and only two sets of uniforms were supplied in December, 2010, just three months prior to summer vacation and the uniforms were also not stitched to measurement of individual child and the same are not fitting to the children. After some time, the students were told not to wear uniform. The term fees were collected much in advance. (j) All these facts were reported to Supervisors and Administrators of the School. The parents of the children who reported those issues before the Administrators, were harassed. It is alleged that the Administrators have assured the parents that they will solve the deficiencies in the academic year 2011-2012 and more facilities will be provided by constructing new buildings. Due to the said assurance, petitioners did not seek admission to their children in other school. (k) It is contended that the parents received SMS information to their mobile phones directing them to pay Registration fee of Rs.9,600/- for the year 2011-2012. The parents objected for collection of Registration fee every year as registration in the pre-primary and primary class is to be on one time basis and thereafter annual fee and Term fee alone has to be paid. It is alleged that the parents were coerced and ultimately they were forced to pay Registration fee with fine at the rate of Rs.50/- per day for the delayed payments. Again SMS was received on 24.6.2011 to pay administration fee and programme fee, which comes to https://hcservices.ecourts.gov.in/hcservices/ Rs.6,200/- and Rs.3,600/-. For Physical fitness, which is part of regular curriculum, a term fee of Rs.9,600/- is collected, which comes to Rs.3,200/- per month. It is alleged that on the guise of education the respondents 7 and 8 are grabbing money. (l) It is further contended that about 95 parents, whose children are studying in Ashok Nagar 18th Avenue branch, submitted a joint representation on 27.6.2011 before the 7th and 8th respondents, who paid no attention to the said representation and the parents were ill-treated by the Supervisors and denied entry into the School to meet the Administrative staff and they were informed through SMS that they should apply through E-Mail to get appointment to meet the Administrators. (m) Again on 5.7.2011 further representation was submitted stating that the school lacks basic amenities as per the standards prescribed by the Government and the fees collected do not commensurate with care and education given to the children. (n) According to the petitioners, there are 36 schools (Branches) run by the Chettinad Foundation 'A' School on their own franchise and all the schools have no affiliation/recognition either from the State Government or from the Central Board of Secondary Education; that there is no prescribed curriculum; that the schools do not have play ground as per the Government norms; that the schools are functioning in individual houses without sufficient toilets proportionate to students strength; that for more than 280 students in 18th Avenue, Ashok Nagar branch, only six toilets are available; that the fee structure fixed is without following the fee prescribed by the Government; that the said violations are serious and are threat to the safety of the children. Again a SMS message was received on 18.7.2011 by the parents alleging that those students, who have not submitted proof of payment for administration and programme fees with late fee by 20.7.2011, will be emotionally tortured; that some of the parents were called separately and given bona fide certificate with instruction to admit their child in any other school without issuing any transfer certificate. (o) It is also alleged in the affidavit that some of the children came with hitting on their head and the enquiry revealed that the teachers instigated some of the students to hit them. An agitation was organised before the 'A' School office, Ashok Nagar on 22.7.2011 by the parents and after the agitation, the parents met the Commissioner of Police, Chennai with a representation and requested to take action. It is stated in the affidavit that the police allegedly abused the parents in support of the school management. (p) On 11.7.2011 a representation was submitted to the first respondent pointing out the said violations and harassments. A SMS message was received on 4.8.2011 stating that there will be a meeting with the Founder. Some of the parents who visited to attend the meeting were denied entry. In the meeting, instead of giving patient hearing, the Administrator snubbed the parents. On https://hcservices.ecourts.gov.in/hcservices/ 10.8.2011 a public notice was published in the Times of India newspaper stating that public not to be deceived by unauthorised use of the Trademark "Chettinad" by unscrupulous persons. (q) Petitioners further alleged that the Chettinad Foundation 'A' Group Schools violates the conditions laid down under Section 18 and 19 of the Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009 (Central)) viz., Schools were established without obtaining certificate of recognition and without fulfilling the norms and standards; that Section 13 of the Act is violated as the management is collecting capitation fee in the name of Registration fee every year; that CBSC Bye-laws Chapter-II is violated; that the Tamil Nadu (Madras) Elementary Education Act, 1920 is violated; that the provision of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Rules framed thereunder are violated; that the Code of Regulation for the Approved and Nursery and Primary Schools issued by the Government is violated; that Article 19 and 20 of the United Nations Convention on the Rights of the Child is violated; and more particularly, fundamental right guaranteed under Article 21A of the Constitution of India to their children is violated. Pointing out all these violations petitioners have filed this writ petition with the above said prayer. 3. The respondents 7 and 8 have filed counter affidavit contending that the 8th respondent is the Founder of the Schools belonging to a Philanthropic family, dedicated to the cause of education. The 7th respondent is a reputed group of Schools run by Chettinad Foundation, imparting high standard of education to children in the age group of 1½ to 8 years. The 7th respondent is running school at Ashok Nagar and has 36 branches in Chennai, and in the said branches about 3,397 children are studying. It is alleged that the writ petition has been filed with oblique motive by suppression of facts. The prayer sought for in the writ petition is beyond the representation submitted. As per the affiliation bye-laws of the CBSE, request for approval of middle class syllabus should be made only when the school reaches Class VI. The schools run only upto classes of pre-primary level and requisite permission will be duly obtained from the CBSC at the appropriate level that is prior to reaching class VI. The safety measures are made meticulously in several branches by raising compound wall to 8 feet from the ground level. Every school is provided with fire fighting equipments and trained staff members, having sufficient toilets and other infraustructural facilities. Filtered drinking water is provided in all the schools and all class rooms are adequately ventilated. The School curriculum are based on CBSE syllabus, which is based on universally accepted developmental milestone. The 7th respondent set up schools with conscious decision to run schools for children in a homely atmosphere. The foundation for the location of main schools will be declared in December 2011. The toilets are cleaned every day https://hcservices.ecourts.gov.in/hcservices/ and adequate number of maids are engaged at the ratio of 1: 40. Transport facility is provided as promised and no corporal punishment is imposed. Administrators are regularly supervising and Teachers are warned not to indulge in any corporal punishment. A sum of Rs.450/- was collected for uniform and materials during the academic years 2010-2011 and 2011-2012. 4. All the children are provided with photo ID. The one time Registration fee of Rs.9,000/- is collected during the time of registration and not yearly. A sum of Rs.3,600/- is being collected towards various programmes being held in school like fitness, music, abacus, reading, etc. The Government has not fixed any fee structure to the schools and the respondent school are not collecting any exorbitant fees. The Registration fee is utilised towards the cost of setting up the respective schools including alteration, modification and renovation, outdoor and indoor play materials, toilets, play areas, safety proofings, raising compound wall, etc. The Term fee is used for payment of rent, electricity, communication and conveyance expenses and also for salary for Teachers and Assistants. Several parents have not paid fees and the Chettinad Trust has suffered a loss of over Rs.40 lakhs. The alleged SMS message regarding emotional torture due to non-payment of fee is denied. Stating all the said reasons, the respondents 7 and 8 have prayed for dismissal of the writ petition. 5. The second respondent has filed counter affidavit stating that as per the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, before establishing a private school, permission has to be obtained and subsequently recognition has to be obtained. The Schools run by the 7th respondent has not obtained prior permission from the competent authority of education department of the State. The Government received complaints from the parents of the students studying in 'A' School at Ashok Nagar, Chennai, and called for explanation from the management. The Chief Educational Officer, Chennai inspected the 'A' School at Ashok Nagar and filed his inspection report. It was informed by the management that they are following CBSE syllabus curriculum in their school. There are 36 schools, which proposes to get recognition from the CBSE and it is alleged that the management informed the parents while admitting their children. All the 36 schools are functioning in independent bungalows taken on lease. The 'A' school, functioning at Plot No.22 Sriman Srinivasan Road, Alwarpet, Chennai-28 was inspected and found that in Pre-KG 23 students; in LKG 17 students; in UKG 21 students; and in I standard 16 students are admitted, and five teachers and two non-teaching staff are employed of which only one teacher has passed Teacher Training and others are not trained teachers. All the schools are functioning in rented building on three years agreement from 17.5.2009 onwards. The class rooms are small in size; there is no play ground and the toilets are only four in number, which is https://hcservices.ecourts.gov.in/hcservices/ inadequate. During the visit the Correspondent highlighted Rule 4 (1) of CBSE Affiliation Bye-laws and contended that only while reaching Class VI approval has to be obtained after forwarding application by the State Government with no objection certificate for affiliation by CBSE. 6. It is further stated in the counter affidavit that the highest and lowest fees fixed by the Fee Committee for LKG, UKG and Standards I and II are, for LKG and UKG Rs.24,000/-; for I & II Standards Rs.18,050/-(highest); and for LKG and UKG Rs.1,500/- and for I & II Standards Rs.1,800/-(lowest). It is also stated in the counter affidavit that under the Right of Children to Free and Compulsory Education Act, 2009, no school other than a school established or owned by the Government or local body can function without obtaining a certificate of recognition from the authority and the said provision is not followed by the 7th respondent school. The 36 schools of Chettinad Foundation will be advised to approach either the State Government or Central Government for necessary recognition as per the rules. The second respondent ultimately prayed for issuing appropriate directions by this Court. 7. The impleaded respondents viz., respondents 9 and 10 have opposed the prayer made in the writ petition contending that if any adverse order is passed, they will be affected and the respondents 7 and 8 are conducting the schools satisfactorily and if the schools are closed, about 3,397 students studying in 'B' schools will be affected as they may not be in a position to get admission in any reputed school. 8. Ms.A.Arulmozhi, learned counsel for the petitioner submitted that the respondents 7 and 8 can establish schools as private schools only after getting permission from the competent authority as well as recognition from the competent authority under the provisions of the Tamil Nadu Recognised Private Schools Regulation Act, 1973 and the Rules framed thereunder. Prior to the said enactment of the said Act, Tamil Nadu (Madras) Elementary Education Act, 1920 and Act and Rules were issued and the same was governing the establishment of schools including private Schools. The said Rules clearly contemplates several aspects for starting/establishing private schools within the State of Tamil Nadu. Under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, permission has to be obtained for establishing Schools and the Government has got power to regulate school education as per Section 3. The management of private school shall submit an application before the competent authority seeking permission and no person shall establish a school without prior permission of the competent authority and except in accordance with the terms and conditions specified in such permission. Separate procedure is contemplated for submission of application seeking permission as well as for recognition and only https://hcservices.ecourts.gov.in/hcservices/ on compliance of requirements which are mandatorily to be followed, the competent authority can issue permission and subsequently separate application shall be submitted for recognition. 9. Rule 4 of the Tamil Nadu (Recognised) Private Schools Regulation Rules, 1974 prescribes the competent authorities for the grant of permission and recognition of pre-primary, primary and middle schools, high schools and higher secondary schools. Separate fee is also prescribed for each category of school to be paid at the time of seeking permission. As per Rule 6 the application shall be considered and on satisfaction, permission can be granted. Rule 9 deals with recognition for which also competent authorities are prescribed for pre-primary, primary, middle school, high school and higher secondary schools. Qualifications and conditions of service of teachers and other persons employed in private schools is also prescribed in each category of schools. Separate guidelines are issued regarding the infrastructures to be satisfied for the grant of permission and recognition to each category of private schools. 10. The learned counsel further submitted that the respondents 7 and 8 can establish and administer 36 private schools with standards 1 and 2 including pre-primary schools, only after getting permission and recognition students can be admitted. Respondents 7 and 8, without even applying for permission and recognition before the competent authorities as mentioned in the Tamil Nadu Recognised Private Schools (Regulation) Act and Rules, are running 36 schools and the said action of the respondents 7 and 8 is to be taken serious note of, particularly regarding not obtaining building licence as required under the Tamil Nadu Public Buildings Licence Act, 1965, stability certificate, sanitary certificate, etc. It is also submitted by the learned counsel for the petitioner that CBSE Affiliation Bye-laws relied on by the respondents 7 and 8 in the counter affidavit stating that only on reaching Standard VI application for affiliation has to be submitted is unsustainable as the said affiliation can be applied only if NOC is issued by the State Government, which clearly establishes the fact that affiliation has to be obtained from Standard VI onwards and upto Standard V, permission and recognition must be obtained from the concerned State Government. The school, which is recognised intends to get affiliation with CBSE, NOC can be issued by the State Government for changing the pattern of education to CBSE. The learned counsel also submitted that the second respondent has misconstrued the said provision and is contending that for the schools which are following CBSE pattern need not obtain permission and recognition from any authority till VI standard and the said stand of the second respondent is unreasonable and erroneous and violative of the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel also relied on the provisions contained in the Right of Children to Free and Compulsory Education Act, 2009, particularly Sections 18 and 19 of the Act, which clearly states that no school shall be established without certificate of recognition and the norms and standards for schools to be followed for establishment. Learned counsel also relied on the penal provision enabling action on any person, who contravene the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and Central Act 35 of 2009. The learned counsel also relied on Articles 28 and 29 of the UN Convention on the Rights of Child in support of her contention and also cited the Judgment of the Honourable Supreme Court reported in (2009) 6 SCC 398 (Avinash Mehrotra v. Union of India); Judgment of the Kerala High Court reported in CDJ 2009 Kerala 194 (S.Shafeek Manager v. State of Kerala); decisions of this Court reported in (2009) 5 MLJ 1387 (L.Bhavanibai v. Director of School Education (Matriculation), Chennai) and (2010) 5 MLJ 1139 (Ka.Kalaikottuthayam v. State of T.N.). 12. Mr.Satish Parasaran, learned counsel for the respondents 7 and 8 submitted that more than 3,397 students are undergoing their education from pre-KG to II Standard and only 13 parents of students are before this Court seeking action against the management. The learned counsel contended that the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules framed thereunder are not applicable as the respondents 7 and 8 are running the institutions under the CBSE pattern, which contemplates submission of application for affiliation only when the school is having Standard VI and above. The learned counsel further submitted that as per section 19(2) of the