HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE SANJAY KUMAR W.A.Nos.67/2004, 68/2004, 69/2004, 70/2004, 106/2004, 167/2004, 168/2004, 170/2004, 181/2004, 192/2004, 249/2004 and 250/2004 Date: 28-04-2011 W.A.No.67/2004: Between: Kendriya Vidyalaya and another ……. Appellants And B. Shravani and others ……. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE SANJAY KUMAR W.A.Nos.67/2004, 68/2004, 69/2004, 70/2004, 106/2004, 167/2004, 168/2004, 170/2004, 181/2004, 192/2004, 249/2004 and 250/2004 COMMON JUDGMENT: (Per BPR, J) Since common question arises in all these matters, hence, they are taken up together for disposal. All these appeals arise at the instance of the appellants, which is an educational institution, aggrieved against the orders of the learned single Judge, dated 14-08-2003 allowing a batch of writ petitions in W.P.No.7758 of 2001 and batch, which are filed under Article 226 of the Constitution of India by the respondents-writ petitioners assailing the impugned notice, dated 01-02-2001 as unconstitutional and violative of Article 14 of the Constitution of India, which has been issued by the appellants institution calling upon the parents of the writ petitioners in regard to different fees structure, which will come into force w.e.f. 04-04-2001 i.e., from the academic year 2001-02, which contemplates tuition fees and other fees at nominal or reduced rates in case of children of employees of NTPC, CISF at NTPC, Kendriya Vidyalaya staff and children of SC/ST employees, whereas a fees structure at higher rates for the children of non-NTPC personnel, other central and State government employees, CISF personnel posted elsewhere and for the children of private employees. The learned single Judge, after considering the submissions from both sides and also the material on record, allowed the writ petitions with the following directions: i) All the students of Kendriya Vidyalaya, NTPC, Jyothi Nagar, Ramagundam, first respondent herein, from Class I to VIII whether they are wards of NTPC employees or wards of non-NTPC employees must be provided education free without charging any tuition fees. It is however open to the Kendriya Vidyalaya to charge other ancillary items of fees other than tuition fees; ii) All the girl students studying in Kendriya Vidyalaya from Class I to XII cannot be charged any tuition fees though the Kendriya Vidyalaya can charge other ancillary items of fees; iii) All the children of Central Government employees whether or not they are not posted at NTPC cannot be charged any tuition fees higher than the tuition fees charged from the children of employees of NTPC, CISF (NTPC), children of Kendriya Vidyalaya staff and children of SC/ST employees. While coming to the above conclusions, the learned single Judge addressed the issue arising in these cases on the questions as to the 1) right of a child up to the age of 14 years to have free education, 2) right of a girl student to have free education from Class I to Class XII and 3) the question of discrimination among central government employees. Broadly, thus, taking the issue on the wider perspective, it was held that all the children up to the age of 14 years are entitled to free education whatever be the nature of the school. Whatever be the employment status of the parents, an educational agency is bound to provide education to all children up to the age of 14 years and the collection of tuition fees by the education agency is impermissible except to collect nominal fees for providing education, but they cannot collect higher fees. Nextly, all the girl students from Class I to Class XII studying in the appellants institution are entitled to free education and it cannot charge any tuition fees though they are entitled to charge other ancillary items of fees like admission fees, Vidya Vikas Nidhi, Computer Fund etc. Lastly, considering the discrimination amongst the central government employees, the learned single Judge proceeded to consider that posting of the parents of the students in CISF is a fortuitous circumstance and they cannot claim to be the central government employees and CISF employees and the Kendriya Vidyalayas are established to cater to the needs of the children of central government employees to provide quality education without raising the cost. Thus it was held that the classification of the central government employees for implementing different fees structure has no relation to the main object sought to be achieved namely, generation of enough internal resources. Referring to the principles as laid down by the Apex Court in UNNI KRISHNAN, J.P. v. STATE OF A.P. [1], T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA [2] and N.R. CHOUDHARY v. MINISTRY OF HUMAN RESOURCE DEVELOPMENT [3], all the writ petitions were allowed to the above effect. Even though it appears on a reading of the judgment of the learned single Judge that both sides went on a broader perspective from varied angles of constitutional, legal and otherwise, however in these appeals neither side have canvassed any of those aspects which came up for discussion and which have been considered and the ultimate conclusions as arrived at. The only point, which has been urged on behalf of the appellants institution in all these appeals, is to the effect that the appellants institution would not fall within the definition of the State under Article 12 of the Constitution of India and therefore, all the principles, as relied on by the learned single Judge, would have no application and the appellants institution cannot be put on par with the State or any State institutions. These submissions were sought to be repelled on behalf of the respondents-writ petitioners pointing out that this plea about the very applicability of Article 12 of the Constitution of India has not been canvassed nor is a part of the pleadings and therefore, it is being raised for the first time in these appeals, and hence, the same is not sustainable. On consideration of these submissions and on perusal of the entire material, as rightly pointed out by the learned counsel appearing for the respondents-writ petitioners, it is seen that no proper foundation has been laid by the appellants institution through the pleadings or otherwise in regard to the plea under Article 12 of the Constitution of India. Nowhere it can be seen that the appellants institution sought to regal out the obligation as State or its units. Even on perusal of the pleadings filed by the appellants institution before the learned single Judge, it would amply show that no such plea was raised anywhere. Nor, on a reading of the entire judgment of the learned single Judge, it transpires or refers to any such plea and therefore, there is no consideration much les a finding either way. Therefore, prima facie, we are of the view that such plea cannot be raised for the first time in these appeals. Even otherwise, we are of the view that having regard to the nature of the Constitution and its base on which it exists under the schemes for the purpose of providing education to the employees of the Government, the appellants institution cannot in any way wriggle out of the definition of the State or its well laid principles and parameters. There is no dispute to the fact that these institutions are not so provided to call themselves either by its creation, establishment or even the usage or investment of the funds since inception. Therefore, nothing lies with the appellants institution to contend that they would not come within the mischief of Article 12 of the Constitution of India. Hence, without going into the other aspect, since nothing has been touched by either side more so on behalf of the appellants institution on the findings given by the learned single Judge, we are of the view that there are absolutely no merits in all these appeals. All the writ appeals are, accordingly, dismissed. No order as to costs. _________________ B. PRAKASH RAO, J ________________ SANJAY KUMAR, J Date: 28-04-2011 YCR [1] AIR 1993 SC 2178 [2] (2002) 8 SCC 481 [3] 103 (2003) DELHI LAW TIMES 389 (DB)