M.M.DAS, J. W.P.(C ) NO.5030 OF 2009 (With Batch)(Decided on 27.06.2011) MANAGEMENT OF DAV PUBLIC SCHOOL & ORS. ………Petitioners. .Vrs. STATE OF ORISSA & ANR. ……… Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART. 19(1) (g), 6. For Petitioners - M/s. S.S.Das, R.Sahu, K.C.Mohapatra, A.Mishra, G.Sinha, D.K.Panda, R.K.Kar, J.K.Khuntia, B.Routray, D.K.Mohapatra, B.B.Routray, D.Routray,S.Das,R.N.Misra-II,U.K.Mishra, S.M.Mohapatra-1, B.Mohanty, T.K.Patnaik, A.Patnaik, M.K.Sahoo, A.K.Mishra, A.K.Mohapatra,S.K.Rath, .Pradhan,O.P.Mohanty, Mrs.D.Mishra, S.Mohapatra, S.Patnaik,A.K.Mohanty, P.K.Dhal, P.Ranjan & M.K.Behera (In all the cases) For Opp.Parties - Addl. Govt. Advocate (for State) M/s. J.Patnaik, Sr.Advocate A.Rath,P.K.Sahoo,R.R.Mohanty, B.K.Nayak, B.Mohanty, T.K.Pattanaik, A.Patnaik, R.P.Roy, M.S.Rizivi, H.M.Dhal & B.S.Raiguru. (In all the Cases) M. M. DAS, J. All the aforesaid writ applications, except W.P. (C) Nos. 5030 and 5113 of 2009 which will be dealt with later, relate to enhancement of fees, such as tuition fees, admission fees, readmission fees etc. by the school authorities of various DAV Public Schools of the State. All these matters were heard together and common orders were passed in the record of W.P.(C) No. 5030 of 2009. 2. The disputes raised by the petitioners in various writ applications were widely canvassed from various angles and the managements of DAV Public Schools were also heard in extenso, the parties being represented by the respective counsel. All the DAV Public Schools in the State of Orissa are affiliated to the Central Board of Secondary Education (CBSE for short) and follow the syllabus of the said Board for imparting education to the students. Such schools were established in the State after obtaining no- objection certificates as per the resolution adopted by the Department of School and Mass Education, Government of Orissa (hereinafter referred to as “Resolution, 1996”). For better of this case, the said resolution in toto is quoted hereunder:- “No.30720 – VISSME – M – 17/96 SME GOVERNMENT OF ORISSA DEPARTMENT OF SCHOOL AND MASS EDUCATION RESOLUTION The 23rd September 1996 State Government, with concern, have observed that there is rapid growth of Private Educational Institution imparting teaching in English and other Medium in the State which are affiliated to C.B.S.E. and I.C.S.E. in O.J.C. 2951/1993 the Hon’ble High Court have also observed that Sub-Section (5) of Section 6 of Orissa Education Act provides that while according recognition to a Private Educational Institution, the Prescribed authority shall have regard to matters like provision for suitable and adequate accommodation, location of the institution, its sanitary and healthy surroundings appointment of qualified teachers, provision for equipments and teaching materials and adequate financial support for the continuous and efficient maintenance of the institution. Besides, several allegations have been received of mal-administration and mismanagement of such institutions. It has thus become imperative to prescribe certain guidelines to be followed before according N.O.C./Recognition to such institution and to withdraw such N.O.C./Recognition in the event of violation of any of the instructions issued in this Resolution. Any Organization/Individual seeking No Objection Certificates from the State Government to open any unaided school to be affiliated to the ICSE/CBSE shall be required to fulfil the terms and conditions and satisfy the requirements prescribed hereunder. 1. (A) Accommodation (i) The Institution must have at least 1 acre of land in the urban areas having population of 5 lakhs and 2 acres in other areas. The land need to be recorded in the name of the institution and the copy of the record of the rights to be furnished by the applicant at the time of applying for No Objection Certificates. The Institution must have suitable building having regard to number of pupils attending the school. (ii) There shall be adequate equipment and furniture. (iii) There shall be a well equipped library for use of the staff and pupils. (iv) There shall be sufficient and commodious rooms to accommodate all Sections and classes. (v) The school shall have also a Laboratory with adequate equipment and apparatus for the teaching of Science subjects. 2 (B) Last date of application – Organization/individual seeking No Objection Certificates from the State Government should apply to the concerned Directors in the prescribed form latest by the 15th January of the year. (C) All these applications received up to the 15th January shall be placed, by the Directors, Elementary Education and Secondary Education, before the High Power Committee to be appointed by the Government to consider each application in pursuance of the guidelines issued in this Resolution, Decision of the H.P.C. in the matter of issue of N.O.C./Recognition shall be final. 2. Recruitment and Service conditions of the staff – (i) Each school either affiliated or to be affiliated with the CBSE/ICSE shall frame Rules governing the recruitment and conditions of service of its employees in conformity with the Rules prescribed under the Orissa Education Act, 1969. (ii) Service contract will be entered with each employee and the management of the School. (iii) The appointing authority shall be competent to initiate any disciplinary action against any of the employees of the institution after following fair procedure. Appeal against such orders shall, however, lie with the Director, Elementary Education for the institution imparting Education up to Standard VII and with the Director, Secondary education for the institution imparting Education from Standard VIII and above. Where the institution imparts education from Standard I to X or XII, the Director, Secondary Education shall be the Appellate authority. The Government will be competent to review the orders passed by the appointing authority/disciplinary authority and the appellate authorities. The qualifications of Head of the institution and other teaching staff shall be the same as prescribed by the CBSE/ICSE. 3. Medium of instruction - Medium of instruction in these schools can be English or any other Indian Languages but Oriya as a subject shall be taught to all pupils in the institution compulsorily. 4. Fees – (i) Fees and charges should be commensurate with the facilities provided by the institution Fees should normally be charged under the heads prescribed by the Department of School and Mass Education. No capitation fee or voluntary donations for gaining admission in the school or for any other purpose should be charged/collected in the name of the school. In case of such malpractices the Government may take drastic action leading to withdrawal of No Objection Certificate of the school. (ii) In case, a student leaves the school for such compulsion as transfer of parents or for health reason or in case of death of the student before completion of the session, pro rata return of quarterly/term/annual fees should be made. (iii) The schools should consult parents through parents, representatives before revising the fees. The fee should not be revised during the mid-session. 3 5. Admission of students - Admission in the school affiliated to the CBSE/ICSE shall be made without any distinction of religion, race, caste, creed, place of birth or any of them. As regards reservations for SC/ST students is concerned, it shall be governed by the law, Rules or instructions applicable to the State. 6. Miscellaneous – (i) The school seeking Board’s affiliation/already affiliated to shall be open to inspection by the Inspection Committee deputed by the Department of School and Mass Education. (ii) The school shall supply information and returns called for by the Government within the prescribed time given for its furnishing to the authority concerned. (iii) The school shall maintain records of attendance of all students in Secondary/Senior Secondary classes for purposes of admission to the Board’s examinations. The entries in these registers properly checked at the end of each session and signed. The attendance registers shall be open to inspection by the officers deputed by this department. (iii) The school shall arrange the medical check up of the students at least once a year and keep a proper record of the same. (iv) The Government may conduct an audit of the funds of the school as and when it thinks necessary to ensure that – (a) The funds/fee collected by the school authorities are not diverted; (b) The staff is paid salaries at par with the salaries of the State Government; and (c) Any other financial irregularity. 7. Withdrawal of No Objection Certificates – (A) The H.P.C. shall be competent to review the N.O.C. / Recognition issued in favour of any institution and shall be competent to withdraw the same if it is satisfied that the terms and conditions as stated above for the purpose are violated. (B) Proceedings for withdrawal of recognition/N.O.C. shall be initiated at the level of Government in case the schools are found guilty of any of the followings after reasonable notices and refer the same to the H.P.C. for consideration :- (i) Not paying salaries and allowances to teachers and ; other employees, at least at par with the employees of State Government. (ii) Financial irregularities including channeling of funds for purpose other than those provided for in the bye-laws of ICSE/CBSE. 4 (iii) Engagement in activities prejudicial to the interest of the State, including or promoting feelings of disloyalty or disaffection against the Government established by law. (iv) Encouraging or tolerating disharmony/hatred between different Sections of the Society; (v) Non-fulfillment of conditions laid down regarding deficiencies to be removed, even after due notice. (vi) Disregard of rules and conditions of affiliation even after receiving warning letters. (vii) Hindrance in the smooth functioning of the school on account of dispute between rivalries within the school management. (viii) Absence of approved terms and conditions of service, or frequent dismissal of teachers from service. (ix) Poor academic performance of the school for three consecutive years is not being able to keep at least 50 per cent of passes of the general pass percentage. (x) Non-availability of proper equipment/space/staff for teaching a particular subject. (xi) Any other misconduct in connection with the admissions/examinations/any other area which in the opinion of the Government warrants immediate de-recognition of the school. (C) Adequate time and opportunity be provided to the Management of the school served with a “Show Cause Notice”, up to a maximum of six months for adequate compliance/removal of defects failing which the H.P.C. may withdraw the No Objection Certificate issued in its favour and also derecognize the school. In such an event the CBSE or the ICSE, as the case may be, shall be recommended by the Government to withdraw the affiliation of the concerned school. 8. Appeal - Any individual/organization not satisfied with the decision of H.P.C. may prefer on appeal before the Minister, School and Mass Education. 9. The N.O.C. issued in favour of any school shall always be subject to the terms and conditions prescribed in this Resolution. 10. All schools who have been issued N.O.C. shall fulfil the terms and conditions provided herein before and satisfy the requirements prescribed in this Resolution within period of six months from the date of issue of this Resolution failing which proceedings for withdrawal of N.O.C./recognition shall be initiated by the Government.” 5 3.The Government in its School and Mass Education Department issued a letter to the Director of Secondary Education, Orissa and the Director, Elementary Education, Orissa under the subject enhancement of tuition fees by the school authorities of the private English medium schools in the State from the academic session 2009 – 10 intimating the said Directors, drawing reference to the department letter dated 24.01.2009 on the said subject and that the said department has received the required information, as called for from 25 school authorities out of 210 private English medium schools and in the meantime, the model code and conduct for ensuing general Lok Sabha and State Assembly Election is in force. Pending receipt of permission from the Chief Electoral Officer, Orissa, the school authorities may be advised for the present to admit the students on payment of fees at the last year rate. It was also intimated to the schools that final decision of the Government will be communicated in due course and incase of hike in the fee structure is considered, the same will be given effect to from the academic session 2009 – 10. Such letter was issued on 21.03.2009 (Annexure – 7 in W.P.(C) No. 5113 of 2009). Thereafter, on 27.03.2009 again the said Directors were intimated by the department that the managing committees of the schools were instructed to furnish the point-wise information as per the provision of School and Mass Education Department resolution dated 23.09.1996 (already quoted above). Out of 211 schools, information was received from about only 25 schools within the stipulated date. Taking the said information into consideration, the Government has decided to increase the fee structure of private managed English medium schools in the State provisionally up to 25% over the last year tuition fees, only for those schools which were paying 5th Pay Commission scale and are going to pay 6th Pay Commission scale to the staff. Similarly, development fees should not be increased beyond 15%. The Directors were requested to communicate the above decisions of the Government, so that the admission process for the academic session 2009 – 10 will take place. These letters have been challenged by the local managing committees of two of the DAV Public Schools, i.e., the Management of DAV Public School, Unit – 8, Nayapalli, Bhubaneswar and the Management of DAV Public School, Chandrasekharpur, Bhubaneswar in W.P. (C) Nos. 5113 and 5030 of 2009, simultaneously praying for a direction to implement the decision taken by the said managing committees with regard to fees structure, as fixed by the managing committees of the said schools in consultation with the representative of the parents and teachers of the respective schools. In the other batch of writ applications, the guardians/parents of the students of the respective schools, have challenged the decision of the managing committees of the respective schools in hiking the fees including the tuition fees, admission fees, readmission fees etc. 4. The writ applications were heard on various occasions and the learned counsel for the respective parties in course of hearing, raised various questions of law with regard to the legality or otherwise of the hiking of fees as well as the jurisdiction of the local managing committees of the respective schools to take such decisions inasmuch as the validity of the constitution of such local managing committees. 5. Upon considering the rival submissions made by the learned counsel for the respective parties, it is felt appropriate to note such contentions point-wise. Before doing so, be it stated here that number of writ applications have been filed by the parents/guardians of the students of various private un-aided schools in the State, challenging the action of the school authorities in hiking the fees of the students on the allegations of unilaterality and in a manner, which can be termed as arbitrary and 6 unreasonable, having no nexus with the facilities provided by the institutions to the students and such challenges can be termed as mind boggling. 6. Mr. B. Routray, learned senior counsel appearing for the petitioners/parents in some of the of the writ applications led the argument on behalf of the petitioners in all the cases being associated by the respective counsel in the said writ applications. He vehemently urged the following points:- (I) As per the CBSE guidelines where the State law applies, the managing committees of the respective schools are to be constituted in accordance with law of the State, which, in the instant case, is the Orissa Education Act ; (II) the respective managing committee of the schools have not been constituted in accordance with the Orissa Education Act ; (III) even otherwise, the CBSE guidelines prescribe that a member of the local managing committee cannot remain as the member for more than two consecutive terms and if examined, it would be found that the local managing committees of the concerned schools, have been constituted illegally where some of the members have continued for more than two terms and, therefore, such committees are not also formed in accordance with the CBSE guidelines; (IV) in view of the above, the decision taken by such local managing committees of the schools for hiking the fees of the students having been taken by illegally constituted local managing committees, are unsustainable; and (V) the fee hike as prescribed by the local managing committees are not in accordance with law, as it does not commensurate with the provisions and facilities made for the students. 7. While submitting thus, Mr. Routray also supported the case of the management of the two schools in W.P.(C) Nos. 5030 and 5113 of 2009 with regard to the unreasonableness of the decision of the Government in uniformly prescribing provisional fee hike for all the English medium schools in the State in the aforesaid two letters dated 21.03.2009 and 27.03.2009, which have been impugned in W.P.(C) Nos. 5113 and 5030 of 2009. In addition to the above questions, Mr. Routray also raised a question that after coming into operation of the Right of Children to Free and Compulsory Education Act, 2009, the DAV Public Schools will be governed by the said Act. 8. Mr. J. Patnaik, learned senior counsel appearing for the management of the DAV Public School, Chandrasekhar, Bhubaneswar as well as the Regional Director, DAV Public Schools, Orissa, on the contrary, contended that the audited balance-sheet of the school has been produced before this Court, which would show the necessity for hiking the fees. Such fees hike was made in consultation with the representative of the parents. The local managing committees of the schools have been validly constituted in accordance with the CBSE guideline and the Orissa Education Act (for short “the Act”) or the Right of Children to Free and Compulsory Education Act, 2009, (for short ‘the Act, 2009’) has no application to the DAV Public Schools in the State. He, therefore, submitted that unless the writ applications challenging the fees hike are dismissed, quality education cannot be imparted by the schools and the staff members will also be deprived of getting salary as per the prescription of the 5th and 6th Pay Commission. 7 9. To appreciate the above contentions of the learned counsel for the respective parties, reference to resolution dated 23.09.1996, as quoted above, the CBSE guidelines, the Orissa Education Act and the Right of Children to Free and Compulsory Education Act, 2009 are necessary. Also to appreciate the contention raised on behalf of the petitioners that some of the members in various schools have continued for more than two terms in the managing committees, the resolution books of the concerned schools were called for by this Court and perused. Applicability of Orissa Education Act to un-aided private educational institutions imparting education up to Class – X or Class XII in relation to constitution and reconstitution of the managing committees of such schools, more specifically the schools affiliated to CBSE/ICSE. 10. The Resolution, 1996 of the School and Mass Education Department referred to above, prescribed the guideline following the observation of this Court in O.J.C. No. 2951 of 1993. Sub-sections (3) and (6) of Section – 5 of the Act having prescribed that while according permission for establishment of a private educational institution, the prescribed authority shall have regard to matters like needs of the local area, provisions for suitable and adequate accommodation, location of the institution, its sanitary and healthy surroundings, appointment of qualified teachers, provision for equipment and teaching materials and adequate financial support for the continuous and efficient maintenance of the institution. In the same guideline, in the Resolution, 1996, it was prescribed that before according No Objection Certificate/recommendation the said guidelines are to be followed by the organization/individual seeking No Objection Certificate from the State Government to open any un-aided school to be affiliated to ICSE/CBSE. 11. Section – 5 of the Act provides for grant of permission for establishment of educational institution and prescribes that no such institution, which requires recognition, shall be established except in accordance with the provisions of the Act and Rules made there under. Applications made under the said section, are to be scrutinized by the prescribed authority and if found complete in all respect and made in conformity with the Act and the Rules, shall be considered by such prescribed authority, who may make such enquiry, as he may deem necessary and thereafter, shall make a report in respect of such application with his recommendation, which shall be placed before the committee constituted in that behalf by the State Government. After obtaining such permission, recognition is required to be obtained under section 6 of the Act, which provides in sub-section (2) thereof that no private educational institution shall be eligible for recognition unless it has been established with prior permission under the Act. Section – 6 envisages the conditions for recognition and Section – 6 – B deals with withdrawal of recognition. Constitution of the managing committee is provided under section 7 of the Act. “Private educational institution has been defined in Section 3 (o) meaning any educational institution, which is not established and managed by the Government of Orissa, the Union Government or the Government of any other State. The DAV Public Schools in question come under this definition. 8 12. An attempt was made by Mr. Jagannath Patnaik, learned senior counsel appearing for the school authorities that the schools being affiliated to the CBSE and some of the schools imparting education up to higher secondary class, do not come under the definition of higher secondary school as per the Act, which defines higher secondary school to mean an educational institution imparting instructions in higher secondary courses, as defined in the Orissa Higher Secondary Education Act, 19 of 1982 and may have standards or Classes – VIII, IX and X attached. In the said Orissa Higher Secondary Education Act, 1982, higher secondary school has been defined as an educational institution preparing candidates for the examination of the Council and recognized as such by the council, but does not include for the purpose of the said Act and regulation made thereunder, the part of institution, which prepares candidates for examinations other than higher secondary examination and council in the said Act has been defined as Council of Higher Secondary Education constituted under section 3 of the said Act. He, therefore, submitted that since the DAV Public schools imparting higher secondary education, are not affiliated to the council of Higher Secondary Education, Orissa, they do not come under the said Act. 13. With regard to the DAV Public schools imparting education up to Class – X, it was the submission of Mr. Patnaik that high school has been defined under the Act to mean an educational institution imparting instruction in standard or Classes – VIII to X leading to the High School Certificate Examination and may have standards of all Classes of upper primary school attached to it. According to Mr. Patnaik, High School Certificate Examination is conducted by the Board of Secondary Education, Orissa and the DAV Public schools being affiliated to the CBSE, do not come under the definition of High School. Therefore, the Act cannot be made applicable to such D.A.V. Public Schools. 14. The contention of Mr. Routray in this regard is acceptable, who submitted that private educational institution as has been defined in the Act engulfs within its fold all privately managed educational institutions, be it a High School or Higher Secondary School and Section – 5 of the Act specifically provides that no such private educational institution, which requires recognition, shall be established without obtaining permission from the prescribed authority having been allowed by the committee constituted in this behalf by the State Government. Mr. Routray drew the attention of this Court to the definition clause in Rule – 2 (f-1) of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991, which defines “high school” to “mean a school preparing candidates for the High School Certificate Examination conducted by the Board or an equivalent examination conducted by the CBSE or the ICSE established by the Union Government or ………...”. He further drew the attention of this Court to the definition clause where Private Higher Secondary School