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Judgment
The writ application has been filed by the Guardian Action Committee represented by its Co-Ordinator Shri Rajen Sarma. They are the Guardians of the students of Maharishi Vidya Mandir at Gauhati. The prayer made in the writ application is to quash the Circular dated 23.3.2000 and the revised Circular dated 18.4.2000 (Annexure-II and IV) and with prayer to arrange classes according to seniority of students in different floors. Annexure-II and IV are quoted below :
"Annexure-II MAHARISHI VIDYA MANDIR FEE STRUCTURE W.E.F. 1st April" 2000 Dated 23/03/2000
In view of the general increase in prices and necessity for increasing emoluments of the staff due to upward revision of grades by the State & Central Government, it has become necessary to increase the fees charged in our Schools w.e.f. 1st April" 2000. The revised fee structures are given below and is to be followed strictly by our school w.e.f. 01-04-2000.
Maharishi Vidya Mandir
Silpukhuri (Branch-I), GHY-3
FEE STRUCTURE :
CLASS-I to II CLASS-III to V
(1) Annual Charge ... 1,200 (1) Annual Charge ... 1,200
(2) Quarterly Tuition Fee ... 975 (2) Quarterly Tuition Fee ... 975
(3) Transport Fee ... 750 (3) Transport Fee ... 750
(4) Other : F.M.F.+D+Ins ... 190 (4) Computer Fee ... 150
*(a) Facilities (5) Others : FMF+D+Ins ... 190
Maintenance Fund ... Rs. 150 (a) Facilities
(b) Diary ... 30 Maintenance Fund. ... Rs. 150
(c) Insurance ... Rs. 10 (b) Diary ... Rs. 30
(c) Insurance ... Rs. 10
CLASS -VI to VIII CLASS -IX to X
(1) Annual Charge ... 1,2000 (1) Annual Charge ... 1,200
(2) Quarterly Tuition Fee ... 1,050 (2) Quarterly Tuition Fee ... 1125
(3) Transport Fee ... 750 (3) Transport Fee ... 750
(4) Computer Fee ... 150 (4) Computer Fee ... 180
(5) Other : F.M.F.+D+Ins ... 190 (5) Others : FMF+D+Ins ... 310
*(a) Facilities (a) Facilities
Maintenance Fund ... Rs. 150 Maintenance Fund ... Rs. 150
(b) Diary ... Rs. 30 (b) Diary ... Rs. 30
(c) Insurance ... Rs. 10 (c) Science fee ... Rs. 40
(d) Insurance ... Rs. 10
NOTE : It has been mentioned that Annual charge, facilities, maintenance Fund charge, Diary & Insurance fee should be paid in first Quarter only.
Certified to be true copy Sd/- Illegible. Sd/- Illegible, Advocate. PRINCIPAL. M.V.M.GUWAHATI-3." "MAHARISHI VIDYA MANDIR, GHY-3. FEE STRUCTURE W.E.F. 1st April'' 2000 Dated: 18/04/2000
Fee structure has been revised, parents are requested to deposit the fee according to the previous notified date in the S.B.I., Chenikuthi Branch, as mentioned below:-
FEE STRUCTURE
CLASS-I to II CLASS-III to V
(1) Annual Charge ... 1,000 (1) Annual Charge ... 1,000
(2) Quarterly Tuition Fee ... 900 (2) Quarterly Tuition Fee ... 900
(3) Transport Fee ... 750 (3) Transport Fee ... 750
(4) Other : F.M.F.+D+Ins ... 190 (4) Computer Fee ... 150
*(a) Facilities (5) Others : FMF+D+Ins ... 190
Maintenance Fund ... Rs. 150 (a) Facilities
(b) Diary ... 30 Maintenance Fund. ... Rs. 150
(c) Insurance ... Rs. 10 (b) Diary ... Rs. 30
(c) Insurance ... Rs. 10
CLASS -VI to VIII CLASS -IX to X
(1) Annual Charge ... 1,0000 (1) Annual Charge ... 1,000
(2) Quarterly Tuition Fee ... 975 (2) Quarterly Tuition Fee ... 1,050
(3) Transport Fee ... 750 (3) Transport Fee ... 750
(4) Computer Fee ... 150 (4) Computer Fee ... 180
(5) Other : F.M.F.+D+Ins ... 190 (5) Others : FMF+D+Ins ... 310
*(a) Facilities (a) Facilities
Maintenance Fund ... Rs. 150 Maintenance Fund ... Rs. 150
(b) Diary ... 30 (b) Diary ... Rs. 30
(c) Insurance ... Rs. 10 (c) Science fee ... 40
(d) Insurance ... Rs. 10
NOTE : It has been mentioned that Annual charge, facilities, maintenance fund charge, Diary & Insurance fee should be paid in first Quarter only.
Sd/- Illegible, PRINCIPAL, M.V.M. GUWAHATI-3."
Representation/Memorandum was filed by the Guardian Action Committee on 6.4.2000 and 10.4.2000, but nothing was done. Hence this writ application with the prayers as indicated above.
An affidavit-in-opposition has been filed on behalf of respondents Nos. 2, 3 and 4 and the following objections are raised:-
(i) That the respondent/School is a private Educational Institution which is recognised and affiliated by the Central Board of Secondary Education. It is not an instrumentality of the State within the meaning of Article 12 of the Constitution of India and as such no writ is maintainable. Further no right of the petitioner has been violated and as such this petition is liable to be dismissed.
(ii) That there was the necessity to raise the fees in order to purchase land etc in accordance with the requirement of Central Board of Secondary Education that is, in paragraph-9 of the affidavit-in-opposition.
(iii) That the hike in the fees is commensurate with the necessity and requirement to meet the additional expenses required for smooth functioning of the School and it is not for earning profit (Paragraph-12 of the affidavit-in-opposition)
(iv) That a policy decision was taken on 1/1/2000 vide R/2 and the relevant portion of that is quoted below:
"Annexcure-R/ 2 MAHARISHI VIDYA MANDIR National Office Maharishi Nagar, Noidia-Dodri Road, NOIDA-201304 (UP) [All legal matters are subject to the jurisdiction of Gautam Budh Nagar only)
MV/M\\NO/F/Policy Letter No./75/99 01.01.2000 MAHARISHI VIDYA MANDIR FEE STRUCTURE W.E.F. 1st APRIL. 2000 JAI GURU DEV.
"In view of the general increase in prices, and necessity for increasing emoluments of the staff, due to upward revision of grades by the State & Central Government, it has become necessary to increase the fees charged in our schools w.e.f. 1st April, 2000. The revised fee structure is given on page 2 and is to be followed strictly by all our schools w.e.f. 01.04.2000."
It would be observed that the grades has been increased from four to five by adding grade A+, which will be charged in larger schools affiliated to CBSC namely:-
Bhopal-1, Jabalpur-I & II, Guwahati-1 & Maharishi Nagar.
All other Schools affiliated to the State or CBSE Boards would charge fees as per grade ''A''.
However schools, which are affiliated to CBSC, but are located in smaller cities, would charge fees as per the B+ grade, the names of these schools are as follows"-
Mandla 2. Gama 3.Uttarkashi 4. 0Mankapur 5. Bijnore 6. Meerut 7. Mudinagar Marharisihi Vidya Mandir:-Guwahati-II & III and Noida have been placed in Grade ''A''.
Due to general increase in prices, it has been decided to increase the Annual Hostel Charges from Rs. 210,000 to Rs. 23000 and the Emergency Reserve, from Rs. 6000 to Rs. 8000. As decided earlier, girl students are not to be admitted in our school hostels.
All non-affiliated schools, are to charge fees as per new ''II'' grade w.e.f. 1st April, 2000, with the exception of the following schools which will charge ''C'' grade this year, as it is necessary to attract larger number of students of these schools.
Khammam, Muchilipatnam, Tangla, Bhawani, Dhanel, Jind-III,
Udhampur, Hassan, Bairagarh, Berasia, Bhopal-III. Bhopal-V, Hoshangabad, Itarsi, Lardatpur, Kolar Road Bhopal, Narsinghpur, Obedullalganj, Schore, Shahlol. Sidhi, Likamgarh, Wardlia, Balangir. Baripad, Dheukanal, Sambalpur, Jaisalmer, Cuddalore, Kanchipuram, Ooty, Salem, Baraich, Baraut, Bhowali, Ghatampur. Ghaziabad, Jhansi, Lucknow-II, Saharampur, Sardhana, Simbhawali, and Varanasi.
Bus charges were increased vide Policy Letter No. 72/99 dated 06.10.1999 and have been increased further due to higher fuel and other charges."
(v) In paragraphs-20, 21, 22 and 23 the detailed break-up regarding fees etc. are given to justify the hike. In paragraph-27 a comparative chart is given showing the existing fee structure of some other well known private schools that are not getting any State benefit and that is, quoted below:-
Name Admission fee Annual fee Monthly fee Security
Maria Rs. 2500 Rs. 1350 Rs. 250
Montessori (Prep, to (V) Rs. 2635 (V to X) [Prep, to IV) Rs. 1500 (V to X) (Prep. to IV) Rs. 350 (V to x)
Facility High School Rs. 2800 With annual fee
Rs. 450 Rs. 500 (Refundable)
Srtmanta Rs. 350 Rs. 1 175 Rs. 225
Name Admission fee Annual fee Monthly fee Security
Sankar (For all) (I.II.II.IX & X) (1 to III)
Academy
Rs. 1575 (III to VIII) Rs. 250 (IV to VI)
Rs. 275 Class -VII.
Rs. 285 Class- VIII
Rs. 300 Class IX to X
Maharishi V.M. Rs. 500 For all Classes. Rs. 1000 For all Classes Rs. 300 (I toV) Rs. 750 (Refundable)
Rs.325 VI to VIII)
Rs.350 (IX to X)"
Another chart is given to show the fee structure for all the last five years of this School and that is quoted below :
FEE STRUCTURE IN LAST 5 YEARS
MAHARISHI VIDYA MANDIR.
1995 1998 2000 After reduction
ON ADMISSION : Registration fee.. Rs. 75 Rs. 75 Rs. 150 Rs. 100
Admission Fee Rs. 500 Rs. 500 Rs. 600 Rs. 500
Caution fee (Refundable) Rs. 500 Rs. 600 Rs. 1000 Rs. 750
ANNUAL CHARGE : Medical.. Rs. 100 Rs. 100 Rs. 150 Rs. 150
Co-Curriculam Rs. 150 Rs. 200 Rs. 300 Rs. 250
Exam, fee Rs. 150 Rs. 150 Rs. 250 Rs. 200
Sports Rs. 100 Rs. 100 Rs. 200 Rs. 150
Library Rs. 200 Rs. 200 Rs. 300 Rs. 250
Total Rs. 700 Rs. 750 Rs. 1200 Rs. 1000
MONTHLY TUITION FEE
Nursery to KG Rs. 175 Rs. 200 Rs. 275 Rs. 275
Class I to V Rs. 175 Rs. 200 Rs. 325 Rs. 300
Class VI to VIII Rs. 200 Rs. 225 Rs. 350 Rs. 300
Class IX to X Rs. 200 Rs. 250 Rs. 375 Rs. 300
COMPUTER FEES :
Class II to VII Rs. 40 Rs. 40 Rs. 50 Rs. 50
Class IX to VII Rs. 50 Rs. 50 Rs. 60 Rs. 60
SCIENCE FEE : Class IX to X Rs. 30 Rs. 30 Rs. 40 Rs. 40
Rs. 860 Rs. 995 Rs. 1475 Rs. 1400
An affidavit-in-reply is filed wherein it is stated, inter-alia, as follows :
(i) That even if the School is not an instrumentality of the State, this Writ Court can grant the relief.
(ii) That the grading as mentioned in R-2 quoted above has not been maintained.
(iii) That there are no adequate teachers. In paragraph-6 it is stated that there are only two Mathematics teachers and inadequate Science teachers, although building is five storied, but no lift facility is available and there are only two stairs and there is no emergency exist.
(iv) That the students can not be asked to give money for funding the development projects.
(v) In paragraph-9 it is stated that the teachers of the School are paid at a rate which is much below grade fixed for a skilled labour by the Government of Assam, from time to time. The current daily wage of unskilled labour is about Rupees seventy and that of skilled labour is Rs. 130 (Rupees one hundred thirty) per day and the School Authorities are paying much lesser than this to the teachers and other staff of the school and as a matter of fact there was no increase in the pay structure for the teachers.
(vi) That at the time of hike in the fees there was no consultation with the guardians/parents.
(vii) That basic amenities are not available in the School. Instead of recruiting regular staff the school authority has resorted to adhocism and has been managing the school by arranging temporary arrangement at a nominal salary and as a result there is frequent disruption due to result lowering of teaching standard.
I have heard Shri N. Dutta, learned Advocate for the petitioner and Shri B.K. Sarma, learned Advocate for the respondents Nos. 2. 3 and 4, the learned Government Advocate for the State of Assam. None appears from respondent No. 5 in spite of service of notice. The learned Government Advocate for the State of Assam made the submission that he has no role to play in the matter. Shri B.K. Sarma, learned Advocate for the respondents could not pursue the preliminary objection regarding the maintainability of the writ application in view of the two recent decisions of the Apex Court regarding the power of the Writ Court. They are 1997 S C 645 (Air India Statutory Corporation, etc. Appellants v. United Labour union and Others, Respondents) wherein in paragraph-59 the Supreme Court pointed out as follows:-
"59. The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court is sentinel in the qui vive is to met out justice in given facts."
(ii) U.P. State Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, wherein in paragraph-27 the Supreme Court has pointed out as follows:-
"27. In view of the fact that control of the State Government on the appellant is all-pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article, it is not necessary for us to rely on the decision of the English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under Clause (1) of Article 367 m unless the context otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it is applies for the interpretation of an Act of the legislature of the Dominion of India. "Person" u/s 2(42) of the General Clauses Act shall include any Company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statues. When the language of Article 226 is clear, we can not put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a Company or a Cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the laws validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like proverbial "bull in a chain shop" in the exercise of its jurisdiction under Article 226."
The question regarding the running of private unaided/aided/ recognised/affiliated educational institution conducting professional courses, such as, Medical, Engineering courses, the question of admission and charging of fees and the question when such Institution can charge a fee higher than that charge fixed by the Government Institution and/or subject to maximum limit fixed by the State and the obligation of the State to lay down condition for grant of recognition, affiliation came up for consideration before the Apex Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., the Supreme Court pointed out that such institution if performing a public duty of imparting education and so bound to act fairly and in consonance with Articles 14 and 15 as well as the conditions laid down by the State in matters of admission and charging of fee. In paragraph 196 the Supreme Court pointed out as follows:-
"196. So far as unaided institutions are concerned, it is obvious that they can not be compelled to charge the same fee as is charged in Governmental institutions. If they do so voluntarily, it is perfectly welcome, but the can not be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources - and the main source apart from donations/ charities, if any, can only be the fees collected from the students. It is here that the concepts of ''self-financing educational institutions'' and ''cost-based educational institutions'' come in. This situation presents several difficult problems. How does one determine ''the cost of education'' and how and by whom can it be regulated? The cost of education may vary, even within same faculty, from institution to Institution. The facilities provided, equipment, infrastructure, standard and quality of education obtaining may vary from institution to institution. The Court can not certainly do this. It must be done by Government or University or such other authority as may be designated in that behalf. Even so, some questions do arise - whether cost-based education only means running charges or can it take in capital outlay? Who pays or who can be made to pay for establishment, expansion and improvement/ diversification of private educational institutions? Can be Individual or body of persons first collect amounts (by whatever name called) from the intending students and with those monies establish an institution - an activity similar to builders of apartments in the cities ? How much should the students coming in later years pay? Who should work out the economics of each institution? Any solution evolved has to take into account all these variable factors. But one thing is clear: commercialisation of education cannot and should not be permitted. The Parliament as well as State Legislatures have expressed this intention in unmistable terms. Both in the light of our tradition and from the standpoint of interest of general public, commercialisation is positively harmful, it is opposed to public policy. As we shall presently point out, this is one of the reasons for holding that imparting education can not be made, business or profession. The question is how to encourage private educational institutions without allowing them to commercialise the education? This is the trouble some question facing the society, the Government and the Courts today."
The Supreme Court further pointed out that the right to establish a private educational institution can neither be a trade for business nor can it be a profession within the meaning of Article 19(1)(g). It was pointed out by the Apex Court that education has never been commerce in the Country making it one is opposed to the Ethos tradition and sensibility of the nation. It is a religious duty, it has been treated as charitable, activity and never a trade or business The Supreme Court in that case quoted the earlier Judgment of Gajendra Gadkar''s case, that is quoted below:-
"Education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however, wide may be the constation of the two later words...."
The Supreme Court in unmistakable terms pointed out as follows:-"Imparting of education is not and cannot be allowed to become commerce a law existing or future ensuring against it to be a valid feature within the meaning of Clause-6 Article 19 of the Constitution.
The Supreme Court also pointed out in paragraph-202 as follows:-
"202. Teaching may be a profession, but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not ''practicing profession''. It may be anything but not practicing a profession. We must make it clear that we have not gone into the precise meaning and comment of the expressions profession, occupation, trade or business for the reason that it is not necessary for us to do so in view of the approach we are adopting hereinafter, which would be evident from the succeeding paragraphs. Our main concern in the entire preceding discussion is only to establish that the activity of establishing and/or running an educational institution can not be a matter of commerce."
The Supreme Court held that a person or a body of persons has a right to establish an educational institution in this country, but this right we must make it clear is not an absolute one, it is subject to such a law as may be made by the State in the interest of general public. The Supreme Court in that case pointed out that the fees charged in the private educational institution are bound to be higher with fees charged in similar Government institutions. But the fees so charged must be something which is reasonable and fair. In this particular case there is the affiliation, bye-laws, by the Central Board of Secondary Education and in Chapter-11 fee-structure is mentioned which is quoted below: -
"(1) Fees chares should be commensurate with the facilities provided by the institution. Fees should normally be charged under the heads prescribed by the Department of Education of the State/U.T. for schools of different categories. 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 Board may take drastic action leading to disaffiliation of the school.
(3) The unaided schools should consult parents through parents'' representatives before revising the fees. The fee should not be revised during the mid-session."
Judicial notice can be taken that in Assam there are number of private educational institutions. These schools are either affiliated to CBSE and/or to Secondary Board of Education Assam. The unfortunate part is that these authorities have not discharged their obligations as pointed out by the Apex Court in the Judgment quoted above. There is the obligation in the part of the State (and the affiliated Bodies) to lay down the conditions for grant, recognition and affiliation. The sad part of the story is that, these bodies have not looked to that aspect of the matter at all and in that process these private institutions are scalding the skins of the public in general, though the Supreme Court depreciated commercialisation of education as far back as in 1993, itself, no serious thought has been given by anybody to stop it is on the increase. Education has now become a commercial affair although out the country and brunt of it on the middle class of the society which is the backbone of the society and that process is leading to necessary voidable evils and it is the high time that somebody should bell the cat. Not only that it is also common knowledge that the teachers in those educational institutions are not paid the salary which is available in other Government institutions, though they are discharging the same duties. The authority must not turn a nelson eye to this aspect of the matter as because of the acute situation somebody is available for working at a low salary, that should not mean these exploitation should be allowed to be continued. If somebody comes to teach in a school with a missionary zeal, that will be different matter. But if that is not the position, the State must see to it that one gets due return for his labour. There is some complaint on this count also in this writ application. But there is no prayer with regard to that. I have only mentioned that aspect of the matter to high-light the situation prevailing now although out the State. Not only that there is no security of service of these persons. No doubt they are not entitled to the protection under Article 311 of the Constitution of India. Bit is it proper and just that somebody should be allowed to adopt the policy of hire and fire. Should somebody be allowed to be as bonded labour at the mercy of the employer. There must be some sort of security and that a more so in a country wedded to the Rule of Law. On this background I dispose of this writ application with the following directions:- I can not decide the fee structure in writ jurisdiction.
(i) I direct that the Commissioner of School Education. Government of Assam shall form a Committee of seven members including two representatives of the Government, one representative from SEBA, one representative from CBSE and three representatives from unaided private Schools to examine and recommend the following :
(i) The fee-structure in the different schools of the above category for different classes, as far as possible that should be uniform. But there may be some variation and that may be allowed from place to place depending on situation.
(ii) -The scale of teachers in the schools inconformity with the scale as is available in such recognised Government Schools.
(iii) The minimum facilities that should be provided/made available to the students and the teachers.
(iv) Security of service to the teachers as far as possible in consonance with the general principle in service jurisprudence.
But this I am not suggesting that by providing such security an indulgence should be given to teachers to behave or function as is done in most of the Government schools where the complaint is (I am not deciding it, but I have made this observation only because of the submission) that they do not work in a proper manner.
(v) Any other matter which may be found desirable or suitable by the Committee. This Committee shall not adopt an attitude of confrontation, but shall work in a harmonious manner and shall try to find out a solution necessary for the betterment of the society in general and to put to an end the vexatious problems as far as possible. If it is deemed desirable and advisable even the State of Assam may issue necessary instruction in this regard according to its own wisdom. There is no fetter with regard to this and as a matter of fact the Supreme Court in the aforesaid judgment expressed such a desire. But nothing has been done till now though more than seven years have elapsed. The Committee shall submit its report to the State of Assam within a period of eight months and thereafter the State of Assam may issue necessary notification/ instruction or may legislate according to its own wisdom.
Regarding the sitting arrangement in the school as complained by the petitioner, that is a small mater and that can be sorted out applying its own mind and I hope and trust that it shall be done within two months from today. Till the matter is decided by the Committee the present fee-structure in the school shall continue, subject to any other decision by the School and parents.
With this observation this writ application is disposed of. Send a copy of this judgment to the Commissioner of Education, Assam and to the authority of SEBA and CBSE. The petitioner may also obtain the certified copy of this order/judgment and may produce the same before the authority to do the needful in terms of this order/judgment.