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M. Sathyanarayanan, J.—The Secretary of the petitioner-Association is also the father of one of the students studying in the third respondent-School, and the Association has filed this writ petition praying for issuance of a writ of certiorarified mandamus to call for the records relating to the order dated 21.11.2013, passed by the second respondent, and to quash the same and for a consequential direction directing the second respondent to re-revise the fee of the third respondent-School by giving proper opportunity to the parents of the students studying in that School.
The petitioner claims that it is a registered Association and is espousing the cause of various issues relating to the welfare of the students and more particularly, the issue relating to the School fees. The petitioner would further claim that they have also taken up the issue of collection of exorbitant fees by the Schools located in the District of Cuddalore, from the parents of the students and also taking steps to protect the students from harassment by the School management on account of non-payment of extra fees, etc.
The petitioner would further state that insofar as the third respondent-School is concerned, in the year 2011, the second respondent viz. Private Schools Fee Determination Committee has fixed the fees and it also fixed the fees for about 6,400 private unaided Schools. As per the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, (Tamil Nadu Act 22 of 2009), the fees fixed by the second respondent-Committee, have to be followed for the next three academic years.
The petitioner would further state that the private schools having been not satisfied with the fees fixed by the second respondent-Committee, filed W.P. No. 8489/2011 batch etc., praying for issuance of writs of mandamus forbearing the second respondent therein from interfering with the collection of fees from the students and this Court vide order dated 3.5.2012, has allowed the Schools to collect 15% increase over and above the fee earlier fixed by the Committee with a further indication that receipts have to be issued separately indicating 15% increase in the subject, pending revision of fee by the second respondent-Committee. Accordingly, the third respondent-School informed the parents of the students with regard to the amounts to be paid in the academic years 2012-2013 and 2013-2014, and though the amount/fee demanded by the third respondent-School was on the higher side, the parents had paid the fee in compliance of the orders passed by this Court.
The grievance expressed by the petitioner-Association, is that during the middle of the academic year 2013-2014, the third respondent-School put up a notice dated 14.12.2013, informing the revision of fee in the following manner:-
Class
2013-2014 Fee fixed by the Committee
The Revised Fee for 2013-2014 by the Private Schools Determination Committees Order dated 21.11.2013
The difference or the Additional Amount to be paid
K-G
6500
11250
4750
I-V
8500
15600
7100
VI-VIII
10000
18300
8300
IX-X
12000
19800
7800
XI-XII
15000
22000
7000
The petitioner would further state that the third respondent also indicated that the students, who do not pay the revised fee between 23.12.2013 and 6.1.2013, shall pay the same along with penalty and the third respondent-School did not even deduct 15% increase paid by the parents of the students at the time of admission in the academic year 2013-2014.
The petitioner has also drawn the attention of this Court that most of the parents of the students, who are studying in the third respondent-School, belong to working class sector, and apart from the school fee, the third respondent is also demanding huge lump-sum for running classes such as smart class, vehicle fee, uniform, books, etc., and in this regard, a detailed representation dated 28.2.2014, was also submitted to the Principal of the School and in spite of that, the third respondent-School started proceeding against the students, who were unable to pay the exorbitant fees, etc., claimed by them.
It is further averred that on account of non-payment of fees, nearly 650 students were sent out of the examination hall on 8.4.2014, with the threat that unless they pay the fees, they will not be permitted to sit and write the examination and in this regard, complaints have also been given to the jurisdictional District Collector and Chief Educational Officer and only after passing of orders, some relief was given to the students.
The stand of the petitioner is that before fixing/revising the School fee, the second respondent-Committee have to provide opportunity to the parents and even with regard to the fixing of fee, copy of the order has not been furnished to the parents in spite of their request and therefore, it came forward to file the present writ petition.
On behalf of the second respondent-Committee, the Special Officer has filed the counter affidavit stating that as per the provisions of Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, the following important factors have to be considered:-
(a) Location of private schools;
(b) Availability of infrastructure;
(c) Expenditure on administration and maintenance;
(d) Reasonable surplus required for the growth and development of the private school and
(e) Any other factors as may be prescribed (increase of salary in view of VI Pay Commission).
It is further stated in the counter affidavit, that the School Fee Fixation Committee has to assess the fee requirement of each and every student and while fixing/revising the same, has to follow the guidelines issued by the Court in the order dated 3.5.2012, and insofar as the third respondent-School is concerned, the fee was fixed for three academic years from 2012 to 2015.
The second respondent would further aver that the third respondent-School has challenged the orders passed by the second respondent-Committee, by filing W.P. No. 9920/2013 and this Court vide order dated 26.8.2013, has remanded the matter once again to the second respondent-Committee to consider the matter fresh and after remand, sufficient opportunity was given to the third respondent-School and thereafter, the Committee has passed an order dated 21.11.2013, revising the fee, and the revision of School fee was on account of the implementation of VI Pay Commission Report.
The third respondent has also filed a petition in M.P. No. 3 of 2014 to vacate the interim stay granted in this writ petition and in the affidavit filed in support of the said petition, it is averred among other things, that the School fee is the only source of revenue in respect of self-financed institutions and the third respondent-School and it cannot function without prompt fee collection and specifically denied about the collection of exorbitant and excess School fee and other fees. The third respondent would further state that it extends liberal fee concession/scholarship through the Trust to the students belonging to economically weaker section and also encouraging meritorious students by giving them scholarships and so far, 602 students had benefited on account of extension of concession and award of scholarship.
The third respondent would further state that for the year 2012-2013, the salaries amounting to a sum of Rs. 3,67,00,569/-, have been paid and for the academic year 2013-2014, Rs. 3,20,55,779/- were paid and would further submit that even in the impugned order dated 21.11.2013, the second respondent did not consider the entire annual expenditure of 2013-2014 in full, but fixed the fee after partial consideration of income and expenditure.
The sixth respondent has filed the counter affidavit along with annexures and it is stated therein, that the fee determination is to be done by the second respondent-Committee on the basis of the particulars furnished by the concerned Schools and the said Committee consists of Director of School Education, Director of Matriculation Schools, Director of Elementary Education and Joint Chief Engineer (Buildings) and the Officials of P.W.D. are also acting as Ex-officio Members in the said Committee and the said Act does not provide for verification or recommendation by the Chief Educational Officer on the questionnaire for fee determination.
The sixth respondent would further state that the vires of Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, was put to challenge in W.P. No. 627/2010 batch etc., and the Division Bench of this Court has held that Section 11(2) of the Act is ultra vires and arbitrary and upheld the remaining provisions. Insofar as the complaints alleged by the students of the third respondent-School as to the denial of permission to sit in the examination, the sixth respondent would further aver that on coming to know about the same, remedial steps have been taken and repeated instructions have also been issued to the third respondent-School management to promote the students to the next higher class under the provisions of Right of Children to Free and Compulsory Education Act, 2009, (RTE Act) and the said promotion was also approved by the Inspector of Matriculation Schools.
The sixth respondent has also drawn the attention of this Court to Section 17(2) of the RTE Act, which stipulates whoever contravenes the provisions of Section 17(1) shall be liable for disciplinary action under the Service Rules applicable to such persons.
The petitioner has filed the reply affidavit reiterating the stand taken by it in the writ petition, and would further add that the third respondent-School repeatedly resorting to unethical and unhealthy practice and in spite of the said fact being brought to the knowledge of the concerned authority, no action has been taken and therefore, while fixing/revising the fee, the parents of the students studying in the concerned School, have to be given opportunity.
Mr. R. Sankarasubbu, learned Counsel appearing for the petitioner-Association, has invited the attention of this Court to the affidavit filed in support of the writ petition, and the type-set of documents and would submit that unless and until the parents of the students or their Association are given opportunity to put forth their views at the time of fixing/revising the school fee by the second respondent-Committee, the remedy is not in sight and the private schools are continuing to squeeze the parents and under different heads, collecting exorbitant fees and also donations and the only way to prevent the same, is to grant opportunity to submit their grievance to the second respondent-Fee Committee.
Per contra, the learned Counsel appearing for the third respondent-School, has invited the attention of this Court to the orders passed in the writ petitions filed by them, and more particularly, to the order dated 26.8.2013, in W.P. No. 9920/2013, and would submit that the school fee fixed/revised under the impugned order, is also very much on the lesser side though it is incurring enormous expenditure on account of implementation of VI Pay Commission Report and the petitioner-Association with an oblique motive, is harassing them and would further submit that in the absence of any statutory provisions either under the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, or under the Right to Education Act, 2009, the parents of the students or their association cannot be given opportunity of representation before the second respondent-Committee and prayed for the dismissal of the writ petition.
Learned Special Government Pleader appearing for the respondents 1, 2, 5 and 6, has invited the attention of this Court to the counter affidavit and would submit that the fixation/revision of School fee is done by the second respondent-Committee strictly in accordance with the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, and the School Fee Committee is also having a wider representation and all the relevant aspects have been taken into consideration while fixing/revising the school fee and hence, prays for passing of appropriate orders.
This Court paid its anxious consideration and best attention to the arguments advanced by the learned Counsel appearing for the writ petitioner and the respective learned Counsel appearing for the respondents, and also perused the typed-set of documents.
The vires of the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Tamil Nadu Act 22 of 2009) was challenged by number of Schools'' Association in W.P. Nos. 627/2010 batch etc., and the First Bench of this Court vide common order dated 9.4.2010, has held that Section 11(2) of the Act read with Rules 4(4) and 4(5) of the Rules thereunder, which permit the authorities to enter the private schools or premises or those of the management at any time for the purpose of search, inspection and seizure, are arbitrary and violative of Article 14 of the Constitution of India and held the said provisions are ultra vires of Article 14 of the Constitution and upheld the other provisions of the said Act.
The Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, (Tamil Nadu 22 of 2009) provides for regulation of collection of fees by the Schools in the State and matters connected therewith and incidental thereto. Section 3 of the said Act prohibits collection of excess fees and Section 4 provides for fixation of fee by the Government.
Section 5 of the said Act speaks about the constitution of Committee and under the said provision, the Government shall constitute a Committee for the purpose of determination of fee for admission to any Standard or course of study in private schools and the Committee shall consist of the following members:-
(a) Retired High Court Judge nominated by the Government Chairperson.
(b) Director of School Education Ex-officio Member.
(c) Director of Matriculation Schools Ex-officio Member.
(d) Director of Elementary Education Ex-officio Member.
(e) Joint Chief Engineer (Buildings), Public Works Department Ex-Officio Member.
(f) Additional Secretary to Government, School Education Department Ex-officio Member-Secretary.
Section 6 of the said Act speaks about the factors for determination of fee and Section 7 speaks about the powers and functions of the Committee and it is relevant to extract the said provisions:
Factors for determination of fee:-(1) The Committee shall determine the fee leviable by a private school taking into account the following factors, namely:-
(a) the location of the private school;
(b) the available infrastructure;
(c) the expenditure on administration and maintenance;
(d) the reasonable surplus required for the growth and development of the private school;
(e) any other factors as may be prescribed.
(2) The Committee shall, on determining the fee leviable by a private school, communicate its decision to the school concerned.
(3) Any private school aggrieved over the decision of the Committee shall file their objection before the Committee within fifteen days from the date of receipt of the decision of the Committee.
(4) The Committee shall consider the objection of the private school and pass orders within thirty days from the date of receipt of such objection.
(5) The orders passed by the Committee shall be final and binding on the private school for three academic years. At the end of the said period, the private school would be at liberty to apply for revision.
(6) The Committee shall indicate the different heads under which the fee shall be levied.
Powers and functions of the Committee:-(1) The powers and functions of the Committee shall be:-
(a) to determine the fee to be collected by private schools; (b) to hear complaints with regard to collection of fee in excess of the fee determined by it or fixed by the Government, as the case may be. If the Committee, after obtaining the evidence and explanation from the management of the private school or aided school concerned or from the Government school, comes to the conclusion that the private school or the Government school or aided school has collected fee in excess of the fee determined by the Committee or fixed by the Government, as the case may be, it shall recommend to the appropriate competent authority for the cancellation of the recognition or approval, as the case may be, of the private school or aided school or for any other cause of action as it deems fit in respect of the private school or Government school or aided school.
(2) The Committee shall have power to:-
(i) require each private school to place before the Committee the proposed fee structure of such school with all relevant documents and books of accounts for scrutiny within such date as may be specified by the Committee;
(ii) verify whether the fee proposed by the private school is justified and it does not amount to profiteering or charging of exorbitant fee;
(iii) approve the fee structure or determine some other fee which can be charged by the private school.
(3) The Committee shall have power to:-
(i) verify whether the fee collected by the School affiliated to the Central Board of Secondary Education commensurate with the facilities provided by the school;
(ii) to hear complaints with regard to collection of excess fee by a school affiliated to the Central Board of Secondary Education; and
(iii) to recommend to the Central Board of Secondary Education for disaffiliation of the school, if it comes to a conclusion that the school has collected excess fee.
(4) The Committee shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all the powers of a Civil Court under the Code of Civil Procedure, 1908 [Central Act V of 1908] while trying a suit, in respect of the following matters, namely:-
(i) summoning and enforcing the attendance of any witness and examining him on oath;
(ii) the discovery and production of any document;
(iii) the receipt of evidence on affidavits;
(iv) the issuing of any commission for the examination of witness.
Section 8 says that the Government may regulate the maintenance of accounts by the private schools in such manner as may be prescribed and Section 9 deals with penalties in respect of the persons, who contravenes the provisions of the Act, or the Rules made thereunder and as per sub-section (2) of Section 9, the person convicted under this Section, shall refund to the pupil from whom, the excess fee was collected in contravention of the Act, such excess fee. As per Section 13, save as otherwise provided in the Act, the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. Under Section 15 of the Act, if any difficulty arises as to the first constitution of the Committee after the date of commencement of the Act or otherwise in giving effect to the provisions of the Act, the Government may, by notification, make such provision, not inconsistent with the provisions of the Act, as may appear to them to be necessary or expedient for removing the difficulty and as per the proviso, no such notification shall be issued after the expiry of five years from the date of commencement of the Act. Thus, the Act is a complete Code by itself and it also does not bar the operation of other laws.
The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) (Central Act 35 of 2009) was passed to provide free and compulsory education to all children of age 6 to 14 years. Under Section 13(1) of the RTE Act, no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure and sub-section (2) of Section 13 says that any school or person, if in contravention of the provisions of sub-section (1), (a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged and (b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contravention.
The constitution and validity of RTE Act was put to challenge before the Hon''ble Supreme Court of India by the Society for Unaided Private Schools of Rajasthan. The Hon''ble Supreme Court of India in the decision reported in Society for Un-aided Private Schools of Rajasthan Vs. Union of India (UOI) and Another, , has upheld the vires of the Act and it is relevant to extract a portion of paragraph No. 11 of the aforesaid judgment as under:-
11...... Thus, the primary obligation to provide free and compulsory education to all children of the specified age is on the State. However, the manner in which this obligation will be discharged by the State has been left to the State to determine by law. The State may do so through its own schools or through aided schools or through private schools, so long as the law made in this regard does not transgress any other constitutional limitation. This is because Article 21A vests the power in the State to decide the manner in which it will provide free and compulsory education to the specified category of children...
The Hon''ble Supreme Court of India in the decision reported in State of H.P. and Others Vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, , has considered the scope of judicial review in respect of education policy, and it is relevant to extract the portions of the following paragraph:-
21.... Inasmuch as ultimately it is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify/alter a decision depending on the circumstance based on relevant and acceptable materials. The courts do not substitute their views in the decision of the State Government with regard to policy matters. In fact, the court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the Constitution.
As already pointed out in the earlier paragraphs, the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, is a complete Code itself and it also provides for checks and balances. The School Fee Fixation Committee, which is constituted under Section 5 of the Act, shall have the power to determine the fees by taking into account relevant factors under Section 6 of the Act, which speaks about the factors for determination of fee. Under Section 7(1)(b) of the Act, the School Fee Fixation Committee is having power to hear complaints with regard to the collection of fee in excess of fee determined by it or fixed by the Government, as the case may be, and under sub-section (4) of Section 7, it shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions and shall, for the purpose of making any enquiry under the Act, have all powers of a Civil Court under the Code of Civil Procedure, 1908. Section 9 of the Act speaks about the penalties and under Section 13-operation of other laws, save as otherwise is provided under the Act and it is not barred. Under Section 15, if any difficulty arises of giving effect to the provisions of the Act, the Government is vested with the power by notification to make such provision and not inconsistent with the provisions of the Act as may appear to them to be necessary or expedient for removing the difficulty and such a notification shall not be issued after the expiry of five years from the date of commencement of the Act.
It is a settled position of law, this Court in exercise of it''s jurisdiction under Article 226 of the Constitution of India, cannot legislate and as pointed out by the Hon''ble Supreme Court of India in State of H.P. and Others Vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, , ultimately it is the responsibility of the State to provide good education, training and employment and it is best suited to frame a policy or either modify or alter a decision depending on the circumstance based on relevant and acceptable materials, and the Court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the Constitution.
In the absence of any express provision in the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009, which would enable the parents of the students studying in a particular School or Association representing them, to participate in the proceedings of the School Fee Fixation Committee, this Court cannot direct the second respondent-Committee to provide them the opportunity of hearing before fixing or revising the School fee of a particular education institution.
In the light of the reasons assigned above, the writ petition is dismissed. However, it is open to the Government and the concerned authorities to take note of the grievance expressed by the parents of the students/Associations representing them, and make a suitable amendment to the legislation. No costs. Interim order already granted, stands vacated.