S.R.P.A. Adarsh Bhartiya College vs The State of Punjab

K. Kannan, J.—The petitioner which is a private college seeks for a direction to the State to release grant-in-aid in the same manner as it has been done for yet another college Desh Bhagat College, Dhuri. The admitted case is that the State grants aid upto 95% against posts which were in existence on 01.11.1977. At that time, the college had arts faculty to run the courses in English, Sanskrit, Punjabi etc. The College started course in commerce after obtaining affiliation with the Guru Nanak Dev University, Amritsar, w.e.f. 1979. It is claimed in the petition that they began the science faculty w.e.f. 1984. The grievance is that the petitioner-College is entitled to secure grant-in-aid not only for the courses that were already conducted at the time when the initial grant-in-aid was given but it shall also be given State aid for payment of teachers upto 95% for the courses started subsequently. It would also contend that yet another college called Desh Bhagat College, Dhuri was granted 95% aid for the staff strength as it existed on 01.01.1986. The petitioner''s contention would be therefore that the petitioner-College must also be granted the similar privilege on the basis of staff strength as it existed on 01.01.1986. The petitioner''s further plea is that the institution is run as a ''minority institution'' and it enjoys constitutional guarantees under Article 30 of the Constitution of India. Since the State has declared under Articles 38 and 41 of the Constitution that it shall promote the welfare of the people and make provision for securing right to work in education, it is bound to provide grant-in-aid to secure the constitutional goals. The grant of aid to some institutions while denying to the petitioner is claimed to be discriminatory.

The State has filed its reply through the Deputy Director (College & Planning) pointing out to the fact that the petitioner-institution was functioning since 1974, while the Desh Bhagat College was started later and the aid granted to the State college was as a special case and was not to be treated as a precedent. The affiliation obtained by the college to some of the courses, according to the State, does not cast any obligation for it to provide grant-in-aid for the additional courses as well.

The fundamental issue is whether there is any right to demand State aid. The counsel for the petitioner would refer to the decision of the Supreme Court in The Chandigarh Administration and Others Vs. Mrs. Rajni Vali and Others, that held that when a school was established under permission of competent authority and the institution was also upgraded to higher secondary school, if the institution was receiving grant-in-aid, the same shall also continue for Lecturers appointed to teach those subjects under rules. The denial of State grant created two classes of teachers in the same school, all of which had been approved and a plea of additional financial burden could not be taken by the State to deny grant to the teachers who were teaching the same subjects when the school was upgraded. The decision hinges on situations where some teachers who were granted certain scales were entitled to be given parity who were teaching in the same standard but designated as Lecturers. The parity was seen by the same work done in the same school, as a justification for making directions for issuing grants. In the present case, we are examining situation when the college started with particular classes, it obtained grants-in-aid but started different courses over a period of time and sought for aid for teachers in the other courses also the State denied for additional course. Here, in this case, parity of salary is not ever in contemplation between teachers doing different courses under different sources of employment.

In my view, it is not possible for any institution to demand as a matter of right that the State aid shall be given to every course that it starts with the approval from the appropriate authorities. In Bombay High Court in Keraleeya Samajam and Others Vs. State of Maharashtra and Others, the question raised whether an institution which was permitted to open a secondary school on ''no grant basis'' claim State aid from the government. It was a case of school having been begun at a time when the Maharashtra Employees in Private Schools (Conditions of Service) Act had not been enacted. The contention on behalf of the school was that in matters of sanction of grant-in-aid, the State cannot discriminate on the basis of caste, religion, language etc. It was also stated that education itself had now become fundamental right under Article 21(A) of the Constitution and that if implemented in letter and spirit, the State shall oblige to grant aid to all educational institutions. The Division Bench held that grant of aid is not a constitutional imperative. Referring to Article 30(2) dealing with the rights of minorities, it observed that State, if it chooses to grant aid to educational institutions, it cannot deny only on the ground that a particular institution is a religious or linguistic minority. Implication of Article 30(2) was for a different purpose, namely, that minority nature of an institution would continue to be as such, notwithstanding the fact the State aid is given. In paragraph 18 of the judgment, the court stated as follows:-

"Thus, grant in aid cannot be claimed as of right. There is no legal or constitutional right insofar as grant in aid is concerned. The rules set out above themselves make the aforesaid aspect clear. The rules provide for grant in aid from public funds. All grants are subject to availability of funds and no secondary school can claim the same as of right. Therefore, even if the petitioners are in a position to apply for grant in aid, despite the condition set out in the permission granted to them, yet, there is no enforceable right of the petitioners by which they can compel authorities to either consider their request or grant them aid. This aspect is not at all disputed before us. If there is paucity of funds, which fact is also not disputed, the State cannot be compelled to pay grant, even if the funds are not available to each and every school, more so to the schools who have accepted to open them on permanent no grant basis......... "

Though, in this case, the school was not started on ''permanent no grant basis'', such as the situation which the Division Bench of the Bombay High Court was considering, it was at least specifically stated that the aid had been given only to particular courses that existed when grant-in-aid was given. The commencement of the new courses cannot afford a ground to insist of similar aid for the new courses started if the State chooses not to extend State aid. I am in respectful agreement with the reasoning adopted the Bombay High Court. The Allahabad High Court had also an occasion to consider a similar prayer sought by a privately managed institution for a mandamus for grant-in-aid in Committee of Management of Junior High School Ropan Chapra, Deoria Versus State of U.P.-2008(3) All. LJ 1. The Bench ruled as under:-

"13. In the present case, the State Government has the authority to look into individual applications of the petitioner pursuant to the advertisement made and it is for the State Government to come to a conclusion after fair treatment. It has not been brought on record by the petitioner what kind of unfair treatment has been given or what illegality is there in the decision making process of the State Government. What is said in the petition is that similarly situated institutions where teachers have been appointed against non-sanctioned posts, which institutions have been brought on the grant-in-aid list but the petitioner institution has not been taken on the said list.

14......... The petitioner here received a fair treatment, his application has been considered and the State Government has thereafter reached to a conclusion that petitioner institution is not to be taken on grant-in-aid list. No illegality or defect has been shown in the decision making process. The Court is not inclined to interfere in the conclusion reached by the State which may be based on any number of reasons in favour of other similarly situated institutions. Since in the present case there is discretion of the State Government for taking institutions on the grant-in-aid list, its action cannot be challenged on the anvil of Article 14 of the Constitution unless shown to be unfair and arbitrary. Neither it is mandatory for the State Government to provide grant-in-aid to all institutions established in the State nor the State government is obliged to give grant-in-aid to all institutions which are so established."

This decision also supports the line of reasoning set out in the Bombay Division Bench ruling. The aid to a particular institution could be due to a variety of reasons such as, its geographical location; the students population that is served by a particular institution, the economic and social status of students and teachers, the imperatives of setting up an educational institution to promote literacy, provide employment opportunities to teachers etc. The petitioner cannot complain of discrimination, for, there exists no right in the first place to dictate that the State shall provide aid to the petitioner''s society. The State aid has to be commensurate with the ability of the State to take the burden of the management of an institution.

There are several private institutions which thrive in a market where supply is lower than the demand. All that the courts have overseen in such a situation is to ensure that there is no commercial exploitation of the students and the managements that set up schools or colleges do not secure capitation fees to run the administration. There is surely an element of philanthropy in setting up an educational institution and in order to thwart any institution from running it on commercial lines and making profits, almost all the States have legislations that require only societies which are registered that spell out charity as an object to run the educational institutions. A situation that the State shall take over education as an essential State activity is perhaps a desirable goal. It would surely arrest the prospect of running educational institutions masquerading as charitable course by run on commercial basis, a pretended cover of nobility of purpose. That may be the bane that may exist in our society where clever manipulators secure large funds and donations from public and students are collected on fees on the sly without receipts and make profit. Right to manage schools and colleges itself is seen as a fundamental right that is guaranteed under Article 19(1)(g) and the reasonable restrictions that the State could make shall be only to ensure that the commercial exploitation is completely eschewed. A right to administer private educational institutions does not come with any right to demand that the State shall provide aid for an institution which a person starts as a private enterprise. The prayer in the writ petition is untenable and hence, dismissed.