Judgment · High Court · 2012

I have heard Mr. A.C. Borbora, learned Sr. counsel assisted by Mr. U.K. Nair, learned counsel appearing for the respondent No. 4/ applicant. I have also heard Mr. M.K. Choudhury, learned Sr. counsel assisted by Mr. R. Kaushik, learn ed counsel for the writ petitioner. I have also heard Mr. N. Upadhya, learned St ate counsel. Learned counsel for the parties have extensively argued referring to the provisions of Assam Non Government Educational Institutions (Regulation and Man agement) Act, 2006; Central Board of Secondary Education, Affiliation Bye-Laws e tc. Learned counsel for the parties have also referred to the judgment and order dated 20.012.2011 passed by this Court in W.P.(C) No. 2952/2006 (Annexure-11) b y which the provision of the aforesaid Act of 2006 was also discussed. While it is the case of the applicant that it being a school affiliated to Central Board of Secondary Education (CBSE), the provisions of the Act are no t applicable and they are solely guided by the CBSE Bye-Laws, it is the stand of the writ petitioner that in view of the earlier judgment and order dated 20.12. 2011 passed in W.P.(C) No. 2952/2006, there is no escape from the responsibility of the applicant/ school to abide by the provision of the said Act. In the earl ier judgement, this Court dealing with the provisions of the 2006 Act, has obser ved thus: (cid:28)19. What surfaces from the above discussion is that the management of the DPS, NRL, ought to get the school registered in terms of the provisions of the 2006 A ct. Its Managing Committee has to be constituted in accordance with the provisio ns of the 2006 Act by including, therein, amongst others, two representatives of the guardians of the students of the said schools. The DPS, NRL, is also under obligation not to run the school for the purpose of earning profit and they cann ot, in the light of what have been discussed above, impose development fees exce eding 15% of the total annual tuition fee.

#21. In the result and for the reasons discussed above, this writ petition succee ds. The impugned Circular dated 24.03.2006, whereby new fee structure was introd uced and was sought to be enforced by the DPS, NRL, is hereby set aside and quas hed. The respondents concerned are hereby directed not to run the school contrar y to the provisions of the Act and not to resort to enhancement of the fees cont rary to law. The respondents are also hereby directed to ensure that the student s, whose parents/guardians are not employees of the NRL, are not treated with di scrimination in any manner. (cid:29) From the above, what is seen is that the applicant/school is required to get itself registered as per the provision of the said Act and Managing Committ ee is also required to be constituted in accordance with the provision of the sa id Act. In fact, in the earlier case an undertaking was given by the learned cou nsel for the applicant/school that the school would take all necessary steps not only for registration of the school, but also for constituting Managing Committ ee of the school in accordance with the provision of the Act. Further undertakin g furnished was that realisation of the fee would be done in accordance with th e law. Learned counsel for the parties have submitted that in fact, the provisi ons of the said Act are under challenge in a writ petition filed by the applica nt/school which is registered and numbered as W.P.(C) No. 2806/2012. While Mr. B orbora, learned counsel for the applicant submits that irrespective of pendency of the said writ petition and the findings recorded in the earlier judgment refe rred to above, this Court is empowered to deal with the provisions of the said A ct to find out as to whether the same are applicable to the applicant/school or not. Mr. Choudhury, learned counsel for the writ petitioner on the other hand su bmits that this Court cannot sit on appeal over the said judgment and order towa rds giving another interpretation of the provision of the Act. The fact of the matter is that the applicant/school has not registered i tself as required under the provision of the 2006 Act. Fact of the matter is als o that the Managing Committee has not been constituted as per the provision of t he Act. Consequently, the requirements towards enhancement of the fees were also not complied with. Mr. Borbora, learned counsel for the applicant/school submits that in case of an y deviation in respect of the requirement of compliance of the provisions of the Act, the school is liable for withdrawal of recognition including consequence o f closure etc., but the same having not resorted to by the authority named in th e Act would go to show that the provision of the Act is not applicable to the ap plicant/school. In this connection, he has referred to Section-3 of the said Act so as to emphasize on the expression (cid:28)may (cid:29) in terms of which the State Govt. is entitled to regulate all the Non-Government Educational Institutions in the Sta te of Assam in accordance with the provision of the Act. According to him, the S tate Govt. may or may not regulate Non-Government Educational Institution in acc ordance with the provision of the Act and in the instant case, such provision ha ving not been applied to the applicant/school, it is not open for the writ petit ioner to harp upon the provision of the said Act so as to contend that the parti cular hike in fees is illegal. This Court having already held that the provisions of 2006 Act are appli cable to the applicant/school, irrespective of any action as contemplated under Section 24 of the Act, such provisions will continue to prevail which, however, will be subject to the outcome of the pending proceeding in W.P.(C) No. 2806/201 2 referred to above. For all the aforesaid reasons, I am not inclined to vacate the interim o rder and accordingly the same will continue till the hearing of the writ petitio n. It is made clear that any observation made in this order dealing with the int erim order will have no effect on the final hearing of the writ petition. It is further provided that realisation of the fees in the original rate will be subje ct to outcome of the writ petition. In the event of dismissal of the writ petiti on, the writ petitioner will be liable to pay the balance fee to the school auth ority. It is also provided that whatever fees have already been realised by the school authority in the enhanced fee structure, same need not be refunded to the students and guardians. At this stage, Mr. Borbora, learned counsel for the applicant/school sub mits that some of the cheques/ amounts received by the applicant/school in terms of the enhanced fee structure may not have been deposited honouring the interim order. It will be open for the school authority to deposit the same. Misc. case stands disposed of.