Haryana Progressive Schools' Conference (Regd.) v. The State of Haryana & Ors.

were challenged by Haryana Progressive Schools' Conference (Regd.) through CWP No.13433 of 2003 on the ground that these enactments had sought to curtail the rights of unaided privately managed schools/institutions in the State. However, this court was CIVIL WRIT PETITION NO. 11223 of 2009 -5- pleased to dispose of the said writ petition by observing that schools would continue to run till a final decision is taken by the State Government. Consequent upon the receipt of the report of the committee constituted under the Chairmanship of respondent No.3 and the right of the petitioners to challenge the decision was kept intact. It is averred that no report till date has been prepared by the committee but instead 2003 Rules have been amended in the year 2007, which have come into force with effect from April 1, 2007. Aggrieved against this amendment, the petitioner Association once again approached this Court through CWP No.5047 of 2007 with a prayer that the respondents be directed not to interfere in the working of unaided privately managed member schools. This court while issuing notice of motion was pleased to stay the operation of notice dated 3.3.2007, whereby the recognised/unrecognised private schools in the State of Haryana were directed to apply for recognition under the amended rules within 15 days of the publication of notice. This writ petition stands admitted and is pending final adjudication. During this time, the managing committee of the respective member schools had been increasing the fee from time to time without any interference or protest from any quarter. Now the schools took a decision to increase the tuition fee ranging from 15% to 40% for the academic session 2009-2010 keeping in view all the factors which are relevant for determining such a fee. The petitioners would claim that this decision is taken keeping in view not only the increasing expenses incurred for providing better CIVIL WRIT PETITION NO. 11223 of 2009 -6- facilities and infrastructure but primarily is to meet the requirement of additional expenditure which they would have to meet in view of the recommendation of 6th Pay Commission report. It is pleaded that in certain cases, the fee which is being charged is hardly sufficient even to meet the salary expenses and it is accordingly urged that to maintain strength of the students and to pay the salary as per the recommendation of the 6th Pay Commission report, substantial hike in tuition fee was inevitable. Respondent No.2, however, vide a general order on 6.7.2009 purportedly in exercise of powers conferred under Sections 16 (3), 21(3) read with Sections 4 and 5 of Section 17 of 1995 Act and rules framed in the year 2003 has issued directions to all unaided private schools to regulate the fees to be charged from the students w.e.f. academic session 2009-

2010. Respondent No.2, inter-alia, has directed the schools that if they are to enhance the salary of staff in view of 6th Pay Commission report, then the schools may first explore the possibility of utilizing the existing reserves to meet the shortfall, if any. If the short fall cannot be so met, then direction is to increase the tuition fee only to the extent of shortfall to meet the increased expenditure. Not only that, it is further directed that tuition fee to be charged shall not be increased from 20% of the last year's tuition fee under any circumstances. A justification for the increase had also been sought for in form VI and it is further provided as a condition that only those schools which have submitted information in Form VI as per provisions of Rule 158 of the 2003 Rules within a stipulated period shall be allowed to enhance the fee. The schools CIVIL WRIT PETITION NO. 11223 of 2009 -7- which had not submitted their information for the academic year 2009-2010 were given additional 15 days to comply with the directions. The increase of fee, if any, was to be effective from

1.4.2009. The petitioners accordingly have approached this court to challenge this direction on the ground that respondent No.2 has no authority or jurisdiction to pass such an order fixing the fee to be charged by recognised unaided private schools from the students. It is stated that there is no provision either in the act or in the rules that would entitle respondent No.2 to pass such an order. No provision in this regard is mentioned in the impugned order and hence prayer is made to quash this Annexure permitting the petitioners to raise the tuition fee. Initially, a short written statement was filed on behalf of respondent Nos.1 to 3. Later, detailed pleas were raised in the written statement so filed. Respondents would justify the action in passing the impugned order and would contend that same is well within the jurisdiction of respondent No.2. Reference is made to Section 16(3) of the Act which provides that before commencement of academic session, the schools are required to file with the Director, a full statement of fee to be levied by all such schools during the ensuing academic session. It is accordingly pleaded that no school can charge any fee specified in the said statement. Such fee has to commensurate with the facilities provided by the schools. As per the respondents, Section 16(3) is a regulatory in nature and so the unaided recognised schools cannot claim absolute freedom to lay down the fee structure. It is accordingly pleaded that Section CIVIL WRIT PETITION NO. 11223 of 2009 -8- 16(3) of the Act is in the form of reasonable restriction on the right of petitioner-institution under Article 19 of the Constitution of India to run the unaided schools. In the short reply, mention is made to proceedings of a meeting of all the schools affiliated with CBSE held on 11.12.2006 where some decisions were taken to the effect that all the schools shall follow the provisions of the School Education Act, 1995 and the provisions of 2003 Rules. As per this decision, it was agreed that a detailed comparative assessment of the fee charged and the facilities provided could not be made, but the management was to submit their proposal of fee structure in the coming academic session before the PTA meeting and the change was to be made, if any, jointly by the managing committee and the PTA. It is accordingly stated that it would be open to the schools with the PTA to work out the fee structure, whereas department was to deal with the anomalies/discrepancies as per law. This is termed as a balanced approach which would provide freedom to the schools to work out fee structure and on the other hand to iron out the differences, if any, in accordance with law. The respondents accordingly would plead that the recognised private schools cannot claim absolute freedom to lay down any fee structure of its own choice. As per the respondents, the schools cannot be left on to themselves to safe guard their commercial interest in absolute terms. State claims to be under bounden duty to ensure a proper fee structure, which cannot be permitted to be exploitative. It is pointed out that the school education is neither purely a business or CIVIL WRIT PETITION NO. 11223 of 2009 -9- commercial activity nor a profit making business. To an extent, it is a social obligation. As per the respondents, the school education is a public purpose and public duty and since the State cannot monopolies facilities for school education, private unaided schools are allowed to set up schools. These schools may be unaided but they are partners with the State in discharging the public duty. Respondents would further plead that both private and Government schools have to ensure that school education reaches to all those, who are in need of the same. It is, thus, stated that the State can always impose reasonable restrictions as running of school is not purely a commercial or a business activity. The respondents would urge that order, Annexure P-1, has been passed in exercise of specific powers conferred in the Act and Rules. The instructions/restrictions, if any, are reasonable, just and fair. It is pointed out that the schools have been given liberty to increase tuition fee upto 20% of the last year tuition fee, which is substantial increase. The schools, thus, cannot make any grievance. Reference is also made to that part of the order where schools have been asked to explore all possibilities of utilising the existing reserves to meet the shortfall. it is pointed out that the schools have been revising the fee structure frequently from time to time and the pay structures have now been increased after a gap of ten years. To justify their action, the respondents would plead that it would be reasonable for the schools to first utilise the existing reserves, which would be a balanced approach. As per the respondents, the judgment in the case of T.M.A. Pai Foundation CIVIL WRIT PETITION NO. 11223 of 2009 -10- relied upon by the petitioners does not give right to the private schools to lay down the fee structure which may be arbitrary and violative of Article 14 of the Constitution. The plea further is that the Hon'ble Supreme Court has not granted any freedom to work out fee structure. In the detailed written statement filed by the respondents, preliminary objection is raised about maintainability of the writ petition. It is urged that the petitioner schools could very well challenge the impugned order before the Financial Commissioner and Principal Secretary, Government of Haryana under 2(b) of Haryana School Education Rules, 2003. Reliance is placed on Sections 16(3) & (4) of the Act and the provisions of the rules, which, as per the respondents would empower them to formulate and regulate the fee structure and other funds to be charged from the students. It is accordingly stated that these legal provisions clearly establish that the fee structure of unaided private recognised schools is always subject to the approval of the prescribed appropriate authority, i.e., Director Secondary Education, Haryana and without his concurrence, fee structure cannot be changed. The requirement of submitting Form- VI as per the rules is highlighted, besides making reference to such forms submitted by various petitioners. These forms were statedly under process as per the reply. Reference is made to the case of Action Committee, Unaided Private Schools & Others Vs. Director of Education, New Delhi, 2009(11) SCALE 77, where it is held that “to set up a reasonable fee structure is also a component of right to CIVIL WRIT PETITION NO. 11223 of 2009 -11- establish and administer an institution within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to limitation that there can be no profiteering and no capitation fee charged directly or indirectly”. As per the respondents, it is obligation of the Administrator or the Director of Education to prevent commercialization and exploitation in private unaided schools. Reference is made to notices and reminders issued to parents for payment of hike dues, which is termed as inhuman. There was accordingly a resentment against the fee hike in charging of funds and arrears of salaries of teaching and non- teaching staff due to revision in salary, which was voiced through various representations received from Millennium Parents' Association, Gurgaon and some other associations. It was then found that the aforesaid institutions were committing violation of act and rules and had hiked the fee structure without concurrence of the competent authority. In order to regulate the fee structure the impugned order was issued, which is stated to be legal, valid and binding on the petitioners. The counsel for the parties have made detailed submissions spanning over few days and have referred to large number of precedents mostly of the Hon'ble Supreme Court. The gist of the submissions made on behalf of the petitioners to make a challenge to the impugned order is on the ground that hike is justified due to increase of cost of providing facilities and infrastructure. As per the petitioners, there has been increase of CIVIL WRIT PETITION NO. 11223 of 2009 -12- 75% in the salary as per the 6th Pay Commission from 2006-2009. The Bank rates of interest have increased. There has been substantial increase in the electricity charges and usage. The cost of training teachers in getting them certified for imparting quality education has also statedly increased by 100% from 2006-09. The cost of purchasing/replacing computers/software which have become old and obsolete have also increased and there has been tremendous increase of cost in the repairs and maintenance. The petitioners would accordingly plead that respondents are not justified at all in ignoring all these factors while issuing the impugned order and certainly had gone beyond its jurisdiction to direct the petitioners to use their reserves to meet the expenditure on account of increase in salaries. As per the petitioners, there is no authority or jurisdiction with the respondents to put a cap of 20% for increasing the salary as has been directed. The petitioners would also urge that no increase order where Form-VI is not submitted, is also highly arbitrary. The counsel for the petitioners have mainly urged that order is totally without jurisdiction and is illegal because there is no power with the respondents to issue such direction. As per the petitioners, Sections 16(3), 21(3) and 17(4) and (5) of the Act and Rules 30(XVI), (XVII), 158, 159 and 160 of the Rules do not provide any such power and as such the impugned order is without jurisdiction. The petitioners would place heavy reliance on the case of T.M.A.Pai Foundation Versus State of Karnataka, AIR 2003 SC 355=(2002) 8 SCC 481 to urge that essence of private unaided CIVIL WRIT PETITION NO. 11223 of 2009 -13- institution is autonomy and maximum autonomy is in fixing the fee. The submission is that the decision of fixing fee is to be left with the schools and fixing rigid fee structure is an unacceptable restriction as per the view expressed in the T.M.A.Pai's case (supra). Reliance is placed on the case of Islamic Academy of Education and another Vs. State of Karnataka and others, AIR 2003 SC 3724=(2003) 6 SCC 697, where T.M.A. Pai's judgment has been followed. Reference is also made to the case of P.A.Inamdar and others Versus State of Maharashtra and others, (2005) 6 SCC 537, where it is observed by the court that every institution is free to devise its own fee structure subject to the limitation that no capitation fee can be charged and that there can be no profiteering. The petitioners would refer to the case of Unni Krishnan, J.P. And others Versus State of Andhra Pradesh and