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2013 Supreme(Bom) 1210
High Court of Judicature at Bombay
S.J. VAZIFDAR & M.S. SONAK, JJ.
Diamond Jubilee High School through its Principal & Another
Versus
State of Maharashtra through its School Education & Sports Department, Secondary Education – I & Others
Writ Petition No.101 of 2013
Decided on: 05-07-2013
For the Petitioners:N.H. Seervai, Senior Counsel i/b. M & M Legal Ventures, Advocates.
For the Respondents:R1 to R3, Sindha Sreedharan, AGP, R4, Ibrahim Abdul Kader Mansuri, Advocate.
Headnote:Constitution of India, 1950 - Articles 19, 162, 226 and 227 - Order of refund of fees.
In absence of any statutory provision, investing respondent-3 with statutory authority to make order of refund of fees, order of refund of fees cannot be sustained. - No doubt, an attempt was made to refer to the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 was sought to be distinguished on the ground that the challenge to the vires of the said Act of 1987 has been kept open by the Division Bench. However, the Division Bench in the very same judgment has ruled that the Government Resolutions in question were neither referable to the Act of 1987, nor could the rights guaranteed by the Article 19(1)(g) be interfered with by issuing Government Resolutions or Circulars referable to Article 162 of Constitution of India.
Constitution of India, 1950 - Articles 19, 162, 226 and 227 - Order of refund of fees.
Since right guaranteed under Article 19(1)(g) of Constitution cannot be interfered with by issuing Government resolutions, circulars referable to Article 162 of Constitution hence order of refund of fees not sustainable.
Constitution of India, 1950 - Articles 19, 226 and 227 - Order of refund of fees.
Since fees charged by petitioner, unaided private school must be left with it hence order of refund of fees cannot be sustained. - The petition can be disposed of by reference to the decision of the Division Bench of the Court in the case of Association of International Schools and Principal Foundation v. The State of Maharashtra and another in Writ Petition (L) No. 1876 of 2010 decided on 1st September, 2010, particularly as the said decision in terms, holds that the Government Resolution of the type dated 27th May, 2003 are not referable to the provisions of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 and that in any case the right to establish an Educational Institution is a right guaranteed by Article 19(1)(g) of the Constitution of India and as such any restrictions upon such right can be placed only by law enacted by the Legislature and not by a Circular or a Resolution issued under Article 162 of the Constitution of India.
Incidentally, the challenge in that case was directed against the Government Resolutions dated 22nd July, 1999 and 15th July. 2010 by which the State Government in purported exercise of the powers conferred upon it by the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 issued instructions in relation to the fees that could be charged by unaided secondary schools affiliated to the SSCE Board as well as other educational boards. The two Resolutions, came to be struck down by the Division Bench of the Court.
In so far as the challenge based upon Article 19(1)(g) of Constitution of India was concerned, the Division Bench relying upon the decision of the Supreme Court in the case of State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others, in (2006) 2 SCC 545, ruled that the right to establish an Educational Institution is protected under Article 19(1)(g) of the Constitution of India and that restrictions upon such right can be placed only by law enacted by the Legislature and not by Circular or Resolution issued under Article 162 of the Constitution of India.
The Division Bench also ruled that the G.Rs. or Circulars were not referable to the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 and that reliance upon Section 4 of the said Act was misplaced.
The Act confers power on the State Government to approve the fees fixed and there is no provision in the Act which empower the State Government to delegate its power of approving fees. Therefore, the provisions of 2010 G.R. in so far as it constitutes committee for approving the fees is concerned it is clearly contrary to the provisions of the Act and therefore, the State Government could not have issued GR. constituting committee for approving the fees. The Supreme Court in the judgment in T.M.A. Pai Foundation case has clearly held that the right to establish educational institution is a fundamental right guaranteed by Article 19(l)(g) of the Constitution of India.
M.S. Sonak, J.
1. Rule. Rule is made returnable with the consent of all the parties forthwith.
2. The petitioners challenge the order dated 27th November, 2012 passed by the Principal Secretary (S.E.A.S.D.) directing the refund of fees from the academic year 2006-07 to 2011-12 to respondent Nos.4 to 7 and report compliance within a period of one month.
3. The issue raised in this petition is covered in the petitioners' favour by a judgment of a Division Bench of this Court in the case of Association of International Schools and Principal Foundation Vs. The State of Maharashtra and another in Writ Petition (L) No.1876 of 2010 decided on 1st September, 2010. We will however, refer to facts as they establish the petitioners bonafide. There is nothing to indicate that the petitioners acted mala-fide. The facts set out in the petition have not been disputed by the respondents. In fact, no counter has been filed by any of the respondents. The facts, relevant for the purposes of the decision are referred to briefly hereinafter.
4. Petitioner No.1 is a private unaided school owned by petitioner No.2 trust. Petitioner No.1 is a minority educational institution. Upto the academic year 2006-07, petitioner No.1 school was affiliated to the Maharashtra State Board of Secondary and Higher Secondary Education (SSCE Board). Further upto the academic year 2006-07, petitioner No.1 School was receiving aid from respondent Nos.1, 2 and 3. From the academic year 2006-07, however, petitioner No.1 took a decision to decline aid and thereby convert itself into a private unaided school. Further, petitioner Nos.1 and 2 also resolved to convert affiliation from SSCE Board to the ICSE, in respect of the secondary section of the school, i.e., from standard 'V' onwards. In this regard, necessary permissions were applied for and obtained. The conversion was to take place progressively, which means that each year one higher class would stop receiving aid.
5. The petition sets out the enhanced and improved facilities provided by the petitioners from the academic year 2007-08 onwards. The strength of the teaching and non-teaching staff during the period from 2006 to 2012 was increased from 72 to 114. Three well resourced and spacious laboratories with amenities came to be provided. Three well equipped libraries with two Librarians and an Administrator came to be provided. Two I.T. Labs and Resource Centeres with more than 150 computers came to be provided in order to provide each student with one computer facility. Computer aided learning equipment came to be provided in each class room, which included 35 projectors and computer software for various subjects. Besides, facilities were provided by way of music room, yoga room, air-conditioned badminton-cum-basket ball court, squash court, table tennis room and outdoor volley ball-cum-basket ball court. A private house keeping agency came to be hired for the maintenance of the school building and campus. Eleven security guards came to be hired for the purposes of safety and security measures. Three Academic Consultants were engaged to help teachers, design and implement curricular and extra-curricular activities at the school during the said period.
6. The petition also sets out that the improved and enhanced facilities involved investments without any aid either from the Government or the students/parents. An amount of approximately Rs.11.79 crores (net of Government grants) was expended from the year 2007 to 2012 towards the operating expenses excluding depreciation. The cumulative deficit incurred by the petitioners during the said period was approximately Rs.1.6 crores, in so far as, the secondary section is concerned.
7. The petition sets out that for the years 2000 to 2006, the average expenditure towards salaries of teaching and non-teaching staff of the secondary section including allowances was in the range of Rs.39.71 lacs per year. In contrast, the average expenditure for the same purpose for t
