1998 Supreme(Del) 878

High Court Of Delhi
DELHI ABIBHAVAK MAHASANGH - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 10/30/1998

Headnote:Delhi School Education Act, 1973 - Section 17 & 3 — Commercialisation of school by profiteering — Regulation by Director of Education and Administrator to prevent commercialisation of school is permissible.

       Held:

       It cannot be disputed that Sub-sections (1) and (2) of Section 17 applies only to the aided schools and only Sub-section (3) is applicable to the unaided schools. The main obligation under Sub-section (3) on the recognised schools is to file with the Director a full statement of fees to be levied by such school during the ensuing academic session. It also provides that except with the prior approval of the Director no such school shall charge during that academic session any fee in excess of the fee specified in the said statement. The contention is that exclusion of unaided schools within the scope and ambit of Section 17 and in absence of any other specific provision it is clear that the in-tedment of Legislature was not to place any restriction in the matter of levy of fee and other charges by unaided schools. The Government has not disputed that subject to the provisions of Sub-section (3) of Section 17 there is no requirement that the unaided schools shall seek prior or subsequent approval of Director of Education for enhancement of tuition fee and other charges. It was, however, strenuously contended on behalf of the Government and Mahasangh that the interpretation sought to be placed on Section 17 does not show that in case the schools start levying exorbitant fee and thus indulge in commercialisation and profiteering from running the schools, the Government empowers the Administrator to regulate education in all the schools in Delhi in accordance with the Act and the Rules made thereunder. It is also not in serious dispute that commercialisation of education is impermissible. At this stage it may be useful to notice that the Bye-laws under which the schools are affiliated with CBSE and referred to above, inter alia, stipulate that the fee charges should be commensurate with the facilities provided by the institution; fee should normally be charged under the heads prescribed by the Department of Education of the State/Union Territories of Schools of different categories; no capitation fee or voluntary conditions for gaining admission in the school or for any other purpose should charged/collected in the name of the school and that the unaided schools should consult parents through parents representative before revising the fees. There cannot be any doubt that the schools are bound and obliged to observe and follow the affiliation Bye-laws. One of the objects of the Society setting up the schools as provided in the Bye-law is that it shall ensure that schools is run as a community service and not as business and that commercialisation does not take place in the school in any shape whatsoever. There are institutions which have attained great reputation. They surpass the institutions run by the Government in many respects. They, of course, require encouragement. But from this point of view controls have to be continued and strengthened if the commercialisation of education and racketeering has to be prevented. The State should strive its utmost in this direction. The regulatory measures should ensure that the private institutions maintain minimum standards and facilities; admissions should be based only on merit; that norms of admission should be predetermined and should be transparent. An unaided institution cannot be compelled to charge the same fee as charged in the Government institution as they have to meet the cost of imparting education from their own resorces and the main source can only be the funds collected from the students and that is the contract of self financing educational institutions and cost based educational institutions come in. The cost of education, however, may vary from institution to institution and in this respect many variable factors may have to be taken into account. But one thing is clear that commercialisation of education cannot and should be permitted which intention has been clearly expressed by the Parliament as well as the State Legislatures in unmistakable terms. Further, both in the light of our tradition and from the stand-point of interest of general public commercialisation is positively harmful; it is opposed to public policy. This is one of the reasons for the conclusion that imparting education cannot be trade, business or profession. The education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this Nation. Imparting education has always been treated as a religious duty. It is treated as a charitable activity and never a trade or business. In its true aspect it is more a mission and a vocation. The grant of recognition and/or affiliation to an educational institution is nor a matter of course not is it a formality. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the Appropriate Authority and/or is affiliated to one or the other Board. The affiliated private educational institutions supplement the function performed by the institutions of the State. It is not an independent activity but one closely allied to and supplementary to the activity of the State. Thus, it is obligatory-in the interest of general public — upon the authority granting affiliation or recognition to insist upon such condition as are appropriate to ensure not only education of requisite standard but also fairness in other spheres since the recognising/affiliating authority is the State which is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. It follows from the above that if the Government finds any educational institution indulging in commercialisation and/or exploitation the Government would be abdicating its obligations to keep quite and not to take appropriate remedial measures. The said measures can even fall short of withdrawal of recognition/affiliation which has to be only a last resort in case the Government is unable to curb the menance by other steps.

       In the present case on the interpretation sought to be placed on Section 17 it cannot be inferred that despite the authorities finding that levy of the fee and other charges was exhorbitanl, unreasonable and amounted to exploitation and profiteering in the name of education, still it cannot ask the school management to rectify it and in such an eventuality the only course open to authorities is the straightaway proceed to withdraw recognition or take over the school management. Further, even the fact that various provisions of the Act and the Rules make discuction between aided an unaided school by itself does not mean that under no circumstances the schools can be asked to regulate the fee and other charges. Referring to a stipulation in the impugned order that first the accumulated amount shall be exhausted, it was contended for the school managements that under Rules the schools cannot be told that funds collected for one purpose should be used for another purpose. We do not think that the stipulation in impugned circular violates any rule. In fact, in the present case it is not a question of a fund collected for one purpose being asked to be used for another. It may have to be examined by a Committee as to how the surplus amount which has been directed to be used by the schools to pay the arrears of salary, etc. instead of increasing fee and other charges at the first instance got accumulated. It is not open to the schools to contend that they are being asked to use funds for purpose other than the one for which it was collected. How surplus were accumulated is the question of fact which may have to be gone into each individual case. We are also unable to accept the contention that diversion of funds as being objected by petitioners and the administration, would adversely affect the expansion of the education or that the opening of the new schools would be jeopardised. In our view, higher amount of fee and charges cannot be levied on the ground of so called expansion requiring creation of funds. If any amount is to be generated for such a purpose it has to be under a separate head and not compulsive and involuntary payment under the garb of increase in the fee and other charges. Further, nobody stops the Society or the Trust which may have set up the school to generate its own funds needed for expansion for opening of new schools.

       The scheme of the Act and the Rules is that there should be no diversion of funds and what is collected shall be spent for same purpose barring accidental savings. The incidental use of sums collected for sonic ancillary purpose may be different but not the deliberate levy for one purpose knowing that for the said purpose the amount required may be much less and knowing that the excess amount is levied and collected and later used for another purpose. We do not think that the object of the Act would stand satisfied on simply showing that the amounts collected were spent for educational purposes. There may be some stray cases of such diversion of funds taking place. The approach relating to such stray cases may be different. The approach would, however, be different when one finds a continuous pattern of such diversion which is not permissible under the Act and the Rules and cannot be permitted under the garb of spreading education. But these are some of the aspects to be examined on facts in each case.

       We have also no difficulty in accepting the proposition that the expenses may have to differ from school to school depending upon the nature of activities in the schools. It is not being suggested that if for legitimate and reasonable activities to be provided to the students, higher expenses are to be incurred the burden of it cannot be placed on the students. Our approach in no manner adversely affects the autonomy of unaided schools. We agree that autonomy of such schools has to be respected. But under the garb of autonomy the commercialisation of education cannot be permitted. It cannot be said that because of the autonomy no limit on charging any sum from students tan be fixed under any head despite the expenditure under that head.

       Delhi School Education Rules, 1973 - Rule 172, 173, 176 & 177-Exorbitant fee-Commercialisation of school by profiteering — Regulation by Director of Education and Administrator to prevent commercialisation of school is permissible.