Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Mad) 1675

High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. H.L. GOKHALE, & THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association (Regd.), K.R.Nandakuma & Others
Versus
The State of Tamil Nadu, rep.by the Principal Secretary, Department of School Education, Chennai & Others
W.P.Nos.627, 815, 850, 851, 852, 854, 855, 1105, 1269, 2833, 3620 & 112 of 2010 &
M.P.No.1 of 2010 (10 MPs) & M.P.No.2 of 2010 (7 MPs)
Decided On : 09-04-2010

Advocates Appeared:
For the Appearing Parties:M. Venkatachalapathy, Senior Counsel, for .M. Sriram Advocate, K. Doraisamy, Senior Counsel for Muthumani Doraisami, Advocates, S. Silambannan, Senior Counsel for K. Sathish Advocate, M/s. PROFEXS Associates Advocate, N.R. Chandran, Senior Counsel for M/s. Paramasiva Doss, Advocate, R. Muthukumarasamy, Senior Counsel for V.P. Sengottuvel, N.M. Ramalingam, S. Senthil Nathan, Advocates, P. Wilson, Addl.Advocate General Assisted by G. Sankaran, Special Govt. Pleader(Education) & Dakshayni Reddy, Govt.Advocate.

Section 11 of the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of 2009) and Rules 4(4) and 4(5) of the Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (Rules) are violative of Article 14 of the Constitution of India as they give the District Committee or its members the power to enter and inspect private schools and seize their records in an arbitrary manner.

Headnote:
Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of 2009) and the Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (Rules) are constitutional except for Section 11 of the Act and Rules 4(4) and 4(5) of the Rules, which are violative of Article 14 of the Constitution of India.
Fact of the Case:

The petitioners, unaided private schools, challenged the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of 2009) and the Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (Rules) on the grounds that they violated their right to establish and administer educational institutions, the right to establish and maintain institutions for religious and charitable purposes, and the right of minorities to establish and administer educational institutions. The petitioners also challenged the direction not to grant admissions before 01.05.2010.
Finding of the Court:

The Court held that the Act and Rules were constitutional except for Section 11 of the Act and Rules 4(4) and 4(5) of the Rules, which were violative of Article 14 of the Constitution of India. The Court found that the Act and Rules were necessary to regulate the collection of fees by private schools and to prevent profiteering and capitation fees. However, the Court held that Section 11 of the Act and Rules 4(4) and 4(5) of the Rules, which gave the District Committee or its members the power to enter and inspect private schools and seize their records, were arbitrary and violative of Article 14 of the Constitution of India.
Issues: 1. Whether the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of 2009) and the Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (Rules) are constitutional? 2. Whether Section 11 of the Act and Rules 4(4) and 4(5) of the Rules are violative of Article 14 of the Constitution of India? 3. Whether the direction not to grant admissions before 01.05.2010 is valid?
Ratio Decidendi: 1. The Act and Rules are constitutional as they are necessary to regulate the collection of fees by private schools and to prevent profiteering and capitation fees. 2. Section 11 of the Act and Rules 4(4) and 4(5) of the Rules are violative of Article 14 of the Constitution of India as they give the District Committee or its members the power to enter and inspect private schools and seize their records in an arbitrary manner. 3. The direction not to grant admissions before 01.05.2010 is valid as it is necessary to ensure that schools have their fees approved or fixed before admissions are granted.
Final Decision: The petitions were disposed of accordingly. No costs were awarded. The miscellaneous petitions were closed.

Judgment :-

The Honourable Chief Justice Mr. H.L. Gokhale.

All these writ petitions, except one (i.e., W.P.No.112 of 2010), are filed by the unaided private school managements belonging either to the minorities or otherwise. They seek a declaration that the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of 2009) (hereinafter referred to as ‘the Act’ in short) and the Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (hereinafter referred to as ‘the Rules’ in short) are unconstitutional and violative of: -

(i) the right to establish and administer educational institutions, which right is guaranteed under Article 19 (1)(g),

(ii) the right to establish and maintain institutions for religious and charitable purposes, which is guaranteed under Article 26 of the Constitution of India, and

(iii) the right of the minorities to establish and administer educational institutions guaranteed under Article 30 of the Constitution of India.

These petitions thereafter seek to challenge the consequential proceedings initiated by the Director of Education including the direction dated 26th November, 2009 to issue the applications for admissions only during 01-05-2010 to 15-05-2010 and not prior thereto. Writ Petition No.112/2010 is, however, different. It also assails some of the provisions of this statute, but for an altogether different reason viz., for being against the concept of common school system and the principles of equality and justice.

2. As the preambleof the Act states, it is enacted with a view to regulate the collection of fees by the schools in the State of Tamil Nadu and matters connected thereunder. This Act consists of 16 sections. The first section as usual is about the short title, extent and commencement. The Act has come into force from 05th August 2009. Section 2 gives various definitions. Section 2(j) defines a “private school”, which reads as follows:-

2 (j) “private school” means any pre-primary school, primary school, middle school, high school or higher secondary school, established and administered or maintained by any person or body of persons and recognized or approved by the competent authority under any law or code of regulation for the time being in force, but does not include, -

(i) an aided school;

(ii) a school established and administered or maintained by the Central Government or the State Government or any local authority;

(iii) a school giving, providing or imparting religious instruction alone but not any other instructions;

Explanation:- For the Purpose of this clause,-

1) “code of regulation” means the Code of Regulations for Approved Nursery and Primary Schools,

Code of Regulations for Matriculation Schools and Code of Regulations for Anglo-Indian Schools;

2) (i) pre-primary school shall consist of Pre-KG to UKG.

(ii) primary school shall consist of LKG to Standard V or Standards I to V;

(iii) middle school shall consist of LKG to Standard VIII, Standards I to VIII or Standards VI to VIII;

(iv) high school shall consist of LKG to Standard X, Standards VI to X or Standards IX and X;

(v) higher secondary school shall consist of LKG to Standard XII, Standards I to XII, Standards VI to XII or Standards XI and XII.

3) Aided schools conducting any classes or courses, for which no money is paid as aid out of the State funds, shall be construed as a private school in so far as such classes or courses are concerned.

3. Sections 3 to 8 are the most relevant sections from this Act. The petitioners principally attacked Section 3 (2) read with Section 6 and later Section 11 of the Act. It is necessary to reproduce these sections:-

3. Prohibition of Collection of excess fee.

(1) NoGovernment school or aided school shall collect any fee in excess of the fee fixed by the Government for admission of pupils to any Standard or course of study in that school.

(2) Nofee in excess of the fee determined by the committee under this Act shall be collected for admission of pupils to any

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