Prohibition on levy of fee.

Veeraswami, C.J.-The appeals by the State are from a common order of Kailasam, J., reported in The Hindu Bala Patasala, Chepauk, Madras-5 v. The Director of Public Instruction, Madras1. He quashed as invalid G.O.Ms. No. 751, Education, dated 17th May, 1965. By that order, Government directed that with effect from the school year 1965. 66 no~fees of any sort should be levied from pupils attending any standard of a recognised primary or upper primary school under the management of any agency. In accordance with that direction the order of the Government substituted Rule 29-A in the rules for the grant of recognition and aid to elementary schools published with the then Education Department Notification No. 243, dated 21st August, 1939 and as subsequently amended by a new rule, which read:

“29-A. With effect from the school year 1965-66 no fee of any sort is leviable from pupils attending any standard of a recognised primary or upper primary school under the management of any agency”.

One of us had, in S. Ranganatha Rao v. (1) The Divisional Inspector of Schools, Madurai Division, (2) The District Educational Officer, Madura District, Madurai2, held these rules to be non-statutory. In fact, the Supreme Court, in Kumari Regina v. St. Aloysius Higher Elementary School3, while approving that view, went further to hold that even if these rules, so far as they relate to recognition, had purported to be framed in exercise of the power under section 56 of the Madras Elementary Education Act, inasmuch as the chapter in the Act relating to recognition had been omitted from its purview, the enabling rule-making power will be useless to support the rules as statutory, inasmuch as they would not be for carrying out the purposes and objects of the Act.

2. The school, the respondent in W.A. No. 122 of 1967, was founded in 1882, and when the Madras Elementary Education Act was passed in 1920, it was recognised as a primary school and later made into an elementary school within the definition of the Act, and this recognition was continued by section 14 of Madras Act II of 1939. In view of the prohibition of levy of fee as enjoined by the amended rule 29-A, the school made a representation that 10 per cent, of the teaching grant to be allowed would be hardly sufficient to meet its commitment and that therefore it was entitled to levy fees. But, on 15th October, 1965 the District Educational Officer, Madras North, informed the school that it should fall in line with the policy laid down in the impugned Government Order and that it must be converted into a non-fee levying school within a week from the date of the receipt of the communication and that otherwise recognition would be withdrawn. In view of this threat, the school sought a rule from this Court forbidding the State from enforcing the said Government Order. This was on the ground that the inhibition in the Government Order against the levy of fee was inconsistent with section 47 (2) of the Madras Elementary Education Act. The facts in the other writ appeal are similar and a similar relief was sought for on an identical contention. Kailasam, J., accepted the contention and issued the rule.

3. We are of the view that the learned Judge was right in doing so. We are of that opinion for two reasons. One of them is what was accepted by Kailasam, J. Section 47 (2) clearly stated that fees might be levied from any child attending an elementary school of the type now in question. Under this provision, the respondents could lawfully levy fee. Any inhibition, which is non-statutory cannot, therefore, have legal validity so long as section 47 (2) stands on the statute book. That was the view of Kailasam, J., which we accept. Quite apart from that, it may be seen that recognition accorded to respondents originally under the provisions of the Act was continued statutorily by reason of section 14 of Madras Act II of 1939. That amounts to a statutory sanction of the continued recognition. We fail to see how

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