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2011 Supreme(Ori) 194
2011 (II) OLR — 665
M.M. DAS, J.
W.P.(C) No.5030, 525, 893, 3460, 4713, 4922, 5113, 5147, 5326, 7251 and 11259 of 2009
In the matter of an application under Articles 226 and 227 of the Constitution of India.
In WPC No. 5030/2009
The Management of DAV Public School,
Chandrasekharpur...Petitioner
Versus
State of Orissa and another...Opp. Parties
In WPC 525/2009
Decided on 27th June, 2011.
For Petitioners:M/s. S. S. Das, R. Sahu, K. C. Mohapatra, A. Mishra, G. Sinha, D. K. Panda, R. K. Kar, J. K. Khuntia, B. Routray, D. K. Mohapatra, B. B. Routray, D. Routray, S. Das, R. N. Misra-II, U. K. Mishra, S. M. Mohapatra-1, B. Mohanty, T. K. Patnaik, A. Patnaik, M. K. Sahoo, A. K. Mishra, A. K. Mohapatra, S. K. Rath, B. Pradhan, O. P. Mohanty, Mrs. D. Mishra, S. Mohapatra, S. Patnaik, A. K. Mohanty, P. K. Dhal, P. Ranjan and M. K. Behera (In all the cases)
For Opp. Parties:Addl.Govt. Advocate (For State)
M/s. J. Patnaik, Sr. Advocate, A. Rath, P. K. Sahoo, R. R. Mohanty, B. K. Nayak, B. Mohanty, T. K. Pattanaik, A. Patnaik, R. P. Roy, M. S. Rizivi, H. M. Dhal and B. S. Raiguru (In all)
Headnote:1. EDUCATION - Private Educational Institutions - Schools-Fee Structure - Determination of - Schools has to be conscious of the fact that it has to be very reasonable and it cannot and should not charge the parent more then what is absolutely essential - It has also to meet the variety of expenditure on different activities, tasks and programmes so that education of high quality and for all round development of the children is imparted. (Para - 21)
2. CONSTITUTION OF INDIA, 1950 - Art. 226 - Direction to the legislature to enact a law - In exercise of power under Article 226 of the Constitution, if the Court finds that fundamental rights of the subject has been infringed, the Court has jurisdiction to undo such injustice by passing appropriate direction on that behalf.
(Para - 33)
3. CONSTITUTION OF INDIA, 1950 - Arts. 226, 14, 21 and 21-A - Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 - Right to Children to Free and Compulsory Education Act, 2009 - Private Educational Institutions - Fixation/Enhancement of fees - Discussing the facts, contention, provision of law and the ratio laid down by Supreme Court in cited cases held, fixing irrational amount of fees without assigning any reason amounts to violation of the fundamental and statutory rights of the children - Action to be taken indicated - Directions issued.
Hence, in view of the findings arrived at as above as well as keeping the statement made in the counter affidavit filed by the State that the Government is to take a policy decision with regard to hike in fees, this Court is of the view that till such a policy decision is taken by the Government, a Committee should be constituted, which shall look into the matter of fee hike by a private unaided educational institution (High Schools and Secondary Schools) and for the above purpose, any school intending to hike/raise its fees from the existing rate to higher rate shall make an application through its Principal/Headmaster/Headmistress to such committee constituted along with documents and materials that are relevant to be examined to fix a fee structure, which shall not be contrary to the law laid down by the Supreme Court, i.e., there should be absence of profiteering collection of capitation fees/donations and such fee should be fixed at a rate which is necessary to meet its expenditure and general surplus which can only be used for betterment and growth of the concerned institution. Such fee structure is to be fixed keeping in mind the infrastructure and facilities available, the investment made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution. The committee on examining the materials made available to it shall fix the fee structure of the applicants-schools. Till such fee structure is fixed by the committee constituted, the D.A.V. Public Schools before this Court and as the Regional Manager of the D.A.V. Public School of the State, who stated to be having control over all such schools in the State is a party before this Court, all the D.A.V. Public Schools, which are also not before this Court, which are functioning in the State, shall continue to collect fees from the students at the rate which was being collected for the session 2008-09. This Court constitutes the committee consisting of the Commissioner-cum-Secretary, School & Mass Education Department, Government of Orissa, Inspector of Schools of the locality of the applicant-school, the Principal/Headmaster of the concerned schools, two representatives of the parents association of the concerned school and the head of the local self-government, i.e., Mayor of Municipal Corporation, Chairman of the Municipality or NAC or Sarpanch of the Grama Panchayat, in which area, the school is functioning. The Commissioner-cum-Secretary may act in person or through his/her nominee not below the rank of the Deputy Secretary. (Para - 33)
4. ORISSA EDUCATION ACT, 1969 - Secs 3(o), 5, 6, 6-B, 7 - "Private Educational Institution" - Affiliated to CBSE - D. A. V. Public Schools in question are established after obtaining No Objection Certificate from the prescribed authority constituted by the State Government - D.A.V. Schools are governed by the Orissa Education Act - The Managing Committee are to be constituted in accordance with the provisions of the Act and Rules and not as per the affiliation Bye-Law of the CBSE.(Paras - 15 & 16)
JUDGMENT
M.M. DAS, J. — All the aforesaid writ applications, except W.P.(C) Nos.5030 and 5118 of 2009 which will be dealt with later, relate to enhancement of fees, such as tuition fees, admission fees, readmission fees etc. by the school authorities of various DAV Public Schools of the State. All these matters were heard together and common orders were passed in the record of W.P.(C) No.5030 of 2009.
2.The disputes raised by the petitioners in various writ applications were widely canvassed from various angles and the managements of DAV Public Schools were also heard in extenso, the parties being represented by the respective counsel. All the DAV Public Schools in the State of Orissa are affiliated to the Central Board of Secondary Education (CBSE for short) and follow the syllabus of the said Board for imparting education to the students. Such schools were established in the State after obtaining no-objection certificates as per the resolution adopted by the Department of School and Mass Education, Government of Orissa (hereinafter referred to as “Resolution, 1996”). For better of this case, the said resolution in toto is quoted hereunder :-
“No.30720- VISSME-M-17/96 SME
Government of Orissa
Department of School and Mass Education Resolution.
The 23rd September 1996
State Government, with concern, have observed that there is rapid growth of Private Educational Institution imparting teaching in English and other Medium in the State which are affiliated to C.B.S.E. and I.C.S.E. in O.J.C. 2951/1993 the Hon’ble High Court have also observed that Sub-section (5) of Section 6 of Orissa Education act provides that while according recognition to a Private Educational Institution, the Prescribed authority shall have regard to matters like provision for suitable and adequate accommodation, location of the institution, its sanitary and healthy surroundings appointment of qualified teachers, provision for equipments and teaching materials and adequate financial support for the continuous and efficient maintenance of the institution. Besides, several allegations have been received of mal-administration and mismanagement of such institutions. It has thus become imperative to prescribe certain guidelines to be followed before according N.O.C./Recognition to such institution and to withdraw such N.O.C./Recognition in the event of violation of any of the instructions issued in this Resolution.
Any Organisation/Individual seeking No Objection Certificates from the State Government to open any unaided school to be affiliated to the ICSE/CBSE shall be required to fulfil the terms and conditions and satisfy the requirements prescribed hereunder.
1. (A) Accommodation
(i)The Institution must have at least 1 acre of land in the urban areas having population of 5 lakhs and 2 acres in other areas. The land need to be recorded in the name of the institution and the copy of the record of the rights to be furnished by the applicant at the time of applying for No Objection Certificates. The Institution must have suitable building having regard to number of pupils attending the school.
(ii)There shall be adequate equipment and furniture.
(iii)There shall be a well equipped library for use of the staff and pupils.
(iv)There shall be sufficient and commodious rooms to accommodate all Sections and classes.
(v)The school shall have also a Laboratory with adequate equipment and apparatus for the teaching of Science subjects.
(B)Last date of application - Organization/Individual seeking No Objection Certificates from the State Government should apply to the concerned Directors in the prescribed form latest by the 15th January of the year.
(C)All these applications received up to the 15th January shall be placed, by the Directors, Elementary Education and Secondary Education, before the High Power Committee to be appointed by the Government to consider each application in pursuance of the guidelines issued in this Resolution, Decision of the H.P.C. in the matter of issue of N.O
