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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1445 OF 2009
1. Association of International Schools
& Principals Foundation, an Association
of Private Unaided Schools and having
its address at Universal High, Brahmand
Scheme Phase VI, Off Ghodbunder Road,
Thane.
2. Universal Education Foundation, a Company
incorporated under the provisions of Section
25 of the Companies Act, 1956 and address
at Universal High, Brahmand
Scheme Phase VI, Off Ghodbunder Road,
Thane. .. Petitioners
v/s.
1. State of Maharashtra,
Summon/Notice/s to be served on Learned
Government Pleader appearing for the
State of Maharashtra under Order XXVIII,
Rule 4 of the Code of Civil Procedure, 1908.
2. The Department of Education, .. Respondents
State of Maharashtra, through the
Secretary, Mantralaya, Mumbai-400 032.
ALONGWITH
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WRIT PETITION NO.1165 OF 2009
1. Association of Heads of Anglo Indian
Schools in Maharashtra, through its
Honorary Secretary Mrs. M. Isaacs,
having its address at 6, Purshottamdas
Thakurdas Marg, Mumbai-400 001.
2. Anglo-Scottish Education Society,
which runs the Cathedral and John
Cannon School and is a company
incorporated under the provisions of
Section 25 of the Companies Act, and
a Public Trust under the provisions of
the Bombay Public Trust Act, 1950
having its address at Cathedral and John
Connon School, 6, Purshottamdas
Thakurdas Marg, Mumbai-400 001.
3. Christ Church School, having its
address at Clare Road, Byculla,
Mumbai-400 008.
4. Gehna Malkani, of Mumbai
Indian Inhabitant, Bursar of
Cathedral and John Cannon School,
having its address at
6, Purshottamdas
Thakurdas Marg, Mumbai-400 001. .. Petitioners
v/s.
1. The State of Maharashtra,
service through Government Pleader,
High Court, Bombay And through the
School Education and Sports Department,
Mantralaya, Mumbai- 400 032.
2. The Deputy Director, Education,
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an officer exercising powers under
the provisions of Maharashtra
Educational Institution,
(the Prohibition of Capitation Fee)
Act, 1987, having his office at
Jawahar Bal Bhavan, Netaji Subhash
Road, Charni Road, Mumbai-400 004. .. Respondents
ALONGWITH
WRIT PETITION NO.1166 OF 2009
1.
Unaided Schools Forum, a Society
registered under the Societies
Registration Act, 1860, which has
its registered office at Hiranandani
Foundation, 17, Saraswati Road,
Santacruz (West), Mumbai-400 054
and having an office for correspondence
at Gujarat Research Society,
Dr. Madhuri Shah Campus, R.K.Mission
Road, Khar (West), Mumbai-400 052.
2. The Management
Jamnabai Narsee School
Narsee Monjee Bhavan
N.S.Road No.7,
JVP Scheme, Juhu, Mumbai-400049.
3. The Management,
Arya Vidya Mandir,
St. Cyril Road,
Bandra (West),
Mumbai-400 050.
Through its Managing Trustee.
4. The Management
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Hiranandani Foundation School,
Hiranandani Gardens,
Powai, Mumbai-400 076.
5. Jagdish Chandulal Nanavati
of Mumbai, Indian Inhabitant,
residing at Arunodaya,
Lajpatrai Road, Vile Parle (West),
Mumbai-400 056. .. Petitioners
v/s.
1. State of Maharashtra,
through the Department of Education,
which has its office at Mantralaya,
Annexe Bhavan, Mumbai-400 032.
2. Secretary, Department of Education,
Government of Maharashtra, who has
his office at Mantralaya Extension,
Mumbai- 400 032 .. Respondents
ALONGWITH
WRIT PETITION NO.2552 OF 2000
1. Unaided Schools Forum, a Society
registered under the Societies
Registration Act, 1860, which has
its registered office at Hiranandani
Foundation, 17, Saraswati Road,
Santacruz (West), Mumbai-400 054
and having an office for correspondence
at Gujarat Research Society,
Dr. Madhuri Shah Campus, R.K.Mission
Road, Khar (West), Mumbai-400 052.
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2. Shree Chandulal Nanavati Womens
Institute and Girls High School, a
Society registered unde the
Societies Registration Act, 1860, which
has its registered office at Vallabh Bhai
Road, Vile Parle (West),
Mumbai- 400 056.
3. Shardarshan Vidyamandir Trust,
a Public Charitable Trust,
registered under the Bombay Public Trust
Pvt.1950 having its registered office
at Dr. Bhavanishankar Dadarkar Marg,
Dadar, Mumbai- 400 028.
4. Jagdish Chandulal Nanavati
of Mumbai, Indian Inhabitant,
residing at Arunodaya, Lajpatrai Road,
Vile Parle (West), Mumbai-400 056. .. Petitioners
v/s.
1. State of Maharashtra,
through the Department of Education,
which has its office at Mantralaya,
Annexe Bhavan, Mumbai-400 032.
2. J.M. Abhyankar, Deputy Secretary,
Department of Education,
Government of Maharashtra, who has
his office at Mantralaya Extension,
Mumbai- 400 032. .. Respondents
ALONGWITH
APPELLATE SIDE
WRIT PETITION NO.4503 OF 2009
1. Students Welfare Assocaition (Kharghar)
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(Proposed), Kharghar, Taluka-Panvel,
District-Raigad, C/o. Score Plus Academy,
13, Vakratund Tower, Sector -4,
Kharghar 410210.
2. Prof. M.S. Deshmukh
Adult, Occ. Professor,
Residing at -Nikunj, CHS Flat No.C/3
Plot No.14, Sector 4, Kharghar,
Navi Mumbai. .. Petitioners
v/s.
1. State of Maharashtra,
(Summons to be served on the
Learned Government Pleader
appearing for State of Maharashtra
under Order XXVII, Rule 4 of the
Code of Civil Procedure, 1908).
2. The Secretary,
School Education Department,
Government of Maharashtra,
Mantralaya,
Mumbai- 400 032. .. Respondents
(Summons to be served on the
Learned Government Pleader
appearing for State of Maharashtra
under Order XXVII, Rule 4 of the
Code of Civil Procedure, 1908).
3. Balbharti Public School
Plot No.5, Sector 4,
Kharghar, Nave Mumbai,
Mumbai -410210. .. Respondents
ALONGWITH
APPELLATE SIDE
WRIT PETITION NO.4413 OF 2009
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1. Shri Sandeep R. Nair,
Age 41 years, Occupation Service,
Residing at Park Street, Row House
C1, Chest Hospital Road, Wakad,
Pune-411 057.
2. Shri Manoj G.
Age 41 years, Occupation-service,
Residing At A3/A5, Royal Orchard,
Wireless Colony, Aundh,
Pune -411 007.
3. Shri Sanjay R. Jambhale,
Age 39 Years, Occupation-Service,
Residing at Park Street, Row
House J-13, Chest Hospital Road,
Wakad, Pune-411 057. .. Petitioners
v/s.
1. The State of Maharashtra,
2. The Director of Education,
Maharashtra State Central Building,
Pune-411 001.
3. Central Board of Secondary Education,
New No.3 (Old No.1630-A), J-Block,
16, Main Road, Anna Nagar (West),
Chennai-600040.
(Notice to be served upon Regional
Officer).
4. Pradnya Niketan Education Society,
S.No.80/1/2/1, Baner-Mhalunge Road,
Baner, Pune -411 045.
(Notice to be served upon Shri
B.K. Shinde-Trustee).
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5. Mrs. Lakshmi Kumar,
Director the Orchid School,
Survey No.80/1/2/1, Baner
Mhalunge Road, Baner,
Pune-411045. .. Respondents
Mr. A.V. Anturkar with Mr. S.B. Deshmukh for the Petitioners in
A.S.W.P. No.4503 of 2009.
Mr. A.Y. Bookwala, Senior Advocate with Mr. Munaf Virjee and Mr.
Mayuresh Borkar i/by M/s. DSK Legal for the respondent No.3.
Mr. V.S. Masurkar, Government Pleader for the State.
Mr. A.M. Joshi for the petitioner in A.S. Writ Petition No.4413 of
2009.
Mr. Hitesh Jain with Ms. Prachiti Darad i/by M/s.ALMT Legal for
the respondent Nos.4 and 5.
Mr. Aspi Chinoy, Senior Advocate with Mr. Prateek Sakseria i/by
M/s. L.J. Law for the applicant in C.A. No.1526 of 2009.
Mr. Prateek Sakseria i/by M/s. L.J. Law for the applicant in C.A.
No.1527 of 2009.
Mr. Janak Dwarkadas, Senior Advocate with Mr. Prateek Sakseria
i/by M/s. Nankani & Associates for the petitioners in W.P.(L) No.
1185 of 2009 and for applicant in C.A.No.1525 of 2009.
Mr. D.A. Nalawade, Government Pleader with Ms. I. Calcuttawala,
A.G.P. for the State.
Mr. Aspi Chinoy, Senior Advocate with Mr. Prateek Sakseria i/by
M/s. L.J.Law for the applicant in N.M. No.342 of 2009.
Mr. Janak Dwarkadas, Senior Advocate with Mr. Prateek Sakseria
i/by M/s. L.J. Law for the applicant in N.M. No.342 of 2009.
Mr. F.E. D'Vitre, Senior Advocate with Mr. Gaurav Joshi i/by M/s.
Federal & Rashmikant for the petitioners in W.P. No.1166 of 2009.
Mr. Prakash Naik for the applicants in Cri. applications.
Ms Sunita Sharma i/by Mr. S.V. Marwadi for the respondent No.1.
CORAM : SWATANTER KUMAR , C.J. &
A.M. KHANWILKAR
, J.
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DATE OF RESERVING THE JUDGMENT : 30TH NOVEMBER, 2009
DATE OF PRONOUNCING THE JUDGMENT : 10TH DECEMBER, 2009
JUDGMENT (PER SWATANTER KUMAR, C.J.)
Petitioners, an Association of private unaided
schools/Managements including private unaided minority schools, have
challenged the legality and validity of the Government Resolution dated
8th May, 2009. According to the Government, it had received various
representations stating that private Primary, Secondary and Higher
Secondary schools run on permanent unaided basis were increasing the
fees and other charges to a large extent and it would result in economic
exploitation of the parents. Requests were made by the
students/parents to regulate the fee charged by these schools, at the
Government level. The Government, thus, passed the resolution to the
following effect:
“In the State the Primary, Secondary & Higher
Secondary Schools run on the principle of private
unaided/permanent unaided, also schools affilidated to
ICSE/CBSE/IGCE/IB Board and the No ObjectionCertificate issued by Government to these schools shall
not increase the fees of any kind without the permission
of the Fee Control Committee established through
Government. For fixing the tuition fees and other fees
Fee Control Committee will be established by
Government and without the approval by said
Committee the concerned Institutions cannot increase
the tuition fees & other fees. Prior to the notification of::: Downloaded on – 09/06/2013 15:23:54 :::
10this Resolution, the institutions which have increased
the fees for the academic year 2009-2010, shall also be
binding on them to obtain the approval of the aforesaidCommittee and the fees decided by the Fee Control
Committee, should only be charged by the schools. If
any school increases Education fees for the academicyear 2009-2010 in violation of this Government
Resolution, the permission granted to the concerned
school will be revoked and No Objection Certificate
granted to those school shall be cancelled and the samewill be informed to concerned Board.
Said Resolution is availoable on Government of
Maharashtra website www.maharashtra.gov.in and the
code no. is 20090508190215001.”
2.
According to the petitioners, Wards of Balbharti Public School
had earlier filed writ petition being Writ Petition No.4503 of 2009
praying for issuance of mandamus to the State directing it to regulate
the fees charged by the said school. During the course of hearing of the
said writ petition on 6.5.2009, the Additional Government Pleader, after
seeking instructions, made a statement that Government of
Maharashtra would issue instructions to the institutions, that is the
schools, not to implement their decision to increase the fees till the
Committee is constituted and the matter is examined by the said
Committee. With reference to the statement made before the Court, the
Court passed the following order:-
“The learned A.G.P. after seeking instructions
from Mr. Sanjaykumar, Secretary, Education
Department, Government of Maharashtra who is
present in the Court states that the Education
Department would issue instructions to the
respondents-institution not to implement their::: Downloaded on – 09/06/2013 15:23:54 :::
11decision to increase the fees till the committee is
constituted and the matter is examined by the
committee and further states that the procedureinvolved in constituting the committee requires
consultation from various departments like Finance,
Law & Judiciary and that has to be approved by theCabinet and, therefore, minimum 8 weeks time will
be required for constituting the committee.
2. In our view, as the Secretary, Education
Department has made statement that instructions will
be issued to all Educational Institutions in the State
of Maharashtra not to give effect to the increase in
fees till the statutory committee considers the case of
increase in fees on case to case basis the interest ofstudents and their guardians/parents is well
protect5ed. We therefore, direct the EducationDepartment of State of Maharashtra to take
appropriate steps to protect the interest of students
and their guardians/parents seeking admission at all
levels of education i.e. from Nursery to JuniorCollege by prohibiting them from increasing fees as
no committee is constituted by the State and
presently the matter is left to mediation between
Parents & Teachers Association and Institutions whichare running the schools and colleges at various level.
3. The matter be listed on 30th June, 2009.”
3. In furtherance to these directions, the Government issued a
circular dated 8.5.2009. The above resolution has been challenged by
the petitioners on the ground that the respondents have no jurisdiction
to regulate and control the fees structure of the petitioner’s schools by
relying upon the judgment of the Supreme Court in the case of T.M.A.
Pai (2002)8 SCC 481. It is argued that the action of the respondents
tantamounts to interference in the management and practically
running the unaided private schools over which the authorities cannot
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exercise any such control. In any case, fee fixation falls under the
domain of the management of these schools which have so fixed the
fees for the purposes of maintaining excellence in education. The
matter was being examined by one authority of the State. Thus, the
present Government Resolution is illegal, unjustified and is arbitrary
exercise of power. In terms of the order of this court and section 4 of
the Maharashtra Educational Institutions (Prevention of Capitation
Fees) Act,1987 and rules framed thereunder, a statutory committee was
to be constituted and the Government has failed to discharge its
obligations on the one hand while on the other hand without any
rationale basis and data have issued the circular to prohibit increase in
fees. The obligation of the schools, with an intent to maintain
excellence, they have to pay higher salary to the teachers and also now
in terms of the recommendations of the Sixth Pay Commission. These
are some of the pleas raised by the petitioners. In addition to the above
pleas, interalia, it is also contended that the provisions of this Act
particularly, section 4 is violative of Article 19(1)(g). Once the schools
are not indulging in profiteering or imposing capitation fee, there is
nothing to prohibit them from charging fees as there are no guidelines,
no methodology provided for regulating the fees even if it is assumed
that they have such a right. Furthermore, there is no absolute right to
regulate the fees. On the other hand, according to the respondents, the
Act in question was legislated in the year 1987 and various approvals
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have been given or refused under the provisions of the Act. It is not a
redundant law as alleged. In terms of the judgment of the court and
even otherwise, the State has a right to control and regulate the fees.
Therefore, these petitions are premature and, in fact, according to the
respondents not even maintainable.
4. In view of the approach that we propose to adopt while
dealing with the present case and the fact that the parties are ad
idem as regards issuance of some directions, it is not necessary for
this Court to deal with the respective rival contentions raised
before us on merits of the case.
5. In Writ Petition No.4503 of 2009, a Division Bench of this
Court, while hearing the Writ Petition, had passed the order dated
6th May, 2009, as reproduced hereinabove.
6. In furtherance to the order of this Court and the policy
decision of the Government, the Government had appointed a
Committee to examine various aspects of fee structure of the
Petitioner’s Schools, Junior Colleges as well as the extent of
control, etc. that the Government is expected to exercise in terms
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of the judgment of the Supreme Court in T.M.A. Pai’s case (supra)
and in the case of P.A. Inamdar and Others v. State of Maharashtra
& Ors., (2005)6 SCC 537. The said Committee under the
Chairmanship of Dr. Smt. Kumud Bansal, Retired IAS has on 16th
October, 2009 submitted its Report to the Competent Authority
which, in turn, has to place the said report for acceptance or
otherwise before the State Government. In the event, the State
Government accepts the Report of Bansal Committee, nothing
really would survive in these Writ Petitions and it would be purely
academic for the Court to decide the said Writ Petitions on merits.
One of the main contentions raised by the Petitioners is with
regard to the control exercisable by the Government with regard
to the Fee Structure and other management matters of private un-
aided schools. The Bansal Committee in its Report in Paragraphs
14, 19, 22, 36 and 37 has noticed as under:-
“14. In respect of fees the TMA Pai judgment
unequivocally states that the privateschool managements of unaided
institutions have the right to decide
their fes. It has ruled that maximum
autonomy has to be with the
management of the unaided schools
with regard to administration,
admission of students and the fees to be::: Downloaded on – 09/06/2013 15:23:54 :::
15charged. It states :
a. The right to establish and
administer broadly comprises the
following rights:
(a) to admit students;
(b) to set up a reasonable fee
structure;…
b. One cannot lose sight of the fact
that providing good amenities to
the students in the formcompetent teaching faculty and
ig other infrastructure costs money.
It has, therefore, to be left to the
institutin, if it chooses not to seek
any aid from the Government, todetermine the scale of fee that it
can charge from the students.
The Committee, therefore, recommends
that private unaided schools should
have the autonomy to fix the schoolfees.
Xxx xxx
xxx
19. With regard to revenue, the Committee
recommends the unaided private
schools continue to have the autonomy
to determine the fees to be chargedtaking in to consideration the need to
generate funds to run the institution
and to provide facilities necessary for
the students. However, schools are
prescribed from charging capitation fee
and should not be allowed to profiteer.
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22. There cannot be uniform and rigid
norms for deciding admissible
expenditure as institutions are affiliatedto different Boards and the norms
prescribed by every Board are different.
Also each institution may have adifferent vision of what constitutes
quality education for its students. Cost
of infrastructure and facilities vary from
place to palce (urban and rural). Theexpenses incurred also vary according
to the stage of schooling (Primary,
Secondary & Higher Secondary ), staff
required for implementation ofcurriculum and salary of such staff.
xxx
Xxx xxx
36. The Committee recommends that the
Government should address this issue
by clearing the backlog at the earliest
and by making adequate budgetaryprovisions to ensure timely release of
grant in future, so that the bulk of thestudents studying in the aided school
receive quality education.
37. This Committee also recommends that
Government may take a conscious
policy decision and allow private aided
schools to raise additional resources as
per norms through the combined efforts
of PTA and Schools management.”
7. From a bare reading of the recommendations of the
Committee, it is clear that both, the Fee Structure as well as the
extent of control to be exercised by the Government over these
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Schools, Junior Colleges, have been dealt with and commented
upon in a great detail. That is the substantive ground on which
the Petitioners have challenged the validity and legality of the
Government Resolution dated 8th May, 2009.
8. This Court had also passed certain order dated 8th July,
2009 which we are informed has not been challenged by any of
the parties to these Writ Petitions. Thus, it will cause no
prejudice to any of the parties if the said order is continued
further subject to directions contained in this order.
9. In light of the above discussion, we hereby dispose of above
Writ Petitions with the following directions:-
(a) Government Resolution dated 8th May,
2009 shall be kept in abeyance and will
not be enforced by the Respondents
subject to the adherence of the
directions contained hereinafter;
(b) Report of Bansal Committee shall be
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18placed by the Competent Authority
before the State Government within a
period of two weeks from the date of
pronouncement of this judgment;
(c) The State Government shall take a final
decision upon the report of Bansal
Committee within a period of four weeks
thereafter and take a decision after
granting post decisional hearing to the
Petitioners and other interested parties
in a representative capacity;
(d) Parties i.e. The Petitioners or any other
interested parties would be entitled to
file their objections or submissions in
respect of the recommendations of
Bansal Committee within a period of two
weeks with effect from today;
(e) Any decision on the Bansal Committee
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Report taken by the State Government
shall not be implemented and would
remain stayed for a period of two weeks
therefrom;
(f) Interim order passed by this Court on 8th
July, 2009 vide which we had directed
the State and the State had stated before
us that it would not give effect to the
part of the said Government Resolution
which prohibits enhancement of Fee and
charging of increased fee by schools to
whom Government Resolution applies or
even otherwise, till further decision in
these matters. We had also clarified
that the increased fees are to be paid by
the students and if the contentions of the
Petitioners are ultimately not accepted,
then in that event the students would be
entitled to adjustment and/or refund of
the fee in excess of the fees determined
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by the Competent Authority. Thus, the
order dated 8th July, 2009 shall continue
for a period of eight weeks from today
and subject to such orders, as may be
passed by the Competent Court or
appropriate forum in accordance with
law;
(g)
Upon such acceptance of the said report
or with such modifications as is directed
by the State Government, the Fee
Structure Committee shall determine the
Fee chargeable by the Schools, if it has
jurisdiction to that effect, within a period
of four weeks thereafter. After eight
weeks as aforesaid, no interim order will
be in operation. However, subject to
such orders as may be passed again by
the (Competent Court, appropriate
forum or court;)
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(h) We have fixed the above time schedule
primarily with the object that these
questions keep arising every year and
large number of Writ Petitions are being
filed in that behalf. Thus, it would be
appropriate that the Government and
the Competent Authority/Committee
take decision well in advance so that
prior to commencement of academic
session, all schools concerned as well as
the students, their parents and Parents
Teachers’ Association know what fees
they have to pay if the students take
admissions in a given school. We expect
that the Government and all concerned
Authorities shall adhere to the time
schedule specified in this order. In fact,
we have already noticed that these
directions and time schedule were
acceptable to all learned counsel
appearing for the respective parties.
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10. Writ Petitions are accordingly disposed of with no order as
to costs.
CHIEF JUSTICE
A.M. KHANWILKAR, J.
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