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Bombay High Court
Thane vs State Of Maharashtra on 10 December, 2009
Bench: A.M. Khanwilkar

1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION C

WRIT PETITION NO.1445 OF 2009

1. Association of International Schools h

& Principals Foundation, an Association of Private Unaided Schools and having ig

its address at Universal High, Brahmand Scheme Phase VI, Off Ghodbunder Road, Thane.

H

2. Universal Education Foundation, a Company incorporated under the provisions of Section 25 of the Companies Act, 1956 and address y

at Universal High, Brahmand Scheme Phase VI, Off Ghodbunder Road, ba

Thane. .. Petitioners v/s.

om

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. B

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 rt

1. Association of Heads of Anglo Indian Schools in Maharashtra, through its ou

Honorary Secretary Mrs. M. Isaacs, having its address at 6, Purshottamdas Thakurdas Marg, Mumbai-400 001. C

2. Anglo-Scottish Education Society, which runs the Cathedral and John Cannon School and is a company incorporated under the provisions of h

Section 25 of the Companies Act, and a Public Trust under the provisions of ig

the Bombay Public Trust Act, 1950 having its address at Cathedral and John Connon School, 6, Purshottamdas H

Thakurdas Marg, Mumbai-400 001.

3. Christ Church School, having its address at Clare Road, Byculla, y

Mumbai-400 008.

ba

4. Gehna Malkani, of Mumbai Indian Inhabitant, Bursar of Cathedral and John Cannon School, having its address at

om

6, Purshottamdas

Thakurdas Marg, Mumbai-400 001. .. Petitioners v/s.

B

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, ::: Downloaded on - 09/06/2013 15:23:54 ::: 3

an officer exercising powers under the provisions of Maharashtra Educational Institution,

rt

(the Prohibition of Capitation Fee) Act, 1987, having his office at Jawahar Bal Bhavan, Netaji Subhash ou

Road, Charni Road, Mumbai-400 004. .. Respondents C

ALONGWITH

WRIT PETITION NO.1166 OF 2009 h

1.

ig

Unaided Schools Forum, a Society registered under the Societies Registration Act, 1860, which has H

its registered office at Hiranandani Foundation, 17, Saraswati Road, Santacruz (West), Mumbai-400 054 and having an office for correspondence y

at Gujarat Research Society, Dr. Madhuri Shah Campus, R.K.Mission ba

Road, Khar (West), Mumbai-400 052.

2. The Management

Jamnabai Narsee School

om

Narsee Monjee Bhavan

N.S.Road No.7,

JVP Scheme, Juhu, Mumbai-400049.

3. The Management,

B

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.

rt

5. Jagdish Chandulal Nanavati of Mumbai, Indian Inhabitant, ou

residing at Arunodaya,

Lajpatrai Road, Vile Parle (West), Mumbai-400 056. .. Petitioners C

v/s.

1. State of Maharashtra, through the Department of Education, h

which has its office at Mantralaya, Annexe Bhavan, Mumbai-400 032. ig

2. Secretary, Department of Education, Government of Maharashtra, who has H

his office at Mantralaya Extension, Mumbai- 400 032 .. Respondents y

ALONGWITH

ba

WRIT PETITION NO.2552 OF 2000 om

1. Unaided Schools Forum, a Society registered under the Societies Registration Act, 1860, which has its registered office at Hiranandani B

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. ::: Downloaded on - 09/06/2013 15:23:54 ::: 5

2. Shree Chandulal Nanavati Womens Institute and Girls High School, a Society registered unde the rt

Societies Registration Act, 1860, which has its registered office at Vallabh Bhai Road, Vile Parle (West),

ou

Mumbai- 400 056.

3. Shardarshan Vidyamandir Trust, a Public Charitable Trust, C

registered under the Bombay Public Trust Pvt.1950 having its registered office at Dr. Bhavanishankar Dadarkar Marg, Dadar, Mumbai- 400 028.

h

4. Jagdish Chandulal Nanavati of Mumbai, Indian Inhabitant, ig

residing at Arunodaya, Lajpatrai Road, Vile Parle (West), Mumbai-400 056. .. Petitioners H

v/s.

1. State of Maharashtra, through the Department of Education, y

which has its office at Mantralaya, Annexe Bhavan, Mumbai-400 032. ba

2. J.M. Abhyankar, Deputy Secretary, Department of Education,

Government of Maharashtra, who has om

his office at Mantralaya Extension, Mumbai- 400 032. .. Respondents B

ALONGWITH

APPELLATE SIDE

WRIT PETITION NO.4503 OF 2009

1. Students Welfare Assocaition (Kharghar) ::: Downloaded on - 09/06/2013 15:23:54 ::: 6

(Proposed), Kharghar, Taluka-Panvel, District-Raigad, C/o. Score Plus Academy, 13, Vakratund Tower, Sector -4, rt

Kharghar 410210.

2. Prof. M.S. Deshmukh ou

Adult, Occ. Professor,

Residing at -Nikunj, CHS Flat No.C/3 Plot No.14, Sector 4, Kharghar, Navi Mumbai. .. Petitioners C

v/s.

1. State of Maharashtra, (Summons to be served on the h

Learned Government Pleader appearing for State of Maharashtra ig

under Order XXVII, Rule 4 of the Code of Civil Procedure, 1908). H

2. The Secretary,

School Education Department, Government of Maharashtra, Mantralaya,

y

Mumbai- 400 032. .. Respondents (Summons to be served on the ba

Learned Government Pleader appearing for State of Maharashtra under Order XXVII, Rule 4 of the Code of Civil Procedure, 1908). om

3. Balbharti Public School Plot No.5, Sector 4,

Kharghar, Nave Mumbai,

Mumbai -410210. .. Respondents B

ALONGWITH

APPELLATE SIDE

WRIT PETITION NO.4413 OF 2009 ::: Downloaded on - 09/06/2013 15:23:54 ::: 7

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1. Shri Sandeep R. Nair, Age 41 years, Occupation Service, Residing at Park Street, Row House ou

C1, Chest Hospital Road, Wakad, Pune-411 057.

2. Shri Manoj G.

C

Age 41 years, Occupation-service, Residing At A3/A5, Royal Orchard, Wireless Colony, Aundh,

Pune -411 007.

h

3. Shri Sanjay R. Jambhale, ig

Age 39 Years, Occupation-Service, Residing at Park Street, Row House J-13, Chest Hospital Road, H

Wakad, Pune-411 057. .. Petitioners v/s.

y

1. The State of Maharashtra, ba

2. The Director of Education, Maharashtra State Central Building, Pune-411 001.

om

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 B

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, rt

Survey No.80/1/2/1, Baner Mhalunge Road, Baner,

Pune-411045. .. Respondents ou

C

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. h

Mr. V.S. Masurkar, Government Pleader for the State. Mr. A.M. Joshi for the petitioner in A.S. Writ Petition No.4413 of ig

2009.

Mr. Hitesh Jain with Ms. Prachiti Darad i/by M/s.ALMT Legal for the respondent Nos.4 and 5. H

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.

y

Mr. Janak Dwarkadas, Senior Advocate with Mr. Prateek Sakseria i/by M/s. Nankani & Associates for the petitioners in W.P.(L) No. ba

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 om

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. B

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 rt

DATE OF PRONOUNCING THE JUDGMENT : 10TH DECEMBER, 2009 ou

JUDGMENT (PER SWATANTER KUMAR, C.J.) Petitioners, an Association of private unaided C

schools/Managements including private unaided minority schools, have challenged the legality and validity of the Government Resolution dated h

8th May, 2009. According to the Government, it had received various ig

representations stating that private Primary, Secondary and Higher Secondary schools run on permanent unaided basis were increasing the H

fees and other charges to a large extent and it would result in economic exploitation of the parents. Requests were made by the y

students/parents to regulate the fee charged by these schools, at the ba

Government level. The Government, thus, passed the resolution to the following effect:

om

"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 Objection B

Certificate 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 ::: 10

this 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 aforesaid rt

Committee and the fees decided by the Fee Control Committee, should only be charged by the schools. If any school increases Education fees for the academic ou

year 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 same C

will be informed to concerned Board. Said Resolution is availoable on Government of Maharashtra website www.maharashtra.gov.in and the code no. is 20090508190215001." h

2.

ig

According to the petitioners, Wards of Balbharti Public School had earlier filed writ petition being Writ Petition No.4503 of 2009 H

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 y

said writ petition on 6.5.2009, the Additional Government Pleader, after ba

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 om

Committee is constituted and the matter is examined by the said Committee. With reference to the statement made before the Court, the B

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 ::: 11

decision to increase the fees till the committee is constituted and the matter is examined by the committee and further states that the procedure rt

involved in constituting the committee requires consultation from various departments like Finance, Law & Judiciary and that has to be approved by the ou

Cabinet and, therefore, minimum 8 weeks time will be required for constituting the committee.

2. In our view, as the Secretary, Education C

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 of h

students and their guardians/parents is well protect5ed. We therefore, direct the Education ig

Department 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 Junior H

College 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 which y

are running the schools and colleges at various level. ba

3. The matter be listed on 30th June, 2009."

3. In furtherance to these directions, the Government issued a om

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 B

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 ::: Downloaded on - 09/06/2013 15:23:54 ::: 12

exercise any such control. In any case, fee fixation falls under the domain of the management of these schools which have so fixed the rt

fees for the purposes of maintaining excellence in education. The ou

matter was being examined by one authority of the State. Thus, the present Government Resolution is illegal, unjustified and is arbitrary C

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 h

to be constituted and the Government has failed to discharge its ig

obligations on the one hand while on the other hand without any rationale basis and data have issued the circular to prohibit increase in H

fees. The obligation of the schools, with an intent to maintain excellence, they have to pay higher salary to the teachers and also now y

in terms of the recommendations of the Sixth Pay Commission. These ba

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 om

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, B

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 ::: Downloaded on - 09/06/2013 15:23:54 ::: 13

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 rt

even otherwise, the State has a right to control and regulate the fees. ou

Therefore, these petitions are premature and, in fact, according to the respondents not even maintainable. C

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 h

idem as regards issuance of some directions, it is not necessary for ig

this Court to deal with the respective rival contentions raised H

before us on merits of the case. y

5. In Writ Petition No.4503 of 2009, a Division Bench of this ba

Court, while hearing the Writ Petition, had passed the order dated 6th May, 2009, as reproduced hereinabove. om

6. In furtherance to the order of this Court and the policy decision of the Government, the Government had appointed a B

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 ::: Downloaded on - 09/06/2013 15:23:54 ::: 14

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 rt

& Ors., (2005)6 SCC 537. The said Committee under the ou

Chairmanship of Dr. Smt. Kumud Bansal, Retired IAS has on 16th October, 2009 submitted its Report to the Competent Authority C

which, in turn, has to place the said report for acceptance or otherwise before the State Government. In the event, the State h

Government accepts the Report of Bansal Committee, nothing ig

really would survive in these Writ Petitions and it would be purely academic for the Court to decide the said Writ Petitions on merits. H

One of the main contentions raised by the Petitioners is with regard to the control exercisable by the Government with regard y

to the Fee Structure and other management matters of private un- ba

aided schools. The Bansal Committee in its Report in Paragraphs 14, 19, 22, 36 and 37 has noticed as under:- om

"14. In respect of fees the TMA Pai judgment unequivocally states that the private B

school 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 ::: 15

charged. It states :

a. The right to establish and rt

administer broadly comprises the following rights:

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(a) to admit students; (b) to set up a reasonable fee structure;...

C

b. One cannot lose sight of the fact that providing good amenities to the students in the form h

competent 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, to H

determine the scale of fee that it can charge from the students. The Committee, therefore, recommends y

that private unaided schools should have the autonomy to fix the school ba

fees.

Xxx xxx

xxx

om

19. With regard to revenue, the Committee recommends the unaided private schools continue to have the autonomy to determine the fees to be charged B

taking 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. ::: Downloaded on - 09/06/2013 15:23:54 ::: 16

22. There cannot be uniform and rigid norms for deciding admissible expenditure as institutions are affiliated rt

to different Boards and the norms prescribed by every Board are different. Also each institution may have a ou

different vision of what constitutes quality education for its students. Cost of infrastructure and facilities vary from place to palce (urban and rural). The C

expenses incurred also vary according to the stage of schooling (Primary, Secondary & Higher Secondary ), staff required for implementation of h

curriculum and salary of such staff. ig

xxx

Xxx xxx

H

36. The Committee recommends that the Government should address this issue by clearing the backlog at the earliest and by making adequate budgetary y

provisions to ensure timely release of grant in future, so that the bulk of the ba

students studying in the aided school receive quality education.

37. This Committee also recommends that om

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." B

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 ::: Downloaded on - 09/06/2013 15:23:54 ::: 17

Schools, Junior Colleges, have been dealt with and commented upon in a great detail. That is the substantive ground on which rt

the Petitioners have challenged the validity and legality of the ou

Government Resolution dated 8th May, 2009. C

8. This Court had also passed certain order dated 8th July, 2009 which we are informed has not been challenged by any of h

the parties to these Writ Petitions. Thus, it will cause no ig

prejudice to any of the parties if the said order is continued further subject to directions contained in this order. H

9. In light of the above discussion, we hereby dispose of above y

Writ Petitions with the following directions:- ba

(a) Government Resolution dated 8th May, om

2009 shall be kept in abeyance and will not be enforced by the Respondents B

subject to the adherence of the directions contained hereinafter; (b) Report of Bansal Committee shall be ::: Downloaded on - 09/06/2013 15:23:54 ::: 18

placed by the Competent Authority before the State Government within a rt

period of two weeks from the date of ou

pronouncement of this judgment; C

(c) The State Government shall take a final decision upon the report of Bansal h

Committee within a period of four weeks ig

thereafter and take a decision after granting post decisional hearing to the H

Petitioners and other interested parties in a representative capacity; y

ba

(d) Parties i.e. The Petitioners or any other interested parties would be entitled to om

file their objections or submissions in respect of the recommendations of B

Bansal Committee within a period of two weeks with effect from today; (e) Any decision on the Bansal Committee ::: Downloaded on - 09/06/2013 15:23:54 ::: 19

Report taken by the State Government shall not be implemented and would rt

remain stayed for a period of two weeks ou

therefrom;

C

(f) Interim order passed by this Court on 8th July, 2009 vide which we had directed h

the State and the State had stated before ig

us that it would not give effect to the part of the said Government Resolution H

which prohibits enhancement of Fee and charging of increased fee by schools to y

whom Government Resolution applies or ba

even otherwise, till further decision in these matters. We had also clarified om

that the increased fees are to be paid by the students and if the contentions of the B

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 ::: Downloaded on - 09/06/2013 15:23:54 ::: 20

by the Competent Authority. Thus, the order dated 8th July, 2009 shall continue rt

for a period of eight weeks from today ou

and subject to such orders, as may be passed by the Competent Court or C

appropriate forum in accordance with law;

h

(g)

ig

Upon such acceptance of the said report or with such modifications as is directed H

by the State Government, the Fee Structure Committee shall determine the y

Fee chargeable by the Schools, if it has ba

jurisdiction to that effect, within a period of four weeks thereafter. After eight om

weeks as aforesaid, no interim order will be in operation. However, subject to B

such orders as may be passed again by the (Competent Court, appropriate forum or court;)

::: Downloaded on - 09/06/2013 15:23:54 ::: 21

(h) We have fixed the above time schedule primarily with the object that these rt

questions keep arising every year and ou

large number of Writ Petitions are being filed in that behalf. Thus, it would be C

appropriate that the Government and the Competent Authority/Committee h

take decision well in advance so that ig

prior to commencement of academic session, all schools concerned as well as H

the students, their parents and Parents Teachers' Association know what fees y

they have to pay if the students take ba

admissions in a given school. We expect that the Government and all concerned om

Authorities shall adhere to the time schedule specified in this order. In fact, B

we have already noticed that these directions and time schedule were acceptable to all learned counsel appearing for the respective parties. ::: Downloaded on - 09/06/2013 15:23:54 ::: 22

10. Writ Petitions are accordingly disposed of with no order as rt

to costs.

ou

C

CHIEF JUSTICE

h

A.M. KHANWILKAR, J.

ig

H

y

ba

om

B

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