Madras High Court
Rosary Matriculation Higher Secondary ... vs The Government Of Tamil Nadu on 23 April, 2013
Bench: R.Banumathi, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 23-04-2013
CORAM:
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.P.Nos.33607 to 33613 of 2012, W.P.Nos. 3835,
3980, 4030, 6095, 6282 and 6882 of 2013
and M.P.Nos.1 (8 Nos.) 2 (9 Nos.) and 3 (2 Nos.)
W.P.No.33607 of 2012:
--------------------
Rosary Matriculation Higher Secondary School
Represented by its Correspondent
Rev. Sr.Lily D'Souza
11, Papanasam Sivan Road
Santhome, Chennai 4. .. Petitioner
vs.
1. The Government of Tamil Nadu
represented by the Secretary
Department of School Education
Fort St. George
Chennai 9.
2. The Private Schools Fee Determining Committee
Rep. By its Special Officer
PTA Building
DPI Campus
College Road
Chennai 6. .. Respondents
Prayer: Writ Petition No. 33607 of 2012 filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorarified mandamus to call for the records of the Committee, pertaining to the order of fixation dated 26.9.2012, on the file of the 2nd respondent and quash the same , in so far as it relates to the petitioner school and consequently direct the respondents to permit the petitioner school to follow the proposed fee structure during the personal hearing on 26.9.2012, for the academic years 2012-2013, 2013-2014 and 2014-2015.
For Petitioners in all W.Ps. : Fr. X.Xavier Arulraj
For Respondents in all W.Ps. : Mr.A.L.Somayaji
Advocate General
Assisted by
Mr.D.Krishnakumar,Spl.G.P
and
Mr.P.Sanjay Gandhi, A.G.P.
COMMON ORDER
R.BANUMATHI,J. & K.RAVICHANDRABAABU,J.
In all these writ petitions, the order of the second respondent Committee is challenged on many grounds. All the writ petitioners are Unaided Minority Schools established and administered by minority educational agencies of the Catholic diocese and the religious congregations. According to the petitioners, their status of minority as contemplated under Article 30(1) of the Constitution of India have been declared by this Court as early as in the year 1976 in a batch of writ petitions in W.P.No. 4478 of 1974. In pursuant to the said order,the Educational Agencies have acted upon the same.
2. It is further stated that the appeal filed by the Government before the Hon'ble Supreme Court was remitted back to this Court and a Division Bench of this Court by an order dated 7.12.1975 passed in W.P.No. 4478 of 1974 etc., batch, confirmed the status quo of the minority institutions as on the date of the earlier judgement of this Court dated 17.12.1995. Therefore, all these writ petitioners are minority institutions enjoying such status for the last 38 years and thus entitled to all protection available under Article 30(1) of the Constitution of India.
3. All these writ petitioners are aggrieved against the order passed by the Private Schools Fee Determination Committee wherein restriction was imposed on the number of teaching and non-teaching staff and also with regard to payment of pension to the retired staff and also acceptance of audited statement. According to the petitioners, the order of the Committee restricting the number of teaching and non-teaching staff goes contra to the directions/ guidelines already issued by the Division Bench of this Court in W.P.Nos. 18037 of 2011 etc., batch case in the case of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others dated 3.5.2012 reported in 2012 (2) CWC 204.
4. The grievance of Writ Petitioner schools is that as per the guidelines issued in respect of Minority Educational Institutions the audited statement has to be accepted unless there are strong grounds for not accepting the audited statement and while so, the Committee has rejected the audited statement on the only ground that the expenditure shown in the audited statement amounts to profiteering and the individual item in the audited statement were not considered.
5. Main grievance of the Writ Petitioner schools is that the guidelines issued in respect of minority educational institutions with regard to strength of teaching and non-teaching staff were not properly followed. The learned counsel submitted that the earlier order passed by this Court reported in Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) has to be further clarified on this issue as the respondents are harping upon the findings rendered at Paragraph (139) of the said order to contend that they are entitled to restrict the staff strength both under teaching and non-teaching category in the minority schools based on Government Orders. He further submitted that the petitioners are willing to go before the Committee in the light of the new format for Fee determination, currently issued to the schools, if the said position is clarified as to whether the Committee has got power to restrict the teaching and non-teaching staff in respect of Unaided Minority schools. The learned counsel further submitted that there is no Government Order restricting the staff in the Unaided Minority Schools. Even otherwise, the Government cannot read Paragraph (139) of the said order in isolation and it has to be read along with other paragraphs, more particularly, from paragraphs 132 to 135 of the very same order to understand the principles laid down by the Division Bench. Any restriction, as done by the Schools Fee Determination Committee in this case, would affect their right guaranteed under Article 30(1) of the Constitution of India, which right of the minority institutions has been well recognised by various decisions of this court as well as the Hon'ble Surpeme Court.
6. Per Contra, the learned Advocate General appearing for the respondents submitted that in so far as the Committee's power in determining the fee structure is concerned, it has already been decided by the Division Bench of this Court in the earlier decision reported in Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) and when it is specifically stated at paragraph 139 that any such restriction regarding strength of teaching and non-teaching staff in Minority Schools is subject only to Government orders, the petitioners are not justified in contending that the Government cannot pass any orders to that effect at all.
7. Though the learned Advocate General referred to the observation made at Paragraph (139), however, fairly submitted that there are no Government Orders passed restricting the strength of teaching and non-teaching staff in minority schools. He only wanted the petitioners to produce the proof of their minority status before the Committee along with other necessary particulars and if such evidence is produced, the Committee will consider the case of the petitioners in the light of the direction already issued by this court in the matter of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) .
8. We heard the learned counsel appearing for the petitioners as well as the learned Advocate General appearing for the respondents.
9. The only issue involved in all these writ petitions for consideration is as to whether the impugned orders of the Private Schools Fee Determination Committee are in accordance with directions/guidelines issued by this court in the matter of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) .
10. In the said decision, the Division Bench has already considered the issue with regard to the rights of the Minority Educational Institutions as well as the power of the Committee under the Tamil Nadu Schools (Regulation of Collection of Fee) Act 2009 in detail. After considering various aspects of the matter, the Division Bench while dealing with the issue of restricting the number of teaching and non-teaching staff in the Minority Schools has found at Paragraphs (132) to (135) as follows:-
"132. By restricting the total number of teaching and non-teaching staff, the Committee has considered only lesser salary and not actual salary paid and thereby the minority educational institutions are left with huge deficit, which amount to restricting the right of minority institutions.
133. Because of their constitutionally protected liberty of administration, the Minority Educational Institutions are entitled to decide number of staff, their pay scale, attendant benefits and welfare schemes, innovative methods for effectiveness of education and excellence. As rightly contended by the learned counsel for Minority Educational Institutions, the Committee cannot restrict any of the said activity or its expenditure in the name of regulation. Restrictions of staff and fixation of salary and sundry expenses also infringe into the constitutionally protected right of administration of Minority Educational Institutions. There shall not be restriction regarding the salary payable to teaching and non-teaching staff, which, of course, is subject to the Government Scale of Pay and Government Orders.
134. Being minority educational institutions, they have the autonomy to have the best teacher for better quality education to be imparted. Ill-equipped teachers and sub-standard staffs would bring down the quality in excellence. Like in unaided non-minority educational institutions, there cannot be any rigidity in respect of salary payable to the teachers. Any such stipulation would interfere with the overall administrative control by the Management and would infringe its rights to establish and administer the educational institutions.
135. The employment of expression right to establish and administer and educational institutions of their choices" in Article 30(1) gives the right to minority institutions which is of very wide amplitude. Therefore, a minority educational institution has a right to employ teaching and non-teaching staff as per their requirement. Any restriction on the strength of teaching and non-teaching staff would amount to restricting right of administration of minority community, which is protected under Article 30(1) of the Constitution of India. "
11. No doubt, after holding so in those paragraphs, the Division Bench has further observed at paragraph 139 as follows:-
"139. By going through materials in the above writ petitions, we find that in respect of the above minority educational institutions, the Committee unjustly restricted the strength of teaching staff as well as non-teaching staff. In so far as minority educational institutions, in our considered view, the Committee ought to have accepted the strength of teaching and non-teaching staff as submitted by those educational institutions supported with materials like attendance etc., Restriction of number of teaching and non-teaching staff strength has resulted in deficit for those institutions virtually crippling the administration of the minority institutions. Any such restriction regarding strength of teaching and non-teaching staff in Minority Schools is subject only to Government Orders."
12. Finally, while summarising the conclusion at paragraph 155, it is held as follows:-
[Minority Educational Institutions]
155. The directions [except the observations regarding the RTE Act, 2009 in Para Nos.116 and 117] in respect of unaided Non-Minority Educational Institutions shall also hold good for the unaided Minority Educational Institutions. That apart, in respect of unaided Minority Educational Institutions, Committee shall keep in view the guidelines in Para Nos.118 to 151 and 152 and also the following guidelines:-
(i) Audited Statement submitted by the Minority Educational Institutions may be accepted by the Committee;
(ii) In case the Committee does not approve the auditors' statement submitted by the minority educational institutions, the Committee shall record its reasons for not accepting the report. Thereafter, the Committee shall afford reasonable opportunity to the minority institutions and thereafter shall pass the final order.
(iii) There shall not be restriction regarding the salary payable to teaching and non-teaching staff, which, of course, is subject to the Government Scale of Pay and Government Orders. The Committee shall not interfere with the expenditure of the minority educational institutions on its cultural and religious activities to retain its character as minority institutions.
(iv) For the reasons stated in Para Nos.143 to 149, as the minority institutions run by Catholic Dioceses and their various Congregations, they being a part of the body corporate and Corporate School Development Fund, irrespective of its location, all the minority educational institutions run by Catholic Dioceses and their various Congregations shall be entitled to 25% surplus.
(v) Other Minority Educational Institutions shall be entitled to surplus for development i.e. Village and Town panchayats at 10%; Municipalities and District Headquarters at 12=% and Corporations at 15%.
(vi) The Minority Educational Institutions (including the Institutions run by Catholic Dioceses and their various Congregations) shall also be entitled to 7 1/2% to 10% increase in fee structure on the infrastructure grading."
13. Teacher-Student ratio While considering the batch matters, the teacher-student ratio was elaborately considered for Non-Minority Schools and Minority Schools. In the State of Tamil for Aided Schools/Government Schools, the teacher-student ratio is fixed for the Primary school level at 1 : 30; in the Middle school level at 1 : 35 and for Higher classes at 1 : 40. For determining the fee, Committee has adopted the said ratio. In the case of Non-Minority schools, rejecting the contention of the Writ Petitioner schools, the teacher-student ratio, in the batch of Writ Petitions (03.5.2012) in Paragraph 90, it was held as under:-
90. Teacher-student ratio:- Yet another grievance is that in the State of Tamil Nadu, the teacher-student ratio is fixed for the primary school level at 1:30, in the middle school level at 1:35; and for the higher classes at 1:40. For determining the fee Committee has adopted that ratio. Grievance of the writ petitioners that Government cannot impose restrictions on unaided private schools regarding teacher-student ratio. If teacher-student ratio is varied, the burden of excess salary to the teachers would be shifted to the students casting heavy burden upon the parents. When Committee adopted teacher-student ratio prevailing in the State of Tamil Nadu, private schools cannot have any valid grievance. The objection raised by the writ petitioner schools in respect of teacher-student ratio cannot be considered.
14. Per contra, in respect of Minority Schools, referring to (1974) 1 SCC 717 [The Ahmadabad St. Xavier's v. State of Gujarat]; (2002) 8 SCC 481 [T.M.A.Pai Foundation and others v. State of Karnataka] and (2005) 6 SCC 537 [P.A. Inamdar v. State of Maharashtra], it was held that "Minority Educational Institutions is constitutionally protected and that they have entitled to decide number of staff, pay scale, attendant benefits and other welfare schemes. In Paragraphs (132) to (135), it was held that Minority Educational Institutions have right to employ teaching and non-teaching staff as per their requirements and there shall not be any restriction on the strength of teaching and non-teaching staff and also the salary payable to teaching and non-teaching staff.
15. In Paragraph (131) of the Order, we have pointed out sample instances where the earlier Committee restricted number of teaching and non-teaching staff and how it resulted in huge deficit to Minority Educational Institutions. While highlighting the Minority Educational Institutions' constitutionally protected liberty of administration, in Paragraph (139) of the Order, it was observed that "any such restriction regarding strength of teaching and non-teaching staff in Minority Schools is subject only to Government Orders".
16. The present dispute between the parties, has arisen only due to the last observation made at paragraph 139 of the order of the Division Bench passed in the matter of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) wherein it is observed that any restriction regarding strength of teaching and non-teaching staff in Minority Schools is subject only to Government Orders.
17. Grievance of the Writ Petitioner schools is that the said observation in Paragraph (139) "subject only to Government Orders" is now taken by the Committee and the Committee is said to have not allowed salary for number of teaching and non-teaching staff which according to Writ Petitioner schools resulted huge deficit and Writ Petitioner schools are finding it extremely difficult to cope up with deficit so caused. Learned counsel for Writ Petitioner schools has drawn our attention to the Chart filed by the Writ Petitioner schools showing reduction of strength of teaching and non-teaching staff. By perusal of the Chart, it is seen that the actual staff strength was not taken into consideration while calculating the annual expenditure both teaching and non-teaching staff.
18. In our considered view, the order passed by the Division Bench in the matter of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204), more particularly, in respect of the issue with regard to the restriction of the number of teaching and non-teaching staff in the Minority Institutions cannot be mis-construed solely by taking note of the last observation made at Paragraph (139) alone without reading the entire order on that issue, more particularly, the findings rendered at Paragraphs (132) to (135) and (155) as extracted above.
19. It is the categorical finding of the Division Bench that the Committee may accept the audited statement submitted by the Minority Educational Institutions or its expenditure in the name of regulation. It is also made clear therein that restrictions of staff and fixation of salary and sundry expenses also infringe into the constitutionally protected right of administration of Minority Educational Institutions. It is also further observed that there shall not be restriction regarding the salary payable to teaching and non-teaching staff, which of course, is subject to the Government Scale of Pay and Government Orders.
20. The Division Bench, in categorical terms, had observed at paragraph 135 that a minority educational institution has a right to employ teaching and non-teaching staff as per their requirement and any restriction on the strength of the teaching and non -teaching staff would amount to restricting right of administration of minority institutions, which is protected under Article 30(1) of the Constitution of India.
21. Needless to say that a fundamental right guaranteed and conferred on the minority institutions under Article 30(1) of the Constitution of India cannot be taken away by any Government Orders. Any restriction, which in effect, amounting to interference with the right of the administration of minority institutions, would certainly violate the right guaranteed under Article 30(1) of the Constitution of India. Therefore, what is observed at Paragraph (135) is only the reiteration of the fundamental rights guaranteed under Article 30(1) of the Constitution of India on the minority institutions and the principles laid down by the Hon'ble Supreme Court in various decisions. Certainly, the Government cannot take advantage of any general or passing observation, when right of the minority institutions and the power of the Committee in imposing restriction on the staff strength have been specifically spelt out in detail without any ambiguity under Paragraphs (133) to (135) and (155). The last observation made at Paragraph (139) cannot be taken to mean that the Government can pass orders restricting the staff strength of minority educational institutions irrespective of the other findings made at Paragraphs (132) to (135) and (155).
22. Therefore, we clarify that the observation made at Paragraph (139) that "any such restriction regarding strength of teaching and non-teaching staff in Minority schools is subject only to Government Orders" cannot be construed as conferring a right on the Government to pass orders to restrict the staff strength without reference to the findings rendered at Paragraphs (132) to (135) and (155). Certainly an observation made within the same judgment cannot go contra to the law declared or ratio decided in other part of it. If any observation is so made, an over all reading of the entire judgment has to be made to find out the actual mind of the Court in declaring the law. A law declared is the ratio decidendi and binds the parties, whereas an isolated passing observation not in consonance with the law so declared is obiter.
23. At this juncture, it is useful to refer to the decision reported in State of Haryana Vs. Ranbir alias Rana (2006 (5) SCC 167). In the said case, the Hon'ble Supreme Court has observed that a decision is an authority for what it decides and not what can logically be deduced therefrom . At paragraph 12, the Apex Court has held as follows:-
" 12. ...... A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur Vs. Shivakant Shukla (1976 (2) SCC 521). It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC Vs. Mahadeva Shetty (2003 (7) SCC 197). "
24. In another decision reported in Girnar Traders Vs. State of Maharashtra and Others (2007 (7) SCC 555), the Hon'ble Apex Court has observed as follows:-
"53. ..... Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.
25. Thus, from the law laid down by the Hon'ble Apex Court as extracted supra, it is seen that the law declared by this Court in the earlier decision reported in Lakshmi Matriculation School Vs. State of Tamil Nadu and Others (2012 (2) CWC 204) on the present issue is that the Committee has no power to restrict the staff strength of the Unaided Minority Schools and such restriction offends Article 30(1) of the Constitution of India. Therefore, such law laid down by this court is the ratio decidendi and hence further observation made at the last sentence of Paragraph (139) is only a passing casual expression and it is not a ratio decidendi. The respondents should act only on the ratio decidendi binding on them.
26. Therefore, we hold that the respondents are bound by the guidelines/ directions issued by this Court in respect of fixing the staff strength in the Minority Institutions as held in the order passed by the Division Bench reported in Lakshmi Matriculation School Vs. State of Tamil Nadu and Others (2012 (2) CWC 204), uninfluenced by the last sentence at Paragraph (139), which observation is not a ratio decidendi.
27. When we go through the order passed by the Committee, we find that the Committee has restricted the staff strength both under teaching and non-teaching categories in all the petitioners schools which, in our considered view, is not justifiable in the light of the order already passed by this court in the case referred to supra. The learned counsel appearing for the petitioners filed a comparative chart showing the Restriction of Staff and Salary done by the Committee. A perusal of the Comparative chart shows that the Committee has restricted the staff strength under both categories of teaching and non-teaching staff in respect of all the schools before us. For instance, in respect of Rosary Matriculation Higher Secondary School, Chennai, the petitioner in W.P.No.33607 of 2012, the actual staff strength of Teaching and Non-teaching are as follows:-
Teaching - 74 Non-Teaching - 22 Non-Teaching - 12 (Part-time)
As per the Committee Regulations, the School is entitled to have 78 Teaching and 24 Non-teaching staff . However the Committee allowed 74 Teaching and 24 Non-Teaching Staff and thereby disallowed 10 Non-Teaching staff.
28. Likewise, in Carmel Garden Matriculation Higher Secondary School, the petitioner in W.P.No.33608 of 2012, the actual staff strength of the School is as follows:-
Teaching - 69 Non-Teaching - 31 Non-Teaching - 8 (Part-time)
As per the Committee Regulations, the School is entitled to have 66 Teaching and 24 Non-teaching staff . However the Committee allowed only 55 Teaching and 14 Non-Teaching Staff thereby disallowing 14 Teaching and 25 Non-Teaching staff.
29. Certainly, the Committee cannot exercise its power in restricting the staff both under Teaching and Non-Teaching categories, in respect of the unaided minority schools. Such restriction imposed by the Committee on all these schools undoubtedly goes contra to the observations and guidelines made by this Court in the earlier decision reported in Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204).
30. Therefore, we are of the view that the impugned orders in all these writ petitions have to be set aside and the matter has to be remitted back to the Private Schools Fee Determination Committee to consider the case of the respective petitioners afresh in the light of the order passed by this Court in the matter of Lakshmi Matriculation School and Others Vs. State of Tamil Nadu and Others (2012 (2) CWC 204), more particularly, in the light of the observations made at Paragraphs (132) to (135), (139) and (155), however, without getting influenced by the last sentence at Paragraph (139) viz., "any restriction regarding strength of teaching and non-teaching staff in Minority Schools is subject only to Government Orders".
31. The learned Advocate General submitted that all these schools may be directed to place relevant proof of their minority status before the Committee so that there cannot be any false claim.
32. The learned counsel for the petitioners submitted that all these schools were already declared as minority institutions by an order of this Court made in W.P.No.4478 of 1974 and they are enjoying such status for the past 38 years. He further submitted that these schools have already placed those details before the Committee with regard to their minority status. Certainly, the schools are bound to place proof of their minority status before the Committee and once such proof is filed either by way of an order or decree passed by the competent court or an order of the Government declaring the minority status of the respective petitioners, the Committee shall accept the same and consider the other issues in respect of those schools based on the observations / directions given in the earlier decision as well as the finding rendered herein and pass fresh orders. It is needless to say that the Committee has no power to go into the question of either disputing or deciding the minority status of the respective schools except by accepting the proof placed before the Committee. In case, if the Committee has any doubt with regard to the genuineness of the proof filed by the respective schools, it is open to the Committee to seek clarification from the respective schools or from the respective educational authorities.
33. In the result, the impugned orders passed by the Committee in respect of Writ Petitioners Minority Schools are set aside and the Writ Petitions are disposed of with a request to the Committee to consider the matter afresh in the light of the order passed by the Court in the matter of Lakshmi Matriculation School and others v. State of Tamil Nadu and others (2012 (2) CWC 204) in respect of Minority Educational Institutions observation made at Paragraphs 132 to 135, 139 and 155, however without getting influenced by the last sentence at Paragraph 139 viz., "any restriction regarding strength of teaching and non-teaching staff in Minority schools is subject only to Government Orders". The Committee shall keep in view the findings in this order also. Since the academic year 2013-14 is likely to start, we request the Committee to afford sufficient opportunity to the Writ Petitioner schools and refix the fee. The Committee shall also expedite the process and dispose of the matter as early as possible, preferably by the end of June, 2013. In the mean while, till the Committee dispose of the matter, the Writ Petitioner schools shall collect only the fee fixed by the Committee by the impugned order respectively.
Consequently, connected Miscellaneous Petitions are closed. However, there is no order as to costs.
krr/usk To
1. The Secretary Department of School Education Fort St. George Chennai 9.
2. The Private Schools Fee Determining Committee Rep. By its Special Officer PTA Building DPI Campus , College Road, Chennai 6