Karnataka High Court
Sri.N.Devaraj vs The State Of Karnataka on 5 August, 2020
Bench: B.V.Nagarathna, Ravi V Hosmani
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
WRIT PETITION No.9007/2020 (EDN-RES)
BETWEEN:
1. SRI N DEVARAJ
S/O. SRI D. NARAYAN
AGED ABOUT 37 YEARS,
ADVOCATE,
RESIDING AT NO.2,
K. DOMMASANDRA VILLAGE,
NEAR WHITE STONE MILANO APARTMENT,
VIRGONAGAR POST,
BIDARAHALLI HOBLI,
K.R. PURAM,
BANGALORE - 560 049.
2. SRI PRAVEEN KUMAR .H.K
S/O. LATE KRISHNE GOWDA .H.P,
AGED ABOUT 40 YEARS,
ADVOCATE,
RESIDING AT NO.1,
SURYA MALLESHWARA KRUPA,
KRISHNE GOWDA COMPOUND,
HAGADUR VILLAGE,
WHITEFIELD POST,
BENGALURU - 560 066.
3. SRI PRABHU .V
S/O. SRI VENKATARAMANAPPA,
AGED ABOUT 33 YEARS,
ADVOCATE,
RESIDING AT NO.102, 4TH CROSS,
NEAR MARIYAMMA TEMPLE,
-: 2 :-
GUNJUR PALYA, GUNJUR POST,
VARTHUR,
BENGALURU - 560 087.
...PETITIONERS
(BY SRI RAJAGOPAL M.R., ADVOCATE (THROUGH VIDEO
CONFERENCE))
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT,
M.S. BUILDINGS,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. THE COMMISSIONER OF PUBLIC INSTRUCTIONS,
NEW PUBLIC OFFICES,
EDUCATION DEPARTMENT,
NRUPATHUNGA ROAD,
BANGALORE - 560 001. ... RESPONDENTS
(BY SRI Y.H. VIJAY KUMAR, PRL. GOVT. ADVOCATE (THROUGH
VIDEO CONFERENCE))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
RESTRAIN ALL PRIVATE EDUCATIONAL INSTITUTIONS IN THE
STATE EITHER TO DEMAND OR INITIATING COERCIVE ACTION
FOR RECOVERY OF THE FULL FEE AS QUANTIFIED BY EACH
INSTITUTION IN THE STATE TO THE EXTENT OF 50% OUT OF
SUCH DEMAND AND FURTHER BE DIRECT THE STATE
GOVERNMENT TO ISSUE A GENERAL CIRCULAR OR A
DIRECTION KEEPING THE INSTITUTIONS IN DARK IN
COLLECTING 50% OF THE FEES ONLY OUT OF TOTAL FEES
DETERMINED AS AN ACADEMIC FEE FOR THE ACADEMIC YEAR
2020-21 PENDING DISPOSAL OF THIS WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
-: 3 :-
ORDER
The petitioners are practicing advocates. They have sought the following reliefs in this writ petition:
"PRAYER WHEREFORE, the petitioners most respectfully pray that this Hon'ble Court be pleased to:-
a) Issue a writ in the nature of mandamus or any other appropriate writ directing respondent No.1 State to place the report or information through proper authorities about the compliance of the requirements provided under "The Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) Rules, 1995" and "The Karnataka Educational Institutions (Regulation of certain fees and donations) Rules, 1999";
b) Direct respondent No.1 State to constitute a specific authority for the purpose of determining the fee structure to be imposed by the private educational institutions in the State in various areas in terms of the principles enunciated by the Hon'ble Apex Court in T.M.A.PAI FOUNDATION's case or ISLAMIC ACADEMY's case in so far as it relates to the Primary and Secondary Education in the State;-: 4 :-
c) Direct respondent No.1 State to constitute a specific authority to determining and quantifying the academic fees to be collected by each private educational institution in the State in a manner provided under the 1995 and 1999 Rules forthwith;
d) Issue a writ in the nature of mandamus or any other appropriate writ or order or direction, directing the 1st Respondent to issue necessary directions to the private institutions upon exercising its power under Section 133 of the Karnataka Education Act, 1983 to confine receiving/demanding of academic fee only to the extent of 50% out of total fee quantified for the academic year 2020-2021;
e) Pass any appropriate writ, order or direction as this Hon'ble Court deem it fit and proper in the facts and circumstances of the case and allow this Writ Petition, in the ends of justice and equity."
2. The petitioners state that the writ petition has been filed in public interest and as public spirited persons, they have filed this writ petition. But, in paragraph No.4 of the writ petition, the petitioners have stated that petitioner No.1 is having a daughter by name Baby Lerusha D., who is studying in U.K.G. and prosecuting her education in P.N.C.Cognitio School at Bengaluru. Petitioner Nos.2 and -: 5 :- 3 have children namely Baby Ikshaa P.Gowda and Baby Kishan Sidharth respectively who are studying in WIBGYOR Group of Schools. However, they have preferred this writ petition in public interest.
3. We have heard Sri Rajagopal M.R., learned counsel for the petitioners and learned Addl. Government Advocate who has appeared on advance notice through video conference and perused the material on record.
4. At the outset, learned counsel for the petitioners submitted that even though the petitioners may have children studying in certain private schools, they have sought for the aforesaid reliefs in public interest. That they are seeking implementation of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula, etc.,) Rules, 1995 (hereinafter referred to as "1995 Rules") and the Karnataka Educational Institutions (Regulation of Certain Fees and Donations) Rules, 1999 (hereinafter referred to as "1999 Rules).
5. He further submitted that in the judgment of the Hon'ble Supreme Court in the case of T.M.A. Pai -: 6 :- Foundation & others vs. State of Karnataka & others [(2002)8 SCC 481] (T.M.A. Pai Foundation) and Islamic Academy of Education & another vs. State of Karnataka & others [(2003)6 SCC 697] (Islamic Academy of Education) an Authority for determining fee structure for professional institutions have been established by the State of Karnataka, but no such Authority has been set up insofar as primary and secondary education in the State is concern, particularly with regard to private educational institutions and hence, a direction may be issued to respondent No.1/State to constitute such an Authority for determining the fee structure to be imposed by the private educational institutions in the State in terms of what has been enunciated in the aforesaid judgments of the Hon'ble Supreme Court. That such an Authority must determine and quantify the fees to be collected by private educational institutions as per the 1995 and 1999 Rules referred to above.
6. Learned counsel for the petitioners has also stated that a writ of mandamus may be issued to respondent No.1 to issue necessary directions to the -: 7 :- private institutions in exercise of its power under Section 133 of the Karnataka Education Act, 1983 (hereinafter referred to as "the Act", for the sake of brevity) with regard to receiving or determining of academic fee to an extent of 50% of the total fee quantified for the academic year 2020-2021 on account of COVID-19 pandemic and the schools not having opened for the current Academic Year and as classes are through virtual or online education.
7. Learned counsel for the petitioners while elaborating the said prayers sought for by the petitioners contended that even though the petitioners have children studying in private schools, the reliefs that they have sought in this writ petition is for the benefit of general public and incidentally, they may be benefited by the directions to be issued in this petition. Learned counsel also drew our attention to the specific Rules and contended that there cannot be charge of fees arbitrarily by private educational institutions in the State contrary to the Act and the Rules and that respondent No.1 must discharge its duties under Section 133 of the Act by issuing directions in that regard.
-: 8 :-
8. Per contra, learned Addl. Government Advocate appearing for the respondents on advance notice submitted that the petitioners herein although have sought to file this writ petition in public interest, it is not so. Petitioners have also rushed to seek the aforesaid prayers without making any representation in the first instance to the State Government. He contended that before any writ of mandamus could be issued in any matter, it is a condition precedent that there must be a representation made to the concerned authorities to act on the said representation and it is only when there is no action taken on the representation, the parties could seek a writ of mandamus. He also contended that the prayers sought for by the petitioners cannot be granted having regard to the Act as well as the Rules made thereunder.
9. We have considered the rival submissions of the respective parties.
10. At the outset, we note that the petitioners who are practicing advocates of this Court have candidly stated in paragraph No.4 that their children are studying in private educational institutions. Therefore, we observe -: 9 :- that this petition is not in public interest, but is in private interest as the prayers sought are for the benefit of parents and their children who are studying in private educational institutions. Since the petitioners, as parents of their wards, are seeking the aforesaid reliefs, on that short ground alone this Court is of the opinion that it ought not to interfere in the matter as this writ petition is not per se filed in public interest but it is in the private interest of the petitioners herein.
In the case of State of Uttaranchal vs. Balwant Singh Chaufal & others, [(2010)3 SCC 402], the Hon'ble Supreme Court, after considering various phases, through which public interest litigation, has had its passage in the Indian jurisprudence at paragraph No.181 issued the following directions:
"181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:-
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.-: 10 :-
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court -: 11 :- should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
Sub-para (7) of the above would clearly apply in the present case.
11. Nevertheless, we have heard learned counsel for the respective parties on the prayers sought for by the petitioners and we have considered the same. At the outset, we note that there is a reference to the judgment of the Hon'ble Supreme Court in T.M.A. Pai Foundation and therefore, we have perused the said judgment. At paragraph No.61, it has been observed with regard to unaided private schools as under:
"61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to -: 12 :- grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that State-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtaining the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the State has to provide the difference which, therefore, brings us back in a vicious circle to the original problem viz. the lack of State funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of State-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non-regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more -: 13 :- such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations."
(underlining by us)
12. In the above premise we have perused the Act, which has been enforced with effect from 01/06/1995. Section 1(3) of the said Act reads as under:
"1. Short title, extent, application and commencement.- (1) x x x (2) x x x (3) It applies to all educational institutions and tutorial institutions in the State except.-
(i) institutions for scientific or technical
education financed by the Central
Government, and declared by Parliament by law to be institutions of national importance;
(ii) institutions of higher education which shall be deemed to be University as declared by the Central Government by a notification, under Section 3 of the University Grants Commission Act, 1956 (Central Act III of 1956);-: 14 :-
(iii) institutions established or maintained and administered by or affiliated to or recognised by the University of Agricultural Sciences insofar as the matter pertaining to them are dealt within the University of Agricultural Sciences Act, 1963 (Karnataka Act 22 of 1963);
(iii-a) Educational Institutions affiliated to or recognised by the Council of Indian School Certificate Examination or Central Board of Secondary Education respectively but subject to condition that the provisions of Sections 5-A, 48, 112-A and 124-A of this Act shall continue to apply to these institutions;
(iv) insofar as the matters pertaining to colleges and institutions are dealt within.-
(a) the Indian Medical Council Act, 1956 (Central Act, C11 of 1956);
(b) the Dentists Act, 1948 (Central Act XVI of 1948);
(c) the Pharmacy Act, 1948 (Central Act VIII of 1948);
(d) the Karnataka State Universities Act, 1976 (Karnataka Act 28 of 1976);
-: 15 :-(d-a) the All India Council for Technical Education Act, 1987 (Central Act 52 of 1987);
(d-b) the Indira Gandhi National Open University Act, 1985 (Central Act 50 of 1985);
(d-c) the National Council for Teachers Education Act, 1993 (Central Act 73 of 1993);
(e) the Karnataka Ayurvedic and Unani Practitioners' Registration and Medical Practitioners' Miscellaneous Provisions Act, 1961 (Karnataka Act 9 of 1962);
and
(f) the Karnataka Homoeopathic
Practitioners' Act, 1961
(Karnataka Act 35 of 1961);
(v) such other class or classes of institutions,
subject to such conditions and to such extent as the State Government may, by notification, specify:
Provided that nothing in Chapter III, Section 35 of Chapter V, Chapter VII and Chapters IX to XV (both inclusive) except Sections 57 and 58 of Chapter X shall be applicable to commerce institutions."-: 16 :-
Section 2(14) of the Act defines "Educational Institution" as under:
2. Definitions.-In this Act, unless the context otherwise requires.-
xxx (14) "Educational Institution" means any institution imparting education referred to in Section 3 and includes a private educational institution but does not include an institution under the direct management of the University or of the Central Government or a tutorial institution;"
"Private Educational Institution" is defined in Section 2(27) of the Act and the same is extracted as follows:
"2(27) "Private Educational Institution"
means any educational institution imparting education referred to in Section 3, established and administered or maintained by any person or body of persons, but does not include an educational institution.-
(a) established and administered or
maintained by the Central
Government or the State Government or any local authority or any other authority designated or sponsored by the Central Government or the State Government;
-: 17 :-
(b) established and administered by any University established by law;
(c) giving, providing or imparting only religious instruction, but not any other instruction; or
(d) imparting instruction for which there is no approved syllabi or course of studies or Government or University Examination;"
Sections 2(25) and 2(26) of the Act define 'primary education' and 'Primary School' as under:
"2(25) "Primary Education" means education in and upto such classes and standards as are prescribed under this Act;
2(26) "Primary School" means a school or part of such school in which primary education upto any standard is imparted;"
Section 3 of the Act deals with regulation of education but, it is subject to Sub-section (3) of Section of the Act. The same reads as follows:
"3. Regulation of Education-(1) The State Government may, subject to sub-section (3) of Section 1, regulate general education, professional education, medical education, technical education, commerce education and special education at all levels in accordance with the provisions of this Act.-: 18 :-
(2) The State Government may towards that end.-
(a) establish and maintain educational institutions;
(b) permit any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed;
(c) require registration of educational
institutions including tutorial
institutions;
(d) recognise educational institutions;
(e) grant aid to any recognised educational institution in furtherance of the objects of this Act;
(f) regulate the admission including the minimum or maximum number of persons to be admitted to any course in any educational institution or class of such institutions, and the minimum age for such admission;
(g) prescribe the conditions for eligibility of or admissions to any educational institution or class of such institutions;-: 19 :-
(h) establish hostels or recognise private hostels and frame rules for grant-in-
aid to recognised private hostels;
(i) permit or establish institutions imparting education in arts, crafts, music, dance, drama or such other fine arts, physical education including sports;
(j) permit and establish institutions or centres for pre-primary education, adult education and non-formal education; and
(k) take from time to time such other steps as they may consider necessary or expedient."
Section 6 of the Act reads as under:
"6. Educational Institutions to be in accordance with this Act.-No educational institution shall be established or maintained otherwise than in accordance with the provisions of this Act or the rules made thereunder."
Section 48 and Section 124A of the Act deal with collection of fees and penalty for contravention of Section 48 respectively. They are extracted for immediate reference as under:
-: 20 :-
"48. Fees.-(1) Subject to any other law for the time being in force, no Governing Council of a recognised educational institution shall levy or collect any fees or charges or donations or other payments, by whatever name called, save such and at such rate and in such manner as may be prescribed.
(2) The amounts levied or collected, under sub-section (1) shall be utilised by the educational institution in accordance with such rules as may be prescribed.
xxx 124-A. Penalty for contravention of Section 48.- Any educational institution is found guilty of contravention of provisions of Section 48 in an enquiry conducted, after providing an opportunity of being heard, by the District Education Regulatory Authority, it shall impose a penalty which may extend to ten lakh rupees and also direct for refund of amount so collected by the institution in excess of the amount prescribed under Section 48."
Section 133 of the Act deals with powers of government to give directions, inter alia, to any educational institutions and it reads as follows:
"133. Powers of Government to give directions.-(1) The State Government may, subject to other provisions of this Act, by order, direct the Commissioner of Public Instruction or the -: 21 :- Director or any other Officer not below the rank of the District Educational Officer to make an enquiry or to take appropriate proceeding under this Act in respect of any matter specified in the said order and the Director or the other Officer, as the case may be, shall report to the State Government in due course the result of the enquiry made or the proceeding taken by him.
(2) The State Government may give such directions to any educational institution or tutorial institution as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the owner, as the case may be, of such institution shall comply with every such direction.
(3) The State Government may also give such directions to the officers or authorities under its control as in its opinion are necessary or expedient for carrying out the purpose of this Act, and it shall be the duty of such officer or authority to comply with such directions."
It is noted that the said Act does not apply to educational institutions affiliated to or recognized by the Council of Indian School Certificate Examination or Central Board of Secondary Education respectively, but the same is subject to the condition that the provisions of Sections -: 22 :- 5-A, 48, 112-A and 124-A of the Act would continue to apply to such institutions also.
Further, in terms of Section 145(1) of the Act, the 1995 Rules and 1999 Rules have been enforced.
13. Under the 1995 Rules, Rule 10 deals with collection of fees. Rule 15 speaks of violation of Rules, inter alia, regarding collection of fees. Rule 16 prescribes constitution and functions of District Level Education Regulating Authority (DERA). A petition could be filed if there is any violation in the matter of collection of fees by any parent who is aggrieved by the same. The decision of the Regulating Authority could be appealed either by the educational institution or parent before the Commissioner of Public Instruction who shall act as the appellate authority. The same read as under:
"10. Collection of fees.-(1) The procedure for collecting fee in all classes from pre- primary upto the degree level in all recognised educational institutions shall be open, transparent and accountable.
(2) The fees to be collected shall be classified as.--: 23 :-
a) Term fees
b) Tuition Fees
c) Special Development Fees
(3)(a) Term Fees.-
(i) No term fees shall be collected from
pre-primary and lower primary students;
(ii) In upper primary and higher classes, term fees shall be collected at the rate specified by the State Government or the Competent Authority authorised in this behalf through a notification and shall be collected only for the items listed in the said notification;
(iii) Term fees collected by the recognised educational institutions for each term from the students shall be subject to exemptions made by the State Government from time to time in this regard.
(b) Tuition fees.-
(i) In case of Government and recognised
private aided institutions tuition fees shall be collected only from the failed students at the rates specified by the State Government or the Competent Authority authorised in this behalf;
(ii) In case of recognised private unaided institutions tuition fees may be collected from all the students which shall be commensurate with the expenditure incurred towards salary of staff and the quality of education provided by the institution.-: 24 :-
(c) Special Development Fees.-Special development fees may be collected.-
(i) In the case of a recognised aided educational institution upto a maximum of rupees five hundred per year
(ii) In the case of a recognised unaided educational institution upto a maximum of rupees two thousand five hundred per year.
Provided that no special development fee shall be collected from the students admitted in any educational institution under clause (c) of sub- section (1) of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009).
(4) Every recognised private educational institution shall maintain a brochure showing the details of items of fees and the amount of fees prescribed for each item. The same shall be displayed prominently on the notice board of the educational institution for the information of parents and students.
(5) The fee specified shall not be varied to the disadvantage of the parents in the middle of the academic year on any account.
(6) Details of specified fee together with the brochure shall be sent to the Departmental Authorities for information. The specified fee may be collected in cash if the amount of fee is less -: 25 :- than Rs.1000/- and if such amount is Rs.1000/- and above, either by cash or Demand Draft at the option of the parent. It shall be the duty of the Head of the Institution to issue official fee receipts for all fees received and it shall be delivered immediately on production of cash or Demand Draft as the case may be to the person making the payment. The receipt shall however be issued in the name of the student concerned.
(7) While specifying the fee structure, provision shall be made to make payment of the fee in monthly, quarterly, half-yearly instalments or in one lumpsum at the option of the student or his parent.
(8) The amount of fee collected amount under different items shall be accounted as per specified procedure. The items due to be remitted to the State Government under term fees and tuition fees should be remitted immediately after collection and the remaining amount pertaining to items of fees under term fees shall be kept in the official Personal Deposit Account of the Head of the Institution. The Personnel Deposit Account shall be opened for this purpose in any Post Office or any Nationalised Bank located in the surrounding of the institution. All receipts on account of tuition fee (in respect of recognised private unaided institutions) and the special development fees shall be kept in the official joint account of the Head Master and the Secretary/President of the managing committee. All the amount of fees collected shall be -: 26 :- accounted and the accounts shall be produced before the Competent Authority for verification at the time of visits and inspections. The Head of the Institution shall be responsible for safe custody of funds, its proper accounting and for production of the accounts for verification before the concerned authorities.
(9) Compelling students to attend any tutorial class, payment of fees, beyond the normal working hours of a class in a recognised educational institution is prohibited.
x x x
15. Violation of Rules regarding
admission fees, or any provisions in the Act or Rules by the Institution.-(1) Any parent who is aggrieved by.-
(a) violation of any of the provisions of these rules with respect to admissions by the institutions;
(b) violation of any of provisions of these rules with respect to collection of fees; may file a petition in writing to the District Level Education Regulating Authority constituted under Rule 16.
(2) The District Regulating Authority may also suo moto or on complaint made by any person interested orally or otherwise make an enquiry to satisfy themselves as to the correctness of the -: 27 :- complaint and may pass as if may consider fit, after giving an opportunity to the party adversely affected by it an opportunity of making representation.
16. Constitution and functions of District Level Education Regulating Authority.-
(1) There shall be a District Level Education Regulating Authority (hereinafter called the Regulating Authority), for every district consisting of the following members, namely.-
(a) Deputy Commissioner of the District Chairman
(b) Chief Executive Officer Zilla Panchayat Member
(c) Executive Engineer, Zilla Panchayat Member
(d) Deputy Director Pre-University Education, Department of the Concerned District. Member
(e) Deputy Director of Public Instruction of the Concerned District. Member Secretary (2) The State Government may by notification, constitute an Additional Authority in a District having provisions of Rules 3 to 8 shall apply mutatis mutandis to additional Regulating Authority.
(3) The terms of reference of the Regulating Authority shall be as follows.-
(i) Jurisdiction; The authority shall have jurisdiction over all the instances pertaining to violation of the rules by the Educational Institutions Consisting of -: 28 :- Pre-primary and Secondary Institutions in a District.
(ii) Term of 1. The authority shall reference; have power to investigate into all the instances as contemplated in Rule 15.
2. The authority shall act in accordance with the provisions of sub-rules (4) to (9) of this rule.
(iii) Conduct of 1. The Chairman shall meetings.- preside over all the meetings of the authority.
2. The quorum of meeting shall be three.
3. Notice for the meeting shall be issued by the Chairman, seven days in advance.
(4) Every petition shall disclose details of violation and shall also cite evidence of such violation. Petitions without concrete evidence may be rejected by the Regulating Authority and endorsement may be given in this regard to the parent. The Petition shall be affixed Court Fee Stamp of value Rupees ten and shall be delivered in person to the Regulating Authority or sent by registered post and proper acknowledgement obtained.
(5) The Regulating Authority shall devise its own procedure in conducting the enquiry. If -: 29 :- found necessary the members of the Regulating Authority may visit the institution concerned, make local enquiry and ascertain the factual position regarding the petition filed by the parent upon examining the evidence stated in the petition and other records with a view to verifying the truth of the petition. Sufficient opportunity shall be given to the management of the educational institution and the parent to substantiate their plea.
(6) Every decision of the Regulating Authority shall be taken by an ordinary majority of the members present and voting.
(7) In case of equality of votes the Chairman shall have the right to exercise a second or casting-vote.
(8) The quorum for the meeting shall be three of whom at least one shall be a parent- member.
(9) The decision of the Regulating Authority shall be communicated to the institution in writing by the Chairman and he shall pass an order to this effect which shall be binding.
17. Provision for appeal.-Any educational institution or parent aggrieved by the decision of the Regulating Authority may file an appeal before the Commissioner for Public Instruction who shall act as the Appellate Authority in this regard. The decision of the Appellate Authority shall be final and binding." -: 30 :-
14. Further, on the basis of Section 145(1) of the Act, the 1999 Rules have been promulgated, which deal with regulation of certain fees and donations. Rules 3, 4 and 5 of the said Rules read as under:
"3. Regulations of Donations etc.-No donation or voluntary donation or any money by whatever name called, shall be received by the Educational Institution, other than prescribed fee as notified by the management, before during or after admission and during entire stay of the student in the concerned educational institution, from parents, or any person in connection with such admission. No donation made in connection with any admission shall be construed as voluntary donation, for the purpose of Section 48 and 51 of the Act.
Explanation.-For the purpose of this rule, parents or persons, include (1) brother, sister, guardians, or any relative of student/student's parents) a Company or Association or trust or a firm or society or any other institution by whatever name called, in which the person or the parents have any proprietary rights, or a Manager or director of such institutions.
4. Fees in unaided Private Educational Institutions.-(1) Not with standing anything contained in any rules made in this behalf, and in lieu of tuition fee charged under Rule 10(2)(b)(ii) -: 31 :- of the Karnataka Education Institutions (Classification, Regulation prescription of curricula etc.,) Rules, 1995, the maximum tuition fee in respect of Private Unaided Educational Institutions shall be fixed taking into consideration the Salary Expenditure on teaching and non-teaching staff plus 30% of the salary expenditure towards contingency and maintenance costs divided by total number of students:
Provided that the salary expenditure includes contribution towards Provident Fund by the management, encashment benefit. LTC/HTC benefits, medical allowance, conveyance allowance, if any, given to the staff of the institution:
Provided further that the total number of students for calculation of the quantum of fees shall be the actual number of students on roll at the end of the previous academic year and the sanctioned in take in respect of approved additional sections, if any, for the ensuring year, namely the year, for which the fees is being notified.
And provided further that the above fees shall be collected by the management in addition to the Special Development Fees and Term Fees stipulated in the Karnataka Educational Institutions (Classification, Regulation and Prescription of curricula) Rules, 1995.
2) The salary expenditure shall be as per the audited account of the management subject to -: 32 :- the limitation of pay scales prescribed by Government as well as the prescribed staffing pattern and it has to be cross verified with reference to Aquittance Roll, Bank Account of the employee and Attendance Register.
5. Provision for meeting capital expenditure incurred by the Education Institutions.-The management may also collect amounts towards construction and expansion of the building for the school in which the student is studying and for purchase of equipment for establishment of a computer centre/laboratory:
Provided that such amount duly notified, shall be collected only once at the time of the initial admission of the child to the institution, irrespective of the standard to which the child is admitted and irrespective of the number of years spent in the school:
Provided that collection of amount for construction and expansion of building and for establishment of computer centre shall under no circumstances exceed the total annual tuition fee notified and collected under Rule 4."
15. Therefore, we find that there are Rules which have been framed and enforced in the matter of regulation of fees in the private schools. If any parent is aggrieved with regard to charging of fees by unaided private schools, remedy is available under the Act and Rules to approach -: 33 :- the regulating authority, the same would also apply to the petitioners herein who have children studying in private educational institutions in the event they are aggrieved by the fees charged by the respective schools wherein the children are studying.
16. That apart, in Islamic Academy of Education, the Hon'ble Supreme Court constituted two Committees for regulation of fee structure and admission of students to professional colleges. The aforesaid Committees, set up in the State, was pursuant to the direction issued under Article 142 of the Constitution of India and were to remain in force till appropriate legislation was enacted by the Parliament in that regard. When the said Committees were set up by exercise of powers under Article 142 of the Constitution, which power is vested only with the Hon'ble Supreme Court and not with this Court, we do not think it proper that any such direction could be issued for setting up a Committee for determining the fee structure to be imposed by the private educational institutions in the State. Paragraph 20 of the said judgment extracted as under:-: 34 :-
"20. Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of India which shall remain in force till appropriate legislation is enacted by the Parliament. The expenses incurred on the setting up of such Committees shall be borne by each State.
The infrastructural needs and provision for allowance and remuneration of the Chairman and other members of the Committee shall also be borne by the respective State Government."
It is ultimately for the State Government to decide as to whether it is necessary to set up a fee structure Committee to regulate the collection of fees by private educational institutions, particularly the schools in the State. In the circumstances, prayers (b) and (c) sought by the petitioners cannot be granted by this Court.
17. As far as exercise of jurisdiction under Section 133 of the Act is concerned, it is also a matter for the State Government to take steps vis-à-vis issuance of directions to the Commissioner of Public Instruction or Director or any other officer not below the rank of District Educational Officer with regard to certain matters or aspects under the Act. The State Government may give -: 35 :- such directions to give directions to any educational institution, as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder. This Court cannot, in a public interest litigation or in exercise of power under Article 226 of the Constitution of India, direct the State Government to exercise jurisdiction under Section 133 of the Act. That Section would have to be invoked based on the wisdom of the State Government depending upon the exigencies of the situation.
18. In the circumstances, we find that the writ petition does not require any further consideration by us.
19. The writ petition is, hence, dismissed both on the maintainability as well as for the aforesaid reasons.
20. It is needless to observe that if these petitioners as parents have any grievance with regard to the fees charged by the schools in which their wards are prosecuting their studies, then they are at liberty to approach the concerned authorities in their individual -: 36 :- capacity and not as public spirited persons and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE S*