Rajasthan High Court - Jodhpur
Mayur Public Secondary ... vs State Of Rajasthan And Ors on 14 August, 2019
Equivalent citations: AIR 2021 RAJASTHAN 4, AIRONLINE 2019 RAJ 1419
Bench: Sangeet Lodha, P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 5080/2017
Mayur Public Secondary School, Rajnagar, District
Rajsamand through its Authorised Signatory/President
Mukesh Kumar Vaishnav S/o Shri Goverdhan Das Vaishnav,
aged about 38 Years, resident of Nandwana Was, Rajnagar,
Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur, Rajasthan.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
Connected With
D.B. Civil Writ Petition No. 4587/2017
1. St. Pauls School, Jhalamand, Jodhpur through its
Principal Fr Jose Mathias S/o G Mathias, R/o St. Pauls
School, Jaipur-Jaisalmer Bypass, Jhalamand, Jodhpur.
2. St. Pauls School, Balotra, Sivana Road, District
Barmer through its Secretary, Managing Committee,
R/o St. Pauls School, Jaipur Jaisalmer Bypass,
Jhalamand, Jodhpur.
3. St. Pauls School, Bagidora, Agoria Village, District
Banswara through its Secretary Fr. P Stanislau, R/o
St. Pauls School, Bagidora, District Banswara.
----Petitioners
Versus
1. State of Rajasthan through the Secretary, School
Education Group-V, Government of Rajasthan
Secretariat Building, Jaipur, Rajasthan.
2. Director Primary Education, Bikaner.
3. District Education Officer, Primary Education, Jodhpur.
----Respondents
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D.B. Civil Writ Petition No. 5088/2017
Lakshmipat Singhania School, Jaykaygram, Kankroli District
Rajsamand through its Authorised Signatory, resident of A-
7, Jaykaygram, Post Tyre Factory, Kankroli, District
Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur, Rajasthan.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 10079/2017
Private Schools Welfare Society, Bhilwara, A Society
Registered Under the Society Registration Act, Nursingdwara
Road, Bigod, Teh. Mandalgarh, Bhilwara, Rajasthan
----Petitioner
Versus
1. The State of Rajasthan through the Principal
Secretary, School & Sanskrit Education, Government
of Rajasthan, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Director, Elementary Education, Bikaner.
4. The District Education Officer Elementary, Bhilwara.
5. The District Education Officer Secondary, Bhilwara.
----Respondents
D.B. Civil Writ Petition No. 16735/2017
Wisdom Academy Senior Secondary Public School, Opp.
Bsnl Tower, Malkosani Road, Bilara, District Jodhpur through
the Secretary, Wisdom Shikshan Vikas Sansthan, Opp. BSNL
Tower, Malkosani Road, Bilara, District Jodhpur.
----Petitioner
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Versus
1. The State of Rajasthan through the Principal
Secretary School Education, Department of
Elementary & Secondary Education, Govt. of
Rajasthan, Jaipur.
2. The Secretary, Secondary Education, Rajasthan,
Jaipur.
3. The Director, Secondary Education, Rajasthan,
Bikaner.
4. The Director, Elementary Education, Rajasthan,
Bikaner.
5. The Deputy Secretary, Education Group-V,
Secretariat, Jaipur.
6. The District Education Officer Elementary, Jodhpur.
7. The District Education Officer Secondary-I, Jodhpur.
----Respondents
D.B. Civil Writ Petition No. 258/2018
1. Indian School, Jodhpur, 431, Pal Link Road, Jodhpur.
2. Indian School, 09, Jhanwar Road, Jodhpur Raj.
Both Schools through the Secretary, Indian Education
Society, Jodhpur, 09 Jhanwar Road, Jodhpur.
----Petitioners
Versus
1. The State of Rajasthan through the Principal
Secretary School Education, Department of
Elementary & Secondary Education, Govt. of
Rajasthan, Jaipur.
2. The Secretary, Secondary Education, Rajasthan,
Jaipur.
3. The Director, Secondary Education, Rajasthan,
Bikaner.
4. The Director, Elementary Education, Rajasthan,
Bikaner.
5. The Deputy Secretary, Education Group-V,
Secretariat, Jaipur.
6. The District Education Officer Elementary, Jodhpur.
7. The District Education Officer Secondary, Jodhpur.
----Respondents
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D.B. Civil Writ Petition No. 6414/2018
Shubhash Shikshan Sansthan Dhonida Rajsamand through
its Authorised Signatory Mr. Parasram Kumawat S, resident
of Village Bhatoli, Tehsil And District Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur, Rajasthan.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6426/2018
The Creative Brain Society, Nathdwara, through its
Authorised Signatory & Secretary Shiv Hari Sha, resident of
Nathdwara, District Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6428/2018
Prayas Shikshan Sansthan, Emdi, Rajsamand through its
Authorised Signatory & Secretary Ramlal Kum, resident of
Village Emdi, Tehsil And District Rajsamand.
----Petitioner
Versus
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1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6453/2018
Gandhi Sewa Sadan Rajsamand through its Authorised
Signatory Dr. Manendra Kumar Karnawat S/o Late, resident
of Kankroli, District Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6454/2018
Shree Jee Education Welfare Society, Nathdwara, through its
Authorised Signatory & Director Heman, resident of
Nathdwara, District Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
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D.B. Civil Writ Petition No. 6456/2018
Tulsi Amrit Vidya Peeth, Amet, Rajsamand through its
Authorised Signatory & President Mansukhlal, resident of
Amet, District Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6457/2018
Satyam Educational Charitable Trust, Rajsamand, through
its Authorised Signatory & Treasurer Dalpat Choudhary S/o
Shri Shankar Lal Choudhary, aged about 57 Years, resident
of Village Kankroli, Rajsamand.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6480/2018
Little Angels Educations Society, Lamba Parada, Ganora
through its Authorised Signatory Shri Manoha, resident of
Lamba Parada, Tehsil Ganora, District Banswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
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Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Banswara.
----Respondents
D.B. Civil Writ Petition No. 6484/2018
Modern Shishu Niketan Shikshan Sansthan, Kushalgarh
through its Authorised Signatory Prashant Nahat, resident of
Jain Mohalla, Kushalgarh, District Banswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
D.B. Civil Writ Petition No. 6485/2018
New Look School Society through its Authorised Signatory
Pradeep Kothari S/o Mahendra Kumar Kothari, resident of
Kothari Haveli, Oswalwada, Banswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Banswara.
----Respondents
D.B. Civil Writ Petition No. 6491/2018
Abhivykti Jan Seva Sansthan, Banswara through its
Authorised Signatory Tarun Trivedi S/o Shri Ramesh
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Chandra Trivedi, aged about 39 Years, resident of Village
Chhinch District Banswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Banswara.
----Respondents
D.B. Civil Writ Petition No. 6492/2018
Pioneer Shiksha & Seva Sansthan, Garhi, Dist Banswara
through its Authorised Signatory Paresh Pan, resident of
Opposite Police Thana, Garhi, Dist. Baswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
3. District Education Officer, Secondary Education,
Banswara.
----Respondents
D.B. Civil Writ Petition No. 7919/2018
Tiny Tots Education Society, Banswara through its
Authorised Signatory & Secretary R.K. Aiyer S/o Aksham
Aiyer, aged about 67 Years, resident of Kagdi Pickup, Ratlam
Road, Banswara.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, School
Education Group V, Government of Rajasthan,
Secretariat Building, Jaipur.
2. Director Primary Education, Bikaner.
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3. District Education Officer, Secondary Education,
Rajsamand.
----Respondents
For Petitioner(s) : Mr. R.S. Saluja
Mr. Manish Sisodia with Mr. Nitesh
Mathur
Mr. Manvendra Bhati for Dr. Sachin
Acharya
For Respondent(s) : Mr. Pankaj Sharma, AAG assisted
by Mr. Rishi Soni and Deepak
Chandak
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE P.K. LOHRA
Order
Order reserved date: 5th August, 2019
Date of Pronouncement: 14th August, 2019
Reportable
BY THE COURT (PER HON'BLE P.K.LOHRA, J.):
Petitioners, 19 in number, are the private unaided educational institutions imparting school education of different standards and affiliated with either Central Board of Secondary Education or Rajasthan Board of Secondary Education. The affairs of these schools are administered/managed by the societies registered under Rajasthan Societies Registration Act, 1958. By these writ petitions, on their behalf challenge is laid to validity of Rajasthan Schools (Regulation of Fee) Act, 2016 (for short, 'Act') with emphasis and focus on Sections 3, 4, 6, 7, 8, 9, (Downloaded on 30/08/2019 at 02:18:30 AM) (10 of 33) [CW-5080/2017] 10, 11, 15 & 16 of the Act and Rules 3, 4, 6, 7, 8 & 11 of the Rajasthan Schools (Regulation of Fee) Rules, 2017 (for short, 'Rules').
2. In order to assail vires of the impugned provisions of the Act and the Rules, the petitioners have boosted the standard of education imparted by them besides infrastructural facilities and other comforts offered to the students. Petitioners, in general, have highlighted efficient teachers employed in their institutions and some of the special features including well equipped library, playgrounds, skill development programmes etc., which according to them is not available in Govt. Schools. Buttressing their afflictions against the impugned provisions of the Act and the Rules, all the petitioners in unison have categorized them violative of Act 19(1)(g) of the Constitution. As per petitioners, impugned provisions have infringed their sacrosanct fundamental right to practise any profession, or to carry on any occupation, trade or business.
3. For castigating the impugned provisions, petitioners have set out a case that the restrictions/measures and its enforcement methodology envisaged therein are arbitrary and unreasonable affecting their autonomy to the hilt. Substantially, in the pleadings and grounds set out for (Downloaded on 30/08/2019 at 02:18:30 AM) (11 of 33) [CW-5080/2017] espousing their cause, petitioners have questioned validity of impugned provisions as not being satisfying the restrictive requirements envisaged under Article 19(6) of the Constitution. An attempt is also made by the petitioners to find fault with the impugned provisions on the anvil of Article 13(2) of the Constitution as being in clear negation of Part III of the Constitution. Composition of School Level Fee Committee, power of inspection bestowed on the officials of the Education Department, proposed coercive actions and penal provisions in the impugned provisions are also challenged by the petitioners as arbitrary and abhorrent. The petitioners have perceived impugned provisions an attempt by the State to control their institutions in the guise of so called profiteering and commercialization of education without any semblance of proof in this regard.
4. Omission to mention profiteering or capitation fee in the statement of objects and reasons for the promulgation of the Act and under Sections 6 & 8 of the Act too is emphasized in the pleadings by the petitioners to question the very object and purpose of the enactment. According to the petitioners, if the State is not keen to address these two grey areas, then the very purpose of the Act is under cloud and on this count also impugned provisions are bad as being promulgated without spelling out or clarifying objects sought to be (Downloaded on 30/08/2019 at 02:18:30 AM) (12 of 33) [CW-5080/2017] achieved. A reference about earlier legislation Rajasthan Schools (Regulation of Collection of Fee) Act, 2013 also finds mention in the writ petitions besides its challenge before this Court and grant of interim order. Attacking impugned Act and the aforementioned provisions with the aid of pejoratives, petitioners have also relied on some of the judgments of the Apex Court. With all these facts and grounds, petitioners have craved for declaring impugned provisions ultra vires and striking down the same.
5. Respondent State has submitted its counter to refute all the factual averments and grounds. Defending the impugned provisions of the Act and the Rules, State has meticulously pleaded in its return the basic aims and objects of the Statute besides Rules, which are to facilitate smooth and effective implementation of the Act. State, in its reply, has also averred that the Act is passed by the Legislature in strict adherence of reasonable restrictions on the fundamental right under Article 19(1)(g), as engrafted in Article 19(6) of the Constitution. Repudiating the allegation of trenching into autonomy of petitioner-institutions, State has also defended coercive and penal provisions by urging that sans such provisions achieving aims and objects of the Act is not possible. State has further submitted in the reply that (Downloaded on 30/08/2019 at 02:18:30 AM) (13 of 33) [CW-5080/2017] fundamental right enshrined under Article 19(1)(g) of the Constitution is not an absolute and unqualified right.
6. Laying emphasis on the reasonable restrictions vis-a-vis the said fundamental right, State has highlighted laudable objects of the impugned provisions which are meant for curbing profiteering and commercialization of education. State has also pleaded that by regulating fee structure, private unaided schools can be discouraged to charge excessive and exorbitant fee from the students. As regards fee structure, State has also submitted that School Level Fee Committee (for short, 'Committee') constituted under Section 4(2) of the Act is broad-based, which include three teachers of the school nominated by the management and five parents from Parent-Teachers' Association formed under Section 4(1)
(a) with representative of the management as Chairperson besides Principal of the school as Secretary.
7. While referring to criteria for determination of fee prescribed under Section 8 of the Act, State in its return has pleaded that same is scientific and founded on legitimate grounds and consideration, which cannot be fouled in any manner. Respondent has further averred in the counter that under Section 6(1) of the Act, private schools shall be competent to propose the fee. State while defending (Downloaded on 30/08/2019 at 02:18:30 AM) (14 of 33) [CW-5080/2017] impugned provisions of the Act and the Rules has cited in the return provision for appeal/reference against a decision of the 'Committee' before Division Fee Regulatory Committee and further appeal to Revision Committee as defined under Section 2(f) and 2(r) of the Act respectively to dispel apprehensions of the petitioners. Invoking the presumption in favour of validity of a Statute, respondent has craved for thwarting the petition. Repudiating the plea of the petitioners, it is submitted by the State that existence of the evil and means adopted to check it cannot be questioned on the anvil of alleged violation of Article 13(2) of the Constitution. State has further pleaded in the return that these matters are of legislative judgment. Alternatively, respondent State in its reply has meticulously defended the impugned provisions of the Act as well as Rules by spelling out the aims and objects with precision. Joining issuing with the petitioners, State in its counter has also placed reliance on some of the authoritative pronouncements of the Apex Court.
8. Petitioners, while responding to the reply of the State, submitted its subsequent pleadings. In the rejoinder, petitioners have persisted with their insinuations against the State by urging that precise aim of the State Government is to twist the arms of private unaided schools. Further (Downloaded on 30/08/2019 at 02:18:30 AM) (15 of 33) [CW-5080/2017] elaborating in this behalf, petitioners have averred that the main Act is designed to exercise unauthorized, unconstitutional and unbridled control over the unaided institutions. The petitioners have reiterated their stand to challenge the impugned provisions on the anvil of being violative of Article 13 (2) of the Constitution. That apart, in the rejoinder, petitioners have also urged that State by the impugned legislation has made an attempt to usurp the power of management of the institutions by simply reducing it as a proposer of the fee to the Committee. On composition of the Committee also, petitioners have ventilated their grievances precisely by citing conflicting interests of teachers and parents of the students so as to authenticate their challenge to the impugned rules.
9. Mr. R.S. Saluja and Mr. Manish Sisodia, learned counsels representing the cause of the petitioners, have articulated their submissions by canvassing the grounds urged in the petitions. Besides questioning the very object of the impugned Act, it is also submitted by learned counsels that impugned provisions have violated fundamental right of the petitioners enshrined under Article 19(1)(g) of the Constitution. Apart from taking shelter of Article 19(1)(g), learned counsels have also assailed the impugned provisions on the anvil of being in complete derogation to Article 13(2) (Downloaded on 30/08/2019 at 02:18:30 AM) (16 of 33) [CW-5080/2017] of the Constitution. For substantiating their arguments, learned counsels have placed reliance on following legal precedents:
i. TMA Pai Foundation & Ors. Vs. State of Karnataka & Ors. [(2002) 8 SCC 481] ii. Islamic Academy of Education Vs. State of Karnataka & Ors. [(2003) 6 SCC 697] iii. State of Maharashtra and Ors. vs. Indian Hotel
and Restaurants Assn. and Ors. [(2013) 8 SCC 519].
10. Per contra, learned Addl. Advocate General Mr. Pankaj Sharma submits that challenge to the constitutionality of the impugned provisions by the petitioners is a far cry inasmuch as impugned Act is an attempt by the State to regulate the exercise of fundamental rights for which State is empowered. Mr. Sharma further submits that fundamental right enshrined under Article 19(1)(g) of the Constitution is not an unfettered right and same is circumscribed under Article 19(6). Elaborating his submission in this behalf, Mr. Sharma has argued that impugned Act is enacted by the State Legislature within its legislative competence to save public from substantial evil. Lastly, Mr. Sharma would contend that promulgation of the Act by the State is an affirmative attempt to curb profiteering and commercialization of education. For authenticating his arguments, learned Additional Advocate General has placed reliance on following judgments: (Downloaded on 30/08/2019 at 02:18:30 AM)
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i. Modern School Vs. Union of India & Ors.
[(2004) 5 SCC 583]
ii. Modern Dental College & Research Centre and
Ors. Vs. State of Madhya Pradesh & Ors.
[(2016) 7 SCC 353]
iii. Division Bench judgment of Gujarat High Court
dated 27.12.2017 in Writ Petition (PIL) No.132 of 2017 with bunch of other writ petitions.
11. We have bestowed our consideration to the arguments advanced at Bar, perused the impugned provisions of the Act and the Rules, and also gone through the judgments on which learned counsel for the parties have placed reliance.
12. Challenge to a Statute as violative of fundamental rights deserves judicial scrutiny with pragmatic approach. Therefore, while examining this issue, Court is bound to see its real effect or operation on the fundamental rights. In such matters, Court cannot shirk from its duty to remain watchful for safeguarding constitutional rights of the citizens. Any attempt to encroach gradually or stealthily on the fundamental rights of the citizens by the State cannot lose sight of the Court. Article 13(2) of the Constitution also mandates that State shall not make a law which takes away or abridges the rights of the citizens conferred by Part III. However, the Court, while examining Constitutionality of a Statute cannot question the wisdom, the need or desirability of such Statute. Unquestionably, the State is empowered to (Downloaded on 30/08/2019 at 02:18:30 AM) (18 of 33) [CW-5080/2017] regulate the exercise of fundamental rights to protect public from substantial evil.
13. Now adverting to the subject matter, suffice it to observe that question relating to composition of governing body, compulsory nomination of teachers and staff for appointment or nominating students for admission and more significantly profiteering in the guise of charging exorbitant fee by the private unaided recognized/affiliated institutions running professional courses, came up for consideration before the Constitution Bench in Unni krishnan & Ors. Vs. State of Andhra Pradesh & Ors. [(1993) 1 SCC 645]. After considering the issue, Court deprecated the practice of commercialization of education and collection of capitation fee. The Constitution Bench was essentially concerned with the menace of profiteering and commercialization of private unaided educational institutions running professional courses and other ancillary issues. Although fixing of a rigid fee structure and other guidelines of the scheme formulated by the Court in Unni Krishnan's case (supra), was disapproved by the later larger Bench per majority in TMA Pai Foundation (supra) as unacceptable restrictions but then the larger Bench fully concurred with the principle that there should not be capitation fee or profiteering by unaided recognized educational institutions running professional courses. (Downloaded on 30/08/2019 at 02:18:30 AM)
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14. In TMA Pai (supra), the larger Bench judgment of Supreme Court, on which learned counsels for the petitioners have placed heavy reliance, the Court, per majority, has observed:
"The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions."
The Court, while dealing with some important aspects of quality education, amenities provided by the institutions to the students in the form of competent teaching faculties, and other infrastructure, pleased to observe as under:
"The decision on the fee to be charged must be necessarily left to the private educational institution that does not seek or is not dependent upon any funds from the Government."
Likewise, the Court was also conscious about the education taught at different levels, i.e., from primary to professional. In this regard, Court has expressed its concern that Government regulations for all levels or types of educational institutions cannot be uniform with emphasis that extent of (Downloaded on 30/08/2019 at 02:18:30 AM) (20 of 33) [CW-5080/2017] control or regulation could be greater vis-a-vis aided institutions. In the context of private unaided schools, the Court made following observations:
"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."
Acknowledging autonomy for the unaided educational institutions, Supreme Court also gave its affirmation that education is an "occupation" but further regarded the same as charitable. With these observations, the Court has permitted the Government to frame regulations for ensuring excellence in education and curbing profiteering and charging of capitation fee by the institutions. The Court observed:
"We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational (Downloaded on 30/08/2019 at 02:18:30 AM) (21 of 33) [CW-5080/2017] institution for the purpose of development of education and expansion of the institution."
15. In Islamic Academy of Education (supra), Constitution Bench of the Supreme Court, while dealing with the question, "whether the educational institutions are entitled to fix their own fee structure", per majority, held that "the Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering, that institution can be appropriately penalized and also face the prospect of losing its recognition/affiliation." The practice of collecting fees for the entire course in advance by the educational institutions is also not approved by the Supreme Court per majority and the Court made following observations in this behalf:
"It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in (Downloaded on 30/08/2019 at 02:18:30 AM) (22 of 33) [CW-5080/2017] midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance."
16. The Apex Court judgment relied on by the learned counsels in the matter of Indian Hotel and Restaurants Association & Ors. (supra) for espousing their cause is not having even remote proximity with the lis involved in these petitions. It was a case wherein by legislative enactment, State of Maharashtra had completely banned dancing in establishments covered under Section 33A of the Bombay Police Act and therefore the Court concurred with the conclusions of the High Court that the legislation failed to satisfy the doctrine of direct and inevitable effect. The fact situation in all these petitions is clearly different inasmuch as the question, which has cropped up herein is confined to reasonableness of restrictions within the four corners of Article 19(6) of the Constitution. Therefore, this judgment as such cannot render any assistance to the petitioners. (Downloaded on 30/08/2019 at 02:18:30 AM)
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17. In Modern School (supra), Supreme Court had the occasion to consider fundamental right guaranteed under Article 19(1)(g) of the Constitution to establish and run educational institutions vis-a-vis reasonable restrictions under clause (6) of Article 19 of the Constitution. Per majority, while recognizing right to establish and run educational institutions as fundamental right under Article 19(1)(g) of the Constitution, as an "occupation", the Court has also clarified that such fundamental right is subject to reasonable restrictions in terms of clause (6) of Article 19 of the Constitution. Likewise, rights conferred on religious or linguistic minorities to establish and administer educational institutions of their choice under Article 30(1) of the Constitution is also held to be subject to reasonable regulations, which inter-alia may be framed in public interest and national interest. The Court held:
"TMA Pai Foundation case for the first time brought into existence the concept of education as an "occupation", a term used in Article 19(1)
(g) of the Constitution. It was held by majority that Articles 19(1)(g) and 26 confer rights on all citizens and religious denominations respectively to establish and maintain educational institutions. In addition, Article 30(1) gives the right to religious and linguistic minorities to establish and administer educational institution of their choice. However, the right to establish an institution under Article 19(1)(g) is subject to reasonable restriction in terms of clause (6) thereof. Similarly, the right conferred on minorities, religious or linguistic, to establish and administer educational (Downloaded on 30/08/2019 at 02:18:30 AM) (24 of 33) [CW-5080/2017] institution of their own choice under Article 30(1) is held to be subject to reasonable regulations which inter alia may be framed having regard to public interest and national interest. In the said judgment, it was observed (vide para 56) that economic forces have a role to play in the matter of fee fixation. The institutions should be permitted to make reasonable profits after providing for investment and expenditure. However, capitation fee and profiteering were held to be forbidden."
18. Constitution Bench of Supreme Court in its later judgment in Modern Dental College & Research Centre (supra), made sincere endeavour to examine rights conferred under Part III of the Constitution and their limitations on the anvil of doctrine of proportionality. While considering the extent and applicability of fundamental right under Article 19(1)(g) of the Constitution, the Court observed:
"It is well settled that the right Under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under Clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In applying these factors, one cannot lose sight of the Directive Principles of State Policy. The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that the Legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and welfare of (Downloaded on 30/08/2019 at 02:18:30 AM) (25 of 33) [CW-5080/2017] student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated."
The Court further held:
"Another significant feature which can be noticed from the reading of the aforesaid Clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and Rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as "Doctrine of Proportionality". Jurisprudentially, 'proportionality' can be defined as the set of Rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied, a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation ("proportionality stricto sensu" or "balancing") between the importance of achieving the proper purpose and the social importance of (Downloaded on 30/08/2019 at 02:18:30 AM) (26 of 33) [CW-5080/2017] preventing the limitation on the constitutional right.
Modern theory of constitutional rights draws a fundamental distinction between the scope of the constitutional rights, and the extent of its protection. Insofar as the scope of constitutional rights is concerned, it marks the outer boundaries of the said rights and defines its contents. The extent of its protection prescribes the limitations on the exercises of the rights within its scope. In that sense, it defines the justification for limitations that can be imposed on such a right."
In the matter of regulating fee structure of private unaided educational institutions, Court has duly recognized powers of the Government to lay down regulatory measures. The Court observed:
"To put it in a nutshell, though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institution, commercialisation is not permissible. In order to see that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that these educational institutions keep playing vital and pivotal role to spread education and not to make money. So much so, the Court was categorical in holding that when it comes to the notice of the Government that a particular institution was charging fee or other charges which are excessive, it has a right to issue directions to such an institution to reduce the same."(Downloaded on 30/08/2019 at 02:18:30 AM)
(27 of 33) [CW-5080/2017] While dealing with the criteria for fixing fee structure, the Court observed:
"This Court also held that for fixing the fee structure, following considerations are to be kept in mind: (Modern School case, SCC p.601 para 16)
(a) the infrastructure and facilities available;
(b) investment made, salaries paid to teachers and staff;
(c) future plans for expansion and/or betterment of institution subject to two restrictions, viz. non-profiteering and non-
charging of capitation fees.
We may hasten to add here itself that Section 9 of the 2007 Act takes care of the aforesaid parameter in abundance."
Taking into consideration the present era of globalization and liberalization, Court has emphasized regulatory mechanism or regulatory economics justifying regulatory bodies even in relation to industries managed by private sector, Court found it conducive in the welfare of people. By summing up, the Court held:
"Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided."
(Emphasis supplied) (Downloaded on 30/08/2019 at 02:18:30 AM) (28 of 33) [CW-5080/2017] Invoking concept of welfare of the society in the field of education, Court has recognized it as welfare activity and not purely economic activity. Considering the education as welfare activity, Court also insisted for regulatory mechanism for achieving pivotal constitutional goals. The Court held:
"Thus, when there can be Regulators which can fix the charges for telecom companies in respect of various services that such companies provide to the consumers; when Regulators can fix the premium and other charges which the insurance companies are supposed to receive from the persons who are insured; when Regulators can fix the rates at which the producer of electricity is to supply the electricity to the distributors; we fail to understand as to why there cannot be a regulatory mechanism when it comes to education which is not treated as purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them. In the field of education, therefore, this constitutional goal remains pivotal which makes it distinct and special in contradistinction with other economic activities as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socio-economic and political upliftment of the nation. The concept of welfare of the society would apply more vigorously in the field of education. Even otherwise, for economist, education as an economic activity, favourably compared to those of other economic concerns like agriculture and industry, has its own inputs and outputs; and is thus analyzed in terms of the basic economic tools like the laws of return, principle of equimarginal utility and the public finance. Guided by these principles, the State is supposed to invest in education up to a point where the socio-economic returns to (Downloaded on 30/08/2019 at 02:18:30 AM) (29 of 33) [CW-5080/2017] education equal to those from other State expenditures, whereas the individual is guided in his decision to pay for a type of education by the possibility of returns accruable to him. All these considerations make out a case for setting up of a stable Regulatory mechanism.
In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and when such private educational institutions are to rub shoulders with the state managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them Under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation gives autonomy to such institutions which remain intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students "triple test" is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a (Downloaded on 30/08/2019 at 02:18:30 AM) (30 of 33) [CW-5080/2017] position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions."
19. Therefore, in the backdrop of law laid down by Constitution Bench in Modern Dental College & Research Centre (supra), if the impugned Act and the provisions sought to be assailed by the petitioners and the regulatory measures provided under the Rules are examined objectively with pragmatic approach, then, it would ipso facto reveal that State has not made any endeavour to trench into autonomy of petitioner-institutions. The provisions are regulatory in nature with the solemn object of preventing profiteering and commercialization in school education. The constitution of the Committee for regulating fee structure, by no stretch of imagination be construed as an attempt to completely bye- pass the school management. The Committee as such is chaired by representative of the management besides principal as a Secretary with three teachers nominated by the management and five parents nominated from parent- teachers association. Thus, the contention of the petitioners that State has completely chipped the wings of management or invaded their autonomy is an euphonious plea bereft of any merit.
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(31 of 33) [CW-5080/2017] The criteria for determining fee are also based on legitimate considerations provided under Section 8 of the Act. Thus, even while considering fee structure of the school, the Committee cannot be allowed to act at its whims and fancy but for adhering to the criteria laid down under Section 8 of the Act. That apart, the remedy against the fee determined by the Committee is also provided in the Statute by way of appeal/reference and second appeal, which sufficiently repudiate the contention of the petitioners about unreasonable restrictions on their autonomy within the mischief of unacceptable constraints envisaged under clause (6) of Article 19 of the Constitution.
20. Switching on to the coercive measures and penal provisions provided under the Statute and enforcement methodology prescribed under the Rules, it would be just and appropriate to observe that all these provisions are essential and necessary concomitant of regulatory mechanism for achieving desired objectives, and therefore cannot be categorized as unreasonable restrictions. In the overall scenario, we are also convinced that Sections 13 to 18 of the impugned Act and Rule 11 of the Rules are not intended to be invoked on sundry occasions for interfering with day to day functioning of the unaided recognized schools. Thus, complaint of the petitioners about fanciful and capricious (Downloaded on 30/08/2019 at 02:18:30 AM) (32 of 33) [CW-5080/2017] supplication of these provisions per se appears to be a far cry without any substance.
Indisputably, the Rules are in the nature of subordinate legislation and framed by the Government in exercise of power under Section 19 of the Act for carrying out all or any of the purposes of the Act. Thus, the Rules as such are neither assailable on the ground of lack of legislative competence, nor for failure to conform to the parent statute under which Rules are made. Moreover, these rules are also not offending any right conferred on the petitioners under Part III of the Constitution or in violation of any provision of the Constitution, therefore, challenge to the Rules is wholly unsustainable.
21. The argument of the learned counsel for the petitioners, that the impugned Act is unconstitutional as being in derogation to Article 13(2) of the Constitution, appears to be quite alluring but of no substance. Analyzing this argument meticulously in the backdrop of lis involved in these matters, we have already repudiated the same. At the cost of repetition, we may reiterate here that the impugned Act and its other provisions are not taking away or abridges rights of the petitioners conferred by Part III of the Constitution. We may hasten to add that entire edifice of challenge in these petitions is alleged infraction of Article 19(1)(g) of the (Downloaded on 30/08/2019 at 02:18:30 AM) (33 of 33) [CW-5080/2017] Constitution, which indisputably is not an absolute fundamental right. As observed hereinabove, the said fundamental right is subject to reasonable restrictions and such restrictions are permissible as they are aimed at seeking laudable objectives in the larger public interest. Therefore, viewed from any angle, the impugned provisions of the Act as well as Rules are intra-vires of the Constitution not being in violation of Article 13(2) and 19(1)(g) of the Constitution.
The upshot of above discussion is that all these petitions fail and are hereby dismissed. The stay petitions are also dismissed and interim order passed on 9th of April, 2018 is vacated.
(P.K. LOHRA),J (SANGEET LODHA),J
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