Madras High Court
Maria Grace Rural Middle School vs The Government Of Tamil Nadu on 4 November, 2006
Equivalent citations: AIR 2007 MADRAS 52, 2007 (1) AKAR (NOC) 90 (MAD), (2007) 2 MAD LJ 497, (2006) WRITLR 891, (2006) 5 CTC 193 (MAD)
Author: P.Sathasivam
Bench: P.Sathasivam, S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.11.2006 CORAM: THE HONOURABLE MR.JUSTICE P.SATHASIVAM and THE HONOURABLE MR.JUSTICE S. MANIKUMAR W.A. Nos.1213 to 1228, 1604 to 1607, 2044 of 1999, 100 to 102, 313 of 2001 and W.P. Nos.10365 of 1999, 6265, 7334, 11899, 11900, 13060, 14648, 16547, 17066 of 2000, 592, 722, 828, 878, 905, 1847, 1848, 2673, 2778, 2787, 8349, 8448, 8635, 11781, 11785 of 2001,7003 of 2002,9126 of 2003,35004 of 2004 & 25556 of 2004 and WPMP. Nos.9361, 10870, 23986 of 2000 and 3812 of 2001. W.A.No.1213 of 1999: Maria Grace Rural Middle School Venkatarayapuram, Nanguneri Taluk Tirunelveli Kattabomman District rep. by its Correspondent Rev.Fr. A. Antony Raj. .. Appellant vs. 1. The Government of Tamil Nadu rep. by its Secretary, Education Science and Technology Department Fort St. George, Chennai 600 009. 2. The Director of Elementary Education College Road, Chennai 600 006. 3. The District Elementary Educational Officer, Tirunelveli 2, Tirunelveli Kattabomman District. 4. The Assistant Educational Officer Nanguneri Range, Nanguneri Post Tirunelveli Kattabomman District. .. Respondents Writ Appeals are filed under Clause 15 of the Letter patent against the order passed in W.P.No.4237 of 1996 dated 22.03.1999 made by His Lordship the Hon'ble Mr. Justice P. Shanmugham. Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus as stated therein. .. Mr. K. Ravichandra Babu, for appellant in WA.Nos.1213 to 1220 of 1999 and for the petitioner in WP.Nos.6265 and 7334 of 2000. Mr. M. Joseph Thatheus Jerome for appellant in WA.Nos.1223 to 1228, 2044 of 1999 and for petitioner in W.P.Nos.14648 of 2000, 11899, 11900, 13060 of 2000 and 25556 of 2006. Mr. V. Ramajagadeesan, for appellant in W.A.Nos.1604 to 1607 of 1999. Mr. D. Rajendran, for appellant in WA.Nos.100 to 102, 313 of 2001. Mr. T. Ravikumar for petitioner in WP.No.8349 of 2001. Mr. Isaac Mohanlal for petitioner in WP.Nos.16547, 17066 of 2000, 592, 722, 828, 878, 905, 2778, 1847, 1848, 2673, 2787 of 2001, 7003 of 2002 and 10365 of 1999. Mr. A. Immanuel for petitioner in WP.No.9126 of 2003. Mr. S.N. Ravichandran for petitioner in WP.No.35004 of 2004. Mr. I. Arokiasamy for petitioner in WP.Nos.8448, 8635, 11781 and 11785 of 2001. Mr. R. Viduthalai, Advocate General assisted by Mr. M. Sekar, Special Government Pleader for respondents in W.A.Nos.1213 to 1228, 1604 to 1607, 2044 of 1999, 100 to 102, 313 of 2001 and all writ petitions. COMMON JUDGMENT
(Judgment of the Court was delivered by P.SATHASIVAM,J.) Since the issue in the writ appeals as well as the writ petitions is one and the same, they are being disposed of by the following common judgment.
2. The writ appeals are filed against the common order dated 22.03.1999 made in a batch of writ petitions, viz., W.P.Nos.6781 of 1993, etc., wherein the learned single Judge, after finding that the writ petitioners / Educational Institutions after the commencement of the academic year 1991-92 are not entitled to the grant of any Aid or the up-gradation of posts and salary for the teachers appointed, upheld the Government Order and dismissed all the writ petitions.
3. In all the writ petitions, the petitioners / Educational Institutions, Educational Agencies, Parent-Teachers Association, challenge Section 14-A the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (in short "the Act"), as inserted by Section 6 read with Section 1(2)(b) of the Tamil Nadu Recognised Private Schools (Regulation) Amendment Act, 1998 as it is unconstitutional and violative of Articles 14, 21, 21-A, 30(2), 39, 41, 45 and 46 of the Constitution of India.
4. Brief facts:-
(a) Prior to the introduction of Tamil Nadu Recognised Private Schools (Regulation) Act 1973 (Tamil Nadu Act 29 of 1974), Primary and Middle Schools were governed by the Tamil Nadu Elementary Education Act, 1920 (Tamil Nadu Act V of 1920), Tamil Nadu Panchayats Act, 1958, City Municipal Corporation Act, 1920 and Tamil Nadu District Municipalities Act, 1920.
(b) From the year 1964-65 onwards complete free education system was introduced in the State. Aid to the management was given by way of grant to meet the entire expenditure incurred towards payment of salary to teachers through monthly teaching grant. While deficit grant was paid prior to 1964-1965, full grant was sanctioned from 1964-65 onwards. During 1973, Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Tamil Nadu Private Schools (Regulation) Rules, 1974 came into operation governing recognised Aided institutions. According to Section 14 of the said Act and Rule 11 of the said Rules, aid was assessed for all the recognised institutions.
( c ) According to Rule 1 of the Rules framed under the Tamil Nadu Elementary Education Act 1920, the power to grant permission to open new schools, additional classes in the existing schools and to grant or withdraw recognition/aid to or from Elementary Schools vests with the Officers of the Education Department. High Schools were governed by Madras Educational Rules, now called, Tamil Nadu Educational Rules. The power of recognition of secondary and Higher Secondary Schools is vested with the Director of School Education.
(d) The Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and the Rules made thereunder now govern the aided Primary, Middle, High and Higher Secondary Schools. Grant of aid to such Schools is governed by the grant-in-aid code. Article 5 of the Grant-in-aid code deals with the payment of Teaching grant/staff grant to all types of Recognised schools under private management.
(e) When the Non-Minority institutions have to get prior permission to open new institutions, the management of minority institutions can open an Institution without prior permission and thereafter apply for the grant of recognition and aid. The minority schools are covered by the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules, 1977. As per the Rules, no special status is conferred on minority schools in respect of payment of grant, and Rule 6 categorically states that minority schools may be paid grant subject to the orders and instructions issued by the Government from time to time.
(f) As a matter of policy, the Government of Tamil Nadu has stopped payment of Grant to Elementary schools established in 1988. The Schools which applied for grant of permission to open new schools/additions sections/ upgradation under the provisions of the Tamilnadu Recognised Private Schools (Regulation) Act, 1973 as a matter of fact did not claim Grant from the year 1988 onwards for a period of three years. On completion of the said three years grant was sanctioned to some schools with effect from 01.06.1991 in a phased manner. Subsequently, due to the heavy financial burden confronted by the Government, it was again decided to dispense with the payment of Grant and accordingly, G.O.(4D) No.4 Education (R1) Department dated 25.11.91 was promulgated dispensing with the payment of Grant and the payment of Grant was totally stopped. Therefore, the recognition and permission for the upgradation of various schools was accorded subject to the above condition with infinite effect.
(g) In respect of minority schools, while applying for recognition to start new schools, the condition as prescribed in G.O.(4D) No. 4 dated 25.11.91 was uniformly adhered to. In fact, it was made clear that no Grant will be given to the schools applying for recognition from 25.11.91. Aggrieved by the said action of the Government, several minority schools filed W.P.No.6781 of 1993 etc., batch and by order dated 22.03.1999, the validity of the said Government Order was upheld in respect of minority schools also. Since G.O.(4D) No.4 dated 25.11.91 was always under the threat of challenge, with a view to safe-guard the same from further legal challenge, the Government thought to clothe the said Government Order with statutory power and accordingly, issued the Amendment Act No.11 of 1999, duly published in the Tamil Nadu Government Gazette, Extraordinary dated 23.05.1999 by which Section 14-A was brought into existence. Therefore this Amendment was sought to take over and ratify the action taken prior to 1999 and more particularly from 25.11.1991 onwards.
5. Heard the learned counsel for the appellants/petitioners as well as the respondents.
6. Contentions raised by the learned counsel for the appellants/petitioners:
(i) The impugned provisions, viz., Sections 1(2)(b) and 6 of the Tamil Nadu Recognised Private Schools (Regulation) Amendment Act, 1998 (Act 11 of 1999), inserting Section 14-A to Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, violate the fundamental rights enshrined under Part III of the Constitution of India, particularly Articles 21, 21-A, 39, 41, 45 and 46;
(ii) The impugned provisions promote discrimination and hit by Articles 14 and 30(2) of the Constitution, since it permit two classes of recognised private schools after 01.06.1991;
(iii) The State cannot try to achieve indirectly what it cannot achieve directly (even the Legislature cannot do);
(iv) Paucity of funds cannot be a valid reason to deny State Aid to educational institutions, particularly offering education to children below the age of 14;
(v) The impugned provisions would frustrate the Scheme enunciated in the Act and Rules, since Free Education Policy is the hub on which the whole scheme rests, and as a corollary, the collection of fee, charge or donation is prohibited;
(vi) The undertakings obtained from the schools at the time of granting recognition are non-est in law inasmuch as they were obtained without free consent and without any statutory basis. Hence, such undertakings cannot operate as estoppel against the plea of discrimination and constitutional rights.
7. Reply by the learned Advocate General:
(i) The impugned provisions does not suffer from any unconstitutionality;
(ii) Grant-in-aid is neither a fundamental right nor a statutory right;
(iii) Mandate under Article 21-A has been fulfilled by the State Government;
(iv) Grant-in-aid by the State to the Educational Institutions depends upon the economic capacity of the State, and it is a relevant factor;
(v) Policy decisions are exclusively within the executive domain and the policy taken by the State Government is reasonable, not violative of Article 14 and there is no arbitrariness;
(vi) Since the State Government has achieved Gross Rate Access of 100% with the assistance of recognised private schools already in existence during the academic year 1991-92, which were receiving aid from the State Government, it is but reasonable for the Government to continue grant-in-aid to these schools;
(vii) Paucity of funds is a valid reason for determining the cut-off rate;
(viii) The impugned provisions do not violate Article 30(1) and (2)of the Constitution as well as frustrate the Scheme of the Act as claimed;
(ix) The Undertaking given by the Schools at the time of grant of recognition operate as estoppel against them.
8. Since the points raised are inter-connected, let us consider all of them in the following paragraphs. In order to appreciate the rival contentions, it is useful to refer the relevant statutory provisions of the Act and the Rules.
"Section 14. Payment of grant.-
(1) Subject to such rules as may be prescribed, the Government may continue to pay grant to the private school receiving grant from the Government, before the date of commencement of the academic year 1991-1992 at such rate and for such purpose as may be prescribed.
Explanation.- For the purposes of this sub-section, private school receiving grant from the Government shall also include a private school receiving grant from the Government only in respect of any class or course of instruction.
"Section 14-A. Grant not payable to new private schools and new class and course of instruction.-
Notwithstanding anything contained in this Act or in any other law for the time being in force in any judgment, decree or order of any Court or other authority, no grant shall be paid to, -
(a) any private school established and any class or course of instruction opened in such private school, on or after the date of commencement of the academic year 1991-1992;
(b) any private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement;
(c) any class or course of instruction in a private school in existence on the date of commencement of the academic year 1991-1992 to which no grant has been paid by the Government immediately before the date of such commencement; and
(d) any class or course of instruction opened on or after the date of commencement of the academic year 1991-1992 in a private school in existence on the date of such commencement.
Explanation.- For the purpose of this section, private school includes a minority school."
"Rule 11. Payment of grant.-
(1) Recognised private schools may be paid grants from State funds directly or through Panchayat Unions. Such payment of grants shall be subject to Government orders and instructions issued from time to time:
Provided that, schools whose recognition have been withdrawn shall not be entitled to any grant for the period of such withdrawal of recognition.
(2) .....
(3) .....
(4) .....
(5) Not withstanding anything contained in the Act or in any other law for the time being in force or in any decree, order or direction of any Court or other authority-
(i) no private school shall, only on the ground of having been granted recognition under the Act, be entitled to any grant or other financial assistance from the Government;
(ii) the Government may, subject to-
(a) the availability of funds;
(b) the norms and conditions specified in the Grant-in-Aid Code of Tamil Nadu Education Department.
( c ) the condition that every private school receiving any grant or financial assistance from the Government levies and collects from the pupils only such fee, charges or other payment as may be specified by the competent authority, which shall not be in excess of the fee, charge or other payment levied and collected from the pupils studying in the schools or institutions established and administered or maintained by the State Government, or any local authority in the locality;
(d) the rules, orders and notifications issued by the Government, from time to time; and
(e) such other conditions as may be prescribed by Government to the private school grant or other financial assistance at such rate and for such purposes as may be prescribed. "
9. Section 14-A was inserted by Tamil Nadu Act 11 of 1999. It is useful to refer the statement of objects and reasons.
"STATEMENT OF OBJECTS AND REASONS The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974) provides for the regulation of the private schools in the State. At present the policy of the Government is to continue to pay grant to the private schools receiving grant from the Government before the date of the commencement of the academic year 1991-1992 and not to pay the grant to new private schools established and new class and course of instructions opened in any existing private schools after the commencement of the said academic year. It is proposed to give statutory protection to the above policy of the Government. It is also proposed to enable the Government to exempt any person or class of persons from possessing the qualification relating to age and experience for appointment as teacher subject to certain conditions.
2. The Bill seeks to give effect to the above decision. "
10. It is also relevant to mention that Article 30 of the Constitution of India enables all minorities, whether based on religion or language, to have the right to establish and administer educational institutions of their choice. As per sub-clause (2), the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
11. With this background, let us consider the points urged by the Educational Institutions and the defence taken by the State. Mr. Isaac Mohanlal, learned counsel appearing for some of educational institutions, submitted that the impugned provision, viz., Section 14-A of the Act violates fundamental rights enshrined under Part III of the Constitution of India, particularly Articles 21 and 21-A. Article 21-A of the Constitution mandates that the State shall provide free and compulsory education to all children of the age of six to fourteen years. He highlighted that the right to pre-education of children below 14 years of age flows from Articles 21 and 21-A of the Constitution. He also emphasised that a child has the fundamental right of free education upto the age of 14 years. In Mohini Jain (Miss) vs. State of Karnataka and others (1992 93) SCC 666, the Honble Supreme Court has emphasised the protection of life and personal liberty as well as right to education as guaranteed in Articles 21 and 21-A of the Constitution of India as under:
"12. "Right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.
14. The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. .... "
12. In Unni Krishnan,J.P. And others vs. State of Andhra Pradesh and others (1993 (1) SCC 645), the directions issued by their Lordships in paragraphs 175 and 176 are relevant.
"175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education upto the age of 14 years.
176. This does not however mean that this obligation can be performed only through the State Schools. It can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children educated in State-run schools. They have necessarily to charge fees from the students. .... "
13. In State of Himachal Pradesh vs. Himachal Pradesh State Recognised & Aided Schools Managing Committees and others (1995 (4) SCC 507), the following observations/ conclusion are relevant:
"14. The Constitution Bench, emphasising the constitutional policy as disclosed by Articles 41, 45 and 46 read with Article 21 of the Constitution of India, held as under:(SCC pp735-737, paras 175 and 182) "Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education upto the age of 14 years.
The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. "
15. .... This Court has authoritatively held that the State is under an obligation to provide free education to the children upto the age of fourteen. We take judicial notice of the fact that, ordinarily, a child in this country joints school at the age of five years. All the children studying in the Middle Schools would be less than fourteen. Therefore, the State Government is under an obligation to provide free education to the children studying in the 54 non-government Middle Schools. ...... "
16. The constitutional mandate to the State, as upheld by this Court in Unni Krishnan case (cited supra) to provide free education to the children upto the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity."
14. In Chandigarh Administration and others vs. Rajni Vali (Mrs.) and others (2000 (2) SCC 42), in para 6 their Lordships have held that the position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that a State shall ensure proper education to the students on whom the future of the society depends.
15. In T.M.A. Pai Foundation and others vs. State of Karnataka and others (2002 (8) SCC 481), it is held, "Q.9.: Whether the decision of this Court in Unni Krishnan,J.P. v. State of A.P. (1993 (1) SCC 645) (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration / modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. ... "
16. The concept of education is the most fundamental necessity in any democracy as reiterated in Mohini Jains case, Unni Krishnans case and in Inamdar P.A. vs. State of Maharashtra (2005 (4) CTC 81). It is apt to quote a passage from the address made by Honble Mr. Justice Shivaraj V. Patil, in New Delhi at the 10th Justice Sunanda Bhandare Memorial Lecture in 2004, which runs as under:
"Children are the supreme asset of any nation, they being the greatest gift to humanity. Children are the potential and useful human resources for the progress of the country. .... We should remember and remind ourselves that it is only strong knowledgeable and virtuous children who can make the country strong and great. "
17. Mr. Issac Mohanlal and Mr. Jerome and other counsel by pointing out the principles laid down in Mohini Jain, Unni Krishnan and TMA Pai Foundation cases, submitted that recognised Private Schools shall provide free education. The schools are set up with huge investments. No State funds are given either for construction or for maintenance. In such circumstances, they submitted, the State should at least provide Teaching Grant for salary of the staff, particularly in the wake of prohibition of collection of fee. It is also their claim that Private Schools are not business houses and they cannot survive without public funds. It is not possible to have Schools without State Aid, particularly in the wake of restriction on collection of fee. In this connection, they have placed heavy reliance on the following case-laws:
"(i) In Re The Kerala Education Bill (AIR 1958 SC 956);
(ii) St. Stephens College vs. University of Delhi (1992 (1) SCC 588); and
(iii) State of Tamil Nadu and 4 others vs. Melapalayam Muslim Magalir Kalvi Sangam (1997 (3) Law Weekly 94)."
18. Mr. R. Viduthalai, learned Advocate General placing relevant materials before us, highlighted that the impugned provision, viz., Section 14-A inserted by Section 6 read with Section 1(2)(b) of Tamil Nadu Recognised Private Schools (Regulation) Amendment Act, 1998 does not suffer from any unconstitutionality. At the foremost, he relied on the decision of the Supreme Court in the case of Menaka Gandhi vs. Union of India reported in AIR 1970 SC 597, decided by a Seven Judge Bench of the Honble Supreme Court, wherein it is held that the approach to be adopted by the Court in adjudging the constitutionality of a statute should be on the touchstone of fundamental rights. While answering the question, "What is the test or yardstick to be applied for determining whether a statute infringes a particular fundamental right"
After considering all earlier decisions, their Lordships have concluded, "68. ......The pith and substance theory was thus negatived in the clearest terms and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the state action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject-matter of the State action but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded. "
19. While considering the constitutionality of or interpreting any legislation, the following conclusion in Bombay Dyeing & Manufacturing Co., Ltd., vs. Bombay Environmental Action Group and others (2006 (3) SCC 434) is relevant:
"123. For the forgoing reasons, we are of the opinion that in cases where constitutionality and/or interpretation of any legislation, be it made by Parliament or an executive authority by way of delegated legislation, is in question, it would be idle to contend that a court of superior jurisdiction cannot exercise the power of judicial review. A distinction must be made between an executive decision laying down a policy and executive decision in exercise of its legislation-making power. A legislation be it made by Parliament/legislature or by the executive must be interpreted within the parameters of the well-known principles enunciated by this Court. Whether a legislation would be declared ultra vires or what would be the effect and purport of a legislation upon interpretation thereof will depend upon the legislation in question vis-a-vis the constitutional provisions and other relevant factors. ... "
20. In Peoples Union for Civil Liberties vs. Union of India [2004 (2) SCC 476], their Lordships have held that a statute carries with it a presumption of constitutionality and such a presumption extends also to a law which has been enacted for imposing reasonable restrictions in the fundamental right. Their Lordships have also held that a further presumption may also be drawn that the statutory authority would not exercise the power arbitrarily.
21. In the light of the above principles, now we have to see whether the restriction imposed by inserting Section 14-A viz., that no grant shall be paid to any class or course of instruction opened on or after the date of commencement of the academic year 1991-1992 in a private school in existence on the date of commencement of such academic year, is valid or not? The word "may" occurring in sub-section (1) makes it clear that the power to give Grant-in-aid to any Private School is a discretionary power vested in the Government. The grant is given subject to Government Orders and instructions issued from time to time under Rule 11 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The grant is given only to a recognised Private School and once the recognition is withdrawn, the School will not be entitled to any grant as laid down in Section 14 of the Act. When the grant is given to a school, it is implied that the School has accepted the conditions subject to which the grant is given and therefore, having accepted the conditions and terms, if an Institution does not carry out the instructions, the Government have the right to withhold the Grant-in-aide. No right is conferred on the Teachers or the Institution to claim that a particular condition of the grant should not be enforced. While the recognition of a private school is intended for the purpose of receiving aid from the Government and to train the students for appearing in the examinations conducted by the Government, it must follow that the recognition entitles the institution only to receive grant, but it does not confer a right on it to receive the grant. As rightly argued by the learned Advocate General, it is well settled that the right of education is a fundamental right as explained in Mohini Jain and Unni Krishnan cases (cited supra), but the right to receive Grant-in-aid from the State is neither a fundamental right nor a statutory right of Educational Institutions. In other words, it is purely a matter of subjective satisfaction of the Government.
22. In State of Orissa vs. Aswini Kumar Dash (1998 (3) SCC 613, the Honble Supreme Court has rejected the contention that the cut-off date prescribed is arbitrary and irrational. In that case, the Teachers in Aided non-governmental Colleges/Educational Institutions claimed revised pay scales recommended by the UGC on the basis of recommendations of the State of Orissa and Education and Youth Services Department dated 6.10.1989 and 6.11.1990. They objected to the note attached to para-2 of the Government Resolution dated 06.11.1990, as a result of which the higher scales of pay was given to Aided non-government colleges which had received Government concurrence and University affiliation for the opening of 3+Degree course by 01.04.1989 and not thereafter. The writ petitions filed by them were allowed by the Orissa High Court. The High Court struck down the note to para 2 of Government Resolution dated 06.11.1990 and held that the respondents are entitled to higher scales of pay. The State of Orissa filed an appeal before the Supreme Court. It was contended by the respondents, viz., Teachers that the cut-off date, 01.04.1989 prescribed in the said two resolutions is arbitrary and irrational. The appellant - State of Orissa pointed out that the resolutions dealt with the quantum of grant-in-aid which the State would provide, inter alia, to aided non-government colleges. The State would provide the revised scales of pay as per the University Grants Commissions recommendations. The State Government also framed a scheme for such grant-in-aid considering its own finances, resources and the number of educational institutions to which it was required to give such grant. Accepting the stand of the State of Orissa, the Supreme Court has held that no educational institution can claim grant-in-aid as a matter of right. This is a matter of policy, which the State Government will decide looking to its financial capacity and other relevant circumstances. Their Lordships have further held that since the entire burden of providing grants-in-aid is now on the State, the State may regulate, by policy, the extent of aid and the Colleges to which it will be given.
23. In Unni Krishnan vs. State of Andhra Pradesh (1993 (1) SCC 645, in para 226 (3) it is held that a citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State.
24. In T.M.A. Pai Foundation vs. State of Karnataka (2002 (8) SCC 481), while upholding the scheme framed in Unni Krishnans case and the directions therein, it is held to be unconstitutional that the primary education is a fundamental right. Their Lordships have further held that all citizens have a right to establish and administer educational institutions under Articles 19 (1)(g) and 26, however, subject to the provisions of Articles 19 (6) and 26 (a) of the Constitution.
25. In Islamic Academy of Education vs. State of Karnataka (2003 (6) SCC 697), the following conclusion of their Lordships is relevant.
"25. Privately managed educational institutions imparting professional education in the fields of medicine, dentistry and engineering have spurted in the last few decades. The right of the minorities to establish an institution of their own choice in terms of clause 91) of Article 30 of the Constitution of India is recognized; so is the right of a citizen who intends to establish an institution under Article 19 (1)(g) thereof. However, the fundamental right of a citizen to establish an educational institution and in particular a professional institution is not absolute. These rights are subject to regulations and laws imposing reasonable restrictions. Such reasonable restrictions in public interest can be imposed under clause (6) of Article 19 and regulations under Article 30 of the Constitution of India. The right to establish an educational institution, although guaranteed under the Constitution, recognition or affiliation is not. Recognition or affiliation of professional institutions must be in terms of the statute."
As stated earlier, Section 14(1) of the Act makes it clear that no private school shall, only on the ground that it has been granted recognition, be entitled to any grant or other financial assistance from the Government.
26. Mr. Issac Mohanlal and Mr. Jerome, learned counsel contended that the impugned amendment denies State aid to the Schools which were not given aid as on 31.05.1991, i.e., the date before the commencement of the academic year 1991-1992. According to them, this brings out discriminatory treatment among Schools / courses established and started even before 1991, viz., one set of schools would continue to receive State Aid and another set would continue without State Aid. They relied on the decision of the Supreme Court in the case of State of Maharashtra vs. Manubhai Pragaji Vashi (1995 (5) SCC 730), wherein, after finding that grants-in-aid to government recognised private law colleges were denied while extending such benefits to recognised private colleges with other faculties, viz., Arts, Science, Commerce, Engineering, Medicine etc., by the State of Maharashtra, their Lordships have held that recognized private law colleges alone were singled out for hostile discriminatory treatment in violation of Article 14. They have further held that paucity of funds can be no reason for such discrimination.
27. The learned counsel for the petitioners / appellants further contended that the crucial date of classification (commencement of the academic year 1991-92) is arbitrary and does not have any nexus to the object sought to be achieved and hence, it is unconstitutional. It is also contended that factually there is no discrimination between the schools/courses established before 1991-92 and after 1991-92 as all these schools are recognised and governed under the same Act and Rules.
28. In the counter affidavit filed by the Government it is explained that fixing of cut-off date, that is the commencement of academic year 1991-1992, from which Government decided not to grant aid is perfectly logical and in order. It is stated that it was during that period the Government faced severe financial constraints and therefore, the Government culminated in the decision not to grant financial assistance to Educational Institutions. The Supreme court in State of Rajasthan vs. Amitlal Gandhi (1971 (2) SCC 342) held that while fixing the pension scheme, the paying capacity of the State is a relevant consideration. Their Lordships further held that the stand of the Government justifying the cut-off date for the payment of pension was "wholly economic" and that it cannot be said that the paying capacity is not a relevant or valid consideration while fixing the cut-off date. In Tamil Nadu Electricity Board vs. R. Veerasamy (1999 (3) SCC 414), the Supreme Court approved the action of the Electricity Board in introducing pension scheme for the reason of financial constraints as well-founded and valid. A Constitution Bench of the Supreme Court, in ST. Stephens College vs. University of Delhi (AIR 1992 SC 1630) held that the minority institutions are entitled to be treated with reference to the financial assistance much the same way as the institutions of the majority communities. Their Lordships further held that the State should lay down reasonable conditions for obtaining grant-in-aid and for its proper utilisation. As rightly pointed out by the learned Advocate General, in the light of the principles laid down by the Supreme Court in the above judgments, it has to be held that the State Government is entitled to prescribe norms for the grant-in-aid to educational institutions keeping in view its financial conditions and the State Government has the power to issue administrative instructions relating to grant of recognition and aid, as recognised by this Court as well as the Supreme Court. Accordingly, any institution seeking recognition should therefore abide by the rules / norms / conditions prescribed by the State Government from time to time. The Management of educational institutions have established the institutions on their own without any compulsion from the State Government. In such circumstances, it is obligatory on their part to abide by rules for recognition framed by the State Government. The number of aided schools established from the year 1990-1991 and the financial commitment which has been steeply increasing have been demonstrated by the Government by furnishing facts and figures in Annexures I and II, filed along with their counter affidavit.
ANNEXURE I(i) S.No. Year PRIMARY MIDDLE P U schools Aided schools P U schools Aided schools No.of schools No.of teachers No.of schools No.of teachers No.of schools No.of teachers No.of schools No.of teachers 90-91 22254 64473 5093 28341 3055 23489 1918 27789 1 91-92 22278 65371 5112 29615 3031 23576 1913 27866 2 92-93 22359 66432 5124 29878 3071 23996 1901 27871 3 93-94 22598 67514 5116 29964 3053 23982 1904 27902 4 94-95 22589 67865 5147 30029 3062 24071 1880 27911 5 95-96 22614 67912 5154 30112 2998 24376 1878 27984 6 96-97 22998 68856 5149 30096 2984 25760 1876 28402 7 97-98 22998 68856 5149 30096 2984 25760 1876 28402 8 98-99 23030 69956 5262 31178 3070 24872 1836 28463 9 99-2000 23270 74911 5205 31017 3137 24874 1829 25272 10 2000-01 23276 76233 5250 30713 3206 27012 1799 23683 11 2001-02 23624 76124 5250 31720 3308 28616 1799 23433 12 2002-03 23813 77948 5252 28925 3863 29152 1805 22642 13 2003-04 24199 78660 5430 28925 4232 29551 1878 22642 14 2004-05 22613 70862 5576 28573 4615 30732 1656 19754 15 2005-06 21906 61009 5255 26108 5458 32262 1716 18383 The percentage of Panchayat Union Schools in the State in respect of Primary Schools is 80.65% The Percentage of aided schools in the State in respect of Primary Schools is 19.34% The Percentage of Aided Schools in the State in respect of Primary Schools is 23.91% The percentage of Panchayat Union Primary is 76.08% ANNEXURE I(ii) HIGH SCHOOLS Sl. No. Year Government Municipal Aided Unaided No.of schools No.of Teachers No.of schools No.of Teachers No.of schools No.of Teachers No.of schools No.of Teachers Total No. of All State Board Schools Total No.of All State Board Teachers 1 90-91 1864 83 4 2361 2 91-92 1872 83 352 66 2373 34994 3 92-93 1883 83 346 84 2396 35004 4 93-94 1889 83 346 94 2412 35004 5 94-95 1902 25946 83 1434 332 8285 121 2438 35665 6 95-96 1915 26132 87 1473 304 7954 139 2445 35559 7 96-97 1932 26164 88 1475 304 7957 140 2464 35596 8 97-98 1917 26002 94 1483 294 7928 144 2449 35413 9 98-99 1986 26236 94 1492 626 7068 96 1097 2802 35893 10 99-2000 2006 26556 103 1433 626 7068 104 1147 2839 36204 11 2000-01 2002 27204 112 1630 610 7268 135 1696 2859 37798 12 2001-02 1981 24083 108 1556 646 7822 179 855 2914 34318 13 2002-03 1964 23261 109 1539 646 7822 186 817 2905 33439 14 2003-04 1962 23293 111 1543 646 7822 215 817 2934 33475 15 2004-05 1963 23464 110 1401 646 7738 222 1128 2941 33731 16 2005-06 2016 22431 110 1730 613 7646 179 1507 2918 33314 ANNEXURE I (iii) HIGHER SECONDARY SCHOOLS Sl. No. Year Government Municipal Aided Unaided No.of schools No.of Teachers No.of schools No.of Teachers No.of schools No.of Teachers No.of schools No.of Teachers Total No. of All State Board Schools Total No.of All State Board Teachers 1 90-91 848 68 674 70 1660 2 91-92 869 68 674 88 1699 63644 3 92-93 879 68 674 94 1715 63979 4 93-94 891 68 674 98 1731 42329 5 94-95 903 30201 68 3852 674 31143 112 1757 65196 6 95-96 932 30547 69 3873 674 31583 140 1815 66003 7 96-97 1012 31747 70 3888 674 31808 155 1911 67443 8 97-98 1087 32442 75 3938 674 31933 183 2019 68313 9 98-99 1157 38229 78 3953 859 33483 29 1242 2133 76907 10 99-2000 1206 39040 80 3993 884 33483 46 1242 2216 77758 11 2000-01 1258 38744 81 4015 909 33630 68 1636 2316 79025 12 2001-02 1374 40801 90 4089 909 33630 74 916 2447 79436 13 2002-03 1507 42756 92 4128 909 33630 94 1440 2602 81954 14 2003-04 1547 42496 92 4128 909 33630 132 1440 2680 81694 15 2004-05 1576 44639 93 4168 909 33630 149 1884 2727 84321 16 2005-06 1696 50207 93 4068 1062 36851 139 3392 2990 94518 ANNEXURE II Expenditure details towards the salary for the Panchayat Union and Aided School Teachers Rs. in thousands S.No. Year Panchayat Union Schools Aided Schools Head of account Amount Rs.
Head of account Amount Rs.
191-92 2202-01-101-AC 3858587 2202-01-102-AD 2154224 2 92-93
-do-
4106268
-do-
2323743 3 93-94
-do-
4286174
-do-
2486184 4 94-95
-do-
4623889
-do-
2778890 5 95-96
-do-
5266571
-do-
3080350 6 96-97
-do-
6079817
-do-
3569743 7 97-98
-do-
7103519
-do-
4028815 8 98-99
-do-
9712299
-do-
5606642 9 99-2000
-do-
10614403
-do-
5964144 10 2000-01
-do-
10246534
-do-
5766565 11 2001-02
-do-
10020346
-do-
5696558 12 2002-03
-do-
9419399
-do-
5436887 13 2003-04
-do-
9025902
-do-
5323186 14 2004-05
-do-
10033869
-do-
5605637 10441918 5667928 16109846 Expenditure for Panchayat Union and Aided Schools for the year 2005-2006. Rs.1,61,09,846.
The Commitment of the Government which was Rs.6012811 (Rupees Six hundred and one Crore Twenty eight lakhs and eleven thousand only) has now become one thousand six hundred and ten crores ninety eight lakhs and forty six thousand.
29. It is demonstrated before us that consequent on the imparting of free education from the year 1964-65, quite large number of management came forward to open new Elementary Schools and to upgrade elementary schools into middle schools; middle schools into High Schools; and High Schools into Higher Secondary Schools. The Government had therefore, to sanction numerous posts and consequently pay grant to those schools. It is also brought to our notice that, after 1960, the Government implemented the Second Pay Commission in 1970, the Third Pay Commission in 1978 and the Fourth Pay Commission in 1984. Thus, the salary of teachers has been increased manifold consequent on the implementation of revised scales of pay of teachers. The financial burden of the Government has also got increased by leaps and bounds year after year. It is also highlighted that in spite of the same, the Government has been maintaining payment of aid to all the recognised institutions for the cause of education, notwithstanding the fact that major portion of the budget allocation earmarked for education is being spent for salary items, leaving a meager portion for other welfare schemes.
30. It is also demonstrated that after the implementation of the Fifth Pay Commission during 1988, the salary of teachers has got increased enormously. It is stated that because of huge amount involved, even the Pay Commission arrears could not be paid immediately. Therefore, the Government thought it fit to postpone the payment of aid for a period of three years in respect of new schools / higher classes in the existing schools for which recognition was sought. Accordingly, in letter No.56102/R3/88-2 Education dated 29.06.1989, the Government issued orders to grant recognition without aid for three years making it known that aid would be given only from 01.06.1994. Even after three years, since the financial position of the Government did not improve and continued to be critical and the Government was at the peak of its financial crisis, Government took a policy decision not to give financial assistance to the schools started from 1991-92. The Government also took a decision that recognition would be granted to such institutions giving an undertaking that they would not seek grant for ever. Accordingly, only schools giving an undertaking that they would start schools or upgrade schools with higher classes without seeking aid from the Government forever were given opening permission and recognition.
31. Though learned counsel for the petitioners/ appellants vehemently contended that the impugned provision violates the fundamental rights; Articles 21 and 21-A in particular, learned Advocate General, by placing more statistical particulars before us, submitted that the mandate under Article 21-A has been fulfilled by the State Government. He also pressed into service Annexure IV, which refers Gross Access Rate.
Annexure IV(i) SCHOOL ACCESS GROSS ACCESS RATE (GAR) PRIMARY Year Habitations Served with upper primary schools Unserved habitations GAR 2001-2002 64751 62883 1868 97.10 2002-2003 64846 64105 741 98.90 2003-2004 64846 64846 ** 100 2004-2005 64846 64846 ** 100 2005-2006 64846 64846 ** 100 Annexure IV(ii) Annexure IV(iii) GROSS ACCESS RATE (GAR) UPPER PRIMARY Year Habitations Served with upper primary schools Unserved habitations GAR 2001-2002 64751 60715 4036 93.80 2002-2003 64846 62971 1875 97.30 2003-2004 64846 61168 678 98.83 2004-2005 64846 64846 ** 100 2005-2006 64846 64846 ** 100
32. The graphical statements and other particulars in Annexure-IV [(i) to (iv)] referred to above indicate that the Gross Access Rate is 100% from the year 2003-2004 in respect of Primary Schools and from the year 2004-2005 in respect of Upper Primary Schools. There is no reason to reject the statistics furnished by the Government in the form of Annexures along with the counter affidavit. The statistics also show that the State is fulfilling its fundamental duty mandated under Constitution in a satisfactory manner. It is also relevant to mention that even though the amendment was made in 1991-92, the fact that State Government was able to achieve Gross Access Rate in 2003-2004 itself shows the efforts taken by the State in fulfilling its fundamental duty to make free education a reality. Learned Advocate General also highlighted that if literacy rate in Tamil Nadu is compared with that of other States, the State of Tamil Nadu is a pioneer in advocating free education policy.
33. It is not in dispute that no Government School or Aided School has denied the right of imparting free education to the children. In fact, there is no allegation to the effect that the Government is refusing to admit or provide education to the children below 14 years. As rightly observed by the learned single Judge, it is the writ petitioners, who voluntarily started new schools in the area, which, according to them, are backward and since they wanted to provide free education without seeking the aid, the Government considered their request and granted recognition.
34. The particulars furnished also show that Grand-in-Aid by the State to the educational institutions is a matter which depends upon the economic capacity and decisions of the State. The above view has been reiterated in Mohini Jain as well as Unnikrishnan case (cited supra) by the Honble Supreme Court. Annexure II referred to above indicates the expenditure details towards the salary for the Panchayat Union and Aided School Teachers. The expenditure for the year 2005-2006 is stated to be Rs.1,61,09,846/-.
35. Annexure III indicates the expenditure details, if the schools started after 1991-1992 are paid Government aid wherein it is stated that the expenditure for one month would be Rs.1,32,45,168/- and for one year would be Rs.15,89,42,016/-. In the earlier part of our order, we have already mentioned about the implementation of Pay Commission recommendations and consequential increase in the salary of teachers many folds. It is useful to refer details furnished in ANNEXURE III.
ANNEXURE III PRIMARY SCHOOLS S.No Schools Management-wise No.of schools No.of students No. of required teachers 1 Minority Self Finance Primary schools.
61 2Minority Partly self Finance Primary schools 06 23340 589 3 Non Minority Self Finance schools 106 4 Non minority partly self finance Primary schools
--
Total 173 23340 589 MIDDLE SCHOOLS S.No Schools Management-wise No.of schools Students steength No.of teachers 1-5 6-8 BT Secy Total 1 Minority Self Finance Primary schools.
30 2Minority Partly self Finance Primary schools 26 3 Non Minority Self Finance schools 39 4 Non minority partly self finance Primary schools 31 6625 20406 502 163 665 Total 126 6625 20406 502 163 665 If the schools started after 1991-92 are paid Government aid, the expenditure for one month to Government will be as follows:
1.
173Primary school Headmaster post expenditure 11108 x 173 19,21,684
2. 416 Secondary Grade Teacher post(for Primary schools) expenditure 9420 x 416 39,18,720
3. 163 Secondary Grade Teacher post 9420 x 163 15,35,460
4. 126 BT Headmasters Post (for Middle Schools) expenditure 12324x 126 15,52,824
5. 376 BT Teacher post (for Middle Schools) expenditure 11480x 376 43,16,480 Total No. of teachers 1254 1,32,45,168 Therefore, it is stated that expenditure or 1254 teachers for one month will come to Rs.1,32,45,168/- and for 12 months it will be Rs.15,89,42,016/- as additional expenditure to Government allows grant to unaided institutions.
36. It is the claim of the learned Advocate General that since the State Government has taken a policy decision not to grant Aid to recognised private schools established on or after the academic year 1991-1992, the same cannot be lightly interfered with by the Court. In other words, according to him, the policy decisions are exclusively within the executive domain. By drawing our attention to the statistics furnished in Annexure IV that the State Government has achieved 100% Gross Access Rate in primary school level in the year 2003 itself, learned Advocate General submitted that while fulfilling the constitutional mandate of providing free education to all children, it is not in need of any more private schools to achieve the goal. By showing those details, the learned Advocate General has requested that the economic situation which the State is facing must be viewed in the light of judgment of Apex Court in Unnikrishnan case (cited supra). The following conclusion of their Lordships is relevant.
"181. Right to education after the children/citizen completes the age of 14 years. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from Part IV to Part III - we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State. "
37. In State of Rajasthan vs. Amritlal Gandhi (1997 (2) SCC 342, the Supreme court has held that financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In that decision, their Lordships have held that paying capacity is a relevant consideration.
38. The learned counsel for the petitioners / appellants next argued that the impugned provisions would frustrate the Scheme enunciated in the Act and Rules. According to them, free education policy is the hub on which the whole scheme rests and as a corollary, the collection of fee, charge or donation is prohibited. In support of the above contention, they also pressed into service Sections 32(2) and Rules 9(2)(e) and 23 of the Act and Rules. As per sub-section (2) of Section 32, only on prior approval of the competent authority, the Private Schools are permitted to continue to levy fees or charges. Rule 9(2)(e) makes it clear that the educational agency shall not compulsorily collect fees or donation other than those permitted by the competent authority under Rule 23 from pupils or parents or any other persons for any purpose. On going through the entire Scheme of the Act, including the relevant provisions of the Act and Rules, we are satisfied that the amended provisions do not frustrate the Scheme of the Act. Regard may also be had to Sections 14(1), 5(2)(c)(vi), 5A(2)(c)(vii) of the Act and Rules 11 (1) and 11(5) (i) of the Rules. As pointed out, under Sections 5(2)(c)(vi) and 5A((2)(c)(vii), the application for permission to start a private school must indicate the source of income to ensure the financial stability of Private School. That is why, in the application the person intending start a new private school have to furnish his financial capacity/stability. Therefore, the contra argument made by the learned counsel for the petitioners / appellants cannot be accepted.
39. If the Government allowed grant to unaided institution, it has to incur the following expenditure.
Abstract (1) Sl.No Schools Management-wise Rs.Per Month 1 For fully Un-aided High schools expenditure for teaching staff per month 1,64,39,360 2 For partly Un-aided high Schools the expenditure for teaching staff per month 1,38,90,800 3 For Fully Un-Aided higher Secondary Schools Expenditure for teaching staff per month 3,01,47,710 4 For partly un-Aided Higher Secondary Schools the expenditure for teaching staff per month 4,83,49,250 5 For fully & partly Un-Aided high & Higher Secondary Schools the expenditure for Non-teaching staff per month 1,60,75,125 Total per month 12,49,02,245 Therefore it is stated that the expenditure for one month is Rs.12,49,02,245/- and for 12 months, it will be Rs.149,88,26,940/- as additional expenditure to Government if the Government allow grant to Un-Aided institutions. Abstract (2) HIGH SCHOOLS S.No. Schools-Management wise No.of schools No.of required teachers Expenditure in crores 1 Fully Un-aided High Schools 179 1432 19.73 2 Partly Un-aided High schools 242 1210 16.67 Higher Secondary Schools 1 Fully Un-Aided Higher Secondary Schools 139 2363 36.18 2 Partly Un-Aided Higher Secondary Schools 265 3710 56.02 Abstract (3) If the School started after 1991-92 are paid Government aid, the expenditure for one month to Government will be as follows:
(a) Fully Un-Aided High Schools No. of Un-Aided High Schools -179 Expenditure for one month Rs.1
For one Head master post per school the expenditure 179 x 1 x 13540=24,23,660 2 For 5 BT Assistant Post per School, the expenditure 179 x5x11480=1,02,74,6700 3 For 1 Tamil Pandit post the expenditure 179x x 11480 = 20,54,920 4 For 1 PET Post the expenditure 179 x 1 x 9420=16,86,180 Total 1,64,39,360 (For 12 months, the expenditure will be Rs.19,72,72,320)
(b) Partly Un-Aided High Schools No. of Partly Un-Aided High Schools 242 Expenditure for one month Rs.
1For one Head master post per school the expenditure 242 x 1 x 13540=32,76,680 2 For 2 BT Assistant Post per School, the expenditure 242 x2x11480=55,56,320 3 For 1 Tamil Pandit post the expenditure 242 x1x 11480 = 27,78,160 4 For 1 PET Post the expenditure 242x1x9420=22,79,640 Total 1,38,90,800 (For 12 months, the expenditure will be Rs.16,66,89,600) Abstract (4)
(a) Fully Un-Aided Higher Secondary Schools No.of Un-Aided Higher Secondary Schools 139 Expenditure for one month -Rs.
1For one Head master Post per School-the expenditure 139x1x16730 = 23,25,470 2 For 8 P.G. Assistant post per School the expenditure 139x8x13540 = 1,50,56,480 3 For one Physical Director 139x1x13540 = 18,82,060 4 For 5 B.T. Assistant 139x5x11480 = 79,78,600 5 For 1 Tamil Pandit post the expenditure 139x1x11480 = 15,95,720 6 For 1 Physical Education Teacher 139x1x9420 = 13,09,380 Total 3,01,47,710 (For 12 months the expenditure will be Rs.36,17,72,520)
(b) Partly Un-Aided Higher Secondary Schools No. of partly un-aided Higher Secondary Schools 265 Expenditure for one month -Rs.
1For one Head master Post per school the expenditure 265x1x16730 = 44,33,450 2 For 8 P.G. Assistant post per school the expenditure 265x8x13540 = 2,87,04,800 3 For one Physical Director per school 265x1x13540= 35,88,100 4 For 2 B.T. Assistant 265x2x11480 = 60,34,400 5 For 1 Tamil Pandit post the expenditure 265x1x11480 = 30,42,200 6 For 1 Physical Education Teacher 265x1x94240 = 24,96,300 Total 4,83,49,250 (For 12 Months the expenditure will be Rs.58,01,91,000/-)
5.Non-teaching post of High & Higher Secondary Schools (Fully & Partly Un-Aided High & Higher Secondary Schools) S.No Name of Post No.of schoos Expenditure 1 Junior Assistant one post per School 825x1x5450 44,98,250 2 Record Clerk one post per School 825x1x4743 39,12,975 3 Office Assistant one post per school 825x1x4646 38,32,950 4 Watchman one post per school 6825x1x464 36,32,950 Total 1,60,75,125 (For 12 months the expenditure will be Rs.19,29,01,500/-)
40. Now, let us consider the undertaking given by the Schools at the time of Grant of Recognition and whether the same would operate as estoppel against them. The learned counsel for the petitioners / appellants vehemently contended that the undertaking given by the Schools at the time of granting recognition are non-est in law, inasmuch as they obtained consent without any statutory basis, such undertaking cannot operate as estoppel against the plea of discrimination and violation of constitutional rights.
41. In support of the above contention, the judgment of this Court in Roman Catholic Society vs. The Government of Tamil Nadu (1991 WLR 1300) was pressed into service. When similar stand was taken on behalf of the State, the Division Bench refused to accept the same and expressed that what Article 30 enshrines as a fundamental right, cannot be bartered away or surrendered by any voluntary act and it cannot be waived. The Bench further held that, while there may not be a fundamental right to aid, yet, if in the matter of grant of aid, the State chooses to discriminate, the voice of protest in this behalf by the aggrieved minority cannot be stifled on any principle of waiver. It is stated on the side of the State that the said decision is under challenge by way of an appeal and the same is pending before the Supreme Court. Even otherwise, as pointed out by the learned Advocate General, the amended provision is applicable to all the private schools, including the minority, hence, the said decision is not helpful to the case on hand.
42. In North Coorg Higher Education Society vs. State of Karnataka (AIR 1996 Karnataka 301), the learned single Judge has observed that the grant could not be refused on the ground that the institution had given undertaking that it would never claim any grant. The learned Judge further observed that the said undertaking is against the Rules. It is not in dispute that in the case on hand, there is no such rule or statute, hence, the said decision is also not helpful to the petitioners case.
43. In C. Manonmony vs. State of Tamil Nadu (2006 (3) MLJ 242), the learned single Judge has held that want of finance cannot be a ground to deny the sanction of post to an Aided School and the same is not with reference to the undertaking given at the time of recognition. At this juncture, it is useful to refer the stand of the Government as explained in para-16 of the counter affidavit, wherein it is stated that the implementation of Fifth Pay Commission, 1988 led to a hike in the pay of teachers as never before, which is an added financial burden to the State exchequer. It is also stated that a large number of management applied for starting schools during 1991-92 and it was just not possible for the Government to grant recognition with aid because of paucity of funds and as the Government was at the peak of its financial crisis, it took a policy decision not to give financial assistance to the schools started from 1991-92. It is further stated that the Government took a decision that recognition would be granted to such institutions which give an undertaking that they are not seeking grant and will not seek grant forever. Accordingly, only schools which gave an undertaking that they were willing to start school or to upgrade school with higher classes without seeking aid from Government forever were given opening permission and recognition. The Government in their letter Ms.No.89 Education (R1) Department, dated 29.01.1993 approved an agreement form, in which the management of private unaided primary/middle/high/higher secondary schools, which seek permission to open new schools/recognition for newly started schools/recognition for existing schools which have been upgraded, had to enter into an agreement with the Director of School Education, giving an undertaking for the non-claim of aid from the Government forever.
44. According to the Government, the management, which wanted to start schools from 1991-92 were well aware of the fact that Government would not grant any aid, and voluntarily came forward to start schools in spite of the condition imposed by the Government. The management gave the undertaking that they would not claim aid and obtained opening permission followed by recognition. With total conscious of the implications of the condition imposed by the Government and the undertaking given, the management came forward to start schools. In such circumstances, as rightly pointed out, the Government did not thrust anything on the management. It is also brought to our notice that all institutions, whether minority or non-minority have been granted recognition without aid forever and there is no discrimination in this regard. True it is, the undertakings given by the management are not binding, however, it cannot be claimed that the management of schools are not aware of the circumstances. We have already explained the circumstances under which the Government brought in the impugned amendment which is applied to all, whether minority or non-minority institutions. In view of the reasons and position of the Government in financial aspects as well as of the fact that the Government reached the 100% Gross Access Rate even in 2003-2004 with the existing schools, we are unable to accept the claim made by the learned counsel for the petitioners / appellants.
45. With regard to the contention relating to the violation of Articles 30 (1) and (2) of the Constitution, it is the definite case of the State that it has in no way infringed the right of minorities to establish and administer educational institutions of their choice under Article 30(1). As rightly argued by the learned Advocate General, it is not correct to say that the right to establish and administer educational institutions of their choice includes the right to receive grant-in-aid for such establishment and administration as it would amount to reading too much into the provision. Grant-in-aid is an economic concept that would always depend upon the subjective satisfaction, financial stability and resources as well as the discretion of the State Government. It is also a matter of policy decision within the domain of the executive and not a matter of principle to be laid down by the legislature.
46. Article 30(2) only speaks about non-discrimination between minorities and non-minorities in the subject of grant-in-aid. The policy of the State Government covers all private schools on or after 1991-92 or those in existence during the academic year 1991-92, but not receiving aid before 1991-92, uniformly without any reference to their minority or non-minority status. Thus, we are satisfied that Article 30(2) is not attracted.
47. Annexure III gives an overall view of the number of schools opened from the academic year 1991-92 and granted recognition so far with details of additional expenditure that Government will have to incur if aid is paid. The number of Aided Schools established from the year 1990-91 and the financial commitment which has been steeply increasing are clearly shown in Annexure I and II. The number of Primary and Middle Schools opened over the past five years and the Gross Access Rate are furnished in Annexure IV. These figures clearly indicate that the Government is always keen in opening schools depending on the need of the locality and it has never waited for the management to open schools.
48. As rightly pointed out, the recognition cannot be linked with aid and the recognition is not a pre-condition for aid, nor is aid a precondition for recognition. The State has all powers to enforce norms and impose conditions as a pre-requisite for recognition. As discussed earlier, aid is not automatic and cannot be claimed as a matter of right. The facts and figures furnished in the Annexures which we have already referred to in the earlier part of our order clearly show that the State has been fulfilling its obligation under Article 45 of the constitution safeguarding the fundamental right to education and the management cannot claim that in order to help the State to fulfill its Constitutional obligation, aid must be granted to their schools.
Under these circumstances, we hold that the impugned provision, viz., Section 14-A of the Tamil Nadu Recognised Private Schools (Regulation) Act does not violate any of the provisions of the Constitution and the same is constitutionally valid. Grant-in-aid is neither a fundamental right, nor a statutory right and it depends upon the economic capacity of the State. There is no allegation or dispute as to the fact that the Government is providing free education to the children below 14 years. The particulars furnished show that no Government School or Aided School is denied the right of imparting free education to the children. The State Government, taking note of various aspects including the fact that it has achieved Gross Access Rate in the year 2003-2004 itself in fulfilling the constitutional mandate of providing free education to all children and that it is not in need of any more Private Schools in its efforts to achieve the goal of providing free education, has taken a policy decision not to grant aid to private schools established on or after the academic year 1991-92. Inasmuch as the policy decisions are exclusively within the executive domain and in the light of the facts and figures furnished in the Annexures which we have referred to in the earlier paragraphs, we are satisfied that there is no merit in the claim made by the petitioners. Consequently, the writ appeals as well as writ petitions filed by the Educational Institutions and others fail and they are, accordingly, dismissed. No costs. Connected WP.M.Ps. are closed.
Kh To
1. The Secretary, Education Science and Technology Department, Government of Tamil Nadu Fort St. George, Chennai 600 009.
2. The Director of Elementary Education College Road, Chennai 600 006.
3. The District Elementary Educational Officer, Tirunelveli 2, Tirunelveli Kattabomman District.
4. The Assistant Educational Officer Nanguneri Range, Nanguneri Post Tirunelveli Kattabomman District.
[PRV/8452]