Andhra HC (Pre-Telangana)
Md. Ghouse vs The Correspondent, Dakshina Bharat ... on 18 August, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The Writ Appeal and the Writ Petition involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.
2. Whether Dakshina Bharat Hindi Prachara Sabha (for convenience sake hereinafter referred to as 'Sabha') is a State or deemed University is the question involved in these two matters.
3. The question arose in the following circumstances:
The Sabha issued a notification on 13.6.2000 calling for applications for admission into B.Ed., (Hindi Medium) regular course. The appellant-writ petitioner in W.A.No.1703 of 2000 applied for the same and was successful in the entrance examination conducted on 5.7.2000. The Principal of the Sabha issued a letter dated 29.7.2000 informing him that he has been provisionally selected and directed him to contact him for fee particulars. When he approached the Principal with all the relevant certificates, he was directed to pay a sum of Rs.,25,000/- towards admission fee. It is the case of the appellant that originally the Sabha was collecting Rs.750/- towards admission fee which was enhanced to Rs.6,000/- during the academic year 1998-99 and now it was enhanced to Rs.25,000/-. It was contended that the Sabha having been established with the aid of the Government of India couldn't be permitted to collect such huge amounts.
4. Therefore, the appellant prayed for issuance of a writ or order in the nature of writ of mandamus directing the respondents 1 to 3 to give him admission into B.Ed., (Hindi Medium) course in the academic year 2000-01.
5. The learned single Judge dismissed the Writ Petition holding that Sabha is an institution functioning under the Central Act 14 of 1964 and does not come within the ambit and purview of State Act 5 of 1983 or Rules promulgated thereunder by the Government of Andhra Pradesh and neither State Government nor the Commissioner of School Education can exercise any control over the affairs of the Sabha and accordingly dismissed the writ petition.
6. Writ Petition No.7304 of 2001 is filed by eight petitioners who are pursuing B.Ed., course in Sabha for the academic year 2000-2001. At the time of admission into the course they were asked to pay Rs.25,000/- and they paid part of the said fees ranging from Rs.10,000 to Rs.15,000/- However, they were not issued application forms for appearing the examination on the ground that they did not pay arrears of tuition fee. According to the petitioners, the Sabha has to charge fee only as fixed by the State Government/University as contemplated by National Council for Teacher Education Act, 1993 and not otherwise. The Government of A.P. issued G.O.Ms.No.91 Education CSE T.R.G.I Dept. dated 5.8.2000 fixing fee of Rs.3,800/- P.A. in aided B.Ed. Colleges, Rs.10,800/- P.A. in unaided B.Ed., Colleges and Rs.260/- in Govt. B.Ed., Colleges. Therefore, the Sabha cannot demand Rs.25,000/- as tuition fee.
7. The question that arose before the learned single Judge is as to whether the Sabha comes within the purview of Act No.5 of 1983 known as A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. It is not in dispute that admission fee prescribed by Sabha is Rs.25,000/- whereas the State has prescribed only a sum of Rs.10,000/- in respect of unaided B.Ed., colleges.
8. The Sabha was constituted under Dakshina Bhrat Hindi Prachar Sabha Act, 1964 (Act No.14 of 1964) whereby and whereunder it was declared to be an institution of national importance. It was empowered to grant degrees, diplomas and certificates for developing and promoting proficiency in Hindi and in the teaching of Hindi. It, however, stands admitted that it does not get any aid or fund from the respondents 4 and 5.
9. Sections 3, 4 and 5 of Act No.14 of 1964 are as follows:
3. Whereas the objects of the institution known as the Dakshina Bharat Hindi prachar Sabha are such as to make it an institution of natioinal importance, it it s hereby declared that the Dakshina Bharat Hindi Prchar Sabha is an institution of national importance.
4. Notwithstanding anything contained in the University Grants Commission Act, 1956, or in any other law for the time being infor force, the Sabha may hold such examinations and grant such degrees, diplomas and certificates for proficiency in Hindi or in the teaching of Hindi as may be determined by the Sabha from time to time.
5. (1) The Sabha shall maintain proper accounts and other relevant records and prepare an annual statement of accounts including the balance sheet in such form as may be prescribed by the Central Government.
(2) The accounts of the Sabha shall, once at least in every year, be audited by chartered accountant in practice within the meaning of the Chartered Accountants Act, 1949, to be appointed annually by the Sabha.
Provided that no member of the Sabha who is chartered Accountant or a person who is in partnership with such member, shall be eligible fr appointment as an auditor under this section.
(3) Every auditor shall, in the performance of his duties, have at all reasonable times access to the registers, books of account, records and other documents of the Sanbha or of any committee, council, board or branch of the Sabha.
(4) As soon as may be practicable t the end of each year, the auditors shall submit their report to the Sabha and shall also forward a copy thereof to the Central Government for its information.
10. According to Mr. Nuty Ramamohan Rao, learned counsel appearing on behalf of the respondents, Sabha is a deemed university as it is entitled to award degrees or diplomas. It has further been submitted that having regard to the fact that Parliament has enacted National Council for Teacher Education Act, 1993 (Act 73 of 1993) the entire field is occupied by the central legislation including as regards fee structure. Section 12 of the said Act so far it is relevant for the purpose reads as follows:
It shall be the duty of the Council t take all such steps as it may think fit for ensuring planned and co-coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may:
(e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;
(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training.
(h) lay down guidelines regarding tuition fees and other fees chargeable by recognized institutions.
11. It may be noted herein that the Government of Andhra Pradesh by reason pf G.O.Ms.No.68 Education (Training-1) Department dated 10.5.1995 has recognized the B.Ed., degree (Hindi medium) conducted by Sabha as equivalent to that of B.Ed., degree of the Universities in Andhra Pradesh State and also for the purpose of appointment/promotion in schools in the Andhra Pradesh.
12. The norms and standards for teacher education institutions have been published by the National Council for Teacher Education, which, inter alia, provides for salient features of an institution of Secondary Teacher Education. Clause 5.4 thereof reads thus:
All staff shall be appointed on full time and regular basis. Properly constituted Selection Committee will select the candidates for all positions. In the Selection Committee for teaching staff, there should be one nominee of the NCTE and at least one of the University/the Government as required by local rules.
13. The salary structure of teaching staff should be as per UGC norms.
Clause 8.3, which deals with fee structure and scholarship, reads thus:
8.3 Fee Structure and Scholarship.
14. Essential:
The fee structure should be as decided by State Government/University, from time to time, subject to the condition that the total annual receipts from student does not exceed the total recurring expenditure of the institution for the course and that the individual fee doesn't exceed the per student recurring expenditure as estimated by NCTE.
15. Desirable:
Provision of some free-studentship for meritorious poor students. Provision of some scholarships on the basis of merit.
16. In exercise of the power conferred under section 14(3)(a) which deals with recognition of teacher education institutions, the Southern Regional Committee of National Council for Teacher Education, a statutory body of Government of India, issued an order dated 11.7.2000 granting recognition to Dakshin Bharat Hindi Prachar Sabha College and Pracharak Vidyalaya, Machavaram, Vijayawada, Andhra Pradesh to B.Ed., course of one year duration from the academic session 2000-2001. Paragraph 5 of the said order clearly stipulates as under:
Tuition fee and other fees will be charged from the students as per the norms of the affiliating University/State Government till such time NCTE regulations in respect of fee structure come into force.
17. The State of Andhra Pradesh has enacted Act No.5 of 1983 to provide for regulation of admissions into Educational Institutions and to prohibit the collection of capitation fee in the State of Andhra Pradesh. Section 7 deals with regulation of fees.
18. The State Government in exercise of the powers under Section 7(1) of the Capitation Fee Act, issued orders in G.O.Ms.No.91 Education Department dated 5.8.2000 regulating the fee structure in Private aided and un-aided Colleges of Education. The notification issued thereunder reads as follows:
In exercise of the powers conferred by sub-section (1) of Section 7 of the Andhra Pradesh Educational institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No.5 of 1983) and in modification of the orders issued in G.O.ms.No.16 Education Department dated 16th January, 1991, the Governor of Andhra Pradesh hereby prescribe the revised pattern of tuition fee and special fee to be levied and collected by the colleges of Education in the State with effect from the academic year 2000-2001 as specified hereunder:
Aided B.Ed. Colleges Unaided Bed Colleges Govt. B.Ed. Colleges Tuition fee Rs.3000/- P.A. Rs.10,000/- P.A. Rs.130/- P.A. Special fee Rs.. 800/- P.A Rs. 800/- P.A. Rs.130/- P.A.
19. The learned counsel appearing on behalf of the appellant, inter alia, submitted that Sabha had sufficient funds, which would appear from the undertaking given by the Dakshina Bharat Hindi Prachar Sabha, Madras dated 15.11.1999 given to the Member Scretary, NCTE, New Delhi for the purpose of grant of recognition for conducting B.Ed., course by the Sabha. The said undertaking reads as follows.
20. I, R.F. Neeralkatti, Registrar, Dakshina Bharat Hindi Prachar Sabha, T. Nagar, Madras which is declared an Institution of National Importance (Central Act 14 of 1964) and, therefore, has a University status, do hereby solemnly declare that the Sabha has sufficient funds to meet the recurring and non-recurring expenses of all its constitutent B.Ed., Colleges in Tamil Nadu, Kerala, Andhra Pradesh and Karnataka, and undertake to provide adequate funds to all these constituent B.Ed., Colleges as required by Clause 5.1 of the NCTE norms Secondary (B.Ed., )1998 to meet their recurring and non-recurring expenses.
21. Our attention has also been drawn to the scheme of financial assistance given by the Government of India in relation to various organizations of Sabha as would appear from the letter dated 19.3.1996 of the Administrative Officer, Central Hindi Directorate under Ministry of Human Resource Development, Department of Education addressed to the Accounts Officer, pay and Accounts Officer, New Delhi. Para 5 of the said letter relates to the B.Ed., Colleges of Sabha which reads as follows:
I am directed to say that under the scheme of financial assistance to voluntary organizations for promotion of Hindi, the Government of India have approved a grant of Rs.31,97,200/ (Rupees thirty one lakhs ninety seven thousand and two hundred only) to be paid to the Dakshina Bhrat Hindi Prachar Sabha, T. Nagar, Madras for implementation of the following programmes in different centers during 1996-96 on the basis of 100% of approved expenditure of Rs.31,97,200/- as per details given below:
5. Continuing B.Ed., Colleges at Madras, Hyderabad, Vijayawada, Bangalore, Dharwar, Balgaum, Mangalore, Ernaculam, Trivandrum and Tiruchirapally.
a) Hon. To Principal @ Rs.5326 x 12 x 1 ... Rs.63,912/-
b) Hon. To Lecturers @ 3336 x 12 x 2 ... 80,544/-
c) Hon. To Clerk @ 800 x 12 x 1 ... 9,600/-
d) Hon to peon @ 500 x 12 x 1 ... 6,000/-
e) Building rent 12,000/-
f) Miscellaneous expenditure. 8,000/-
----------------
1,88,056/- x 10 = 18,00,560
Less 2,40,000/-
_____________
15,60,560/-
_____________
22. The contention of Sabha, on the other hand, is that it had to pay huge amounts by way of salaries to the staff as in terms of the letter of recognition and affiliation issued by the NCTE recognizing B.Ed., course conducted by the Sabha, it has to employ the staff on regular scale of pay as per the norms and standards of NCTE. It was submitted that only some, meagre grants had been sanctioned by the Central Government which do not meet the overall expenditure of the institution. It has further been submitted that whereas Rs.10,000/- fixed by the State is towards admission fee alone, the sum of Rs.25,000/- being demanded by the Sabha includes several other expenses such as for teaching aids, lesson plan and observation records fee, excursion fee etc. and the students except for boarding need not incur any further expenditure.
23. Educational institution as such cannot be treated as a State although it was declared to be an institution of excellence by a Parliamentary Act. It, however, does not mean that a writ petition would not be maintainable against it inasmuch as Sabha is carrying on certain functions in terms of the provisions of a statute.
24. Before adverting to the aforementioned question, the submission of Mr. Ramamohan Rao to the effect that the entire field is covered in terms of entries 62, 63, 64 and 65 of List I Seventh Schedule of the Constitution may be examined. Entry 25 of List III reads thus:
Education, including technical education, medical education and universities, subject to the provisions of entries, 63, 64, 65 and 66 of List I; vocational and technical training of labour.
25. However, in our opinion, it may not be necessary to delve deep into the matter having regard to the fact that the matter has since been considered by a Full Bench of this Court in SRI KONASEEMA CO.P. CENTRAL BANK LTD. v N. SEETHARAMA RAJU1 wherein the law has been laid down in the following terms:
If a particular cooperative society can be characterized as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would be an 'authority' within the meaning, and for the purpose, of Arti.226 of the Constitution. In such a situation, an order passed by a Society against its employee in violation of the bye-laws, can be corrected by way of a writ petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service conditions of its employees, the Society must follow them, in the interest of fairness. If it is left to the sweet will and pleasure of the Society either to follow r not t follow the bye-laws, it would be inherently arbitrary, and may very likely give rise to discriminatory treatment. A society, which is a 'State' has to act in conformity with Art.14 and, for that reason, it will be made to follow the bye-laws.
26. Even if a Society cannot be characterized as a 'State' within the meaning of Art.12, even so a writ would lie against it to enforce a statutory public duty, which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the questions whether the Society is being treated as a 'person' or an 'authority' within the meaning of rt.226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court will enforce such statutory public duty.
27. The bye-laws made by a co-operative society registered under the A.P. Cooperative Societies Act do not have the force of law. They are in the nature of contract, terms of contract, between the society and its employees, or between the Society and its members, as the case may be. Hence, where a society cannot be characterized as a 'State', the service conditions of its employees, governed by bye-laws cannot be enforced through a writ petition. However, in the after of termination of service of the employees of a cooperative society, S.47 of the A.P. Shops and Establishments Act provides a certain protection, and since the said protection is based upon public policy, it will be enforced, in an appropriate case, by Court under Art.226 of the Constitution. Ordinarily, of course, an employee has to follow the remedies provided by the A.P. Shops and Establishments Act; but, in an appropriate case, this Court will interfere under Arti.226 if the violation of a statutory public duty is established. It is immaterial which Act or Rule casts such a statutory public duty.
28. In any event, as noticed hereinbefore, the matter relating to teachers education although may assume to be covered in its entirety by Central Act 73 of 1993, by reason of the provisions of the said Act, as per paragraph 5 of the letter of recognition issued by NCTE dated 11.7.2000, it is the fees prescribed by the State Government or the affiliating University which shall be applicable till such time NCTE regulations in respect of fee structure comes into force. No material has been placed before us that any regulations have been issued by the NCTE in regard to fee structure.
29. By reason of G.O.Ms.No.91 fees has been prescribed by the State Government as per the provisions of Act No.5 of 1983. The Sabha, which has been recognized under the said Act, 1993, must, therefore, be held to be bound thereby.
30. Therefore, in terms of the provisions of recognition letter dated 24.4.2000, the Sabha, cannot demand any fees which would be excessive of the fee prescribed by the State.
31. It is not in dispute that the University has not prescribed any fees. It may be true that by reason of Act 14 of 1964, the Sabha is entitled to issue certificates, diplomas, but such certificates granted by it may be recognized or may not be recognized by other universities. But only because in terms of the provisions of the said Act, it is entitled to grant certificates, the same by itself would not enhance its status to that of a deemed university. The matter relating to creation of a University is covered by the University Grants Commission Act, 1956 ( Act 3 of 1956). The status of a deemed university must be conferred by the University Grants Commission in terms of Section 3 of the University Grants Commission Act and not otherwise. In terms of the provisions of Section 3 of the University Grants Commission Act, it is only the Central Government, on the advice of the University Grants Commission; declare by notification in the Official Gazette that an institution for higher education shall be deemed to be a University for the purposes of the Act. In the instant case, such a declaration has not been made by the Central Government. Sabha, therefore, cannot fix any admission fees in terms of the provisions of Act 1993 or in terms of norms and standards for teacher education institutions issued by NCTE though the NCTE has recognized it.
32. So far as the question as to whether Sabha is performing sovereign function or not is no longer res integra having regard to the decision of Apex Court in UNNIKRISHNAN V STATE OF A.P.2 wherein it has been clearly held that private institutions supplementing the state function though are not instrumentalities of the State but since they perform a public duty of imparting education, they are amenable to Articles 14 and 15 of the Constitution of India and they are bound to act fairly and in consance with Articles 14 and 15 of the Constitution as well as the conditions laid down by the State in matters of admission and charging of fee and that the private unaided/aided recognized/affiliated educational institutions conducting professional courses cannot charge a fee higher than that of fee charged by Govt. institutions and/or subject to a maximum limited fixed by the State. It is, therefore, not correct to contend that Sabha is performing any sovereign function. Its action is merely in aid of sovereign function.
33. The learned single Judge, therefore, was not correct in holding that the 1st respondent being an autonomous body was not amenable to the directions issued by the State under State Act No.5 of 1983.
34. For the reasons aforementioned, we are of the opinion that G.O.Ms.No.91 shall apply to Sabha also. The Writ Appeal and Writ Petitions are allowed accordingly. No order as to costs.