Orissa High Court
Khirod Ku. Patra And Others vs Kendriya Vidyalaya Sangathan And ... on 16 April, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK W.P.(C) Nos. 11298 of 2013, 3792 of 2010, 20148 of 2009, 8558 of 2013, 6153 of 2010, 3802 of 2011, 8931 of 2013, 2311 of 2010, 9614 of 2013, 9520 of 2013, 7823 of 2013, 17495 of 2009, 8097 of 2013, 8032 of 2013, 8726 of 2013, 16210 of 2013, 8137 of 2013, 22228 of 2013, 9927 of 2013, 8468 of 2013, 9864 of 2013, 26503 of 2013, 22546 of 2013, 8557 of 2013, 9436 of 2013, 7898 of 2013, 7924 of 2013, 8858 of 2013, 8556 of 2013, & 9498 of 2013 In the matter of applications under Articles 226 & 227 of the Constitution of India. _________________ In W.P.(C) No. 11298 of 2013 Khirod Ku. Patra and others ......... Petitioners Vrs. Kendriya Vidyalaya Sangathan and ......... Opposite Parties others For petitioner : M/s.M.K.Sahoo & associates For opp.parties: M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (O.P.no.4) M/s.T.N.Pattnayak & associates (O.P.No.6) In W.P.(C) No. 3792 of 2010 Satrughna Sahoo & others ......... Petitioners Vrs. Union of India and others. ......... Opposite Parties For petitioners : M/s.S.C.Pasupalak & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (O.P.no.4) In W.P.(C) No. 20148 of 2009 Binayak Panda and others ......... Petitioners Vrs. Union of India and others. ......... Opposite Parties For petitioners : M/s.S.C.Pasupalak & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy for KVS 2 In W.P.(C) No. 8558 of 2013 Ashok Kumar Behera ....... Petitioner Vrs. Union of India and others ....... Opp.Parties For petitioner : M/s.Ashis Ku.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy for KVS In W.P.(C) No. 6153 of 2010 Surendra Jena and others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.S.C.Pasupalak & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 3802 of 2011 Sarat Chandra Sahu & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.N.Lenka & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda, and H.K.Tripathy (for KVS) In W.P.(C) No. 8931 of 2013 Sriman Arpit Ku.Panda & another ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.S.K.Ojha & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy for KVS In W.P.(C) No. 2311 of 2010 Satyanarayan Rath ....... Petitioner Vrs. Union of India and another ....... Opp.Parties For petitioner : M/s.N.Lenka & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (for KVS) 3 In W.P.(C) No. 9520 of 2013 Gouri Sankar Das ....... Petitioner Vrs. Kendriya Vidyalaya Sanghathan and ....... Opp.Parties others For petitioner : M/s.S.Pattnaik & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 9614 of 2013 Sriman Ayusman Patra & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.S.K.Ojha & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (for KVS) In W.P.(C) No. 7823 of 2013 Gyana Ranjan Sahoo & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.K.K.Swain & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 17495 of 2009 Srimata Kumar Moharana & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.G.N.Padhi & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (for KVS) In W.P.(C) No. 8097 of 2013 Purandar Pradhan & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.K.K.Swain & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8032 of 2013 Nisakar Swain & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties 4 For petitioners : M/s.H.K.Mohanty & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8726 of 2013 Sachidananda Mohapatra & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.A.K.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 16210 of 2013 Nalini Pattnaik & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.P.K.Das & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8137 of 2013 Keshab Behera ....... Petitioner Vrs. Union of India and others ....... Opp.Parties For petitioner : M/s.M.M. Pattnaik & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 22228 of 2013 Penta Salini & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.D.K.Mohapatra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 9927 of 2013 Pratap Kumar Ojha & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.K.K.Swain & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) 5 In W.P.(C) No. 8468 of 2013 Arupa Nanda Sahu ....... Petitioner Vrs. Union of India and others ....... Opp.Parties For petitioner : M/s.A.K.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 9864 of 2013 Sukanta Kumar Bakshi & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.S.C.Pasupalak & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 26503 of 2013 Rashmibala Parida & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.B.P.Acharya & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 22546 of 2013 Parents Association ....... Petitioner Vrs. Kendriya Vidyalaya Sangathana and ....... Opp.Parties others For petitioner : M/s.P.K.Sahoo & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8557of 2013 Anil Kumar Nanda ....... Petitioner Vrs. Union of India and others ....... Opp.Parties For petitioner : M/s.A.K.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 9436 of 2013 Jyotiraditya Sahoo ....... Petitioner Vrs. Chairman, Kendriya Vidyalaya ....... Opp.Parties Sangathana and others 6 For petitioner : M/s.P.K.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 7898 of 2013 Manoranjan Mohapatra & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.P.K.Das & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 7924 of 2013 Tanmaya Kumar Sahoo & others ....... Petitioners Vrs. Kendriya Vidyalaya Sangathana and ....... Opp.Parties others For petitioners : M/s.P.K.Dhal & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8858 of 2013 Ramesh Chandra Behera & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.P.K.Mohanty & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 8556 of 2013 Rabindra Kumbhar ....... Petitioner Vrs. Union of India and others ....... Opp.Parties For petitioner : M/s.A.K.Mishra & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy(for KVS) In W.P.(C) No. 9498 of 2013 Simanchal Pattnaik & others ....... Petitioners Vrs. Union of India and others ....... Opp.Parties For petitioners : M/s.A.R.Panda & associates For opp.parties : M/s.S.K.Pattnaik along with K.B.Panda & H.K.Tripathy (for KVS) ____________________ 7 PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 03.04.2015 | Date of judgment : 16.04.2015 Dr. B.R.Sarangi, J.
In these batch of petitions, the petitioners have challenged the notifications dated 14.09.2009 and 19.03.2013issued by Kendriya Vidyalaya regarding revised fees structure by which the pupils of the institution will have to pay the fees at the enhanced rate w.e.f. 01.10.2009 and 01.04.2013 respectively in the shape of Computer Fund and Vidyalaya Vikas Nidhi (VVN) contribution. Earlier assailing the notification dated 14.09.2009 issued by Kendriya Vidyalaya regarding revised fee structure w.e.f. 01.10.2009, a batch of writ petitions has been filed and this Court in Niranjan Mishra and others v. Union of India and others, 2013 (I) OLR 441 allowed the writ petitions and quashed such notification. Subsequently, in spite of quashing such notification, the Kendriya Vidyalaya issued another notification on 19.03.2013 for revision of Computer Fund and VVN contribution w.e.f. 01.04.2013 which is the subject matter of challenge in these writ petitions.
2. The short fact of the case in hand is that the Kendriya Vidyalaya Sangathana is a society registered under the Societies Registration Act, 1860. The society is question has been set up to open, manage and administer the Kendriya Vidyalayas throughout the country and abroad. As per the scheme, the 8 Sangathan opens Kendriya Vidyalaya to cater to the educational needs of the children of Transferable Central Government Employees. These Kendriya Vidyalayas are set up in the Civil and Defence Sectors. In addition to these Vidyalayas, the Sangathan also opens, administers and manages the Vidyalayas on the specific request of the Government of India undertaking Companies to cater to the educational needs of the Children of the sponsoring agencies which are named project Kendriya Vidyalayas.
3. The service of the employees working under different departments of the Central Government is transferable throughout the country. Different states follow their individual teaching and education systems in the primary and secondary levels and that too in their local languages. The employees of Central Government when transferred from one State to another would face serious difficulty in the matter of education of their children due to this diversity of education from one State to another. So with a primary view to make available a uniform system of education the Government of India thought it proper to establish Central Schools in different parts of the country so that a single system of education can be availed by the children of the Central Government Employees. For that purpose the Kendriya Vidyalaya Sangathan was created as a Registered Society under the Ministry of Human Resources Development to establish, manage and impart a uniform system of education in all the Central Schools so established. The Sangathan is managed by a Board of Governors 9 under which Standing Committees are formed and a Commissioner is appointed as the Executive Head of the Sangathan and the Chief Administrator of Kendriya Vidyalayas. All the Kendriya Vidyalayas are affiliated to the Central Board of Secondary Education, Delhi and follow the uniform pattern of courses of study and examination system throughout the country. All the policy decisions in respect of Sangathan are taken by its Board of Governors, which is headed by the Minister of Human Resources Development, Government of India.
4. The fee structure applicable in the Kendriya Vidyalayas is decided by the Board of Governors of the Sangathan from time to time. Kendriya Vidyalayas are maintaining the SF account to which all the funds received from the Government of India and Tuition Fees are credited. In addition, the Kendriya Vidyalayas are also maintaining Vidyalaya Vikas Nidhi (VVN) and Computer Fund. As per the provision contained in Articles 2 to 4 of Chapter -II of the Education Code for Kendriya Vidyalaya and Chapter-XV of the Education Code deals with the fees and funds contained in Articles 117 to 124.
5. The VVN and Computer Funds are for the development of School and overall welfare of the student‟s community. The scope of activities of the VVN have enlarged in a geometrical progression day by day and the previous financial resources were inadequate to meet these activities such as 10 implementation of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to "2009 Act"), creation of ICT infrastructure, Sports and Medical Facilities etc.. The Finance Committee duly constituted in its meeting held on 29.06.2009 deliberated over the revision of tuition fee, computer fund, new children education allowance scheme, Vidyalaya Vikas Nidhi (VVN) contribution and accordingly recommended the same to the Board of Governors for the approval.
6. The Board of Governors in its 84th meeting held on 29.07.2009 approved the recommendations made by the Finance Committee in its meeting held on 29.06.2009 and further the Board decided to enhance the fees (VVN, Tuition fees and Computer Fund) with effect from 01.10.2009. As regards the expenditure from VVN, the specific norms duly approved by the Board of Governors have been issued by the KVS under delegation of power under VVN and the accounts of KVS are regularly monitored by the External Audit of the KVS, Regional Office. Therefore, in order to augment financial resources to meet the additional requirement of funds, a proposal for enhancement of VVN and Computer Fund was placed before 94 th meeting of the Board of Governors of KVS held on 28.12.2012. As per direction, the matter was placed before the Minister, Human Resources Development and Chairman of the KVS for his approval. Thereupon, considering the justification of enhancement of Vidyalaya Vikas Nidhi (VVN) and Computer Fund, the Chairman, KVS approved the proposed enhancement of fees. Accordingly, the 11 impugned notification was issued on 19.03.2013 for revision of Computer Fund and VVN contribution w.e.f 01.04.2013. Assailing the decision taken on 01.10.2009, which has been directed to be implemented pursuant to notification dated 19.09.2009, one Niranjan Mishra and others approached this Court by filing a writ petition bearing W.P.(C) No. 14739 of 2009 and after due adjudication, this Court quashed the said notification and allowed the writ petition vide judgment dated 19.12.2012.
7. Though battery of counsels had appeared in these batch of writ petitions, Mr. S.K. Ojha, Mr.Piyush Kumar Mishra, Mr.M.K.Sahoo and Mr.D.Chhotray have addressed the Court justifying their challenge to the impugned notification dated 13.3.2013, stating, inter alia, that once the notification dated 14.9.2009 has been quashed by this Court in Niranjan Mishra and others (supra), subsequent notification would not have been issued by the opposite parties to circumvent the effect of the said judgment without following due procedure of law. It is further urged that such revision of fee structure so far as Computer Fund and Vidyalaya Vikas Nidhi (VVN) contribution are concerned, that itself is violative of the provisions contained in 2009 Act and Rules framed thereunder and once the judgment has been rendered by this Court quashing the notification dated 14.9.2009 regarding revised fee structure, the subsequent notification issued by the authority is in gross violation of the said judgment in Niranjan Mishra and others (supra). To substantiate their contention, they 12 have relied upon the judgments in Niranjan Mishra and others (supra), Allahabad Bank v. Canara Bank and another, AIR 2000 SC 1535, Pinaki Chatterjee and others v. Union of India and others, (2009) 2 SCC ( L & S) 259, State of Tamil Nadu & Ors. V. K. Shyam Sundar & Ors. AIR 2011 SC 3470, S.I. Rooplal and Anr. V. Lt. Governor through Chief Secretary, Delhi and Ors. Civil Appeal Nos. 5363-64 of 1997 decided on 14.12.1999.
8. Mr. S.K. Pattnaik, learned Senior Counsel, Mr. K.B. Panda and Mr.H.K.Tripathy, learned counsel have entered appearance for the Kendriya Vidyalaya , but the main argument was advanced by Mr.S.K. Pattnaik, learned Senior Counsel, who urged that in view of the provisions contained in Articles 2 to 4 of Chapter-II of the Education code of Kendriya Vidyalaya read with Chapter XV of the Education code containing Articles 117 to 124, it is well within the competence of Kendriya Vidyalaya to revise fee structure and as such, revision of such fee structure neither affects Article 21-A of the Constitution of India nor any of the provision contained under 2009 Act. Since the revision of the fee structure is well within the domain of the authority, this Court may not interfere with the same. So far as applicability of the judgment in Niranjan Mishra and others (Supra) on which much reliance has been placed by the learned counsel for the petitioners, it is stated that admittedly the said judgment has not been assailed in any forum, but the effect of the judgment is not applicable to the present context as it is a per in curium judgment, meaning thereby, the 13 provision of Sections 2(n), 2(P) read with Section 12(1)(c) of 2009 Act has not been taken into consideration while rendering such judgment. Therefore, even if, the judgment of this Court in Niranjan Mishra (Supra) has not been challenged in any forum, but the effect of the said judgment cannot be applicable to the present context and as such, the judgment being a per in curium one, the same cannot be taken into consideration in accordance with law. To substantiate his contention, he has relied upon the judgment of Division Bench of Kerala High Court at Ernakulam in W.P.(C) No. 13900 of 2013 in Kendriya Vidyalaya Parents Association v. Union of India and others disposed of on 09th June, 2014, judgment of Delhi High Court in Social Jurist, a Civil Rights Group v. Kendriya Vidyalaya Sanghthan & Anr. passed in W.P.(C) No. 2993 of 2013 disposed of on 27.11.2013, Judgment of Gauhati High Court in Coordination Committee of Parents/Guardians of Kendriya Vidyalaya, Namrup, Assam v. The Union of India and others, PIL No. 36 of 2009 and judgment of Apex Court in D.A.V. College Managing Committee Through Regional Director v. Laxminarayan Mishra and others, Civil Appeal No. 4556 of 2014. Learned counsel appearing for the Union of India has supported the stand of the Kendriya Vidyalaya regarding enhancement of fee structure in consonance with the guideline applicable to such organization. 14
9. Considering such contentions raised by learned counsel for the parties and after going through the records, it is to be considered :
(i) Whether the Kendriya Vidyalaya is justified in revising its fee structure in consonance with the provisions of the Kendriya Vidyalaya Code ?
(ii) Whether such revision of fee structure is violative of Article 21-A of Constitution of India read with provisions contained in the 2009 Act ?
(iii) Whether the impugned decision for revision of fee structure so far as VVN and Computer Fund is concerned is in violation of the judgment passed by this Court in Niranjan Mishra (Supra)?
ISSUE NOS. (i) & (ii)
10. In order to augment financial resources to meet the additional requirement of funds, a proposal for enhancement of Computer Fund and Vidyalaya Vikas Nidhi (VVN) contribution was placed before 94th meeting of the Board of Governors of KVS held on 28.12.2012. As per direction, the matter was placed before the Minister, Human Resources Development and Chairman of the KVS for his approval. Considering the justification of enhancement of Vidyalaya Vikas Nidhi (VVN) and Computer Fund, the Chairman, 15 KVS approved the proposed enhancement of fees in respect of Computer Fund and VVN to the following effect.
Existing Fees per Month Revised Fees per month
Class
(in Rupees) (in Rupees)
Computer Computer
Tuition Fund VVN Tuition Fund VVN
Fees (Class -III Contribution Fees (Class -III Contribution
& above) & above)
I-VIII NIL 50 240 Nil 100 500
200 200
IX-X 50 240 100 500
(Boys) (Boys)
XI-XII
Commerce 300 300
50/100 240 100/150* 500
& (Boys) (Boys)
Humanities
XI-XII 400 400
50/100 300 100/150* 500
Science (Boys) (Boys)
* For students opting Computer Science/IP as an elective. The provisions of Articles 59, 66 and 67A of the Account Code stand amended and the revised fee structure and amendment to Articles 59, 66 and 67A of the Accounts Code be circulated among all the Vidyalayas for timely implementation.
11. The said revision of fees has been assailed on the ground that the same is violative of Article 21-A of the Constitution of India read with provisions contained in 2009 Act. It is alleged that the mandate of the constitution and also 2009 Act are violated in action of the Kendriya Vidyalaya in collecting the revised fee structure from the students. Therefore, the petitioners seek to quash such notification on the ground that the Kendriya Vidyalayas 16 are not entitled to claim the amount from its students as tuition fees, VVN and Computer Fund or any other name. But the said contention of the learned counsel for the petitioners have been contradicted by the learned counsel appearing for the opposite parties.
12. The Apex Court in Unni Krishnan J.P. and Others v. State of Andhra Pradesh and Others, AIR 1993 SC 2178 had taken a view that the child upto the age of 14 has the fundamental right to be effected. The Apex Court acted on Article 45 of the Constitution. The Apex Court also took the view that there is a fundamental right even after a child attains 14 years but it is subject to the State showing that financial resources cannot permit the exercise of such right. Article 21A of the Constitution is the response of Parliament to the judicial interpretation placed on Article 21 and it inserted Article 21A with effect from 01.04.2010, which reads as follows:-
"21A. Right to education:- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
13. The Right of Children to Free and Compulsory Education Act was framed in the year 2009 to give effect to and fulfill the mandate of Article 21A of the Constitution. This is for the reason that though Article 21A declares a Right to Education, the content and limits of the right were to be as provided by law and it is accordingly the Parliament enacted the Act in the year 2009 17 Act. But the State of Orissa has not enacted any law till date and therefore, the parliamentary enactment will govern the field being the Central Act, i.e., 2009 Act. The salient features of the Act are as follows:
Section 2(n) of the 2009 Act defines 'School' as follows:
"(n) "school" means any recognised school imparting elementary education and includes-
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
Section 2(p) relied on by the respondents reads as follows:
"(p) "specified category", in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government."
Section 3 reads as follows:
"3. Right to child to free and compulsory education:-
(1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education.
(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education:
Provided that a child suffering from disability, as defined in Clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 (1 to 1996), shall have the right to pursue free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act."
Section 6 reads as follows:
"6. Duty of appropriate Government and local authority to establish school:- For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act."18
Section 8 provides duties of the appropriate Government while Section 9 provides the duties of the local authority. Chapter IV has the main heading "Responsibilities of Schools and Teachers". Section 12, being of crucial importance, the same is extracted as follows:
"12. Extent of school's responsibility for free and compulsory education:-(1) For the purposes of this Act, a school,-
(a) specified in sub-clause (i) of Clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of Clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty five per cent;
(c) specified in sub-clause (iii) of Clause (n) of Section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in Clause
(n) of Section 2 imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such pre- school education.
(2) The school specified in sub-clause (iv) of Clause (n) of Section 2 providing free and compulsory elementary education as specified in Clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-
child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:
Provided that such reimbursement shall not exceed per- child-expenditure incurred by a school specified in sub-clause (i) of Clause (n) of Section 2:
Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.19
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be."
Section 13 of Chapter IV prohibits any School or person while admitting a child from collecting any capitation fee. Section 2(b) defines "capitation fee" as follows:
"(b) "capitation fee" means any kind of donation or contribution or payment other than the fee notified by the school;"
Section 15 provides inter alia that a child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed. It also provides that no child shall be denied admission if such admission is sought subsequent to the extended period. Under Section 16, no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education. Elementary education is in turn defined in Section 2(f), which is extracted as follows:
(f) "elementary education" means the education from first class to eighth class;
Section 17 prohibits physical punishment or mental harassment to a child. Section 18 provides for the imperative need to procure recognition in respect of a school which is established after the commencement of the Act. A school cannot function without getting certificate of recognition. Section 24 provides for the duties of teachers and redressal of grievances. Section 25 provides that the appropriate Government and the local authority shall ensure that there is a Pupil- Teacher ratio to be maintained in each school.
20
14. Mr.S.K.Pattnaik, learned Sr.Counsel for the Kendriya Vidyalaya refers to the term "specific category" under Section 2(p) of the Act 2009. The definition of the word "school" shows that it means a recognised school imparting elementary education. It includes categories (i) to (iv). As far as category (i), which is mentioned earlier is concerned it is the school established, owned or controlled by the appropriate Government or a local authority. The word "appropriate Government" is defined under Section 2(a) of the Act which reads as follows:
"(a) "appropriate Government" means-
(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;
(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of- (A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;"
15. As the school belonged to the 'specified category', there is no obligation to provide free education for all the students who are admitted in the School. It has the obligation no doubt to comply with Section 12(1)(c) which we have referred to above. That is to say, its obligation is fulfilled if it were to provide for reservation and admits in class I, to the extent of at least 25% of the strength of that class, the children belonging to the weaker section and disadvantaged group in the neighbourhood and it provides free and compulsory elementary education. The word "child" as belonging to the age of six to fourteen years is defined under Section 2(c) of the 2009 Act. "Child belonging to 21 disadvantaged group" is defined under Section 2(d) of the Act as follows:-
(d) "child belonging to disadvantaged group" means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;"
Section 2(e) defines the "child belonging to weaker section" as follows:-
"(e) "child belonging to weaker section" means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;"
16. The school is honouring the said statutory obligation enshrined under 2009 Act. As far as Article 21A of the Constitution is concerned, as this Court has already noticed, the fundamental right which declared free education is not an absolute right. The content of the right and the limitations of the right are to be provided by law. Therefore, it may not be correct to say that Article 21A of the Constitution has not been complied with.
17. Let me now consider the question that the Kendriya Vidyalaya is obliged to provide free and compulsory education by virtue of Section 3 of the Act. Section 3 provides that every child at the age of six to fourteen years will have the right to free and compulsory education. The institution in which such right is vouchsafed is a neighbourhood school. Therefore, this Court may consider the effect of sub section (2) of Section 3 of the 2009 Act. It provides that for the purpose of sub section (1), no child shall be liable to pay any kind of fee 22 or charges or expenses which would prevent him or her from pursuing and completing the elementary education. The right of compulsory and free education is given in a neighbourhood school. The word "neighbourhood school" is not defined in the Act. It is also not defined in the Rules as such. As it appears that the Right of Children to Free and Compulsory Education Rules, 2010, which was enforced with effect from 09.04.2010, inter alia provides as follows:-
"6. Area or limits of neighbourhood:-
(1) The area or limits of neighbourhood within which a school has to be established by the appropriate Government or the local authority shall be,-
(a) in respect of children in classes from I to V, a school shall be established within a walking distance of one km of the neighbourhood;
(b) in respect of children in classes from VI to VIII, a school shall be established within a walking distance of three km of the neighbourhood. (2) Wherever required, the appropriate Government or the local authority shall upgrade existing schools with classes from I to V to include classes from VI to VIII and in respect of schools which start from class VI onwards, the appropriate Government or the local authority shall endeavour to add classes from I to V, wherever required."
18. In fact, Section 6 of the 2009 Act casts a duty on the appropriate Government and the local authority to establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of the Act.
19. In view of the above provisions, the inevitable conclusion would be that K.V.S does not have an obligation to provide free education except to the extent provided in Section 12(1) (c) of the 2009 Act. Even though Section 3 appears to provide for a right to the child, it must be noticed that as far as the obligation of the schools which falls in 23 various categories as defined in Section 2(n) is concerned, it is specifically and expressly set out in Section 12 of the Act. As far as a school run by a State or a local authority, in respect of all the students admitted in such schools, these students are entitled to compulsory free education. This is in keeping the mandate under Section 3 and there is no conflict between the said two provisions. The child has an absolute right and the duty is cast on the State and the local body which would anyway answer the description of 'State' in Article 12 of the Constitution also. As far as the aided schools are concerned, Section 12(1)(b) describes its obligations and as we have seen, it is limited to providing free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, for a minimum of 25%. What this means is that even if the ratio of annual recurring aid or grants so received and its proportion to the annual recurring expenses does not justify such free and compulsory education, it is still obliged to provide a minimum of 25%. As far as further obligations are concerned, it is made depending upon the fulfillment of the statutory criteria. When it comes to institutions and schools which are covered by Section 2(n)(iii) and (iv), in the first of which category, the Kendriya Vidyalaya in this case would fall, and unaided school under clause (iv) of Section 2(n), their obligation would appear to be covered by what is provided in Section 12(1)(c) of the Act. It is necessary in this context to notice that unlike the duty cast on the Government Schools and those run by the local bodies, which is to provide free and compulsory elementary 24 education to all students who are admitted or even in respect of the duty which is cast on aided schools falling under clause (ii) of Section 2(n) which also essentially amounts to the same, but as limited thereunder, in respect of the schools falling in the specific categories and unaided institutions, they are charged with the specific duty of admitting at least 25% strength of the class from among the children belonging to the weaker sections, in the neighbourhood. Not only that they must be provided with free and compulsory education till its completion. Thus, the nature and content of the obligation for the three different categories of schools which are covered by Section 12 of the Act are different. Their responsibilities have been spelt out by the Legislature in unambiguous terms. Therefore, this Court is of the considered opinion that either Article 21A or Section 3 of 2009 Act carved out an absolute right in favour of the students aged between six and fourteen to demand education without payment of any fees as such.
20. The next contention is that the Kendriya Vidyalaya is a school which is controlled by the appropriate government, namely, the Central Government and, therefore, it would come under class (i) of Section 2(n) of the Act. It is contended that it has a dual capacity, namely, it would be a specified category school coming under Section 2(n) (iii) read with Section 2(n)(p) and at the same time an institution covered by Section 2(n)(i). Therefore, it is contended that not only should the Kendriya Vidyalaya fulfill the mandate of Section 12(1)(c) which is to admit students as provided in the ratio to the extent of 25% 25 but it is also to provide free and compulsory education in regard to the balance 75% having regard to its position as a school controlled by the Central Government. In this regard, again reliance is placed on clause (1) and (2) of Section 3 of the Act besides Article 21A.
21. Now it is to be considered as to what is the obligation which is to be discharged by the schools run by the Government and the local bodies. Section 8 delineates the duties of the appropriate Government. It inter alia provides that the Government shall provide free and compulsory elementary education to every child. Section 8(c) of the Act reads as follows:
"8. Duties of appropriate Government:
The appropriate Government shall -
(a) ...............
(b) ...............
(c) ensure that the child belonging to weaker section and the child belonging to the disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;
22. A similar provision is contained in Section 9(c) of the 2009 Act in regard to the duties of the local authority. This would mean that as far as the Government and the local authority are concerned, they are expected not to discriminate against a child belonging to a weaker section and the child belonging to the disadvantaged section and the child is not to be prevented from pursuing and completing elementary education on any ground, but there is no positive mandate that it shall admit students belonging to the weaker sections or the disadvantaged groups. The Legislature has mandated that the schools run under the specified category including the Kendriya Vidyalaya herein must fulfil that mandate and it is that role which has to be discharged by the said 26 schools vide the provisions contained in Section 12(1)(c) of the Act. Schools not only provide admission to an extent of 25% of the total strength but for them they shall also be bound to provide free and compulsory education. In this context, it is also noteworthy that in the definition of the word "school" though Kendriya Vidyalayas would fall under clause (i) of Section 2(n), they have also carved out a differential category by declaring a specific category under Section 2(n)(iii) for the purpose namely to delineate their statutory duty vide Section 12(1)(c) of the 2009 Act.
23. Section 3(2) provides that no child shall be liable to pay any kind of fee or charges which would prevent him from completing elementary education. In the writ petition, there is no case that the fees which are prescribed are such that it would prevent the children from pursuing the elementary education. It is only stated that there is violation of Section 3(2) of the 2009 Act. As far as Sections 3(1) and 3(2) are concerned, it is noticed that the right is given to the child between the age of six to fourteen for free education in the neighbourhood school. There is no case for the petitioner that the Kendriya Vidyalaya is treated as a neighbourhood school and therefore, there is no necessity to probe that aspect further. As far as the mandate of Section 3 (2) is concerned, in respect of the Kendriya Vidyalayas by holding that in respect of the fees to be charged by it, even in regard to 75% of the strength or a child which is admitted not only to first standard but directly in any other higher standard upto the eighth standard, it cannot be such as would prevent him or her from 27 pursuing and completing the elementary education. This interpretation would harmonize the various provisions.
24. Similar view has also been taken by the Delhi High Court holding that the Kendriya Vidyalaya being not run by Government of India is entitled to different fee structure. Admittedly, the Kendriya Vidyalayas are run by the Society and as such, no fee or charge under any head is being charged from the 25% of children admitted under privileged quota under the 2009 Act. Therefore, the action of the authorities is justified in revising fee structure.
25. Similar view has also been taken by Gauhati High Court in Coordination Committee Parents of Kendriya Vidyalaya( supra) in a PIL and the said judgment was assailed before the apex Court in SLP(Civil) No. 778 of 2010 which was dismissed vide order dated 15.12.2009. In that view of the matter the jurisdiction of the Kendriya Vidyalaya to revise the fee structure has reached its finality by dismissal of the SLP to the extent that the Kendriya Vidyalayas have jurisdiction to enhance the revised fees in consonance with the provisions of law.
26. Mr. S.K. Pattnaik, learned senior counsel for the Kendriya Vidyalaya placed reliance on D.A.V. College Managing Committee Through Regional Director (supra) stating that in similar circumstances, there was challenge with regard to enhancement of fee structure of the D.A.V. Managing Committee before this Court and this Court quashed the enhancement of fees done by the management of the D.A.V. Schools vide judgment dated 27.6.2011 in The Management of DAV Public School and batch of cases v. State of 28 Orissa and others, 2011(II) OLR 665 and challenging the said judgment of this Court, the D.A.V.College Managing Committee through its Regional Director approached the apex Court in Civil Appeal No. 4556 of 2014. In D.A.V.College Managing Committee through its Regional Director v. Laxminarayan Mishra and others, 2014(II) OLR (SC) 122, the apex Court allowed the appeal and stated that the Fee Structure Committee has been constituted, which recommended for enhancement of fees taking into consider the various aspects, which were urged before such Committee. Therefore, the power of the authority with regard to enhancement of the fee structure has been affirmed by the apex Court.
27. In view of the aforementioned reasons, Kendriya Vidyalaya is justified in revising its fee structures inconsonance with the provisions of the of Kendriya Vidyalaya Code and such revision of fees is neither violative of Article 21-A of the Constitution nor any of the provisions of the 2009 Act. Therefore, issue nos. (i) & (ii) are answered in affirmative.
ISSUE NO.(iii)
28. It is urged by the learned counsel for the petitioners that in view of the judgment of this Court in Niranjan Mishra (Supra), the notification issued on 14.09.2009 regarding revised fee structure w.e.f. 01.10.2009 has been quashed and the writ petition has been allowed and to circumvent the effect of the said judgment, subsequent notification issued on 19.03.2013 cannot be sustained. The judgment of 29 Niranjan Mishra (Supra) has not been challenged by Kendriya Vidyalayas in any higher forum as a result of which, it has reached its finality and any notification contrary to the said judgment cannot be sustained in the eye of law. To substantiate such contention, reliance has been placed on Allahabad Bank (supra) and more specifically reference has been made to para-40 of the said judgment, wherein the apex Court has held that in view of Section 34 of the RDB Act, the said Act overrides the Companies Act to the extent that there is nothing inconsistent between the Acts. Where there is inconsistency between two special laws, namely, the Finance Corporation Act, 1995 and the Sick Industries Companies (Special Provisions) Act, 1985, the latter contained Section 32 which gave overriding effect to its provisions and was held to prevail over the former. Relying upon the same, it is urged that since 2009 Act has got overriding effect over the provisions of the other Acts, in that view of the matter, the Kendriya Vidyalayas are bound to provide free education to the children belonging to 6 years to 14 years. In that view of the matter no revised fees can be chargeable at the instance of the Kendriya Vidyalaya. The question has already been considered elaborately while considering issue nos. 1 and 2. Therefore, at the cost of repetition, this Court does not want to reiterate the same, rather is of the opinion that in view of the discussion made above, the judgment so mentioned is not applicable to the present context.
29. Reliance has been also placed on Pinaki Chatterjee and others (supra) wherein the apex Court has held that regularization 30 could not be made contrary to statutory recruitment rules and in violation of Articles 14 and 16 of the Constitution of India. Therefore, any such circular issued contrary to such provision cannot be sustained in the eye of law. Therefore, this Court is of the considered view that the ratio of the said case is not applicable to the present context.
30. Last, but not the least, relying upon State of Tamilnadu and others (supra), it is urged that the judicial pronouncement of a competent Court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever and the legislature, in order to revalidate the law, can re-frame the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional. Applying the said principle to the present context, if the legislature has no power to annul judicial pronouncement of a competent Court, then the judgment rendered by this Court in Niranjan Mishra (Supra) cannot be annulled by subsequent decision taken for revision of the fee structure by KVS. Therefore, it is profitable to take into consideration the judgment rendered by this Court in Niranjan Mishra (Supra). Admittedly, the revised notification dated 14.09.2009 giving effect from 01.10.2009 was under consideration by this Court regarding enhanced tuition fees and other fees. While dealing with the said matter, this Court has only taken into consideration the provision of 2009 Act and Article 21-A of the Constitution of India. With due respect to the Hon‟ble Single Judge of this Court, the provisions contained under Section 2(P) read with Section 12(1)(c) of the 2009 Act has not been considered in the said 31 judgment. Such view has been expressed by the Division Bench of Kerala High Court and also Single Bench of Delhi High Court and also specifically stated by the judgment of this Court as well as Karnataka High Court have not taken into account Section 2(n), Section 2(p), Section 12(1)(e) of the 2009-Act. While agreeing with view expressed by Kerala High Court and Delhi High Court, this Court is of the considered view that the judgment of the Hon‟ble Single Judge of this Court is per incuriam.
31. The Latin expression "per incuriam" means, "through inadvertence". In Government of Andhra Pradesh v. B.SatyanarayanRao, (2000) 4 SCC 262, the apex Court held that the rule of „per incuriam‟ can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. Similar view has also been taken in Babu Parsu Kaikadi v. Babu, (2004) 1 SCC 681 (para-15) and Vijay Narayan Thatte v. State of Maharashtra, (2009) 9 SCC 92 (para-27).
32. Similarly, in V.Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 SCC 513, the apex Court has held that when a judgment is rendered by ignoring the provisions of a statute and earlier larger Bench decision on the point, such decision is per incuriam.
33. In State of Madhya Pradesh v. Narmada Bachao Andolan, (2011) 7 SCC 639 (680), para 67, it is held that „per 32 incuriam‟ are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
34. In M.P. Rural Road Development Authority v.
L.G.Chaudhary Engineers & Contractors, (2012) 3 SCC 495, the apex Court has held that the decision rendered in ignorance of previous decision of coordinate Bench and/or the relevant statutory provisions is per incuriam.
27. Applying this provision to the present context, it appears that Niranjan Mishra‟s case (supra) has not taken into consideration the provisions of Section 2(n), 2(p) and Section 12(1)(c) of the 2009 Act. Therefore, the said judgment is per incuriam. Even if such judgment has not been challenged in any higher forum that has no effect for adjudication of the matter. Thus, this Court is of the considered opinion that it is in agreement with the decision rendered by Kerala High Court, Delhi High Court and also Assam High Court, which has been confirmed by the apex Court. Issue no.3 is answered accordingly.
35. In view of the aforesaid facts and circumstances, this Court is of the considered view that no illegality or irregularity has been committed by the authorities by issuing the impugned notification by 33 revising the fee structure, which is well within their domain in conformity with the provisions of law. Such revision of fee structure is not violative of Article 21-A read with any of the provisions contained in 2009 Act. Accordingly, the writ petitions merit no consideration and the same are dismissed.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 16th April, 2015/PKSahoo