Andhra HC (Pre-Telangana)
Amali English Medium High School And ... vs The Government Of Andhra Pradesh And ... on 30 July, 1993
Equivalent citations: AIR1993AP338, 1993(3)ALT294, AIR 1993 ANDHRA PRADESH 338, (1993) 6 SERVLR 341 (1993) 3 ANDH LT 294, (1993) 3 ANDH LT 294
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. Whether the tuition fee that could be collected by the unaided English Medium Educational Institutions under private managements can exceed the ceiling prescribed by G. O. Ms. 379 Education (SSE) Department dated 9-8-1985 which is a notification issued under S. 7 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983, S. 7 is the question that broadly arises for consideration by this Full Bench. Incidentally these cases raise the point whether the said notification stands superseded by the Rules framed by the State Government under the Andhra Pradesh Education Act, 1982 through G. O. Ms. 524, Edn. (Rules) Department dated 20-12-1988.
The effect of the representation made by the learned Advocate General pursuant to which the earlier batch of writ petitions was dis posed of as infructuous, also falls for our consideration.
2. The petitioners in the C. R. P. as well as in the writ petition are the Managements of unaided recognised private schools imparting education in English medium. In both the cases, the question of validity and enforce-ability of G. O. Ms. 379 (Education-SSE) Dept. dated 9-8-1985 has been raised. The petitioner in C. R. P. earlier filed W. P. No. 9164/86 questioning the validity of the provisions of the A. P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983), (hereinafter referred to as "Act 5/83") and the notification issued in G. O. Ms. 379 dated 9-8-1985 issued under S. 7 of that Act. After the arguments were heard in that writ petition and a batch of connected writ petitions, a Division Bench of this Court disposed of those cases by a judgment dated 27-1-1989 in W. P. No. 11161/86 etc. batch. The Division Bench, having regard to the representation made by the then Advocate General that G. O. Ms. No. 379 was no more in existence in view of the rules framed under the Education Act through G. O. Ms. No. 524 dated 20-12-1988, held that no further orders were necessary and accordingly the writ petitons were disposed of. The Division Bench also left open to the petitioners therein to question G. O. Ms. 524 if they were aggrieved of the same.
3. The C. R. P. arises out of the judgment of the I Addl. District Judge, Gunlur in CWA No.31/92. That CWA was filed by the Parents' Association of St. Joseph's Girls High School (respondent in the CRP) against the order in I. A. No. 607/92 in O. S. 226/92 on the file of the Addl. Subordinate Judge, Guntur. The Parents' Association was the plaintiff in the suit. The suit was filed at a time when the Management announced monthly fee much above the scale of fee prescribed in G.O. Ms. 379. The plaintiff sought for temporary injunction, restraining, the Cor respondent of St. Joseph's Girls High School (respondent in CRP) from collecting any amounts by way of tuition fee from the students over and above the fee specified in G. .
O. Ms. No. 379, Education dated 9-8-1985.
The learned Addl. Subordinate Judge dec lined to grant injunction and dismissed the 1.
A. On appeal, the learned I Addl. District Judge, allowed the appeal and granted the interim injunction pending disposal of the suit. It is against this judgment, the CRP has been filed by the Management of the High School which is said to be an unaided minority institution.
4. W.P. No. 8141/92 has been filed by the Correspondent and Head Master of an English Medium School in Krishna District which is also an unaided school claiming to have the status of minority institution. It is not necessary for the purpose of this reference to set out the facts in detail. The relief sought for in the writ petition is to declare G. O. Ms. No. 379, Education dated 9-8-1985 as illegal and inoperative and to direct the respondents not to interfere with the the right of the petitioner in collecting the fee in accordance with the fee fixed by it in the light of R. 18 of the A. P. Educational Institutions (Establishment, Recognition, Administration and Control) Rules, 1988. In the writ petition, the State Government and the officials of the Education Department as well as the Parents' Association have been impleaded as respondents.
5. When the writ petition and C. R. P. came up for hearing before a Division Bench consisting of Sivaraman Nair and Maruthi, JJ., the learned Judges noticed "an obvious conflict between two Bench decisions" and therefore expressed the opinion that the mutter has to be decided by a Full Bench. Accordingly the cases have been referred to the Full Bench. The two Division Bench judgments adverted to by the learned Judges are : the. Judgment in the batch of writ petitions W. P. 11161/86 etc. (which we have refererd to earlier) and the judgment in Contempt Case No. 570/91) (to which Sivaraman Nair, J. was a party). The Contempt case which was an off-shoot of the judgment in W. P. 11161/86 and batch was filed complaining against the enforcement of the scales of fee prescribed in G. O. Ms. 379 in violation of the Bench judgment in W. P. 11161/86 etc. batch.
6. This in brief, is the genesis of the Full Bench referpnce with which we are concerned.
7. We: shall now consider the relevant provisions including the G. Os. adverted to above. The Andhra Pradcsh Education Act, 1982 (Act'1/82) was enacted by the State Legislature to consolidate and amend the laws relating to the educational system in the State of Andhra Pradcsh, for reforming, organising and developing the educational system and to provide for other incidental matters. The Act applies to all educational and tutorial institutions in the State excepting
(a) Institutions of national importance catering the scientific and technical education;
(b) institutions established or administered by or affiliated to the A. P. Agricultural University and J. N. T. University; (c) Colleges and institutions dealt with by the laws relating to establishment of Universities such as University of Hyderabad Act; (d) educational institutions imparting intermediate education. Establishment of educational institutions, their administration and control including grant or withdrawal of recognition, grant-in-aid, taking over of managemenf of educational institutions, transfer or control and management of certain schools, conditions of service of staff including disciplinary action and retrenchment of services of employees of private institutions, are amongst the various topics dealt with by the Education Act. Section 87 provides for punishment for contravention of the provisions of the Act or the Rules made thereunder. The Rules, inter alia, may provide for "regulation of rates of fees, the levy and collection of fees in educational institutions" (vide S. 99, Cl. xiii).
8. Act 5/83 was enacted by the State Legislature to provide for regulation of admission into educational institutions and to prohibit the collection of capitation fee in the State of Andhra Pradesh. 'Capitation fee' is defined by the Act as "any amount collected in excess of the fee prescribed under S.7" (vide S. 2(b)). Section 2(c) defines 'educa-tional institution' as meaning a college, a school imparting education up to and inclu-sive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying on the activity of imparting education therein, whether technical or ofherwise. Section 7 of the said Act deals with the regulation of fee. Sub-sections (1) and (2) of S. 7 are as follows :
"(1) It shall be competent for the Government by notification, to regulate the tuition fee or any other fee that may be levied and collected by any educational institution in respect of each class of students.
(2) No educational institution shall collect any fees in excess of the fee notified under sub-section (1)."
Section 6 regulates the manner of giving donations to the educational institutions and the method of accounts of such donations. The contravention of the provisions of the Act or the Rules made thereunder is punishable with imprisonment for a term ranging between three years and seven years and with a fine which may extend up to Rs. 5,000/-. Section 12 gives an overriding effect to the Act. Section 15 confers power on the Government to make rules by means of notification for carrying out all or any of the purposes of the Act.
9. The two enactments aforementioned can be said to be allied Acts or cognate enactments on the subject of education and educational and educational institutions. While the former Act viz.. Education Act 1982 deals with various matters concerning education especially primary and secondary education, the object of Act 5/83 is mainly to regulate admissions to educational institutions including professional and technical colleges and to prohibit the collection of capitation fee. The avowed object of the Act is reflected in its preamble which reads as follows :
"Whereas the undesirable practice of collecting capilation fee at the time of admitting students into educational institutions is on the increase in the State;
And whereas, the said practice has been contributing to large scale commercialisation of education;
And whereas, it is considered necessary to effectively curb this evil practice in order to avoid frustration among the meritorious and indigent students and to maintain excellence in the standards of education."
10. We shall now refer io the crucial G. Os. In exercise of the power conferred By S. 7 of Act 5/83, the State Government issued G. O. Ms. 379, Education (SSE) Department dated 9-8-1985. The notification contained in this G. O. is extracted hereunder :
"Notification :
In exercise of ihe powers conferred by subsection (1) of S. 7 of the A. P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fees) Act, 1983, and in cancellation of the orders issued in G. 0. Ms. No. 299, Education dated 17-6-1985, Governor of Andhra Pradesh direct that the tuition fees to be levied and collected by unaided English medium Educational Institutions under private managements other than Government, Panchayal Raj and Municipal Institutions in the State shall be as specified in the schedule.
2. The educational institutions shall not collect any fees in excess of the fee notified. They shall issue an official receipt for the fee collected by them.
SCHEDULE :
Class I to V : Rs.25/- per month per student for 12 months. Classes VI to VII Rs. 30/- per month per student for 12 months. Classes VIII to X Rs. 35/-per month per student for 12 months."
The said notification was published in the Andhra Pradesh Gazette on 12-8-1985. It is seen that this notification was issued in cancellation of the orders' issued in G, O. Ms; No. 299 dated 17-6-1985 -- i.e., just two months earlier. The scales of fee prescribed in that G. O. are some what higher than the. rates of fee specified in the impugned G. O. Ms. No. 379. It is also pointed out that the fee prescribed by the Government as long back as in the year 1978 was higher than the rates of fee prescribed by G. O. Ms. No. 379.
11. On 20-12-1988, the State Government promulgated G. O. Ms. No. 524. By this G. O., the State Government framed rules under various sections of Andhra Pradesh Education Act including S.99 and also in super-session of the Rules in G. O. Ms. No. 60, Education dated 28-1-1985 and "all such other rules in force on the subject". The prefatory portion of the notification reads as follows.
"In exercise of the powers conferred by Ss. 8, 18, 20 and 21 read with S. 99 of the Andhra Pradesh Education Act 1982 (Act No. 1 of 1982) and in supersession of the rules issued in G. O. Ms. 60, Education dated 28-1- 1986 and published as rules supplement to Part-I of the Andhra Pradesh Gazette dated the 5th February 1986 and all such other rules in force on the subject, the Government of Andhra Pradesh hereby makes the following rules relating to establishment, registration, administration and control of all categories of schools functioning under all categories of managements, namely, Government, local bodies and private managements."
We shall also refer to the relevant Rules in G. O. Ms. 524. Rule 2 says : "Unless otherwise speeificaily mentioned, these rules shall apply to all categories of schools functioning under the Government, Local Bodies and private managements (including those under min-
ority communities) imparting the following classes of education in the State of Andhra Pradesh :
(a) Pre-Primary Schools;
(b) Primary Schools;
(c) Upper-primary schools;
(d) Secondary schools (High Schools);
(e) Oriental Schools;
(f) Hindi Patasalas;
(g) Hindi Vidyalayas."
Rule 18 which is the. crucial rule reads as follows :
"18. Criteria for fixing fee structure and allocation of the revenue earned as fee :
(1) Every unaided. school or upgraded aided schpol (without aid for higher classes) functioning under private management shall have its own fee structure to determine the fee to be collected from the students of various courses/classes, subject to the maximum of fee prescribed by the Government from time to time.
(2) The Governing body attached to the institution is empowered to prescribe the fee structure within the maximum limits prescribed by the Government. While fixing the fee structure, the Governing Body shall take into account the following :
(a) Expenditure involving payment of salaries and other benefits to the staff;
(b) Expenditure involving payment of rent for the building occupied by the institution and the unkeep of the building.
(c) Expenditure involving electricity and water charges;
(d) Expenditure involving office requirement like stationery, stamps, etc.
(e) Expenditure involving class room needs like chalk, dusters, etc.
(f) Expenditure involving purchase of books for the library and chemicals and specimens for the laboratories.
(g) Expenditure involving payment to the auditors engaged for auditing the accounts;
(h) Any other miscellaneous expenditure.
(3) It is open for the Governing Body to take a decision to collect fees from students either monthly or quarterly or half-yearly. However, the special fee shall be collected only once in an academic year, that is at the time of admission of the students into the institution.
(4) The fee collected from the students shall be allocated so as to meet the following requirements :
(a) 10% of the fee collected shall be ear marked as personal income to the manage ment.
(b) 10% of the fee collected shall be utilised for the maintenance of the institution (towards expenditure involving the building rent, electricity and water charges, stationery, etc., required for the office, payments to be made to menials and auditors, purchase of library books, chemicals, specimens and other material required for the laboratory and expenditure involving the upkeep of the institution etc.)
(c) 15% of the fee collected shall be earmarked for the developmental activities of the institution (that is the expenditure involving opening of additional courses, classes, sections and upgradation of the institution, providing construction of additional accommodation, acquiring costly equipment and furniture, purchase of land for the use of the institution and the like).
(d) 45% to 50% of the fee collected shall be earmarked towards payment of salaries to the staff.
(e) 15% to 20% of the fee collected shall be earmarked as managements contribution towards staff benefits like gratuity, Teacher's P.F.
(f) It is open for the Governing Body to make marginal modifications to the percentages of collection mentioned above, if necessary, with the prior permission to the Recognition Authority.
(g) (i) The educational agency shall maintain separate accounts in one or more banks; for the amounts allocated for various purposes mentioned above so that the amount allocated for a specific purpose shall not be diverted for another purpose. However, with the prior permission of the Recognition Authority, the Governing Body may divert the amounts for other than the purpose for which it is meant provided the amount is subsequently made good.
(ii) The accounts opened as specified.
above shall be operated through joint accounts in the name of Secretary/Correspondent/ Manager of the institution and the Headmaster/Principal of the Institution.
(h) The amounts falling under items (b) to (e) above are subject to inspection and auditing by the auditors appointed for the purpose by the Governing Body whereas the amount under item (a) above being personal income for the management shall not come under this auditing. However, it may attract the provisions of the Income-tax Laws and Rules."
The other rules which mainly concern themselves with the registration, recognition, administration and control of schools, need not be referred to as they are not necessary for the purpose of the present case.
12. It is asserted by the learned counsel for !he petitioners that R. 18 was framed after taking note of the repeated protests and representations made by the management of unaided private English medium schools and to remove the anomalies.
13. What then is the effect of the Rules framed in G. O. Ms. No. 524 dated 20-12-1988 on the notification issued in G. 0. Ms. No. 379 dated 9-8-1985 is the core question which we have to consider in these matters. While it is the contention of the learned Counsel for the petitioners that G. O. Ms. 379 dated 9-8-85 stood superseded or 'impliedly repealed', it is the contention of the learned Government Pleader for Education, Mr. Ramamohan Rao and Mr. V. S. R. Anjane-yulu appearing for the respondent in the CRP that the notification in G. O. Ms. 379 subsists notwithstanding the Rules framed in G. O. Ms. 524. It is also contended by the learned Counsel for the respondents that there is no real inconsistency between the two G. Os. inasmuch as the operation of the Rules embodied in R. 18 is subject to the maximum fee already fixed by G. O. Ms. No. 379 under S. 7 of Act 5/83. While considering this question, it is necessary to have regard to certain salient and relevant aspects. The criteria or the principles on the basis of which the tuition-fee has been prescribed under G. O. 379 is not discernible either from the G. O. or the provisions of Act 5/83 or even the counter-affidavit filed on behalf of respondents 1 to 3 in the writ pe.tition. That is not to say that G. O. Ms. 379 is per se arbitrary. We do not propose to discuss in this writ petition whether the scales of fee prescribed by the said G. O. are unreasonably low or the figures have been arrived at arbitrarily. We will assume for the time being that there was some basis for fixation of tuition fee at the rates ranging between Rs. 25/- and Rs. 35/- at the lime it was issued. Be that as it may, three years later, the Government thought it fit to issue comprehensive rules relating to establishment, registration, administration of all categories of schools including privately managed schools. One of these rules relates to fee structure to be adopted by the unaided schools functioning under private managements. Various factors have been set out in Clauses (a) to (h) of sub-rule (2) of R. 18. Rule 18 enables the management "of the said institutions themselves (o fix the fee in conformity with the criteria laid down in sub-rule (2), subject to an important stipulation that the fee so fixed shall not exceed the maximum fee fixed by the Government from time to time. Rule 18 goes further and lays down as to. how the fee collected from the students shall be earmarked towards various items of expenditure and how the accounts have to be maintained for this purpose. The methodology evolved for fixing the fees-structure is evidently meant to keep the institutions at a level of self-sufficiency and at the same time, to exercise a check against collection of exorbitant fee from the students who have very little option in the matter. When the State Government thought it fit to frame comprehensive rules on the subject of fixation of school-fee for unaided private institutions, the intention clearly manifested thereby is that a fresh look had to be taken at the existing fees structure and to replace the existing fee scales by new scales of fee arrived at on an application of the criteria laid down by the Rules. It could not be the intention of the rule-making authority to continue to give effect to the scales of fee in force for years together. The second aspect to be noted is that G. O. Ms. 379 and the rules framed in G. O. Ms. 524 are not consistent with each other. Whereas G. O. Ms. 379 stipulated the charging of the tuition-fee as specified therein, Rule 18 of G. O. Ms. 524 evolved a scheme for the fixation and utilisation of fee to be charged by the unaided private schools. Rule 18 contemplates the Management itself determining the fee to be collected from the students according to the criteria laid down and the Government fixing a maximum that could be charged. Thus, it is difficult to envisage the operation of G. O. Ms. 379 and Rule 18 of G. O. 524 hand in hand. It cannot be gainsaid that there is a dichotomy between the two G. Os. However, it is contended by the learned Government Pleader that the fee-scaies prescribed in G. O. Ms. 379 can themselves be treated as the 'maximum fee' prescribed by the Government within the meaning of R. 18(1) and in that sense G. O. Ms. 379 can still be given effect even within the framework of R. 18(1). This is the stand taken in the counter-affidavit as well. We find ourselves unable to accept this contention. No doubt the fee-structure that has to be determined by the management under R. 18(1) read with R. 18(2) of G. O. Ms. 524 is subject to the maximum of fee prescribed by the Government, from time to time. But it is difficult to think that the rule-making authority intended that the scales of fee fixed wayback in the year 1985 on the basis of undisclosed criteria should still be regarded as the maximum fee contemplated by R. 18(1). In our view, the working in R. 18(1) --'subject to the maximum of fee prescribed by the Government' should receive a reasonable construction consistent with the intention of the rule-maker. Having regard to the new fees structure envisaged by the State Government in relation to private unaided schools in accordance with the definite criteria laid down by the rules, it cannot be postulated that the fee prescribed by the Government under S. 7 of A. P. Act 5/83 long back, should still be treated as the maximum fee for the purpose of R. 18(1). Obviously the rules contemplate the Government itself working out a reasonable figure of fee keeping in view the very criteria laid down by R. 18(2) for the guidance of the Management. The rule-making authority could have hardly intended that the rates of tuition fee prescribed in G. O. 379 shall hold good for years together without regard to the scheme evolved by the new rules. In our view, therefore, the maximum of fee 'prescribed by Government' from time to time does not take in the fee prescribed by G. 0. Ms. 379 under the provisions of Act 5/83. The term 'maximum fee prescribed' occurring in R. 18 should mean the fee that is to be hereafter notified by the Government after arriving at the same on the basis of the formula/criteria laid down in R. 18(2) and other relevant considerations, if any. We therefore reject the contention of the learned Government Pleader in this regard. The act that the two G. Os., viz., G. Os. 379 and 524 cannot be harmonized and that the intention of the State Government in framing the Rules on the subject of fees-structure is to replace the old fees structure by a new one is thus apparent. These twin aspects furnish us the necessary background to deal with the problem from a proper perspective.
14. We shall now examine the argument based upon the theory of implied repeal or abrogation of G.O. Ms. 379 dated 9-8-85, after the advent of the rules framed 'in G.O. Ms. 524 dated 20-12-1988. The learned Counsel for the petitioners invoke, inter alia, the principle of implied repeal or rescission of G.O.Ms. 379, by virtue of framing rules under the Education Act concerning the fees-structure of the private unaided schools. The learned Counsel relying upon the three tests which are applied in this regard, contend that in view of the fact that Rule 18 issued in G.O. Ms. 524 is an exhaustive code on the subject of fixation of fee of private unaided schools and in view of the further fact that there is an irreconcilable conflict between the notification issued in G.O. Ms. 379 and the Rules framed under G.O.Ms. 524 concerning the same subject-matter, the doctrine of 'implied repeal' ought to be applied even if there is no express repeal. In this context, the learned Counsel referred to the principles succinctly stated in Ratan Lal Adukia v. Union of India, . Venkatachalaiah, J. (as he then was) said (at p. 110 of AIR) :
"The doctrine of implied repeal is based on the postulate the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts in applying this doctrine are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may be itself, and Without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete Code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously."
It was held in that case that Section 80 of the Railways Act was a complete and self-contained Code in regard to place of suing for compensation against railways and it constitutes a special law for such suits and therefore by necessary implication, the operation of the provisions of Sec. 20 of C.P.C. is excluded. The judgment of the Supreme Court in Yogindrapal Singh v. Union of India, which applied the principle of implied repeal to subordinate legislation as well, was also cited by the learned Counsel.
The learned Counsel for the petitioners then pointed out that the principle -- gene-ralia specialibus non-deroganf -- has no application here in view of the clear intention discernible from the framing of comprehensive rules relating to fee-fixation under a cognate Act. In this connection, Mr. MRK Choudary relied upon the following observations of the Supreme Court in Municipal Council, Palal v. T.J. Joseph, AIR 1959 SC 1561 :
"Of course there is no rule of law to prevent repeal of a special by a later general statute and, therefore, where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the special was repealed by the general enactment."
Relying on these observations, the learned Counsel submits that even'if the Education Act is considered to be a general one and Act 5/83 as a special enactment, the rules made under the later general enactment ought to prevail over the earlier notification issued under Act 5'/.83 in view of the conflict between the two. To the same effect is the argument of Mr. Vedanta Rao. On the other hand, the learned Government Pleader relying upon the observations of Division Bench of this Court in Contempt Case No. 570/91 contended that the notification in G.O. Ms. 379 was issued under a different enactment and therefore the State Government in exercise of the rule-making power under a different Act could not have superseded that notification. As already noted, he also took the stand that G.O. 379 can be read consistent with Rule 18 of G.O.Ms. 524 -- which argument we have already rejected. It is thus contended by the respondents' Counsel that there is no scope for applying the theory of 'implied supersession' of G.O.Ms. 379.
15. We are of the view that the principle of implied repeal or an analogous principle, cannot be invoked in the present case for the simple reason that the mandate of Sec. 12 of the Act 5/83 itands in its way. Section 12 declares in categorical terms that the Act (Act 5/83) shall have an overriding effect in relation to other laws in force. Section 12 enjoins : "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." The expression 'provisions of this Act' will undoubtedly take within its fold the rules or notifications issued under the Act. G.O.Ms. 379 issued by virtue of the power conferred on the State Government under Section 7 of Act 5/83 is one such provision. It is not contended and cannot be contended that Sec. 12 has no application to subordinate legislation. That being so, notwithstanding the inconsistency between the earlier notification viz., G.O.Ms. 379 issued under Act 5/83 and the later rules framed under the Education Act, the former would prevail and should be given full effect to until and unless the said notification is rescinded by the State Government. We, therefore, see no sound basis to apply the principle of 'implied repeal'.
16. This takes us to the next question whether G.O.Ms. 379 has, in express terms, superseded G.O. Ms. 524. While the learned. Counsel for the petitioners contended, without prejudice to their argument of implied repeal, that G.O.Ms. 379 has in fact been rescinded by G.O.Ms. 524, the learned Gov-ernment Pleader submits that G:O.Ms. 524 has no such effect.
17. To resolve this question, the Court has to construe the language employed in G.O.Ms. 524 and ascertain its true meaning.
18. A careful reading of the preamble to G.O.Ms. 524 shows that it can be divided into three parts. The first is the recitation of the source of power for framing the Rules. The relevant provisions of the Andhra Pradesh Education Act including Section 99 which confers rule-making power have been referred to. Then follows the crucial clause which says "in supersession of the rules issued in G.O.Ms. 60 dated 28-1-1986 ..... and all such other rules in force on the subject." Then follows the description of the Rules which were framed under G.O.Ms. 524. The Rules are described as those relating to establishment, registration, recognition, administration and control of all categories of schools functioning under all categories of managements, namely, Government, local bodies and private management.
19. The core question is whether the phraseology 'such other rules in force on the subject' would take within its ambit the notification issued in G.O.Ms. 379 under Section? of A.P. Act 5/83. There are two views possible -- (1) to confine them to Education Act, and (2) to extend them to any Rule under any enactment or source, dealing with the subjects broadly mentioned in the said preamble.
20. The first view point can be substantiated on the following lines: The supersession clause which forms the second part of the preamble to the notification (G.p.Ms. 524) is closely linked up with the first part and they should be harmoniously read. If so read, it becomes clear that the rule-making authority had only in view the Rules framed amd Education Act. The word 'such' indicates that the Rules which are superseded are the Rules which stand on the same footing as G.O.Ms. 60 dated 28-1-1986. By the said G.O., Rules framed under the Education Act including the Rules framed in exercise of the executive power are alone meant to be superseded by G.O.Ms. 524. There is no warrant to extend the scope of expression 'the rules in force on the subject' to the notification under a different e'nactment. If the Statement Government by and through G.O.Ms. 524 intended to supersede the earlier notification issued under Act 5/83, there should have been an explicit langauge to that effect. Moreover, the notification is not a rule and therefore not covered by the expression 'rules on the subject'.
21. The arguments in support of the second view runs as follows: The expression 'such other rules on the subject' means the Rules relating to establishment, registration, recognition, administration and control of schools, If the new Rules framed in G.O.Ms. 524 specifically deal with these subjects, the other Rules including notifications in force on the same subject stand superseded and the new rules alone will govern those subject-matters. The subject of fixation of fee is specifically dealt with by Rule 18. Rule 18 is comprehensive in its scope and is a complete code on the subject of determination of fees-structure as far as the private unaided schools are concerned. Moreover, Rule 18 dealing with fees-structure is a rule which, broadly speaking, pertains to adminstration and control of various categories of schools. There is nothing in the language of the preamble to the Rules framed in G.O.Ms. 524 which excludes the Rules emanating from a different but cognate enactment from the clutches of the supersession clause. G.O.Ms. 379 though issued under S. 7 of Act 5/83, cannot be said to have been left untouched by the new Rules framed under the Education Act. The State Government is the common authority under both the enactments and it has competence to amend, modify or supersede the Rules or notifica-
tions issued under one or the other enactment. G.O.Ms. 379 which is in the nature of statutory notification issued by the State Government under Section 7 of Act 5/83 could also be brought within the ambit of the expression 'rules on the subject' and it is not outside the purview of supersession. It is no doubt true that there is to specific reference to G,O. Ms. 379 but that is immaterial. The rule-making authority perhaps wanted to avoid a copious reference to aii the relevant G.Os., notifications and rules issued from time to time and therefore chose to employ a comprehensive expression 'such other rules on the subject.'
22. The second view point referred to above has the merit of giving effect to the intention of the State Government to which we have already adverted and it would also avoid inequitable consequences. The same aspect, we feel, deserves to be emphasised again at this juncture. It is to be noted that the State Government (Education Department) knowing fully well that the notification issued under Section 7 of Act 5/83 was in force, framed Rules under the Education Act evolving certain criteria for the determination of fees structure by the Managements themselves which shall be subject to the maximum prescribed by the Government from time to time. Is it the intention of the rule-making authority to keep alive G.O.Ms. 379, despite the promulgation of new rules on the same subject though under a different enactment? We are of the view that such intention cannot be imputed to the rule-making authority. The State Government would not have intended that the fee scales prescribed under Act 5/83 more than three years back should be forced on the Managements of private unaided schools till such point of time as the Government chooses to prescribe the maximum fees by revising the earlier fee-scales. While the prescription for maximum fee chargeable by the private unaided school Managements has a laudable objective of preventing the Managements from fleecing the students who seek English medium schooling and commercialising such education beyond reasonable limits, it should also be borne in mind that the prescription of out-dated and low scales of fee will be counter-productive. The Managements should be given the freedom to charge fee at a reasonable level so as to ensure that proper academic atmosphere and infrastruc-tural facilities in the English medium schools are maintained. Rule 18 issued under G.O.Ms. 524 is a step in trjis direction and is meant to harmonise these twine objectives. A rational fees structure which is capable of making the institution viable and which does not cast undue burden on the parenls, is the desideratum of Rule 18. Though the intention behind the introduction of Rule 18 through G.O.Ms. 524 is fairly clear, the Government, by its sheer inaction, did not translate" the same into action. The Government should have prescribed the maximum fee in keeping with the spirit and guidance of Rule 18. The endeavour of the respondents now is to fall back upon G.O. Ms. 379 of the years 1985. The State Government would like to say now that the Managements of private unaided schools should still adhere to the fee-scales prescribed by G.O. 379 nearly 7 or 8 years back. Apart from the fact that the State Government and its agencies are estopped and precluded from raising such a plea as we shall hereafter explain, such a plea smacks of an unreasonable attitude. To insist upon the continuance of the same fees structure for an unduly long time by now it is eight years, would give rise to a presumption of unreasonableness. The Court can take judicial notice of the fact that the expenditure on staff, class room maintenance and other infrastruc-tural facilities have been on steady increase from year to year, giving rise to the need to revise the maximum scales of fee prescribed at reasonable intervals. No material has been placed before us by the Government to show that the scales of fees prescribed by G.O.Ms. 379 dated 9-8-1985 could still be regarded as reasonable despite long passage of time and that they adequately cater to the overall needs of the educational institutions.
23. Thus, three noticeable facts emerge. Firstly, whether G.O.Ms. 379 was superseded by G.O. 524 is a debatable point on which two views are possible. Secondly, the intention of the State Government in framing Rule 18 under G.O.Ms. 524 was to prescribe maximum fee chargeble afresh in accodance with the criteria laid down in Rule 18 and other relevant criteria. Thirdly, the enforcement of same scales of fee for years together would be prima facie unreasonable and bound to lead to unjust consequences. It is in this background that the learned Advocate General who appeared in, the batch of writ petitions disposed of on 27-1-1989 made a representa-tion that G.O.Ms. 379 was no longer in force and the same had been superseded by G.O. 524 dated 20-12-1988. This submission of the learned Advocate general was accepted by the Division Bench of this Court. The Division Bench, therefore, found it unnecessary to go intq the various other contentions. The batch of writ petitions was merely disposed of recording the fact that the G.O.Ms. 379 having been superseded, the writ petitions have become infructuous. In the face of categorical submission made by the learned Advocate general in that batch of writ petitions and the judgment of this Court giving effect to the said representation, is it open to the respondents to plead that G.O.Ms. 379 still exists and that it is legally enforceable against the school Managements? Before answering this issue, it is appropriate to refer to the respective contentions of the learned counsel on this aspect of the case. The learned Counsel for the petitioners have argued that the statement made by the learned Advocate General before the Division Bench of this Court which heard the batch of writ petitions is binding on the State Government and the State Government is now estopped from taking a different stand long after the disposal of those writ petitions. It is also contended that the judgment rendered by this Court on the bassis of the said representation binds the Government and the finding recorded in that judgment cannot be ignored. iOn the other hand, it is contended by the learned Government Pleader that there was no decision of this Court on merits, that the principle of res judicata does not apply and principle of estoppel cannot also be invoked vis-a-vis the concession made by the learned Advocate General on a legal question.
24. Irrespective of the fact whether G.O.Ms. 379 must be deemed to have been suneiseded in the eye of law or not, we are of the view that the stand taken by the Government in the previous writ petitions through its counsel the Advocate General and the resul-tant judgment of this Court which remained unchallenged precludes the respondent-authorities from taking a contrary stand or ignoring the effect oi the said judgment at this point of time. It is true that the concession made by the Counsel on a point of law does not bind the client and the client is not estopped from contending otherwise. But this proposition cannot be invoked in the instant case for more than one reason. First of all, it has to be noted that the statement made by the learned Advocate General was not with reference to a pure question of law. Whether or not G.O.Ms. 379 has been superseded by G.O.Ms. 524 is at least a mixed question of law and fact. While interpreting the effect of supersession clause contained in the second portion of the preamble to G.O. Ms. 524, the intention of the Government in framing Rule 18 is, undoubtedly, one of the relevant factors. We have already noticed that with regard to the scope and amplitude of the supersession clause, two views are possible and it raises a moot question. Considering all the relevant factors including the intention of the Government and the unjust consequences that would have otherwise followed and acting upon the instructions of the client, the learned Advocate General gave a particular interpretation. In doing so, it cannot be said that the learned Advocate General exceeded. his authority as a counsel or made an unjustifiable concession on a point of law. It is well to remember that the so-called concession made by the learned Advocate Generali does not go against any provision of law unnoticed by him. In this context, it is pertinent to highlight the fact that the representation made by the learned Advocate General was only pursuant to the instructions obtained from the concerned authorities of the State Government. We find from the record that the batch of writ petitions underwent several adjournments and after the cases were partly heard, G.O. Ms. 524 was isscd by the Government framing Rules under the Education Act. Evidently, at that stage, after consulting his clients, the learned Advocate General fairly stated that the notificatin issued in G.O.Ms. 379 was no longer in operation. The fact that the stand taken by the learned Advocate General was based on the instructions of the concerned Educational authorities who were parties to the batch of writ petitions, is evident from the counter affidavit filed in Contempt Case No. 570/91. This is what the deponent the Director-General of School Education stated in his counter : "it cannot be said that G.O. Ms. 379 was superseded by G.O. Ms. 524. I respect-
fully submit that the then learned Advocate General was not properly instructed 'and appears to have been under a mistaken impression that the said G.O. was superseded". Thus, the State Government which was a party in the earlier batch of writ petitions and which was the best person to make known to the Court what its intention was, had come forward and represented to the Court through its Counsel Advocate General that G.O.Ms. 379 stood superseded by G.O.Ms. 524.
25. The next aspect to be taken note of is the conduct of the respndents themselves. If the Government felt that the stand taken by the Advocate General was unsustainable or based upon wrong instructions, nothing prevented the Government from filing an appeal or review. But the judgment in W. P. No. 11171/86 and batch was allowed to become final. For nearly two years, nothing was said against the judgment. Not a little finger was raised against the judgment till a Contempt Case was filed in this Court in the year 1991. The authorities of the Education Department evidently acted in accordance with the judgment for at least two years after it was rendered. At this stage, in the course of subsequent litigation, it is not open to the respondents to take a somersault arid contend that the concession of the learned Advocate General is of no consequence and can be simply ignored. Such a collateral attack is not permissible. What is more, as a result of the representation made by the learned Advocate General, the various other contentions raised in the writ petitions were not gone into and the writ petitions were summarily disposed of. Thus, the respondents pre-empted a decision on contentions issues and ensured the termination of proceedings at that stage. The petitioners, thereafter proceeding on the footing that G.O.Ms. 379 was no longer there, fixed up the fees in purported compliance with the prescribed criteria and submitted a report to the Education Department. Thus, the petitioners have altered their position in accordance with the representation made on behalf of the respondents and the judgment rendered thereupon. In this state of affairs, we are of the view that the Government and the concerned authorities cannot be permitted to blow hot and cold and to rake up a concluded issue quite contrary to the legal position which they maintained in the earlier batch of writ petitions. To do so, would be nothing but an abuse of the processor the Court apart from anything else.
26. There is an other, insuperable obstacle in the way of .the respondents. The stand taken by the respective parties on the question of e'nforceability of G.O. 379 culminated into a judgment rendered by this Court in W.P. No. 11161/86 etc. batch. A careful analysis of the brief judgment reveals that there was an application of mind on the part of the learned Judges on the question whether G.O. Ms. 379 had been superseded by G.O.Ms. 524. This question was evidently mooted before the learned Judges. In appreciating thai aspect, the Division Bench gave due weight to the submission-made by the learned Advocate General. In this connection, we may refer to the decision of the Supreme Court in a recent. decision in Periyar and Pareekani Rubbers Ltd. v. State of Kerala, , wherein it was indicated that the concession made by the Advocate General is to be normally accepted. The Division Bench evidently felt that it was unnecessary to decide the other issues. The learned Judges therefore observed in categorical terms that the writ petitions became infructuous, which only means in the context that by virtue of supersession of G.O. 379 the complaint of the petitioners does not survive. Though there is no elaborate reasoning or discussion in the judgment, it is clear that the Division Bench must be taken to have recorded a finding regarding the Supersession of G.O. Ms. 379 by G.O. Ms. 524. The judgment having becOme final, it binds the respondents whether it be right or wrong and on the principle of res judicata or issue estoppel, the Government and its agencies are precluded from ignoring that, judgment or taking a stand contrary to the issue decided in that judgment. We cannot agree with the learned Government Pleader that there was no issue and no finding of this Court at all.
27. The principle of issue estoppel has been succinctly stated by the Privy Council in Hoystead v. Taxation Commissioner (1926) AC 155 at p. 166:
"In the opmion of their Lordships, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view to obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to bring fresh litigations because of new views they May entertain of the Jaw of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had been taken. The same principle of setting parties' right to rest applies and estoppel occurs."
After citing the above passage with approval, Brightman, LJ speaking for the Court of Appeal in Khan Goleccha International (1980) 2 All ER 259 applied the, principle to the case on hand and expressed, his views in the following lines :
"Looking at the matter broadly, the issue of 'lending of money' was raised in, the Queen's Bench action. The judge decided that there was a lending of money within the meaning of the Act. The plaintiff appealed. The Court of appeal gave judgment dismissing the appeal. The judgment was given by consent and the consent was given because the defendant claimed, and the plaintiff accepted, that there was no lending of money. In my view, that admission of the plaintiff, given to the court and founding the judgment by consent, was just as efficacious for the purpose of issue estoppel as a judicial decision by the court after argument founding a similar judgment. The only sensible approach of the law, in my view, is to treat an issue as laid at rest, not only if it is embodied in the terms of the judgment, or implicit in the judgment because it is embodied in the spoken decision, but also if it is embodied in an admission made in the face of the court or. implicit in a consent order."
The observations in the aforementioned two English cases are quite apposite in the context of the present case as well. Viewed from any angle, we are of the view that the respondents cannot retract from the solemn representation made before the Division Bench of this Court and wriggle out of the judgment which gave effect so such representation.
28. It was then argued by the learned Government Pleader that the petitioner in W.P. No. 8141/92 was not a party to the previous batch of writ petitions and hence the principle of estoppel, res judicata or the like, cannot be invoked by the said petitioner. The judgment of this Court had the effect of declaring that G.O.Ms. 379 ceased to be in operation with the framing of Rules under G.O. Ms. 524. This declaration of law is general in nature and cannot be confined only to the parties to the proceedings. That apart, if we accept the contention of the learned Government Pleader, it means that as far as a vast majority of English Medium Schools are concerned, the G.O. cannot be enforced, but in the case of a few Managements which did not file writ petitions earlier, the G.O. can still be enforced. Thus, two sets of fee will be operative one for schools which were parties to the earlier batch of writ petitions and the other for the schools like that of the petitioner in W.P. No. 8142/92. This would obviously sound discrimintory and anamolous. Broadly speaking, uniform scales of fee ought to be enforced in all the unaided English Medium Schools unless, ofcourse, there is any individual issue between the School Management and the Education Department precluding such application. We cannot therefore deny relief to the petitioner in W.P. No. 8142/92 on the ground that the said petitioner was not a party in the earlier batch of writ petitions.
29. In the view we have taken, it is not necessary for us to go into the question whether the rule-making power under a particular enactment can be availed of to supersede a notification issued under a, different enactment and whether the view expressed by the Division Bench in Contempt Case No. 570/91 is correct, as far as that judgment is concerned, we would only observe that the Division Bench while exercising the contempt jurisdiction could not have said anything touching on the merits of the main judgment and corrected the said judgment that gave rise to the Contempt Case. We have therefore proceeded on the basis that the judgment in W.p. No. 11161/86 and batch has become final and the finding recorded therein cannot be attacked in a collateral proceeding.
30. It is also not necessary for us to express our considered view on the question whether G.O.Ms. 379 has in fact been superseded by G.O. Ms. 524 inasmuch as we have come to the conclusion that by virtue of the representation made by the learned Advocate General before the Division Bench hearing the batch of writ petitions and the judgment thereon, it is not open to the respondents to put up a contradictory posture in this round of litigation and ignore the effect of that judgment. It is also not necessary for us to deal with the various other contentions raised by the learned counsel for the petitioner, Mr. M. R. K. Choudary. However, we would refer to those arguments in brief and say no further. Those contentions are :
(1) The notification issued under Section 7 of Act 5/83 is in the nature of an executive action. When there is a conflict between such notification and a statutory rule, the rule should prevail.
(2) Section 2(b) of Act 5/83 contemplates the prescription of fee. The prescription must be by way of Rules. The rule framed under under S. 15(1) of the said Act should therefore precede a notification be issued by the Government under Section 7, Until such rule is framed, the notification issued by the executive under Section 7 has no legal sanctity.
(3) There is no guidance under S. 7 of Act 5/83 as to how and to what extent the fee could be charged. In the absence of such guidance, the subordinate legislation in the form of rules should supply the necessary guidelines. The Education Act and Act 5/83 must be read and understood as cognate Acts or a common code. Therefore, when once the Rules have been framed under G.O. Ms. 524 laying down the principles with regard to fees structure, a fresh notification under Section 7 must necessarily be issued; and (4) Discriminatory treatment has been meted out to the petitioner-institution in the matter of enforcement of G.O. Ms. 379.
31. In view of the foregoing discussion, G.O. Ms. No. 379 (Edn. SSE) dated 9-8-1985 cannot be enforced against the Managements of unaided English Medium Schools. The scales of fees arrived at by the petitioner-Managements in purpoted compliance with the criteria laid dosn in Rule 18(2) of the Rules in G.O. Ms. 524 under the Education Act is however subject to the maximum that may be prescribed by the Government under sub-rule (1) of Rule 18. As and when the maximum fee scales are notified by the Government, the petitioner-institution will have to give effect to them. The writ petition is allowed with these directions. No costs.
32. As far as the C.R.P. is concerned, the order of the appellate Court granting injunction against the school management is based solely on the premise that G.O. Ms. 379 is still in force. Having regard to the view we have taken, the injunction is to be dissolved. Accordingly we allow the C.R.P. No costs. Of course, the petitioners in the C.R.P. will abide by the maximum fee that may be prescribed by the Government under Rule 18(1), till the disposal of the suit.
33. Before closing the case, we would like to observe that the controversy could have been well avoided by the functionaries of the Education Department if there was follow-up on their part after the Education Rules were framed in the year 1988. Years -rolled by without fixing the maximum fee in terms of Rule 18. But, in answer to the present litigation, the respondents would like to say that the previous representation made by the Advocate Genera! on the basis of the instructions obtained from the respondents had no sanctity and they would still enforce the fee scales prescribed as long back as in 1985. If there was an application of mind to the crucial issue, we are sure that instead of taking such unwholesome plea, the Government should have undertaken the simple exercise of fixing the maximum fee in accordance with R. 18.
34. Order accordingly.