Orissa High Court
D.Av. College Managing vs State Of Karnataka And Other Reported In ... on 6 September, 2011
V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J.
W.A. NO.387 OF 2011 (With Batch) (Decided on 06.09.2011)
D.AV. COLLEGE MANAGING
COMMITTEE & ORS. .........Appellants.
.Vrs.
LAXMINARAYAN MISHRA & ORS. ..........Respondents.
For Appellants: M/s. : Jagannath Patnaik, B.Mohanty, T.K.Pattnayak
&A.Patnaik (In WA No.387/2001) M/s.: Saurjya K.
Padhi, B.Mohanty, S.Patnaik M/s. Sanjit
Mohanty, K.S.Patnayak, Ashok K. Parija, M/s.
Milan Kanungo, P.P.Panda, Y.Mohanty& S.K.
Misra, B.B.Mohanty, B.B.Mohanty
For Respondents : Mr : J. Das M/s/ D.K. Mohapatra, S.Jena,
M/s. : M.K. Sahoo, A.Mishra, P.K.Praharaj,
Mr Bijoy K. Mohanti Mr Shyamananda Mohapatra Mr .
J. Das M/s. K.P.Mishra, L.Samantray, C.Mohanty,
P.K.Mishra, S.Pattnaik Mr Y.Mohanty, Mr J. Das,
A.N. Das, N.Sarkar, E.A. Das & J.J.Das, S.Das
V. GOPALA GOWDA, C.J. These appeals are filed by the D.A.V. College
Management represented through its Regional Director, D.A.V. Institutions, Orissa,
West Bengal, Sikkim and Manipur, Markat Nagar, Section -6, Cuttack, Orissa. The
correctness of the common judgment dated 27.06.2011 passed in W.P.(C) Nos.5030,
525, 893, 3460, 4713, 4922, 5113, 5147, 5326, 7251 and 11359 of 2009, wherein the
learned Single Judge while disposing of the writ petitions has made certain observations
and directions, is challenged in these appeals urging various facts and legal
contentions.
2. The brief facts of the case are stated below for the purpose of appreciation of
rival legal contentions and to answer them.
3. It is stated by the appellants-Institutions that all the DAV Public Schools situated
in Cuttack and in the State of Orissa are managed by the DAV College Trust and
Management Society, a Charitable Educational Trust established in 1986. All the DAV
Public Schools, Colleges and other institutions are managed by the above Trust having
charitable purpose and there is no individual/private interest in it. The employees of the
DAV Public Schools are the employees of DAV College Managing Committee, a
functional wing of the DAV College Trust and Management Society, New Delhi. DAV
Public Schools are imparting education to the students in CBSE pattern and other
vernacular patterns. The appellants-Institutions are guided by the rules and regulations
of the CBSE which is the affiliating agency. The appellant's schools are the largest Non-
Government Educational Institutions which do not receive any grant either from the
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Central Government or the State Government. The employees of the appellant-
Institutions are getting salary as per the guidelines of the C.B.S.E. The track records of
the appellants-Institutions are very good over the years than the other educational
institutions situated in Orissa. The teaching faculty, infrastructure and the facilities
provided by the Schools are better than other Non-Government Schools and the
appellants-Institutions always follow the guidelines issued by the CBSE and the State
Government. The Managing Committee of the appellants-Schools has published its
administrative manual, wherein under Chapter VII at Clause 7.1 the guidelines for
determining fee structure for schools has been prescribed, which reads as under:
"The DAV Public Schools, as is known, are non-profit making, non-commercial
institutions. Their sole aim is to provide high quality of school education. As
they do not receive any grant-in-aid from the government, and as there is no
other source of income, they have to depend largely on fees to meet their
expenditure. There are many other things besides the physical facilities
provided by a school which form essential elements of expenditure which is
turn become the basis for determining the fees"
4. It is stated that the CBSE guidelines provided in clear terms provide for obtaining
No Objection Certificate (for short, "NOC") from the State Government to establish DAV
institutions affiliated to CBSE Board. There is no law in operation in the State of Orissa
for giving NOC to CBSE affiliation institution. Government of Orissa in the Department of
School and Mass Education, Orissa on 23.09.1996 has passed Resolution No.30720-
VISSME-M-17/96-SME giving NOC to CBSE Institutions including DAV Institutions after
fulfilling the conditions prescribed purported to have been issued keeping in mind the
requirement prescribed under Sections 5 and 6 of the Orissa Education Act, 1969 (for
short, "the Act, 1969"). The executive instructions provide for various establishments
including the fees, admission of students, withdrawal of No Objection Certificates issued
in favour of DAV institutions affiliated to CBSE/ICSE. The provisions of the Orissa
Education Act have no application to Schools, Higher Secondary Schools, Colleges and
Junior Colleges in terms of definition of Section 3(j-1), which reads as under:
"Section (j-1) : Junior College means an educational institution imparting
instructions in Higher Secondary courses as defined in the Orissa Higher
Secondary Act, 1982"
The schools do not come under the private educational institution. Bye-Laws Clause
Nos.20 and 21 of the Affiliation Bye-Laws of the CBSE provides for School Managing
Committee, its constitution, powers and functions. The term of office of the Managing
Committee is three years. The Committee is taking all relevant factors into consideration
under the different heads, as has been provided by the State Government in exercise of
its power to fix the free structure to the students. The appellants submit that during
pendency of the writ applications before this Court, the State Government issued letter
dated 27.3.2009 in respect of private English Medium Schools of the State from the
academic session 2009-10, wherein the State Government has decided to increase the
fee structure of private English Medium Schools in the State provisionally up to 25%
over the last year tuition fees only for those schools which are paying 5 th Pay
Commission scale and are going to pay 6th Pay Commission scale to the staff. Similarly,
development fee should not be increased beyond 15%. After the same was issued by
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the State Government, the Management of DAV Public School, Unit-8, Bhubaneswar,
DAV Public School, Chandrasekharpur, Bhubaneswar and DAV Public School,
Pokharipout, Bhubaneswar filed three writ petitions bearing W.P.(C) Nos.5113, 5030
and 5147 of 2009. The State Government filed an affidavit in W.P.(C) No.5030 of 2009.
In para-3 of the said affidavit, the State Government has stated that the Orissa
Education Act, 1969 is relatable to the educational institutions which are required to be
affiliated to the Board of Secondary Education and Universities of the State. The English
medium schools which are affiliated to CBSE and ICSE are not coming under the Orissa
Education Act.
5. Mr J. Patnaik, learned Sr. Counsel Mr Sanjit Mohanty, learned Sr. Counsel, Mr
S.K.Padhi, learned Sr. Counsel and Mr M. Kanungo, learned counsel appearing on
behalf of the appellants vehemently contended that the impugned common judgment
passed by the learned Single Judge is ex-facie illegal, erroneous and contrary to the
principles of law in view of the decisions of the Supreme Court in catena of cases. The
impugned judgment passed by the learned Single Judge is based on erroneous findings
in coming to the conclusion and holding that the Orissa Education Act is applicable to
the institutions run by the appellants. Further, applicability of the Orissa Education Act to
the institutions of the appellants is a misnomer and misconceived. All the DAV Public
Schools, which are affiliated to CBSE Board, have already taken NOC from the
Government of Orissa as per the requirement prescribed in the CBSE Guidelines. In
the resolution dated 23.9.1996 it is stipulated that for opening of private un-aided
English Medium School in the State of Orissa NOC has to be obtained from the State
Government with other conditions. The DAV Schools were never granted any kind of
NOC under Section 5 and 6 of the Act,1969. The said resolution has taken the spirit of
requirements prescribed under Sections 5 and 6 of the Act, 1969. Learned Single Judge
has committed an error in arriving at the conclusion that the requirements prescribed
under the resolution being similar to the requirements prescribed under Sections 5 and
6 of the Orissa Education Act, 1969 make the Orissa Education Act applicable to DAV
Schools in general terms. Therefore, the said findings and conclusion are illegal and
erroneous.
6. It is stated that the finding of the learned Single Judge that the executive
instruction has merged into the Orissa Education Act has no legal basis or foundation.
The resolution of 1996, which prescribes conditions for granting of NOC to the unaided
private English Medium Schools, is a distinct executive instruction and has no nexus
with the Act, 1969. Learned Single Judge has misconstrued that the resolution of 1996
is a product of the Act, 1969 for which the same is applicable to the DAV Public
Schools. Therefore, the impugned judgment passed by the learned Single Judge is
liable to be set aside.
7. It is stated that the learned Single Judge has erroneously recorded the finding
that the School Managing Committee is illegally continuing being de hors Section 7 of
the Act, 1969. The Managing Committee of DAV Public School is constituted as per the
guidelines prescribed under the CBSE Board. These guidelines are sacrosanct and
applicability of Section 7 of the Orissa Education Act, 1969 and rules pertaining to the
constitution of Managing Committee under the Orissa Education (Establishment,
Recognition and Management of Private High Schools) Rules, 1991 ( for short, "the
Rules, 1991" ) are not applicable to appellants-Schools in any manner. The DAV Public
Schools have taken NOC and the Managing Committee of DAV Public School has been
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constituted under the CBSE guidelines, which are distinct and independent from Section
7 of the Act, 1969. The stand taken by the State Government in its counter is that the
DAV Public Schools have not taken the recognition under the Act, 1969 rather they have
taken NOC as per the requirements prescribed under the CBSE guidelines. Therefore,
the Act, 1969 is not applicable and thus the impugned judgment passed by the learned
Single Judge is liable to be quashed.
8. Further, the learned Single Judge has failed to take into consideration that
"Higher Secondary School" means an educational institution imparting education
in Higher Secondary Courses as defined in the Orissa Higher Secondary Education,
Act, 1982 (for short, "the Act, 1982") and may have standards or classes VIII, IX and X
attached. "Higher Secondary School" has been defined as an educational institution
preparing candidates for the examination of the Council and recognized as such by the
Council. "Higher Education Course" means the course immediately following the High
School Certificate course covering a period of two academic years which is provided for
either in a college or a Higher Secondary School and includes Arts, Science, Commerce
and Vocational Courses. "Higher Secondary Education" means such general and
vocational education forming in itself a complete purposive whole which immediately
follows Secondary Education as has been defined in the Orissa Education Act, 1952 (for
short, "the Act, 1952") and immediately precedes a stage of education controlled by any
University.
9. It is further stated that "Higher Secondary School" means an educational
institution preparing candidates for the examination of the Council and recognized as
such by the Council but does not include for the purpose of this Act and Regulations
made thereunder as the part of that institution which prepares candidates for
examination other than Higher Secondary Examination. DAV Public Schools that are
imparting Higher Secondary Education up to XII class and not affiliated to the Council of
Higher Secondary Education, Orissa, but affiliated to CBSE do not come under the Act,
1969 or the Rules framed thereunder. But, the learned Single Judge in a very
mechanical manner has not appreciated the aforesaid contention of the appellants and
has come to an erroneous conclusion that DAV Schools being the Higher Secondary
Schools come under the ambit of the Orissa Education Act, 1969.
10. Further, it is stated that learned Single Judge has erred in passing the judgment
by relying upon the definition clause of the Rules, 1991, which defines "High School" to
mean the school preparing candidates for High School Certificate Examination
conducted by the Board or an equivalent examination conducted by the CBSE or ICSE
and came to an erroneous conclusion that as per these Rules DAV Public Schools are
High Schools falling within the ambit. The aforesaid Rules are applicable to DAV Public
Schools and consequently the Managing Committee constituted for the schools is illegal
for not being established as per these Rules. The definition of "High School" given in the
Rules stands contrary to the definition of "High School" provided in the Act, 1969 for
which the provisions of the Act will over ride the Rules. Hence, the impugned judgment
passed by the learned Single Judge placing reliance upon the Rules arriving at a
conclusion that the Schools of the appellants-Management though affiliated to CBSE
they are all subject to regulation of the State Government under the provisions of the
Orissa Education Act, 1969 is an erroneous conclusion. The learned Single Judge has
failed to notice that for Class +2 Junior College there being separate Rules referred to in
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ground (1), consideration of the Rules, 1991 is not relevant. Hence, the impugned
judgment is liable to be set aside. Therefore, reliance placed on the definition clause
where private Higher Secondary School has been defined in Rule 2(k) of the Orissa
Education (Establishment, Recognition and Management of Private Junior
College/Higher Secondary Schools), Rules, 1991 which defines private Higher
Secondary School to mean any Higher Secondary School, which is not established,
maintained by Government of Orissa, Union Government or any other State and came
to an erroneous conclusion that DAV Schools are imparting education up to Class-X or
to Higher Secondary level fall within the definition, for which the aforesaid Rules are also
applicable. The aforesaid Rules are not at all applicable to DAV Public Schools. In the
premises, the definition of "Higher Secondary School" which is provided in the Orissa
Higher Secondary Education Act, 1982, prescribes that "Higher Secondary School"
means an educational institution in preparing candidates for examination of the Council.
The appellants-Public Schools never prepare such students for the Council
Examination, as, admittedly, it prepares the students for CBSE Board Examination.
Therefore, the Rules are not applicable to the Schools run by the appellants. Therefore,
reliance placed by the learned Single Judge on the aforesaid Rules, 1991 and the
conclusion arrived at that the Orissa Education Act, 1969 is applicable, is apparently
erroneous and legally not tenable.
11. Further, the learned Single Judge has failed to take into consideration the
averments that hike in fees are very much non-profitable but commensurate with the
service and facilities that are provided by the DAV Public Schools. But the learned
Single Judge in a very mechanical manner has quashed the hike in fees on the ground
that no reasons have been assigned in order to hike in fees. Therefore, it is stated that
hike in fees is very reasonable as is reflected from the reasons given by the appellants-
opp. parties in counter affidavit to the writ petitions, which are quoted hereunder:
"That the enhancement of fees was determined by the School authorities after
consultation with the parents' representatives who are the members of the
Local Managing Committee ( for short "LMC"). The fees of the deponent
schools are enhanced for the following reasons.
A) To meet the CBSE requirement mentioned in the guidelines so far as the school
infrastructure is concerned,
B) To appoint the faculties in different disciplines for better academic performance
in the school.
C) To pay the salary to the employees of the school after introduction of 6 th Pay
Commission by the Central Government and subsequently by the State
Government.
D) Revised fee structure must take into consideration to need to generate funds to
be utilized for betterment and growth of the infrastructure of the deponent
schools.
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E) That the deponent humbly submits that the deponent schools are governed by
the C.B.S.E. guidelines so far as the academics are concerned and also
admitting the students in the school as per the C.B.S.E. guidelines and as per
the infrastructure and staff of the school. The academic performance of the
schools is better than the other schools of Cuttack city. The present
infrastructure of all the schools are just and sufficient to meet the requirement of
C.B.S.E. guidelines for the sessions 2007-08 leaving room for its betterment.
F) That the parents' allegation that fees for the academic session 2009-10 is
exorbitantly high is not correct. As per the decision of the local Managing
Committee, the fee structure of the school was revised to meet the heavy
financial burden on account of the revision of pay structure following
implementation of 6th Pay Commission introduced by the Central and State
Government. In the Local Managing Committee the parents' representatives
were also present and with their consent the resolution was passed in Local
Managing Committee. The fees and Annual charges were revised in order to
meet the requirement of C.B.S.E. stipulations and to pay the salary to the
employees of the school after introduction of 6th Pay Commission by the Central
Government and subsequently by the State Government. The fees structure
were revised as the schools are not getting any grant from the State Government
and the Central Government and there is no other source of income to meet the
additional burden source of income to meet the additional burden of the revised
pay. For the above reason the notification dt. 5.1.2009 under Annexure-3 issued
by the School authorities is proper.
G) That the deponent humbly submits that the notification/letter dated 05.01.2009
under Annexure-3 was issued by the authority after discussion with the parents'
representatives in the Local Managing Committee. Therefore the allegations
made by some of the parents are false and hereby denied. So far as the circular
dated 09.01.2009 under Annexure-4 series are concerned the deponent
respectfully submits that the revised fee structure under Annexure-3 was issued
after detailed discussions with the parents' representative and the members of
the Local Managing Committee. For the above reason the other allegations of
the petitioners (Parents) are not correct.
H) That a bare perusal of the notice dated 09.01.2009 under Annexure-4 series
issued by the authority of DAV Public School, Cuttack would go to show that in
the notice dated 09.01.2009 it was mentioned that the academic performance of
the students of the school are excellent than the other schools situated at
Cuttack. It is further stated that the staff working in DAV schools are to be paid
salary at the rate prescribed by the Government besides other statutory dues like
P.F. Gratuity, Insurance etc. The staff salaries constitute a major expenditure of
the school budget. The school also appoints qualified and experienced faculties
in the school to impart education to the students. The Central Government
revised the pay structure of the employee. In order to give them salary an
enhancement of fee is necessary. By giving the above reason in the notice dt e
09.01.2009the authority revised the fee structure. For the above reason the allegation of the petitioners are not correct.
7I) That the Hon'ble apex court have decided a case of T.M.A. Pai Foundation and others-versus-State of Karnataka and other reported in AIR-2003 (SC) Page-355 and observed in Para-56 of the judgment that an educational institution is established for the purpose of imparting education of the type made available by the institution different courses of study are usually taught by the teachers who have to be recruited as per qualification that may be prescribed. It is no secret the better working conditions will attract better teachers. More amenities will ensure that better students week admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the Institution, if it chooses not to seek any aid from the Government to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon funds from the Government.
J) It is relevant to state here that it is not the case of the petitioners (some of the parents) that the quality of Education in the deponent school is poor or inferior. It is a fact that the Opp. Party No.6 is not receiving any grant from State Government and Central Government. That Hon'ble Apex Court in the case of T.M.A.Pai Foundation-vrs-State of Karnataka held in para-60 of the judgment that in the case of un-aided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged.
K) That the deponent humbly submits that the school is not getting any grant in aid from the Central Government as well as the State Government. The salary of the employees of the schools are to be paid from the fees collected from the students and as such the revision of fees is essential and unavoidable.
L) It is relevant to state here that some students abandon the school without completing their study chiefly due to transfer of their parents to outside Cuttack and Bhubaneswar without clearing the school dues. The fees collected from the students are not sufficient to meet the salary of the employees of the school. After declaration of 6th Pay Commission by the Government the deponent schools have to pay the salary its employees at the higher rate. For the above reason the fee hike is just and proper as the deponent school are not getting any aid from the State Government and also from the Central Government.
M) That deponent further submits that we have no objection to the constitution of any committee by this Hon'ble Court to go into the fee structure charged by the different private schools of the State.
N) It is relevant to state here that the fees collected from the students before implementation of the 6th Pay Commission are not sufficient to pay the salary to the employees of the school. After introduction of 6th Pay Commission, the schools prepared the Budget and revised in fee structure after getting approval 8 from the Local Managing Committee (in short LMC). The fee structure of the deponent school also not sufficient to pay the salary as per the recommendation of the 6th Pay Commission. The Management of Central School/Kendriya Vidyalaya and the State Government are paying salary to their employees are more than the salary of the Opp. Party Nos.6 and 7. The income out of proposed fees charged by the schools is not sufficient to pay the salary to its employees.
O) For that the appellants humbly submit that the judgment passed by the Hon'ble Single Judge is based on erroneous findings on the ground that the Hon'ble Single Judge has not given any reasoning as to how the hike in price is construed to be profiteering as per the judgment of T.M.A. Pai case. Hence the impugned judgment is liable to be quashed.
P) For that the appellants humbly submits that the judgment passed by the Hon'ble Single Judge is erroneous because the hike in fees is based on rational basis without any motive for profiteering, therefore interference of the Hon'ble Single Judge quashing the hike in fees is unwarranted.
Q) For that the appellants humbly submits that the judgment passed by the Hon'ble Single Judge is based on erroneous findings on the ground that the T.M.A. Pai judgment and other judgments clearly prescribe that hike in fees is the clear cut domain of the management of the schools. In the instant case, the Hon'ble Single Judge has not relied on a single material to establish that hike in fees is made for profiteering. The only findings given by the Hon'ble Single Judge is that the hike in fees needs interference because no reason has been prescribed in the order for hike in fees. Hence the impugned order is otherwise liable to be quashed.
R) For that the appellants humbly submit that the judgment passed by the Hon'ble Single Judge is based on erroneous findings on the ground that for showing non- application of mind by directing for constitution of committee for going into the matter pertaining to hike in fees. This concept of the committee is against the settled principle of law as laid down by T.M.A. Pai judgment and other judgments, hence the judgment passed by the Hon'ble Single Judge is liable to be quashed.
S) For that reliance placed upon the judgment of the apex court reported in is wholly wrong in as much as those cases are governed by the Delhi Education Act wherein there are provisions relating to tuition fees and the Hon'ble Court has merely interpreted various provisions of the Delhi Act. Admittedly, there is no such statutory provision so far as the Orissa Unaided English Medium Schools are concerned."
12. The reliance placed upon the judgments of the Supreme Court in T.M.Pai Foundation and others v. State of Karnataka and others, AIR 2003 SC 355, ignoring the law laid down at paragraph-16 of the same judgment and in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, is not applicable to the facts situation of the instant case. Hence, the impugned judgment is liable to be set aside.
913. Mr J. Das, learned Sr. Counsel appearing on behalf of the respondents- petitioners sought to justify the order of the learned Single Judge placing strong reliance upon the definitions of Section 3(f)-Educational Institution, 3(i)-High School, 3(j)-Higher Secondary School, 3(j-1)-Junior College, 3(o)-Private Educational Institution and Section, 5-Permission for establishment of Educational Institution and Sub-Section (2) of Section 6-Recognition of educational institution, Section 7-Managing Committee or Governing Body of the Educational Institution, Rule 25-Constitution of Management and Rule 27-Procedure for reconstitution and Rule 2(f-1)-High School of the Rules referred to supra and placing strong reliance upon Clause-6 of the Affiliation Bye-laws School Management Committee. It speaks that subject to relevant provision in the Education Act of the State/U.T. concerned, since the there is reference in the By-law clause (6) "subject to Education Act" and it is provided for educational institution inter ms of 3(o) of the Act, 1969. It refers to any educational institution not established and managed by the Government of Orissa or Central Government or government of any other state, therefore, the provisions of the Act, 1969 and the Rules, 1991 for constitution of Managing Committee and Governing Body of the educational institution are applicable to the to the Schools, Higher secondary Schools and Junior Colleges run by the appellants-DAV Institutions. Therefore, the learned Single Judge has rightly held that the provisions of the Act, 1969 and Rules 1991 referred to supra are applicable and the constitution of the Managing Committee by the appellants-Institutions is contrary to the Bye-laws clause 6 and the provisions of the Act, 1969 read with Rule 27 of the Rules, 1991. Therefore, the Managing Committee by the appellants-Management is bad in law and fixation of fee by them for the students is also not legal and valid. Hence, the learned Single Judge has rightly directed the State Government to constitute a committee as the same has not been constituted in terms of the provisions of the Act and the Rules for the purpose of fixation of fee structure to the schools and educational institutions run by the appellants-Institutions in exercise of power under Article 226 of the Constitution and further held that the other reason that the Managing Committee constituted by the appellants-Institutions is more than two terms which is contrary to the byelaws as provided under the Byelaws clause 20.3 as it states that the terms of the members of the Managing Committee shall be three years. A member can be re-nominated for another term but a member cannot remain in office for more than two consecutive terms except ex-officio members and the members of the Trust/Society of the School. In the case on hand, the Committee constituted by the appellants- Institutions is more than four consecutive terms. Therefore, fixation of the fee structure is bad for that reason also. Even accepting for the sake of argument that constitution of the Managing Committee under the Affiliation Byelaws is applicable to the appellant- educational institutions, the fee structure fixed by the said appellants-Institutions is held to be illegal. Further, he has sought to justify the impugned judgment of the learned Single Judge placing reliance upon the decision in Unikrishnan J.P. and others v. State of Andhra Pradesh and others, 1993 (1)SCC 645 and T.M.A.Pai Foundation's case (supra) in granting reliefs in favour of petitioners. Further, he placed strong reliance upon the No Objection Certificate obtained by the DAV Public Schools to be established in the Orissa State on 26.8.1994. Therefore, he prays for dismissal of the appeals contending that they are devoid of merit.
14. With reference to the above said legal rival contentions the following points would arise for consideration in these appeals.
10(i) Whether the finding of the learned Single Judge holding that provisions of the Orissa Education Act, 1969 and the Rules framed thereunder are applicable to the appellants-Educational Institutions in the Orissa State is either erroneous or error in law?
(ii) Whether the finding in the impugned judgment stating that fixation of the fee structure by the Committee constituted by the appellants-Educational Institutions in exercise of its power under the By-laws clause 21 is legal and valid?
(iii) Whether quashing of the fixation of the fee structure of the Managing Committee approved by the appellants-Society by the learned Single Judge applying the legal principle with regard to fee fixation enunciated by the Apex Court in T.M.A. Pai's case (supra) is vitiated in law and answering all the contentious issues in favour of the petitioners-respondents is erroneous and error in law warranting interference by this Court.
(iv) What order ?
15. The first point is required to be answered in negative for the following reasons. It is an undisputed fact that the High School, Higher Secondary and Junior College are all of private educational institutions in terms of definition 3(o) of the Orissa Education Act, 1969, which read thus:
"Section 3(o): Private Educational Institution means any educational institution which is not established and managed by Government of Orissa, the Union Government or Government of any other State"
16. All the educational institutions started by the appellants-Society in the State of Orissa are not established and managed either by the State Government of Orissa or the Union Government or any other State. Therefore, the definition of private educational institution under the provision of the Act referred to supra is more comprehensive and is inclusive definition of educational institutions, which institutions in the State are either affiliated to CBSE or ICSE that is evident from byelaws clause no.3, which is applicable to the educational institutions which are being run by the appellants in the Orissa State, which states that any educational institution in India that fulfils the conditions under Sub-clause (i) without which the case of such applicant cannot be processed, who applies to the Board for affiliation, which reads as follows:
"(i) The school seeking Provisional Affiliation with the Board must have formal prior recognition of the State/U.T. Govt. Its application either should be forwarded by the State Govt. or there should be a No Objection Certificate to the effect that State Government has no objection to the affiliation of the school with the C.B.S.E. Condition of submitting a No Objection Certificate will not be applicable to categories 3.1(i) to (iv)."
17. Therefore, the Bye-law clause 3.3.1 provides for obtaining prior recognition of the State Government by the appellants before seeking affiliation of their Educational Institutions with the CBSE Board. So, prior recognition of the State Government as provided under Sections 5 and 6 of the Education Act, 1969 for establishment of 11 educational institutions is required. The relevant provisions of the said Act are extracted hereunder :
"Section 5: Permission for Establishment of Educational Institution :-
(1) No private educational institution which requires recognition shall be established except in accordance with the provisions of this Act or the rules made thereunder.
(2) Any person or body or persons intending to-
(a) establish a private education institution; or (b) open higher classes, new streams new optional subjects, additional sections or
increase the number of students to be admitted or introduce Honours Courses in new subjects in a recognized private educational institutions; or
(c) upgrade any such institution may make an application to the prescribed authority within such period and in such manner as may be prescribed for grant of permission therefor;
Provided that in respect of applications, which were pending on the date of commencement of the Orissa Education (Amendment) Act, 1994, the applicants shall be allowed a period of thirty days to submit revised applications in accordance with the provisions of this Act.
(3) The applicant along with the application for permission, shall furnish an
undertaking that in the event of permission being granted,
(i) adequate financial provision shall be made for continued and efficient
maintenance of the institution; (Emphasis laid by the Court)
(ii) the institution shall be located on the lands specified in the application and that
such lands are located in sanitary and healthy surroundings;
(iii) the building, playground, furniture, fixtures and other facilities shall be provided in accordance with the provisions of this Act and rules prescribed therefor; and
(iv) all the requirement laid down by the Act, the rules and orders, if any, issued thereunder shall be complied.
(4) Every such application shall be supported by an affidavit attesting the fact that all information furnished therein are true and correct to the best of knowledge of the applicant.
(5) The Prescribed Authority shall scrutinize each application, consider the applications which are found complete in all respects and have been made in conformity with the Act and rules made thereunder and thereafter may make such inquiry as he may deem necessary. He shall make a report in respect of each application with his recommendations which shall be placed before the Committee constituted in this behalf by the State Government.
12Section 6: Recognition of Educational Institution--
(1) An application for recognition of a private educational institution shall be made to the Prescribed Authority on or before the 30th November of the academic year in which the institution starts functioning:
Provided that no application for recognition filed before commencement of the Orissa Education (Amendment) Act, 1994 shall be rejected only on the ground that it has not been filed within the date specified in this Sub-section. Explanation - Academic year means a period of twelve months beginning with the 1st day of June and ending with the 31st day of May of the next calendar year. (2) No private educational institution shall be eligible for recognition unless it has been established with prior permission under this Act.
(Emphasis laid by the Court) (3) Every application for recognition shall be made in the prescribed form accompanied by such documents and information as may be prescribed. The applicant shall furnish a statement indicating the extent to which conditions specified in the order granting permission and conditions for recognition as specified under Section 6-A have been fulfilled. Every such application shall be supported by an affidavit attesting the fact that all information furnished therewith are true and correct to the best of the knowledge of the deponent.
(4) The Prescribed Authority shall scrutinize the applications. Such of the applications as are found to be complete in all respects and have been submitted in conformity with the provisions of the Act and the rules framed thereunder shall be considered, and thereafter the Prescribed Authority shall inspect or cause to be inspected the educational institution in respect of which recognition has been applied for, and shall make a report with his recommendation which shall be placed before a Committee constituted by the State Government in this behalf.
(5) The State Government may constitute one or more Committees for consideration of applications for recognition and such Committee may be constituted for the whole State or for any part thereof or for different categories of private educational institution and may make regulations for conduct of business of such Committees."
18. There is definite procedure laid down by the State legislature in the above provisions of the Act for the purpose of obtaining permission and for establishment of educational institution of the appellants-Management and for recognition also the procedure is laid down and its eligibility criteria are clearly enumerated under Sub- Sections (1), (2), (3) and (4) of Section 6 of the Education Act. In the instant case, No Objection Certificate has been obtained by the appellants from the office of the Director of Secondary Education and Schools and Mass Education Department as required for establishment of schools in the Orissa State with certain terms and conditions.
19. That being the position, the interpretation sought for by the learned Sr. Counsel Mr J. Patnaik that either the definition "educational institution" or "private educational 13 institution" is not attracted to the High Schools, Higher Secondary Schools or Junior College run by the appellants-institutions under the Education Act as they are not imparting education for standards VII to X or Higher Secondary Schools, which courses are not defined in the Orissa Higher Secondary Education Act, 1982 and Junior College is also not educational institution imparting Higher Secondary education as defined under the Orissa Higher Secondary Education Act, 1982. The High Schools, Higher Secondary Schools and Junior Colleges being affiliated to the CBSE Board are imparting education and conducting examination as per the syllabi prepared by the CBSE Board. Therefore, in the absence of the said factual aspects as provided in the definition of either "educational institution" or "private educational institution" under the above provisions of the Act the High Schools, Higher Secondary Schools and Junior Colleges of the appellants-Society cannot be brought under definition of "private education institution". The contention urged on behalf of the appellants that merely because No Objection Certificate is obtained by the appellants-Management from the prescribed authority under Section 5 of the Act, 1969 to establish the educational institutions in the State, which is not the legal requirement, but No Objection Certificate is required to be obtained prior to recognition of the State Government or its authorized officer of the Department is only to facilitate the appellants-institution to seek provisional affiliation of their Educational Institutions from the Board. Therefore, the provisions under Section 5 and 6 cannot be applied to appellants-institutions which are established and run in the Orissa State. Further, the definition of "High School" under Rule 2(f-1) of the Rules, 1991 cannot be explained by the subordinate legislation to be the definition of "educational institutions" and "private educational institutions" stating that preparing candidates for the High School Certificate Examination conducted by the Central Board of Secondary Education or Indian Council for Secondary Education established by the Union Government as defined in the definition of "High School" by the subordinate legislation in the Rules, 1991, cannot be transplanted in the definition of "High School" or "Higher Secondary School" or "Junior College" as defined under the above respective provisions of the Education Act. Even accepting such an argument as advanced on behalf of the respondents that the definition of educational institution and private educational institution which is an inclusive definition of the equivalent examination conducted by the Central Board or I.C.S.E. that has to be inferred and interpreted in that manner to achieve the object of the Act in view of Clause 3.3(i), which clearly states that the school seeking provisional affiliation with the Board must have formal prior recognition of the State/Union Territory. Therefore, the appellants- Management must have formal prior permission and recognition of the State Government as provided under Section of the Act, 1969.
20. In this view of the matter, the legal contention urged on behalf of the appellants that the provisions of the Orissa Education Act, 1969 and the Orissa Higher Secondary Education Act, 1982 and the Rules, 1991 have no application to the case of the appellants-institutions and is not tenable in law and, therefore, the said contention urged in these appeals is liable to be rejected. The learned Single Judge is right in rejecting the legal submissions advanced in this regard on behalf of the appellants in the writ petitions and has rightly held that the provisions of the Act and the Rules referred to supra are applicable to the private educational institutions which are established and run by the appellants-institutions to get affiliation to the CBSE after obtaining the permission and recognition from the State Government is a condition precedent under Clause 3.3(i) of Chapter-II of the CBSE Byelaws. Undisputedly, they have obtained permission and 14 NOC from the State Government to establish their educational institutions referred to supra is the basis for affiliation of their educational institutions to the CBSE in the Orissa State. For the reasons stated supra, the findings and reasons recorded on the contentious issues by the learned Single Judge in the impugned judgment are perfectly legal and valid and the same is neither erroneous nor error in law.
21. Point no.2 is also required to be answered against the appellants-Management by assigning the following reasons. Since we have answered Point no.1 concurring with the conclusion arrived at by the learned Single Judge in holding that the provisions of the Act, 1969 and the Higher Secondary Education Act, 1982 and the Rules, 1991 referred to supra, the other provisions with regard to constitution of the Managing Committee of the Educational Institution also must be applied to the educational institutions run by the appellants-institutions in accordance with the Rules, i.e., the said provision shall be applied in view of Byelaws Clause 6 "School Management Committee" subject to the relevant provisions prescribed in the Education Act of the concerned State. In these appeals, Section 7 of the Act, 1969 read with Rule 25 which states for Constitution of Managing Committee and Rule 27 of the Rules, 1991, which provides for Procedure for Constitution of Managing Committee. Rule 25 of the Rules, 1991 provides that educational agency shall constitute a managing committee to manage and look after the affairs of the school as required under Section 7 of the Education Act. Rule 25(2)(c) provides for seven members other than ex-officio members to be nominated by the educational agency or institution in whose favour the permission is granted. Rule 25 of the Rules, 1991 confers powers upon the Educational Agency to constitute the Managing Committee or Governing Body of educational institution for the purpose of managing the affairs of the school as required under Section 7 of the Act, 1969 including the fixation of fee for the students which is the conclusion required to be drawn in these cases. The combination of members of such Managing Committee, the procedure for re-constitution and nomination of seven members in accordance with Rule 25 from amongst themselves or other persons in the local area interested in the field of education to be members of the Managing Committee to succeed it on completion of its term. The term of either the Secretary or the Member of a Managing Committee shall not be more than two consecutive terms. Therefore, the Managing Committee which is constituted by the appellants-institutions in this case by following the procedure prescribed in Byelaws Clause 20 is not at all legal and valid as the same runs contrary to the procedure prescribed in clause 6 of the Byelaws, which states that subject to relevant provision of the Education Act of the State concerned it should also have school Managing Committee as laid down under Rules 25 and 27 of the Rules, 1991. Therefore, the reliance placed upon Clause 21(xiv) of the Bye-laws contending that the Managing Committee constituted by the appellants-institutions in exercise of power under Bye-laws Clause 20 (2) & (3) have got power to propose the rates of tuition fees to the students of the appellants Educational Institutions and other annual charges and also to review the budget of the school presented by the Principal for forwarding the same to Society for approval. The interpretation of Clause 6 of the Byelaws sought to be made by the learned Sr. Counsel Mr J. Patnaik that the appellants-institutions can have their own Managing Committees in addition to the School Management Committee as provided under Section 7 of the Act, 1969 read with Rules 25 and 27 of the Rules, 1991 is not tenable in law as it would be contrary to the provisions of the Act, 1969. Rule 25 provides for constitution of a Managing Committee for managing the affairs of the schools. Rule 27 provides for re-constitution of the Managing Committee. The 15 submission made in this regard by the learned Sr. Counsel on behalf of the respondents with reference to the above provisions of the Act and Rules that the Educational Agency alone has got power to constitute or reconstitute the Managing Committee for fixing the fee structure to the students is tenable. Therefore, for constituting the Managing Committee as provided under Rules 25 and re-constituting such Committee under Rule 27 of the Rules, 1991, the Educational Agency shall have the power for the purpose to manage the affairs of the school including the fixation of the fee structure. Undisputedly, as required under Section 7 of the Act, 1969 read with Rule 25 of the Rules 1991, constitution and reconstitution of the Managing Committees are not made by the Educational Agency for the purpose of looking after the affairs of the school and fixing the fee structure of the students studying in various High Schools, Higher Secondary Schools and Junior Colleges of the appellants-institutions. The contention urged on behalf of the appellants that the committee which is constituted under Clauses 20 (2) and (3) of the Byelaws can also have a committee in addition to the School Management Committee as laid down under Sub-Clauses (ii) and (iii) of Clause 21 is not tenable in law. Therefore, such committee is required to be constituted as per Rules 25 and 27 of the Rules, 1991. Therefore, the fee structure fixed by the appellants accepting the proposal of its Managing Committee constituted under Clauses 20 (2) and (3) of the Byelaws is not legal and valid and fixation of fee structure is also not sustainable in law. Therefore, the learned Single Jude has rightly rejected the fee structure fixed by the Managing Committee constituted by the appellants-schools in exercise of their power under Byelaws Clauses 20(1)(2)(3). Learned Single Judge has rightly held that appellants-schools also cannot also exercise that power under Clause 21(xiv) to propose the rates of tuition fee and other annual charges and review the budget of the school presented by the Principal for forwarding the same to the Society for its approval as the same would be contrary to Section 7 of the Act, 1969 read with Rules 25 and 27 of the Rules, 1991. In view of the above finding, the learned Single Judge as an interim measure has constituted a committee in exercise of his powers under Articles 226 and 227 of the Constitution of India placing reliance upon the decisions of the Supreme Court in Vishaka and others v. Stae of Rajasthan and others, AIR 1997 SC 3011, Asis Hameed v. State of J & K, AIR 1989 SC 1899, and Mullikarjuna Rao and others v. State of Andhra Pradesh and others, AIR 1990 SC 2151, wherein the Apex Court has laid down the law that powers of the High Court under Article 226 of the Constitution are that if the Court finds that the fundamental rights of the persons have been infringed, the Court has jurisdiction to undo such injustice by passing appropriate direction on that behalf.
22. In view of the aforesaid statement of law and following the observations made by the Supreme Court in T.MA. Pai's case (supra), wherein it is held that authorities of the private un-aided educational institutions have the fundamental rights to fix their fee structure which would not amount to profiteering and misappropriation or misutilization. Therefore, the direction issued by the learned Single Judge to the authorities of the concerned D.A.V. Public Schools to take immediate steps for constitution/re-constitution of the Managing Committee of the appellants-institutions in accordance with the Orissa Education Act and the relevant rules framed thereunder is legally justifiable.
23. Point no.3 is also required to be answered in favour of the respondents- petitioners for the following reasons. Learned Single Judge has referred to the legal contentions urged on behalf of the appellants-institutions and has taken pains to refer to 16 the Constitution Bench decision rendered in T.M.A. Pai's case and certain observations made at paragraphs-53, 54, 56, 61 and 62 of the said judgment by extracting them in the impugned judgment. The learned Single Judge has come to the right conclusion that fixation of the fee structure to the students is without assigning any reason and as to why such enhancement or hike in fees is made and how such hike in fees is to commensurate with the facilities provided to the students are not stated in the fee structure fixed by the Managing Committee appointed by the appellants-institutions under the Byelaws and, therefore, he has held that the same is in violation of Articles 14, 21 and 21-A of the Constitution, i.e., right to equality, right to livelihood and education, which are fundamental rights guaranteed to the students under the Constitution. Learned Single Judge has also held that the private schools cannot do so with a view to make profit and cannot charge capitation fee and he has also rightly placed reliance upon the decision in Islamic Academy of Education's case (supra), wherein the doubts and anomalies arose in T.M.A. Pai's case have been clarified with regard to the autonomy in admission of students in professional private colleges also with regard to the common fee structure and there shall not be any profiteering. He further placed reliance upon the observation made by the Apex Court in the said judgment that the fixation of fee directed by the respective State Government to set up committees consisting of retired Judge who shall be nominated by the Chief Justice of that State, and other members to fix the fee structure, which can be charged by the institutions after taking certain relevant aspects into consideration. Since we have answered the Point no.2 holding that the Managing Committee as provided under Section 7 of the Act, 1969 read with Rules 25 and 27 of the Rules, 1991, which provides for re-constitution of such committee to manage and look after the affairs of the school including the fixation of fee structure, those provisions will take care of constituting a committee as we have already held that no such committee is constituted by the Educational Agency and fee fixation made by the Managing Committee constituted by the appellants-institutions under the Bye-laws in the cases on hand is bad in law. Therefore, for the above reason also setting aside the fee structure fixed by the appellants-Managing Committees appointed under Sub-clauses (2) and (3) of Clause 20 of the CBSE Bylaws is legal and valid for the reason that they have no competency to fix fee structure. Further, it is rightly held that the Members nominated by the appellant- Management under the above said Byelaws have got four consecutive terms in the Managing Committee re-constituted by the appellant-institutions is totally impermissible in law. Therefore, the fee fixation made by the appellants-Managing Committees apart from the reasons stated supra is not legal and valid. Further, the learned Single Judge has rightly placed reliance upon the judgment of the Supreme Court in a batch of Civil Appeals in the case of Modern School v. Union of India and others, etc., etc. reported in (2004) 5 SCC 583, wherein the Apex Court had an occasion to consider the questions framed by it with regard to Delhi Schools Education Act, 1973, which are extracted hereunder:
"(a) Whether the Director of Education has the authority to regulate the quantum of fees charged by unaided Schools under Section 17(3) of the Delhi School Education Act, 1973?
(b) Whether the direction issued on 15.12.1999 by the Director of Education under Section 24(3) of the Delhi School Education Act, 1973 stating inter alia that no fees/funds collected from parents/students shall be transferred from the 17 Recognized Unaided School Fund to the society or trust or any other institution, is in conflict with Rule 177 of the Delhi School Education Rules, 1973?
(c) Whether management of recognized unaided schools is entitled to set up a Development Fund Account under the provisions of the Delhi School Education Act, 1973?"
24. Further, the learned Single Judge has rightly referred to paragraph-17 of the decision rendered in Islamic Academy's case (supra) and extracted the same and wherein it is held that the Director of Education has the authority to regulate the quantum of fee charged by the unaided institutions under Section 17(3) of the Delhi Education Act, 1973.
25. In this view of the matter, the impugned judgment of the learned Single Judge cannot be found fault with by the appellants-institutions on the legal contentions urged in these appeals as they are all misconceived, and we have already answered all the questions raised in these appeals in justification of the findings and reasons recorded by the learned Single Judge in holding that the provisions of the Act, 1969, Rules, 1991 and the Act, 1982 are applicable to the educational institutions which are established and run by the appellants-institutions in the Orissa State. Further, not re-constituting the Managing Committee by the appellants-institutions as provided under Section 7 of the Act, 1969 read with Rules 25 and 27, Rules 1991 for the purpose of managing the affairs of the schools including fixation of the fee structure to the students for admission to the various classes in the appellants-institutions is not legally correct.
26. For the foregoing reasons, the substantial questions of law urged on the basis of the legal contentions raised by the learned Sr. Counsel and other counsel on behalf of the appellants-Institutions do not arise for our consideration in these appeals. No case is made out by them for our interference with the finding and reasons recorded by the learned Single Judge in the impugned judgment. The conclusions arrived at and the findings and reasons recorded by the learned Single Judge on the contentious issues are well founded and warrant no interference by this Court.
Hence, all the appeals being devoid of merit are dismissed as such.
Appeals dismissed.