Jharkhand High Court
D.B.M.S. Kadma High School vs The State Of Jharkhand Through ... on 13 May, 2019
Author: Aniruddha Bose
Bench: Chief Justice, Prashant Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2025 of 2019
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D.B.M.S. Kadma High School, through its President Mrs. Lalitha Chandrashekhar, W/o-Balasubramanyam Chandrashekhar having office at Road No. 23, farm Area, Kadma, P.O.+P.S. Kadma, District-East Singhbhum, Jamshedpur-831005 .... ... ... Petitioner Vs.
1.The State of Jharkhand through Secretary, Government of Jharkhand, having its Office at Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, District-Ranchi.
2.Principal Secretary, Ministry of Human Resource, Development Department, Government of Jharkhand, having its Office at Project Bhawan, P.O. and P.S. Dhurwa, District- Ranchi.
3.Principal Secretary cum Law Advisor, Law Department, Government of Jharkhand, having its Office at Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
.... ... ... Respondents
With
W.P.(C) No.2033 of 2019
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AIWC ACCADEMY OF EXCELLENCE, through its Secretary Dr. Kety Phiroze Bhathena, wife of late Phiroze Bhathena resident of H.No.6/C, P.O.+P.S. Bistupur and District-East Singhbhum Jamshedpur-831001 ... ... Petitioner Vs.
1.The State of Jharkhand through Secretary, Government of Jharkhand, having its Office at Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, District-Ranchi.
2.Principal Secretary, Ministry of Human Resource, Development Department, Government of Jharkhand, having its Office at Project Bhawan, P.O. and P.S. Dhurwa, District- Ranchi.
3.Principal Secretary cum Law Advisor, Law Department, Government of Jharkhand, having its Office at Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
.... ... ... Respondents
With
W.P.(C) No.2054 of 2019
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Tarapore School, Jamshedpur, Jharkhand through its Principal, Ms. Amy H. Billimoria, wife of Homi Jal Billimoria, Resident of 6A, Parsee Colony Pipeline Road, Sakchi, P.O. & P.S. Sakchi, District-East Singhbhum. ... Petitioner Vs.
1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
22.The Principal Secretary, Human Resources Development, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
3.The Principal Secretary, Department of Law, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
..... ... ... Respondents
With
W.P.(C) No.2055 of 2019
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Dayanand Public School, Jamshedpur, Jharkhand through its Principal, Swarna Mishra, wife of Manoranjan Mishra, Resident of 106, Road No. 4, Sonari West Layout, P.O. & P.S. Sonari West, District-East Singhbhum. ... Petitioner Vs.
1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
2.The Principal Secretary, Human Resources Development, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
3.The Principal Secretary, Department of Law, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
.... ... ... Respondents
With
W.P.(C) No.2056 of 2019
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River View English School, New Ranikudar, Kadma, JSR, Jamshedpur, Jharkhand through its Principal, Mrs. Rajwant Kaur, Husband of Mr. Kalwant Singh, Resident of Road No. 4, House No. 74, 5th Floor, New Rani Kudar, Kadma, P.O. & P.S. Kadma, District-Jamshedpur ... Petitioner Vs.
1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
2.The Principal Secretary, Human Resources Development, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
3.The Principal Secretary, Department of Law, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
.... ... ... Respondents
With
W.P.(C) No.2059 of 2019
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Valley View School, Jamshedpur Jharkhand through its Secretary Mrs. K. Uma, Wife of Late D. Suryanarayana, Resident of Tirupati, 25, Bipashpath, Uliyan, Kadma, P.O. & P.S. Kadma, District-East Singbhum ... Petitioner Vs.
1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
2.The Principal Secretary, Human Resources Development, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
3.The Principal Secretary, Department of Law, Government of Jharkhand, Project Bhawan, Jharkhand Sachiwalaya, P.O. and P.S. Dhurwa, District-Ranchi, Jharkhand.
.... ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Petitioners : Mr. Rajiv Ranjan, Sr. Advocate Mr. Sumeet Gadodia, Advocate Mr. Indrajit Sinha, Advocate Mr. Patru Jalan, Advocate Mr. Piyush Chitresh, Advocate For the Res-State : Mr. Jai Prakash, A.A.G Mr. Anoop Kumar Mehta, A.A.G
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Order No. 04 : Dated 13th May, 2019 Aniruddha Bose, CJ.
The writ petitioners before us in the present set of writ petitions are the management of six private unaided schools.
In this set of writ petitions they challenge the constitutional vires of Section 7A(1), (2) and (3) of the Jharkhand Education Tribunal (Amendment) Act, 2017 (the Act of 2017), which became operational on 7th January, 2019. These provisions primarily relate to regulation of fees of private unaided schools through a committee, the composition of which has been stipulated in Section 7A(1) of the 2017 Act. It is stipulated therein that each school irrespective of the fact as to whether 4 they are receiving aid from the State or not, should have a Fee Committee consisting of the following members:-
(i).Representative of management of the private school nominated by such management;
(ii).Principal of the private school;
(iii).Three teachers nominated by the management of private school; and
(iv).Four parents nominated by Parents Teachers Association.
2. The aforesaid provision further specifies that representative of the management of the private school is to be the Chairperson of the said committee. We are avoiding specific reference to tenure of the committee and other factors for the purpose of considering the prayer of the petitioners for interim order as these factors are not relevant at this stage.
Under Section 7A(2) of the said Act, an appellate committee has been constituted mainly comprising of State Administrative Officers who are to review the decision of the fee fixation committee in the event there is a hike in fees beyond 10% from the previous year mandated by the committee.
3. Mr. Gadodia, learned counsel appearing for the petitioners has relied upon the decisions of the Hon'ble Supreme Court in the cases of T.M.A. Pai Foundation & Ors Vs. State of Karnataka & Ors [(2002) 8 SCC 481], Islamic Academy of Education & Anr Vs. State of Karnataka & Ors [(2003) 6 SCC 697], Modern School Vs. Union of India & Ors [(2004) 5 SCC 583] and Action Committee, Unaided 5 Private Schools & Ors Vs. Director of Education, Delhi & Ors [(2009) 10 SCC 1] in support of his submission, which was also supplemented by Mr. Indrajit Sinha that the initial constitution of committee for fixing of fee is contrary to the ratio of the aforesaid judgments of the Hon'ble Supreme Court.
Argument of the writ petitioners is that the schools should be given autonomy for initial fixation of fee and the State in exercise of its legislative power can evolve a mechanism for the purpose of ensuring that capitation fee is not charged and there is no undue profiteering. He has relied upon paragraph 56 of the report in the case of T.M.A. Pai Foundation (supra) in support of the writ petitioners' stand.
4. Appearing on behalf of State, Mr. Jai Prakash and Mr. Anoop Kumar Mehta, learned Additional Advocate Generals have defended the aforesaid legislative provision. In particular reference has been made to judgment of a Co-ordinate Bench of this Court delivered in the case registered as W.P. (PIL) No. 3271 of 2013 [Court on its Own Motion Vs. Union of India & Ors] on 31st July, 2014. Paragraph 7 of this judgment has been relied upon, which stipulates:-
"7.Having regard to number of private educational institutions and the way in which private schools are collecting excess fee, it will be in order, if the respondent-State of Jharkhand considers enactment of a similar legislation on par with the other States for regulation of collection of fees by private school."
5. The other authority on which Mr. Jai Prakash has relied upon is the case of P.A. Inamdar & Ors Vs. State of 6 Maharashtra & Ors, decided by a Seven Judge Constitution Bench of the Supreme Court reported in (2005) 6 SCC 537.
Paragraph nos. 142 and 144 of the said report has been referred to before us in support of his submissions. In these two paragraphs it has been, inter alia, held and observed by Hon'ble Supreme Court:-
"142.Most vehement attack was laid by all the learned counsel appearing for the petitioner applicants on that part of Islamic Academy which has directed the constitution of two Committees dealing with admissions and fee structure. Attention of the Court was invited to paras 35, 37, 38, 45 and 161 (answer to Question 9) of Pai Foundation wherein similar scheme framed in Unni Krishnan was specifically struck down. Vide para 45, Chief Justice Kirpal has clearly ruled that the decision in Unni Krishnan insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct and to that extent the said decision and the consequent directions given to UGC, AICTE, MCI, the Central and the State Governments, etc. are overruled. Vide para 161, Pai Foundation upheld Unni Krishnan to the extent to which it holds the right to primary education as a fundamental right, but the scheme was overruled. However, the principle that there should not be capitation fee or profiteering was upheld. Leverage was allowed to educational institutions to generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount to profiteering. It was submitted that Islamic Academy has once again restored such Committees which were done away with by Pai Foundation.
144.The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on 7 non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution."
6. The basic issue which has been raised by the petitioners is as to whether legislative provision can stipulate formation of a Committee at the stage of fixing of fees or such legislative intervention will be at the stage of review of the fees once fixed.
In other words, we will have to examine whether we ought to give wide interpretation to include fixing of fees by the Committee or we shall go for a narrower interpretation which would leave the State with the power only to review such fees once the same is fixed unilaterally by the management of a school.
7. So far as the committee for fixing the fee is concerned, we find that there is pre-dominant representation of the management nominated individuals connected with the school under the aforesaid provision. Only the appellate body has majority State officials. In our prima facie view, the management has sufficient latitude in fixing of fee and the aforesaid legislative provision cannot be construed to be direct interference with the action of the school management in fixing the fees. Of course whether the State has power to determine the class of persons to be nominated by the school 8 management itself for undertaking the fee fixation exercise has to be examined but that exercise we shall undertake only after filing of counter-affidavits by the State.
8. Let counter affidavit to the writ petitions be filed by 17 th June, 2019. Rejoinder thereto, if any, be filed by 28 th June, 2019.
9. The matters shall be listed on 2nd July, 2019.
10. As an interim measure, we direct that the committees constituted under the statute shall not interfere with the present fee structures of the writ petitioners without leave of this Court. Liberty is given to the parties to apply for seeking variation or modification of this order by way of taking out appropriate application. In the event any school management wants to enhance the fees, in such case they would have to go through the statutory provision as enacted.
(Aniruddha Bose, CJ) (Prashant Kumar, J.) Alankar/Amardeep-