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J U D G M E N T with C.A. Nos. 2700, 2701, 2702, 2703, 2704, 2705-2706, 2707, 2708, 2709 and 2710 of 2001 S.B. SINHA, J :

INTRODUCTION:
How far and to what extent unaided private institutions can be subjected to regulations is the core question involved in these appeals which arise out of a common judgment and order dated 30.10.1998 passed by the High Court of Delhi in C.W.P. No. 3723, 4021, 4119, 5330 of 1997.
THE LAW OPERATING IN THE FIELD:
The Delhi School Education Act, 1973 (for short 'the Act') was enacted inter alia to provide for better organisation and development of school education. By reason of the provisions of the Act, school education, whether imparted in a government institution, a minority institution, an aided or unaided private institutions is sought to be regulated. The power of Administrator to regulate education in all the schools in Delhi, however, is to be made in accordance with the provisions of the Act. Section 4 of the Act provides for recognition of the institution. A scheme of management for managing the affairs of the school is required to be framed in terms of Section 5 thereof conforming to the provisions of the rules made thereunder.
Chapter V of the Act applies to unaided minority schools. Section 15 relates to contract of service in terms whereof a written contract is required to be entered into by and between the managing committee and every employee of a school. Section 17 regulates fees to be charged by aided schools. No such provision has been made in relation to the recognised unaided schools. Sub-Section (3) of Section 17 merely requires the manager of every recognised school whether aided or unaided to file with the Director a full statement of the fees to be levied by such school during the ensuing academic session, and, furthermore, except with the prior approval of the Director, no school shall charge during that academic session any fee in excess thereof. The Act, therefore, does not provide for any regulation as regards charging of any fee or any other amount by the unaided recognised schools.

The fixing of a rigid fee structure would be an unacceptable restriction. The essence of a private educational institution is the autonomy that the institution must have in its management and administration.

g) There, necessarily, has to be a difference in the administration of private unaided institutions and the government aided institutions. In the latter case, the Government will have greater say inter alia in fixing of fees but in the case of private unaided institutions, maximum autonomy in the day- to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence.

The High Court by reason of the impugned judgment travelled beyond the legislative scheme as regards administration of a private institution as also fixation of fee while issuing the impugned directions in the light of the decision of this Court in Unni Krishnan (supra). It is not in dispute that pursuant to or in furtherance of the directions issued by the High Court a Committee known as Duggal Committee was constituted. The said Committee has submitted its report. Pursuant to the recommendations made by the Committee, a circular dated 15th December, 1999 has been issued purported to be in terms of Sub-Section (3) and (4) of Section 24 of the Act. The same apparently is beyond the scope and purport of the Act and the Rules as the directions thereunder can be issued only for the purpose of rectifying the defect and deficiencies found at the time of inspection or otherwise in the working of the school and not pursuant to the recommendations made by a committee constituted in terms of the judgment of the High Court. 'Defects and deficiencies' within the meaning of the said provisions would mean defects and deficiencies while applying the provisions of the Act and the rules framed thereunder only and not the recommendations of a committee de'hors 'the Act' and 'the rules'. The said directions, therefore, do not have the force of law within the meaning of Clause (6) of Article 19 of the Constitution of India. State indisputably can issue directions which would only meet the criteria of a 'law' within the meaning of Article 13 of the Constitution of India. (See Naveen Jindal (supra) This Court in T.M.A. Pai Foundation (supra), thus, not only upheld the right to establish and administer educational institutions as being guaranteed by Articles 19(1)(g) and 26 subject to the provisions of Articles 19(6) and 26(a) and, particularly, minorities under Article 30, it emphasised the requirement of grant of greater autonomy to the private unaided institutions. The Court while holding that the scheme framed in Unni Krishnan (supra) as unconstitutional made an observation that thereby 'education' in respect of important features thereof is sought to be nationalised, viz., right of a private unaided institution to give admission and to fix fee. By reason of such a scheme, as private institutions became indistinguishable from the government institutions which would amount to curtailing of all essential features of the right of administration of a private unaided educational institution, the same was liable to be struck down being unfair and unreasonable. The Court in no uncertain terms held that the fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. It is true that a declaration was made to the effect by the Court that since the object of setting up of educational institution is by definition "charitable" as fee cannot be charged which would not be required for the purpose of fulfilling that object. The Object of an educational institution although may not be to make profiteering but generation of a reasonable revenue surplus for the purpose of development of education and expansion of the institution is permissible. In the case of unaided private schools, this Court held that the maximum autonomy must be with the management as regards administration, disciplinary powers, admission of students and the fees to be charged. This Court noticed that the examination results at all levels of unaided private schools despite stringent regulations of the governmental authorities were far superior to the results of the government-maintained schools. The Court held that curtailment of income of such private schools is impermissible as it disables those schools from affording the best facilities because of lack of funds. It was suggested that if the lowering of standards from excellence to a level of mediocrity is to be avoided, the solution lies in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there.