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Though it is impossible to implement the revised fee during this year, we are furnishing herewith the Recommended Expenditure for the year 2008-09 as per the GR dated 22/07/1999, 27/05/2005 and also as per the secondary School Code.

A) Recommended Expenditure for 2008-09 10,75,22,351/-

Non-Accepted Exp 1) Professional Fee 60,91,264/-

2) Building Repairs 6,03,132/-

32. We shall first advert to the provisions contained in the Secondary Schools Code. Here, we may notice that the question whether the provisions of the Secondary Schools Code acquire statutory force or are merely in the nature of administrative instructions is already referred to the Full Bench of our High Court in the case of

50 191909 Shikshan Mandal & Ors. v. State of Maharashtra & Ors. in Writ Petition No. 6727 of 2010 and other connected matters vide order dated 26th October, 2010. In the said decision, the Division Bench has noted that the provisions of the Secondary Schools Code ought to be construed as having statutory force. Nevertheless, we would proceed to examine as to whether the provisions of the Secondary Schools Code can be the basis to hold that the Deputy Director was competent to examine the question of justness of the fee structure proposed or notified by the School Management.

33. At the outset, the provisions in the Secondary Schools Code-2002 can govern only secondary or higher secondary schools.

The grievance regarding fee structure of primary school cannot be the subject-matter before the Authority under the Secondary Schools Code.

Chapter II of this Code deals with matters of Recognition, Organisation and Management of schools. Section VI thereof deals with matters concerning Fees and Free-studentships. Rule 49.1 envisages that school shall charge only standard rates of "tuition fees". The standard rates of tuition fees are prescribed in different stages / areas of the State, as referred to in Rule 49.2. Rule 49.3, which is relevant for us, envisages that the unaided schools may be allowed to charge tuition 51 191909 fees at rates higher than the standard rates, with the previous approval of the Director. Rule 50.6 prescribes items on which term fees can be expended. None of the items referred to therein provide for expenses towards buildings rent. The other relevant provisions in the Secondary Schools Code in respect of school fees and term fees can be found in Chapter IV, in Section I. This chapter deals with matters pertaining to Grant-in-aid. In that sense, the provisions contained in this chapter may not be directly attracted to unaided private minority school. Rule 89.1 contained in Section I of this chapter provides for items of expenditure held admissible for grant-in-aid as listed in Schedule A, and those held inadmissible for grant-in-aid as listed in Schedule B. Insofar as the item of expenses towards rent, taxes and insurance, which is part of Schedule A framed under Rule 89.1, being expenditure admissible for grant-in-aid to aided and recognised non-Government Secondary Schools. Clause 2 of Schedule A provides for the amount spent towards rent, which can be granted to the aided school as grants.

46. To put it differently, the directions issued by the Deputy Director can be upheld on the reasoning that the same could be and ought to have been issued by the Deputy Director in exercise of powers under Section 6 of the Act. In the present case, all that the Deputy Director has done is to call upon the petitioners to produce the certificate of reasonableness of buildings rent issued by the Executive Engineer, as is required in terms of guidelines specified in Schedules A and B framed under Rule 89.1 of the Secondary Schools Code. Indeed, until the question as to whether the provisions of the Secondary Schools Code has the statutory force is answered by the Full Bench of this Court, which issue has been referred by the Division Bench in terms of order dated 26th October, 2010 in Writ Petition No. 6727 of 2010, we may proceed on the basis that the said provisions are administrative instructions. The same have not been challenged by the petitioners. For that reason, the 67 191909 insistence of the Deputy Director, respondent No.2, to produce the reasonableness certificate issued by the Executive Engineer cannot be faulted. Since the petitioners failed to do so, respondent No. 2 proceeded on the basis that the petitioners have failed to substantiate the claim towards expenditure incurred on buildings rent during the relevant period. If the order passed by the Deputy Director is so understood, there is no reason to overturn the same. Indeed, it would be a different matter if the petitioners were to obtain certificate of reasonableness of buildings rent from the Executive Engineer, on the basis of which, respondent No. 2 could have examined the matter in the context of the provisions of Capitation Fee Act - that the demand of the school does or does not result in commercialisation and profiteering. The other option available to the petitioners was to immediately approach the State Government for approval of its revised fee structure fixed by it, which included the entire amount spent by the school towards buildings rent.