MADRAS HIGH COURT JUDGEMENT

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.4.2010
C O R A M :
THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.Nos.627, 815, 850, 851, 852, 854, 855, 1105, 1269, 2833, 3620
& 112 of 2010
and
M.P.No.1 of 2010 (10 MPs) and M.P.No.2 of 2010 (7 MPs)
(1). W.P.No.627 of 2010 :-
Tamil Nadu Nursery Matriculation and Higher
Secondary Schools Association (Regd.)
No.49, Old Post Office Street,
Korattur, Chennai  600 080, rep.by its
General Secretary Mr.K.R.Nandakumar.  Petitioner
Vs
1. The State of Tamil Nadu, rep.by the
Principal Secretary,
Department of School Education,
Fort St.George, Chennai-9.
2. The Director of School Education,
DPI Campus, College Road, Chennai-6.
3. The Director of Matriculation Schools,
DPI Campus, College Road, Chennai-6.
4. The Director of Elementary Education,
DPI Campus, College Road, Chennai-6.
5. Ex-officio Member Secretary,
Additional Secretary,
Department of School Education,
PTA Building, DPI Campus, College Road,
Chennai-6.  Respondents
(2) W.P.No. 815/2010:
Karur District Private Schools Association rep.by
its Co-ordinator R.Rajendran, K.Rasammal Plaza,
61, Kovai Road, Karur-639 002. ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Secretariat, Chennai-9.
2.The Director of School Education,
College Road, Chennai-6.
3.The Director of Matriculation Schools,
College Road, Chennai-6.
4.The Chief Educational Officer,
Collectorate Campus, Karur.
5.The State Level Committee, constituted
under section 5 of T.N.Act 22/99, rep.by
its Ex-officio Member Secretary and Additional
Secretary to Government, School Education
Department, Secretariat, Chennai-9. ... Respondents
(3) W.P.No.850/2010
Private Schools Correspondents Forum,
Salem Vana Vani Vidyalaya, Salem, rep.by its
Secretary S.Madavaraj. ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Fort St.George, Chennai-9.
2.The Director of Tamil Nadu Matriculation
Schools, College Road, Chennai-6. ... Respondents
(4) W.P.No.851/2010
Association of Managements of Nursery, Primary
and Matriculation Schools, Coimbatore,
Sri Gopan Naidu Hr.Sec.School, Peelamedu,
Coimbatore, rep.by President R.Visalakshi ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Fort St.George, Chennai-9.
2.The Director of Tamil Nadu,
Matriculation Schools, College Road,
Chennai-6. ... Respondents
(5) W.P.No.852/2010:
Dharmapuri Mavatta Nursery and Primary
Melnilai Pallikalin Sangam, Sri Vijay Vidhayala
Boys Matriculation School, Pennagaram Road,
Dharmapuri rep.by its President D.C.Elangovan ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Fort St.George, Chennai-9.
2.The Director of Tamil Nadu Matriculation
Schools, College Road, Chennai-6. ... Respondents
(6) W.P.No.854/2010
Krishnagiri District Private Schools Association
rep.by Secretary D.Soundara Raju @ Guruji Pandian
No.133/31-A, K.Theatre Road Co-operative Colony,
Krishnagiri District. ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Secretary
to Government, Law Department, Fort St.George,
Chennai-600 009.
2.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Fort St.George, Chennai-9.
3.The Director of Tamil Nadu Matriculation Schools,
College Road, Chennai-6. ... Respondents
(7) W.P.No.855/2010
Thanjavur District Matric and Matric Hr.Sec.
Schools Association rep.by President K.Panneerselvam,
Reg.Off.20/1289, Kamarajar Street, East Gate,
Thanjavur-613 001. ... Petitioner
Vs
1.The State of Tamil nadu, rep.by its Secretary to
Government, Law Department, Fort St.George,
Chennai-9.
2.The State of Tamil Nadu, rep.by its Principal
Secretary to Government, School Education
Department, Fort St.George, Chennai-600 009.
3.The Director of Tamil Nadu Matriculation Schools,
College Road, Chennai-6. ... Respondents
(8) W.P.No.1105/2010
Association of Matriculation Higher Secondary
Schools Management, Tirunelveli B.46, I Cross St.
Maharajanagar, Tirunelveli-11, rep.by its President
S.Sundaresan ... Petitioner
Vs
1.The State of Tamil Nadu, rep.by its Secretary
to Government, School Education Department,
Fort St.George, Chennai-9.
2.The Director of Tamil Nadu Matriculation
Schools, College Road, Chennai-6. ... Respondents
(9) W.P.No.1269/2010
Namakkal District Private
School Federation, Reg.No.19/2004,
Rep. by its Secy. V.Govindaraj,
O/o.Gandhi Matric Higher Secondary School,
N.Kandampalayam-637 203
Namakkal Dt. .Petitioner
Vs.
1. State of Tamil Nadu
rep. by The Principal Secretary,
Department of School Education,
Fort St. George,
Chennai-9.
2 Director of School Education
DPI Campus,
College Road,
Chennai-6.
3 Director of Matriculation Schools,
DPI Campus,
College Road,
Chennai-6.
4 Director of Elementary Education,
DPI Campus,
College Road
Chennai-6.
5 Ex-Officio Member Secretary/
Addl. Secretary Department of School,
Education Building,
DOI Campus,
College Road,
Chennai-6. .Respondents
(10) W.P.No.2833 of 2010
Kancheepuram District Self
Financing Schools Association,
Chrompet
Chennai-44
Rep. by Its Secretary S.Princebabu Rajendran. ..Petitioner
vs
1 The State of Tamilnadu
Rep. by its Principal Secretary to
Government School Education Department
Fort St. George, Chennai-9.
2 The Director of Tamil Nadu
Matriculation Schools,
College Road,
Chennai-6. . Respondents
(11) W.P.No.3620 of 2010
T.V.S.Vidhya Mandhir Nursery
and Primary School,
Rep.By Its Correspondent
T.Thiruvenkadasamy,
Salaiyur Karur Road
Dindigul-624 001. . Petitioner
vs.
1. The State of Tamil Nadu
Rep.by Its Principal Secretary,
School Education Department,
Chennai-9
2 The Director of School Education,
Chennai-6
3. The Director of Matriculation
Schools, Chennai-6
4 The Chief Educational Officer
Dindigul
5 The State Level Committee
Constituted u/s 5 of Tamil Nadu Act 22/2009
Rep.by Its Member Secretary and Ex-Officio
Addt. Secretary to Government School Education
Dept. Chennai-9. .Respondents
and
(12) W.P.No.112/2010
P.B.Prince Gajendra Babu
General Secretary State Platform
for Common School System,
No.14-A, Sollaiappan Street,
T.Nagar Chennai-17. . Petitioner
Vs.
1. State of Tamilnadu,
Rep. by the Principal Secretary,
School Education,
Fort St. George, Chennai-9
2 Director of School Education,
DPI Campus,
College Road,
Chennai-6.
3 Director of Matriculation Schools,
DPI Campus,
College Road,
Chennai- 6.
4 Honourable Mr.Justice
K.Govindarajan Committee,
Rep. by the Ex-Officio Member/Secretary,
(Addl. Sec. School Education),
Fort St.George,
Chennai-1. Respondents
PRAYER in WP.No.627 of 2010 : Petition filed under Article 226 of the Constitution of
India praying for a writ of declaration declaring that the provisions of Tamilnadu
Schools (Regulation of Collection of Fee) Act 2009 (Act 22 of 2009) and The
Tamilnadu Schools (Regulation of Collection of Fee) Rules 2009 of the 1st respondent
as ultra vires, unconstitutional and unenforceable so far as the petitioners Association is
concerned.
PRAYER in WP.815 of 2010 :Declaring that provisions of Sections 5(1)(a) 6 7 9 and
11(2) of the Tamil Nadu Schools (Regulation of Collection of Fee) Act 2009 (Act 22 of
2009) and Rules 5(1) and 5(2) of the Tamil Nadu Schools (Regulation of Collection of
Fee) Rules 2009 and Circular of the 3rd respondent in Rc.No.7661/A1/2009
dt.26.11.2009 and the Circular of the 4th respondent dt.6.1.2010 are unconstitutional utra
vires unenforceable without jurisdiction and null and void.
PRAYER in W.P.Nos.850 and 851 of 2010 : To declare Sections 5 6 & 7 of The Tamil
Nadu Schools (Regulation of Collection of Fee) Act 2009 (Act 22 of 2009) and The
Tamil Nadu Schools (Regulation of Collection of Fee) Rules 2009 made there under and
the consequential proceedings of the 2nd respondent in Na.Ka.No.7661/A1/2009
dt.26.11.2009 as arbitrary unconstitutional and violative of the right of private
managements to establish and administer educational institutions guaranteed under the
Constitution of India.
PRAYER in W.P.Nos.852 and 1105 of 2010 : To declare Sections 5 6 & 7 of The Tamil
Nadu Schools (Regulation of Collection of Fee) Act 2009 (Act 22 of 2009) and The
Tamil Nadu Schools (Regulation of Collection of Fee) Rules 2009 made there under and
the consequential proceedings of the 2nd respondent in Na.Ka.No.7661/A1/2009
dt.26.11.2009 as arbitrary unconstitutional ultravires and violative of the right to
establish and administer Educational Institution guaranteed under Art.19(1) (g) and 26
and to the minorities under Art 30 The Constitution of India and Art.246 The
Constitution of India.
PRAYER in WP.854 of 2010 : To declare The Tamil Nadu Schools (Regulation of
Collection of Fee) Act 2009 (Act 22 of 2009) and The Tamil Nadu Schools (Regulation
of Collection of Fee) Rules 2009 as unconstitutional and violative of the right to
establish and administer Educational Institutions guaranteed under Art.19(1)(g) & 26 and
to the minorities under Art.30 of The Constitution of India.
PRAYER in WP.855 of 2010 : To declare The Tamil Nadu Schools (Regulation of
Collection of Fee) Act 2009 (Act 22 of 2009) and The Tamil Nadu Schools (Regulation
of Collection of Fee) Rules 2009 and the consequential proceedings of the 3rd
respondent in Na.Ka.No.7661/A1/2009 dt.26.11.2009 as unconstitutional and violative
of the right to establish and administer Educational Institutions guaranteed under
Art.19(1)(g) & 26 and to the minorities under Art.30 of The Constitution of India.
PRAYER IN W.P.No.1105/2010
Petition filed under Article 226 of the Constitution of India praying for the issue
of a Writ of Declaration declaring Sections 5 6 & 7 of The Tamil Nadu Schools
(Regulation of Collection of Fee) Act, 2009 (Act 22 Of 2009) and the Tamil Nadu
Schools (Regulation of Collection of Fee) Rules, 2009 made there under and the
consequential proceedings of the 2nd Respondent In Na.Ka. No.7661/A1/2009
Dt.26.11.2009 as arbitrary, unconstitutional and violative of the Right of Private
Managements to establish and administer Educational Institutions guaranteed under the
Constitution of India.
PRAYER IN W.P.No.1269/2010
Petition filed under Article 226 of the Constitution of India praying for the issue
of a Writ of Declaration declaring that the provisions of Tamil Nadu Schools (Regulation
of Collection of Fee) Act, 2009 (Act 22 of 2009) and the Tamil Nadu Schools
(Regulation of Collection of Fee) Rules, 2009 of the first respondent as ultra vires,
unconstitutional and unenforceable so far as the petitioners association is concerned.
PRAYER IN W.P.No.3620/2010
Petition filed under Article 226 of the Constitution of India declaring that
provisions of Sections 5(1) 6, 7, 9 and 11(2) of the Tamilnadu Schools (Regulation of
Collection of Fee) Act 2009 (Act 22 of 2009) and Rules 5(1) and 5(2) of the Tamilnadu
Schools (Regulation of Collection of Fee) Rules 2009 are unconstitutional ultra vires
unenforceable discriminatory without jurisdiction and null and void
PRAYER IN W.P.No.2833/2010
Petition filed under Article 226 of the Constitution of India to declare Sections 5,
6 & 7 of The Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Act 22 of
2009) and The Tamil Nadu Schools (Regulation of Collection of Fee) Rules, 2009 made
there under and the Consequential Proceedings of the 2nd Respondent in
Na.Ka.No.7661/A1/2009 Dated 26.11.2009 as arbitrary, unconstitutional and violative of
the Right of Private Managements to establish and administer educational institutions
guaranteed under The Constitution of India.
and
PRAYER IN W.P.No.112/2010
Petition filed under Article 226 of the Constitution of India praying for the issue
of a Writ of Certiorarified Mandamus calling for the records of the Tamil Nadu Schools
(Regulation of Collection of Fee) Act, 2009 and Tamil Nadu Schools (Regulation of
Collection of Fee), Rules, 2009 and quash Sections 5 & 6 of the Tamil Nadu Schools
(Regulation of Collection of Fee) Act, 2009 and Rule 3 of the Tamil Nadu Schools
(Regulation of Collection of Fee) Rules, 2009 for being against the concept of Common
School System and principles of equality and justice.
**********
For Petitioner in
W.P.No.627/2010 ::: Mr.M.Venkatachalapathy,
Senior Counsel
for Mr.M.Sriram
For Petitioner in
W.P.No.815/2010 &::: Mr.K.Doraisamy,
W.P.No.3620/2010 Senior Counsel
for M/s.Muthumani Doraisami
For Petitioner in
W.P.Nos.850,851
& 1105/2010 ::: Mr.S.Silambannan, Senior Counsel
for Mr.K.Sathish
for M/s.PROFEXS Associates
For Petitioner in
W.P.No.852/2010 &::: Mr.N.R.Chandran, Senior Counsel
W.P.No.2833/2010 for M/s.Paramasiva Doss
For Petitioner in
W.P.Nos.854&855/2010::: Mr.R.Muthukumarasamy,
Senior Counsel
for Mr.V.P.Sengottuvel
For Petitioner in
W.P.No.1269/2010 ::: Mr.N.M.Ramalingam
and
For Petitioner in
W.P.No112/2010 ::: Mr.S.Senthil Nathan
For Respondents ::: Mr.P.Wilson,
Addl.Advocate General
Assisted by
Mr.G.Sankaran,
Special Govt. Pleader(Education)
& Ms.Dakshayni Reddy, Govt.Advocate
******
COMMON JUDGMENT
THE HONBLE CHIEF JUSTICE
All these writ petitions, except one (i.e., W.P.No.112 of 2010), are filed by the
unaided private school managements belonging either to the minorities or otherwise.
They seek a declaration that the Tamil Nadu Schools (Regulation of Collection of Fee)
Act, 2009 (Act 22 of 2009) (hereinafter referred to as the Act in short) and the Tamil
Nadu Schools (Regulation of Collection of Fee) Rules, 2009 (hereinafter referred to as
the Rules in short) are unconstitutional and violative of: -
(i)the right to establish and administer educational institutions, which right is guaranteed
under Article 19 (1)(g),
(ii)the right to establish and maintain institutions for religious and charitable purposes,
which is guaranteed under Article 26 of the Constitution of India, and
(iii)the right of the minorities to establish and administer educational institutions
guaranteed under Article 30 of the Constitution of India.
These petitions thereafter seek to challenge the consequential proceedings initiated by the
Director of Education including the direction dated 26th November, 2009 to issue the
applications for admissions only during 01-05-2010 to 15-05-2010 and not prior
thereto. Writ Petition No.112/2010 is, however, different. It also assails some of the
provisions of this statute, but for an altogether different reason viz., for being against the
concept of common school system and the principles of equality and justice.
2. As the preamble of the Act states, it is enacted with a view to regulate the
collection of fees by the schools in the State of Tamil Nadu and matters connected
thereunder. This Act consists of 16 sections. The first section as usual is about the short
title, extent and commencement. The Act has come into force from 05th August 2009.
Section 2 gives various definitions. Section 2(j) defines a private school, which reads
as follows:-
''2 (j) private school means any pre-primary school, primary school, middle school,
high school or higher secondary school, established and administered or maintained by
any person or body of persons and recognized or approved by the competent authority
under any law or code of regulation for the time being in force, but does not include, -
(i) an aided school;
(ii) a school established and administered or maintained by the Central Government
or the State Government or any local authority;
(iii) a school giving, providing or imparting religious instruction alone but not any
other instructions;
Explanation:- For the Purpose of this clause,-
1) code of regulation means the Code of Regulations for Approved Nursery and
Primary Schools, Code of Regulations for Matriculation Schools and Code of
Regulations for Anglo-Indian Schools;
2) (i) pre-primary school shall consist of Pre-KG to UKG.
(ii) primary school shall consist of LKG to Standard V or Standards I to V;
(iii) middle school shall consist of LKG to Standard VIII, Standards I to VIII or
Standards VI to VIII;
(iv) high school shall consist of LKG to Standard X, Standards VI to X or Standards IX
and X;
(v) higher secondary school shall consist of LKG to Standard XII, Standards I to XII,
Standards VI to XII or Standards XI and XII.
3) Aided schools conducting any classes or courses, for which no money is paid as
aid out of the State funds, shall be construed as a private school in so far as such classes
or courses are concerned.
3. Sections 3 to 8 are the most relevant sections from this Act. The petitioners
principally attacked Section 3 (2) read with Section 6 and later Section 11 of the Act. It is
necessary to reproduce these sections:-
3. Prohibition of Collection of excess fee.
(1) No Government school or aided school shall collect any fee in excess of the fee fixed
by the Government for admission of pupils to any Standard or course of study in that
school.
(2) No fee in excess of the fee determined by the committee under this Act shall be
collected for admission of pupils to any Standard or course of study in a private school,-
(a) by any person who is in charge of, or is responsible for, the management of such
private school; or
(b) by any other person either for himself or on behalf of such private school or on
behalf of the management of such private school.
(3) The fee collected by any school affiliated to the Central Board of Secondary
Education shall commensurate with the facilities provided by the school.
4. Fixation of fee by Government.
The Government shall fix the fee for admission of pupils to any Standard or course of
study in Government schools and aided schools.
5. Constitution of Committee:
(1) The Government shall constitute a committee for the purpose of determination of the
fee for admission to any Standard or course of study in private schools;
(2) The committee shall consist of the following members, namely,
(a) A retired High Court Judge, nominated
by the Government.  Chairperson
(b) Director of School Education  Ex-officio Member
(c) Director of Matriculation SchoolsEx-officio Member
(d) Director of Elementary EducationEx-officio Member
(e) Joint Chief Engineer (Buildings),
Public Works Department Ex-officio Member
(f) Additional Secretary to Government,
School Education Department Ex-officio Member-
Secretary
(3) The term of office of the Chairperson shall be for a period of three years from the date
of his nomination and in the case of vacancy arising earlier, for any reason, such vacancy
shall be filled for the remainder of the term.
(4) The Chairperson shall be eligible to draw such rate of sitting fee and travelling
allowance as may be applicable to a First class Committee.
(5) No act or proceeding of the committee shall be invalid by reason only of the existence
of any vacancy in, or any defect in, the constitution of the committee.
(6) The Chairperson shall preside over the meeting of the committee.
6. Factors for determination of fee.
(1) The Committee shall determine the fee leviable by a private school taking into
account the following factors, namely:-
(a) The location of the private school;
(b) The available infrastructure;
(c) The expenditure on administration and maintenance;
(d) The reasonable surplus required for the growth and development of the private
school.
(e) Any other factors as may be prescribed.
(2) The Committee shall, on determining the fee leviable by a private school,
communicate its decision to the school concerned.
(3) Any private school aggrieved over the decision of the Committee shall file their
objection before the committee within fifteen days from the date of receipt of the decision
of the committee.
(4) The committee shall consider the objection of the private school and pass orders
within thirty days from the date of receipt of such objection.
(5) The orders passed by the committee shall be final and binding on the private school
for three academic years. At the end of the said period, the private school would be at
liberty to apply for revision.
(6) The committee shall indicate the different heads under which the fee shall be levied.
7. Powers and functions of the committee:
(1) The powers and functions of the committee shall be, -
(a) To determine the fee to be collected by private schools;
(b) To hear complaints with regard to collection of fee in excess of the fee determined by
it or fixed by the Government, as the case may be. If the committee, after obtaining the
evidence and explanation from the management of the private school or aided school
concerned or from the Government school, comes to the conclusion that the private
school or the Government school or aided school has collected fee in excess of the fee
determined by the committee or fixed by the Government, as the case may be, it shall
recommend to the appropriate competent authority for the cancellation of the recognition
or approval, as the case may be, of the private school or aided school or for any other
course of action as it deems fit in respect of the private school or Government school or
aided school.
(2) The Committee shall have power to.-
(i) require each private school to place before the committee the proposed fee
structure of such school with all relevant documents and books of accounts for scrutiny
within such date as may be specified by the committee;
(ii) verify whether the fee proposed by the private school is justified and it does not
amount to profiteering or charging of exorbitant fee;
(iii)approve the fee structure or determine some other fee which can be charged by the
private school.
(3) The Committee shall have power to.-
(i) verify whether the fee collected by the School affiliated to the Central Board of
Secondary Education commensurate with the facilities provided by the school;
(ii) to hear complaints with regard to collection of excess fee by a school affiliated to
the Central Board of Secondary Education; and
(iii) to recommend to the Central Board of Secondary Education for disaffiliation of
the school, if it comes to a conclusion that the school has collected excess fee.
(4) The committee shall have the power to regulate its own procedure in all matters
arising out of the discharge of its functions, and shall, for the purpose of making any
inquiry under this Act, have all the powers of a civil court under the Code of Civil
Procedure, 1908 while trying a suit, in respect of the following matters, namely, -
(i) Summoning and enforcing the attendance of any witness and examining him on
oath;
(ii) The discovery and production of any document;
(iii) The receipt of evidence on affidavits;
(iv) The issuing of any commission for the examination of witness.
8. Regulation of accounts.-
The Government may regulate the maintenance of accounts by the private schools
in such manner as may be prescribed.
4. Section 9 provides for penalties in the event of contravention of the provisions
of the Act. Section 10 provides for offences by the Company. Section 11 lays down that
there shall be a District Committee in every Revenue District for this purpose. Section 12
lays down that no Court shall take cognizance of any offence under this Act except with
the sanction of the Government. Under Section 13, the provisions of this Act are stated to
be in addition to and not in derogation of any other law for the time being in force.
Section 14 provides for protection of action taken in good faith. Section 15 lays down the
power to remove difficulties and Section 16 lays down the power to make rules.
5. The principal submission of the learned counsel for the petitioners is that the
regulation of collection of fee by the unaided and minority schools is impermissible. It
infringes the Fundamental Right of the unaided educational institutions whether
belonging to minorities or otherwise to practice any profession or to carry on any
occupation, trade or business, which is available under Article 19(1)(g) of the
Constitution of India. This law imposing the restrictions thereunder cannot be said to be
in the interest of general public and the restrictions cannot be considered to be
reasonable.
6. The second limb of the submissions of the petitioners is concerning the
minority unaided schools. It is submitted that they have the freedom to manage their
religious affairs under Article 26 of the Constitution and the right to establish and
administer their educational institutions under Article 30 of the Constitution is infringed
by this Enactment.
7. The third limb of the argument is that the power under Section 11 of the Act given to
the District Committee or any of its members to enter, search and seize the record or the
documents of the school or its management is excessive and arbitrary, and therefore
violative of Article 14 of the Constitution of India. This Section 11 reads as follows: -
 11. District Committee: -
(1) There shall be a District Committee in every revenue district, which shall consist of
the Chief Educational Officer of the district as Chairperson and such other members as
may be prescribed.
(2) The District Committee or any member of the said Committee authorized by it in this
behalf may, at any time, during the normal working hours of any private school, enter
such private school or any premises thereof or any premises belonging to the
management of such private school if it or he has to believe that there is or has been any
contravention of the provisions of this Act or the Rules made thereunder and search and
inspect any record, accounts, register or other document belonging to such private school
or of the management, in so far any such record, accounts, register or other document
relates to such private school and seize any such record, accounts, register or other
document for the purpose of ascertaining whether there is or has been any such
contravention.
(3) The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)
relating to search and seizure shall apply, so far as may be, to search and seizure under
sub-section (2).
8. Mr.Muthukumarasamy, learned senior counsel led the counsel appearing for
various petitioners. The arguments of most of the counsel for the petitioners (except
W.P.No.112/2010) were similar. Mr.N.R.Chandran, learned senior counsel appearing for
the petitioner in W.P.Nos.852 & 2833 of 2010 criticized Section 11 of the Act for being
violative of Article 14 of the Constitution of India. Mr.Senthil Nathan, learned counsel
appearing for the petitioner in W.P.No.112/2010, on the other hand, criticized the Act for
being against the concept of common school system and the principles of equality and
justice. Mr.Wilson, learned Additional Advocate General, and Mr.Sankaran, learned
Special Government Pleader defended the legislation as valid, legal and constitutional. A
number of affidavits and documents were placed on record. We have gone through the
same.
9 Mr.Muthukumaraswamy, learned Senior Counsel appearing for the petitioners in Writ
Petition Nos.854 and 855 of 2010 took us through the three leading judgments rendered
by the Apex Court and the relevant paragraphs therefrom concerning admissions to the
professional medical and engineering institutions. The first one is in the case of T.M.A.
Pai Foundation and others vs- State of Karnataka and others reported in (2002) 8 SCC
481. The second is in the case of Islamic Academy of Education and another vs- State
of Karnataka reported in (2003) 6 SCC 697 and the third one is in the case of
P.A.Inamdar and others vs- State of Maharashtra and others reported in (2005) 6 SCC
537.
10. The question of regulation of fees and admissions to the professional
engineering and medical colleges came up before the Apex Court in TMA Pai
Foundation case (supra). In that matter the Apex Court had framed five issues for its
consideration. In the present matter, the observations of the Apex Court on the third issue
before it were pressed into service. The issue was whether in case of private institutions
(unaided and aided), can there be a Government Regulation and if so, to what extent?
In paragraph 50 of the said judgment, the Apex Court laid down that the right to establish
and administer broadly comprises the following rights:-
(a) To admit students;
(b) To set up a reasonable fee structure;
(c) To constitute a governing body;
(d) To appoint staff (teaching and non-teaching); and
(e) To take action if there is dereliction of duty on the part of any employee.
11. Paragraph 54 of the judgment was specifically pressed into service.
For the sake of convenience, we can place it in two clauses, since it contains two
statements, which read as follows:-
54. (i) The right to establish an educational institution can be regulated; but such
regulatory measures must, in general, be to ensure the maintenance of proper academic
standards, atmosphere and infrastructure (including qualified staff) and the prevention of
maladministration by those in charge of management. (ii) 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.
Based on those statements in paragraph 54, it was submitted that there can be a regulation
of the right to establish an educational institution but it will have to be to ensure the
maintenance of proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration. Fixing of a rigid fee structure
would be an unacceptable restriction. The statements in paragraph 56 were pressed into
service to the effect that 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. It was
considered as stated in paragraph 57 of the judgment that profiteering is not permitted,
though there can be a reasonable revenue surplus, which is permissible to an educational
institution.
12. Paragraph 61 of the judgment was very much pressed into service, which
states that in the case of unaided private schools, maximum autonomy has to be with the
management with regard to administration including the right of appointment,
disciplinary power, admission of students and the fee to be charged. At the school level,
the admissions are not on the basis of merit. The Court has observed that the State run
schools do not provide the same standard of education as the private schools. The State
should use its resources for the state educational institutions and subsidize the fees
payable by the students there. It is, however, in the interest of the general public that
more good quality schools are established. The Court observed at the end of the
paragraph as follows:-
61.  .  It is in the interest of the general public that more good quality schools are
established; autonomy and non-regulation of the school administration in the right of
appointment, admission of the students and the fee to be charged will ensure that more
such institutions are established. The fear that if a private school is allowed to charge fees
commensurate with the fees affordable, the degrees would be purchasable is an
unfounded one since the standards of education can be and are controllable through the
regulations relating to recognition, affiliation and common final examinations.
13. Mr.Wilson, learned Additional Advocate General, on the other hand, pointed
out that the judgment in Islamic Academy case (supra) brought in a Committee to
regulate the fee structure. In paragraph 6 of that judgment, the Court framed the very first
question, which was whether the educational institutions are entitled to fix their own fee
structure. In paragraph 7, the Court referred to paragraph 56 of the judgment in TMA
Pais case (supra) and then laid down that the respective Governments and the
authorities will set up, in each State, a Committee headed by a retired High Court Judge
to be nominated by the Chief Justice, which will oversee the fee structure available or to
propose some other fees, which can be charged by the institute concerned. The fee fixed
by the Committee shall be binding for a period of three years at the end of which period,
the institute would be at liberty to apply for review. As far as the fixing of fees is
concerned, the Court laid down as follows:-
7.   .. Each educational institute must place before this Committee, well in
advance of the academic year, its proposed fee structure. Along with the proposed fee
structure all relevant documents and books of accounts must also be produced before the
Committee for their scrutiny. The Committee shall then decide whether the fees proposed
by that institute are justified and are not profiteering or charging capitation fee. The
Committee will be at liberty to approve the fee structure or to propose some other fee
which can be charged by the institute. The fee fixed by the Committee shall be binding
for a period of three years, at the end of which period the institute would be at liberty to
apply for revision. Once the fees are fixed by the Committee, the institute cannot charge
either directly or indirectly any other amount over and above the amount fixed as fees. If
any other amount is charged, under any other head or guise, e.g. donations, the same
would amount to charging of capitation fee. The Governments/appropriate authorities
should consider framing appropriate regulations, if not already framed, whereunder if it is
found that an institution is charging capitation fees or profiteering that institution can be
appropriately penalized and also face the prospect of losing its recognition/affiliation.
14. Mr.Wilson, learned Additional Advocate General, submitted that far more students
attended the schools as against the professional courses about which the above mentioned
three judgments were rendered. Regulation of fees of the schools was the felt necessity of
the society. In the State of Tamil Nadu, there were about 5500 Nursery/Primary Schools,
4100 Matriculation Schools, 38 Anglo Indian Schools and 500 State Board Schools of
Tamil Medium totalling to 10,138 schools which were unaided. There was no uniformity
in their fee structure and on the face of it large numbers of them were charging very high
fees, which could not be justified. It was, therefore, felt necessary to regulate their fees.
He placed before us documents and charts to show how excessive fees were charged. He
submitted that the State Government was already regulating (1) starting of the schools (2)
staffing pattern, strength of teachers (3) facilities/infrastructure and (4) examination.
Mr.Wilson, therefore, contended that if that was not objected, why should regulation of
fees be objected if that was sought to be done by objective standards as laid down in
Section 6(1) of the Act. The State was not against reasonable revenue surplus, but against
profiteering.
15. Having noted the submissions advanced by the learned counsel appearing for
the respective petitioners, and of the learned Additional Advocate General, we must note
that the Apex Court was concerned with the fees in the Medical and Engineering colleges
in the above referred to three matters, and the fees collected by the private schools were
not the subject matter of those proceedings. Yet, the counsel for both the parties accept
that the principles laid down in the above referred to three judgments will be useful for
deciding the question of validity of the legislation in this matter.
Guidelines for examining the validity of the legislation
Now, as can be seen in T.M.A.Pais case itself, the Apex Court has observed that
the Government can provide regulations to control the charging of capitation fee and
profiteering. Question No.3 before the Court was as to whether there can be Government
regulations, and if so, to what extent in case of private institutions? What the Apex Court
has observed in paragraph-57 of the judgment is instructive for our purpose.
57. We, however, wish to emphasize one point, and that is that inasmuch as the
occupation of education is, in a sense, regarded as charitable, the Government can
provide regulations that will ensure excellence in education, while forbidding the
charging of capitation fee and profiteering by the institution. Since the object of setting
up an educational institution is by definition charitable, it is clear that an educational
institution cannot charge such a fee as is not required for the purpose of fulfilling that
object. To put it differently, in the establishment of an educational institution, the object
should not be to make a profit, inasmuch as education is essentially charitable in nature.
There can, however, be a reasonable revenue surplus, which may be generated by the
educational institution for the purpose of development of education and expansion of the
institution.
16 Again in paragraph-69 of the judgment, while dealing with this issue, the Apex Court
observed that an appropriate machinery can be devised by the State or University to
ensure that no capitation fee is charged and that there is no profiteering, though a
reasonable surplus for the furtherance of education is permissible. Although the Apex
Court overruled the earlier judgment in Unnikrishnan vs. State of Andhra Pradesh
reported in 1993 (1) SCC 645, which was to the extent of the scheme framed therein and
the directions to impose the same, part of the judgment holding that primary education is
a fundamental right was held to be valid. Similarly, the principle that there should not be
capitation fee or profiteering was also held to be correct.
17. Thereafter, when we come to the judgment in Islamic Academy case, the first
question framed by the Apex Court was whether the educational institutions are entitled
to fix their own fee structure? It is pertinent to note that this judgment very much brought
in a committee to regulate the fees structure, which was to operate until the
Government/Appropriate Authorities consider framing of appropriate regulations. It is
also material to note that in paragraph-20, the Apex Court has held that the direction to
set up Committee in the States was passed under Article 142 of the Constitution and was
to remain in force till appropriate legislation was enacted by Parliament.
18. The judgment in P.A.Inamdars case, though sought to review the one in Islamic
Academy case, it left the mechanism of having the committees undisturbed. In paragraph-
129 of the judgment, the Apex Court observed that the State regulation, though minimal,
should be to maintain fairness in admission procedure and to check exploitation by
charging exorbitant money or capitation fees. In paragraph-140 of the judgment, the
Apex Court has held that the charge of capitation fee by unaided minority and nonminority
institutions for professional courses is just not permissible. Similarly,
profiteering is also not permissible. The Apex Court observed that it cannot shut its eyes
to the hard realities of commercialization of education and evil practices being adopted
by many institutions to earn large amounts for their private or selfish ends. On question
no.3, which was with respect to Government regulation in the case of private institutions,
the Apex Court clearly answered in paragraph-141 that every institution is free to devise
its own fee structure, but the same can be regulated in the interest of preventing
profiteering. No capitation fee can be charged. In paragraph-145 of the judgment, the
Apex Court rejected the suggestion for post-audit or checks if the institutions adopt their
own admission procedure and fee structure, since the Apex Court was of the view that
admission procedure and fixation of fees should be regulated and controlled at the initial
stage itself.
19. Thus, in P.A.Inamdar's case (supra), the Apex Court left the mechanism laid down in
Islamic Academy's case (supra) undisturbed with respect to the fees. On question No.3,
viz., as to whether in the private institutions there can be a Government Regulation, the
Court held that every institution was free to devise its own fee structure but the same can
be regulated in the interest of preventing profiteering. What the Court held in paragraphs
144 and 147 is relevant for our purpose and, therefore, we quote those two paragraphs
hereunder:-
''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
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.
147. In our considered view, on the basis of the judgment in Pai Foundation and various
previous judgments of this Court which have been taken into consideration in that case,
the scheme evolved out of setting up the two Committees for regulating admissions and
determining fee structure by the judgment in Islamic Academy cannot be faulted either
on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional
educational institutions of both categories and Article 19(1)(g) read with Article 30 in
case of unaided professional institutions of minorities."
Again in paragraph-146, the Apex Court observed that even non-minority
institutions can be subjected to similar restrictions which are found reasonable and in the
interest of the student community. The same view is again reiterated in Paragraphs 148 &
155 of the judgment.
Analysis of the present Act
20. On this background, when we look to the committee constituted under Section
5(1) of this Act, it shows that the initial function of the committee is to approve the fees
structure formulated by the concerned institution. It is only when the committee finds the
fee structure to be objectionable and cannot be approved, then it will determine some
other fee, and the private schools will be asked to charge the same. Sections 6(1) and 7(1)
of the Act lays down the procedure which will be followed by the committee: -
(a)The Committee has to call upon the private institutions to place before it the proposed
fee structure of the institution with all relevant documents and books of accounts for
scrutiny within the period to be indicated by the Committee in the given notice. (The
Committee has already circulated the questionnaire to the institutions which contains
details) about the fee component.
(b)After the receipt of the proposal from the concerned institution, the Committee has to
verify as to whether the fee proposed by the Private School is justified and it does not
amount to profiteering or charging of exorbitant fee.
(c)In case the Committee is of the view that the fee structure proposed by the institution
appears to be correct, taking note of the various facilities provided and that there was no
profiteering or collection of exorbitant fee under the guise of capitation fee, it has to
approve the fee structure.
(d)In case the Committee is of the view that the fee structure forwarded by the institution
is exorbitant and that there is an element of profiteering, the Committee has to determine
some other fee.
(e) While fixing some other fee, the Committee has to follow certain procedures taking
into consideration the factors as found mentioned under Section 6(1) as well as Rule 3 of
the Rules.
(f)The determination of the fee as made by the Committee should be intimated to the
concerned institution and there upon the institution has got a right to submit their
objections within fifteen days.
(g)The objections so submitted by the institution shall be examined by the Committee.
The Committee has to consider it objectively. The Committee was not expected to reject
the objection summarily. As per Section 7(4) of the Act, the Committee shall have the
powers to regulate its own procedure in all matters and it shall have all the powers of a
Civil Court under the Code of Civil Procedure, 1908 regarding summoning and
attendance of witness and related matters. Therefore, the Committee would be within
their powers to get the factors verified in respect of the claim made by the institution, to
approve their fee structure, as against the fee determined by the Committee.
(h) The fee so prescribed would be in operation for a period of three years and at the end
of such period, it would be open to the institution to make an application for revision of
fees.
21. The observation of the Supreme Court was against the Government fixing the rigid
fee in respect of private institutions. The impugned Act, in no way fixes the rigid fee. It
only calls upon the management to forward their fee structure with details as to how they
arrive at such a fee structure. The main idea is to see as to whether under the guise of
collection of fees they are indirectly collecting the capitation fee or indulging in
profiteering. That is why the Act initially uses the term Approval of the fee structure
and only in such cases where the committee is of the view that the fee structure proposed
is exorbitant and is in the nature of capitation fee or profiteering, it intervenes in the
matter and for the purpose of fixing the correct fee, the private institution is given liberty
to specify their fee structure, taking into account the expenditure necessary for running
the institution as well as its future needs. Thus, it proceeds to determine the fee structure
thereafter. In that procees, it considers the objections given by the management to the
fees proposed by the Committee. The consideration of objections by the Committee
cannot be treated as an empty formality. The Committee has to consider the objections
made by the institution in an objective manner and if necessary, by inspecting the
institution and calling upon the management to produce the records in their possession in
respect of various facets and to arrive at a decision as to whether the fee determined by
the Committee was the correct one or it requires modification. It cannot be ignored that
the committee is a high powered committee headed by a retired High Court Judge.
22. It is material to note that the private schools with respect to whom the Act is
concerned are all recognized institutions. They are all governed under the Tamil Nadu
Recognised Private Schools (Regulation) Act, 1973 and the Rules made there under. The
Act is a self-contained Code dealing with recognized private schools and withdrawal of
recognition also. That will be so done where it is found that the institutions contravenes
any of the provisions of the Act or the terms and conditions of granting such recognition.
Section 32 of the Private Schools Regulation Act provides for fees and
other charges. It reads thus:-
32. Fees and other charges :-
(1)Subject to the provisions of sub-section (2), no private school shall levy any fee or
collect any other charge or receive any other payment except a fee, charge or payment
specified by the competent authority.
(2)Every private school in existence on the date of the commencement of this Act and
levying different rates of fees or other charges or receiving any other amount on such
date, shall obtain the prior approval of the competent authority before continuing to levy
such fees or charges or receive such payment.
23. Therefore, even as per the Private Schools Regulation Act, 1973, the private
institution was expected to collect only the fees as prescribed by the competent authority.
The provisions of this impugned Act have to be read along with the Private Schools
Regulation Act, 1973 and the said position is clearly stated in Section 13 of the Act
which clearly states that it is to be read in addition to existing laws. So long as Section
32 is in the Statute Book, it is always open to the State to regulate the fee. However there
is no mechanism in the Tamil Nadu Private Schools Regulation Act for approval of the
fee structure formulated by the private institution and to have determination of another
fee. The impugned Act has to be considered only in the said context as it provides for the
first time the machinery for approval of the fee structure proposed by the private
institutions and the determination of a different fee, in case the Committee was of the
view that the fee structure was exorbitant or that there is an element of capitation fee or
profiteering.
24. The judgment of the Apex Court rendered in the case of Modern School v. Union of
India reported in 2004 (5) SCC 583 is quite instructive for our purpose. The Delhi School
Education Act, 1973 was under challenge in that matter. That Act also contained
provisions for fixing fees by the Director of Education. The judgment of the Apex Court
was rendered after the judgment in T.M.A.Pais case and Islamic Academy case, but
before one in P.A.Inamdars case.
25. The following observations in Modern School case are reproduced herein below for
ready reference: -
(A) In paragraph- 14 of the judgment the Supreme Court observed thus: -
14. At the outset, before analysing the provisions of the 1973 Act, we may state
that it is now well settled by a catena of decisions of this Court that in the matter of
determination of the fee structure unaided educational institutions exercise a great
autonomy as they, like any other citizen carrying on an occupation, are entitled to a
reasonable surplus for development of education and expansion of the institution. Such
institutions, it has been held, have to plan their investment and expenditure so as to
generate profit. What is, however, prohibited is commercialisation of education. Hence,
we have to strike a balance between autonomy of such institutions and measures to be
taken to prevent commercialisation of education. However, in none of the earlier cases,
this Court has defined the concept of reasonable surplus, profit, income and yield, which
are the terms used in the various provisions of the 1973 Act.
(underlining supplied)
(B) Again in paragraph-15, the Supreme Court indicated that there should be no
capitation fee as well as profiteering. The observation reads thus:-
 15. The institutions should be permitted to make reasonable profits after
providing for investment and expenditure. However, capitation fee and profiteering were
held to be forbidden. Subject to the above two prohibitory parameters, this Court in
T.M.A. Pai Foundation case held that fees to be charged by the unaided educational
institutions cannot be regulated. Therefore, the issue before us is as to what constitutes
reasonable surplus in the context of the provisions of the 1973 Act. This issue was not
there before this Court in T.M.A. Pai Foundation case..
(C) In para 16 of the judgment, the Supreme Court formulated the question as to
whether the educational institutions are entitled to fix their own fee structure. While
confirming the position that each institute must have freedom to fix its own fee structure,
the Supreme Court observed that there should be no attempt for profiteering or collection
of capitation fee. The observation reads thus: -
16.  In view of rival submissions, four questions were formulated. We are
concerned with the first question, namely, whether the educational institutions are
entitled to fix their own fee structure. It was held that there could be no rigid fee
structure. Each institute must have freedom to fix its own fee structure, after taking into
account the need to generate funds to run the institution and to provide facilities
necessary for the benefit of the students. They must be able to generate surplus which
must be used for betterment and growth of that educational institution. The fee structure
must be fixed keeping in mind the infrastructure and facilities available, investment
made, salaries paid to teachers and staff, future plans for expansion and/or betterment of
institution subject to two restrictions, namely, non-profiteering and non-charging of
capitation fees. It was held that surplus/profit can be generated but they shall be used for
the benefit of that educational institution. It was held that profits/surplus cannot be
diverted for any other use or purposes and cannot be used for personal gains or for other
business or enterprise. The Court noticed that there were various statutes/regulations
which governed the fixation of fee and, therefore, this Court directed the respective State
Governments to set up a committee headed by a retired High Court Judge to be
nominated by the Chief Justice of that State to approve the fee structure or to propose
some other fee which could be charged by the institute. 
(D) While considering Section 17(3) of the Delhi School Education Act, the
Supreme Court observed that the Director has authority to regulate the fees under Section
17(3) of the Act. The paragraph reads thus:-
17. .Therefore, reading Section 18(4) with Rules 172, 173, 174, 175
and 177 on one hand and Section 17(3) on the other hand, it is clear that under the Act,
the Director is authorised to regulate the fees and other charges to prevent
commercialisation of education. Under Section 17(3), the school has to furnish a full
statement of fees in advance before the commencement of the academic session. Reading
Section 17(3) with Sections 18(3) and (4) of the Act and the Rules quoted above, it is
clear that the Director has the authority to regulate the fees under Section 17(3) of the
Act.
(E) While concluding the judgment, the Supreme Court observed that the Delhi
School Education Act was interpreted to bring in transparency, etc., as well as to prevent
commercialization of education to the extent possible. The relevant paragraph reads thus:
-
 26. To sum up, the interpretation we have placed on the provisions of the
said 1973 Act is only to bring in transparency, accountability, expenditure management
and utilisation of savings for capital expenditure/investment without infringement of the
autonomy of the institute in the matter of fee fixation. It is also to prevent
commercialisation of education to the extent possible.
26. It is material to note that this view was subsequently sought to be challenged
and reviewed, but the Apex Court declined to review it, as can be seen in Unaided Private
Schools of Delhi v. Director of Education reported in 2009 (10) SCC 1.
27. Mr.Wilson, learned Additional Advocate General, relied upon a judgment of a
single Judge of the Karnataka High Court in the case of Bapuji Educational Association
v. State reported in AIR 1986 Karnataka 119. In that matter, similar provisions of
Karnataka Educational Institutions (Prohibition of Capitation Fee) Act were under
challenge. Section 3 of the Act prohibited collection of capitation fee. The concept of
educational institutions was defined under Section 2(c) of the Act to mean any institution
by whatever name called whether Government, private body, local authority, trust or
university carrying on activity of imparting education in medicine or engineering leading
to a degree conferred by the University under the Karnataka State Universities Act and
also in other educational institutions or class or classes of such institution as the
Government may, by notification specify. The capitation fee was defined under Section
2(b) of the Act to mean any amount by whatever name called, paid or collected directly
or indirectly in excess of the fee prescribed under Section 5 of the Act, but did not
include the deposit specified under the proviso to Section 3 of the Act. Section 3 of the
Act prohibited collection of capitation fee. Section 5 of the Act empowered the State by
notification to regulate the tuition or any other fee or deposit or other amount that may be
received or collected by any educational institution. Section 5(2) of the Act directed that
no educational institution shall collect any fees or amount or accept deposits in excess of
the amounts notified under Section 3(1) of the Act. The learned single Judge analysed the
various provisions of the Act and also the prevalent judgments, and in terms held in
paragraph 78(A) that the provisions of Section 3 read with Section 5(2) of the Act were
not violative of Articles 14 & 19(1)(g) of the Constitution of India. Mr.Wilson pointed
out that a similar Act is existing in the State of Maharashtra viz., Maharashtra
Educational Institution (Prohibition of Capitation Fees) Act, 1987 and the authorities
thereunder were functioning appropriately.
28. In view of what is stated above, it can be said that the scheme of the present
Act is in consonance with the law laid down by the Apex Court, and it by and large
strikes a balance between the autonomy of the institutions and measures to be taken to
prevent commercialization of education. There are sufficient guidelines in the statute for
either approving or fixing the fees. The procedure prescribed provides for appropriate
opportunity to the managements. The Committee is headed by a retired High Court
Judge. The minority educational institutions have also to maintain non-exploitative terms
as held in P.A.Inamdars case. The impugned Act, therefore, cannot be said to be in any
way in violation of Articles 19(1)(g) and 26 or 30 of the Constitution of India. However,
having said this, when it comes to Section 11 of the Act, we have to examine the
procedure little more carefully.
Constitutionality of Section 11 of the Act.
29. Section 11(1) provides for constitution of a District Committee. Section 11(2)
permits the District Committee or any member of the said Committee authorized by it to
enter and inspect the private institution or any premises belonging to the management of
such School, if it or he has reason to believe that there is or has been any contravention of
the provisions of the Act. As per Section 11(3), the provisions of the Code of Criminal
Procedure relating to search or seizure would be applicable in case of a search under
Section 11(2).
30. The Supreme Court in paragraph-55 of T.M.A. Pai Foundation case has clearly stated
that in the case of private unaided institutions, maximum autonomy in the day-to-day
administration has to be with the private institution. It was further held that bureaucratic
or Governmental interference in the administration of such an institution will undermine
its independence.
31. By way of search as per Section 11(2), wide powers are given to the District
Committee or any of its members duly authorized for conducting search. The said
provision taken along with the relevant rule as per Rule 4(4) clearly shows that the
Committee or its members are given free access at all reasonable time to enter the
institution and to seize books, registers, accounts, records, documents, securities, cash or
any other property belonging to or in the custody of any private school or its
management. This is an unreasonable restriction in the matter of conducting educational
institution by the private management. These Schools are not depending upon the
Government for funds or their administration. No grant is paid to them. Therefore such
wide powers as granted under Section 11(2), would undermine the autonomy and it will
create a perennial apprehension to the institution. The provision confers unguided power
which can be used arbitrarily and misused.
32. The power to conduct search, as provided under Section 11(2), is only in
respect of unaided private institutions. The other private institutions getting aid from the
Government are excluded from the definition of a private school and therefore, would not
come under the purview of Section 11 of the Act, as the provision clearly says that
Schools to be inspected would be only Private Schools. There is no object sought to
be achieved by this classification which is prima facie unreasonable. Arbitrariness is writ
large. The provision is clearly violative of the equality provision of the Constitution.
Therefore Section 11 is liable to be struck off as unconstitutional as it is violative of
Article 14 of the Constitution of India. The Government is not powerless in the matter of
implementation of the Act. Even without Section 11 it would be possible for the
Government and the Committee to implement the provisions of the Act and the Rules
made thereunder. The Committee was given powers to recommend to the appropriate
authority for the purpose of canceling the recognition or approval to the institution, in
case, the institution was found to collect fee other than the one prescribed by the
Government. Similarly, Section 9(i) attracts criminal prosecution in the event of
violating the provisions of the Act. Therefore there are sufficient statutory provisions to
punish the private schools in case of collecting fees more than the prescribed fee. The
District Committee can send a reasonable notice and seek the necessary information.
33. In this connection, we may profitably refer to the judgment of the Apex Court in the
case of District Registrar and Collector v. Canara Bank reported in 2004 (5) CTC 376. By
Andhra Pradesh Act No.17 of 1986 the State Government had amended Section 73 of the
Indian Stamps Act, 1899as applicable in the State. The amended provisions empowered
any person authorized by the Collector of Stamps to have access to the documents in
private custody or custody of a public officer where the inspection thereof may attend to
secure any duty or to prove or lead to the discovery of any fraud or omission in relation to
any duty. The provision permitted the exercise of power at all reasonable times and was
not preceded by any requirement of reasons being recorded by the Collector or person
authorized by him. The person authorized was vested with the authority to impound a
document. On analyzing the various provisions of the amended Act, the Apex Court held
that the power to impound a document had to be construed strictly and would be
sustained only when falling within the four corners and letters of law. The Apex Court
relied upon its earlier judgments including the one in Air India v. Nergesh Meerza
reported in 1981 (4) SCC 335 where in it was held that where a statute conferred a power
on an authority to decide the matters without laying down any guidelines or principles or
norms, that power had to be struck down as violative of Article 14 of the Constitution of
India. In the present matter, we are constrained to take a similar view.
34. Though Rule 4(1) to Rule 4(4) dealing with maintenance of accounts has got a nexus
to the object sought to be achieved, sub clause (4) and (5) of Rule 4 were inserted to carry
out the search and seizure as provided under Section 11 of the Act. Rule 4(4) gives police
power to the Authorized Officers and District Committee Members with free access to
the books, registers, accounts, documents and even cash, securities and other property
belonging to or in the custody of the private school. This rule gives unbridled, unchanneled
and unregulated powers to the officers and as such, poses a perennial threat to
the very functioning of private schools. Both Section 11 of the Act and Rule 4(4) leave
the matter in entirety to the unregulated discretion of the authorized officers and District
Committee Members. In view of our finding that Section 11 is ultra vires of Article 14 of
the Constitution, the corresponding rule as contained in Rule 4(4) and 4(5) are also liable
to be struck off as unconstitutional, and violative of Article 14 of the Constitution of
India. However, it is open to the District Committee to call for particulars from the
schools, as indicated in paragraph 32 above.
35. Mr.Senthil Nathan, learned counsel appearing for the petitioner in W.P.No.112 of
2010 submitted that the petition runs counter to the scheme of neighbourhood school and
principles of equality and justice which are sought to be achieved under the Right to
Education Act. As far as the submission on this aspect by the learned counsel is
concerned, it is difficult for us to accept the same. As can be seen from the judgment in
T.M.A.Pais case and other cases, the Apex Court has taken cognizance of the fact that
private contribution in the field of education is necessary, and Government is not in a
position to have sufficient resources for providing education to all. If that is so, it is
difficult to bring about a common school system. The Right to Education Act does not
prevent private schools. The only thing, which is possible to be realized, is to bring in
legislation for regulation of fees structure and to check exploitation in private schools,
which is sought to be brought about and that being so, the Act cannot be criticized on that
score.
36. The Constitution (86th Amendment) Act, 2002 has made Elementary
Education a fundamental right under Article 21-A of the Constitution of India. The right
to Free and Compulsory Elementary Education was a long felt need, which has now been
given the status of a fundamental right. The Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to as, 'The RTE Act'), which came into force
from 1st April 2010 was a consequential legislation to translate the constitutional intent
into action. The RTE Act, 2009 provides for 25 percent seats in private schools for
children from poor families and prohibits donation or capitation fee. Though the RTE Act
is Central Legislation, its effective implementation lies in the hands of the State
Governments. While implementing the RTE Act from 1 April 2010, the Government of
India announced that 25 Per cent reservation for children from economically weaker
sections of the society would be operational from Class 1 with effect from the academic
year 2011. The present impugned legislation if examined in the context of Article 21-A
of the Constitution of India and the RTE Act is also valid.
37. The petitioner in W.P.No.112/2010 in addition to the challenge to certain provisions
of the Act, also challenges the legality and correctness of Rule 3 of the Tamil Nadu
Schools (Regulation of Collection of Fee) Rules, 2009 (hereinafter referred to as Rules)
primarily on the ground that it would result in inequality. According to the petitioner,
there would be attempt on the part of the Management to impose corporal punishment
and other methods to achieve 100% results, with a view to justify their fee structure.
38. Section 6(1) of the Act and Rule 3 indicates the factors to be considered by the
Committee in the matter of determination of fee leviable by private schools. The location
of school plays a prominent role in determining the fee structure inasmuch as the land
value in Municipalities and Corporations would be substantial when compared to the
value prevailing in rural areas. Therefore, schools in urban areas necessarily had to incur
considerable expenditure for providing the required infrastructural facilities. Similarly on
account of the advancement in science and technology and keeping in view the
expectation of students, the schools had to provide modern facilities. The term, "School
fully equipped", denotes such modern facilities involving the latest technology. The
consideration regarding 100% of results appears to be one among the many factors and in
fact, it was not given the status of a vital factor, in the matter of determination of fee.
Therefore, Rule 3 indicates one of the factors to be taken note of by the Committee in the
course of determination of proper fee and as such, challenge to the said Rule is liable to
be rejected.
39. We may add at this stage that on behalf of the Government considerable material has
been placed on record showing that private schools are charging exorbitant fees.
Mr.Wilson pointed out that number of commissions including the Kothari Commission
on education had emphasized appropriate measures long back. He has brought to our
notice the large number of representations made by Parents Associations all throughout
the State against charging of high fees by particular schools and the news reports of
agitation by parents at different places. We may also note that an affidavit has been filed
on behalf of the State stating that when it comes to the appointment of High Court Judge
to be the Chairperson of the Committee under Section 5(2)(a) of the Act, the Government
intends to bring about an amendment to provide that the nomination of a retired High
Court Judge shall be by the Chief Justice of the High Court and not by the Government.
We hope and expect that the Government will bring that amendment at the earliest.
40. In the light of the discussion as above, we do not find any merit in the petitions,
except to the extent that Section 11 of the Act is held as ultra vires Article 14 of the
Constitution of India. The power of the Committee or its members under Section 11(2) of
the Act and Rules 4(4) and 4(5) of the Rules thereunder to enter the private schools or its
premises or those of the management at any time for the purposes of search, inspection
and seizure are held to be arbitrary and violative of Article 14 of the Constitution of
India. Subject to this limited intervention, the challenge to the other provisions of the Act
is repelled.
41. The petitioners (except one in W.P.No.112/2010) have challenged the direction not to
grant admissions before 01.05.2010. Mr.Wilson has explained it by pointing out that the
same was necessary to first get the school fees either approved and fixed and thereafter
the admissions may proceed. This problem will be only this year. Once the fees are laid
down, they will operate for three years which is also in consonance with paragraph-7 of
the Apex Court judgment in Islamic Academy case (supra). In fact, the Committee has
started its work in right earnest and barring a few petitioners almost all schools are
cooperating in this behalf. The Committee has sought the information in a prescribed
format and we find the same to be quite exhaustive. Those schools which have a
reasonable fee structure need not worry. In view of this we see no reason to interfere with
the direction.
42. All the petitions stand disposed of accordingly. No costs. Consequently, the
miscellaneous petitions are closed.
Index:Yes (H.L.G., C.J.) (K.K.S., J)
Internet:Yes 09.04.2010
Js/pv
To
1. The State of Tamil Nadu,
rep.by the Principal Secretary,
Department of School Education,
Fort St.George, Chennai-9.
2. The Director of School Education,
DPI Campus, College Road, Chennai-6.
3. The Director of Matriculation Schools,
DPI Campus, College Road, Chennai-6.
4. The Director of Elementary Education,
DPI Campus, College Road, Chennai-6.
5. Ex-officio Member Secretary,
Additional Secretary,
Department of School Education,
PTA Building, DPI Campus, College Road,
Chennai-6.
6. The Chief Educational Officer,
Collectorate Campus, Karur.
THE HON'BLE THE CHIEF JUSTICE
AND
K.K. SASIDHARAN, J.
pv/-
Pre-delivery judgment in
W.P.Nos.627, 815, 850, 851, 852, 854, 855,1105,1269, 2833, 3620 & 112 of
2010 and
M.P.Nos.1 of 2010 (10 MPs) and M.P.
Nos.2 of 2010 (7 MPs)
Delivered on: 09.4.2010