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2000 DIGILAW 427 (KER)

Thampy v. Board of Governors, Sainik Schools

2000-08-17

C.S.RAJAN

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Judgment :- C.S. Rajan, J. Petitioner in O.P.No. 21271/99 is a parent of a Cadet in Sainik School, Kazhakoottam studying in the Xllth standard of the CBSC course. The petitioners in O.P. No. 21288/99 are the President and Secretary of the Parents' Association of the Sainik School, Kazhakoottam. The sons of these petitioners are studying in standard IX. The Scheme to establish Sainik School was introduced in 1961 with the primary aim of preparing the boys academically, physically and mentally for entering into the National Defence Academy. According to the Sainik Schools Society Rules and Regulations 1997 (Ext. P1 in O.P. No. 21288/99), the objectives of establishment of the Sainik Schools are: 1. To remove regional imbalance in the officer cadre of the defence services. 2. To develop qualities of body, mind and character which will enable the young boys of today to become good and useful citizen of tomorrow. 3. To bring public school education within the reach of the common man. The Sainik School is managed by a Society which is registered under the Societies Registration Act. The Board of Governors functions under the Chairmanship of the Defence Minister. The Executive Committee consists of the Chief Minister and Educational Minister of the State in which the schools are located. The State must provide about 250 acres of land for setting up a Sainik School in the State. The fund for maintenance and establishment of the school is provided by the Government. 2. At the time when the petitioners' children were admitted in the school for the year 1995, the annual fee payable by the students was Rs. 10,000/-. The annual fee is being increased by 10% each year according to the rules and regulations of the Society. In 1997, the fee was raised to Rs. 14,000/-, apparently at the rate of 10% increase in each year. In 1999 it was further increased to Rs. 25,000/-, which would be again increased by 10%. Thus according to the petitioners at this range a parent has to pay Rs. 3,50,000/- for his child's education from standard VI to XII. Ext. P2 is the communication from the Principal of the Sainik School to the parents and guardians. Ext. P2 has been issued in accordance with Ext. P3 decision of the Board of Governors of the Sainik School to enhance the tuition fees. 3,50,000/- for his child's education from standard VI to XII. Ext. P2 is the communication from the Principal of the Sainik School to the parents and guardians. Ext. P2 has been issued in accordance with Ext. P3 decision of the Board of Governors of the Sainik School to enhance the tuition fees. It is this enhancement of tuition fees that is under challenge in these Original Petitions. 3. According to the petitioners, the Sainik Schools Society being a State, cannot arbitrarily and unreasonably enhance the fees. It was further argued that free education being a fundamental right, the present exorbitant increase in the fees infringes upon the above fundamental right guaranteed under the Constitution. 4. In the counter affidavit filed by the Principal of the school it has been stated as follows: Hiking fees is the policy matter of the respondent. Sainik School is not a poor man's public school. Running expenditure is met from the fees of the students. In the year 1997-98 the per capita expenditure is 64% more than the fees collected. In 1998-99 it was 71%. Therefore in order to meet the above steep rise of income-expenditure ratio, it was decided to enhance the fees. By taking such a measure, the ratio will come down to 9% in 1999-2000. The fees are meant to meet the expenses for boarding charges, lab charges, library charges, games and sports etc. 5. Sri. P. Gopalakrishnan Nair, learned counsel appearing for the petitioners as well as Sri. K. Ramkumar, learned Senior Central Government Standing Counsel relied on the various passages in the ruling of the Supreme Court in Unnikrishnan v. State of Andhra Pradesh (AIR 1993 SC 2178). According to the petitioners in Unnikrishnan's case, right to free education has been recognised as a fundamental right and therefore the present enhancement of fees is unconstitutional. According to the learned Senior Central Government Standing Counsel, there are observations in the above judgment which restricted the above right of the citizens subjecting it to the limits of economic capacity and development of the State. Therefore it is necessary to refer to the various observations of the Supreme Court in the above case, to decide the issues involved in these Original Petitions. In this connection it must be remembered that the same question was decided by the Supreme Court in Mohini Jain v. State of Karnataka (1992) 3 SCC 666. Therefore it is necessary to refer to the various observations of the Supreme Court in the above case, to decide the issues involved in these Original Petitions. In this connection it must be remembered that the same question was decided by the Supreme Court in Mohini Jain v. State of Karnataka (1992) 3 SCC 666. In Mohini's case, the Supreme Court declared that the right to education flows directly from right to life. Mohini Jain's case involved the collection of capitation fees for admission to the professional colleges in Karnataka State. In Unnikrishnan's case in the brief judgment Sharma C.J. for himself and on behalf of Justice S.P. Bharucha held that the question whether the right to primary education as mentioned in Art.43 of the Constitution of India is a fundamental right under Art.21 did not arise in Mohini Jain's case and no finding or observation on that question was called for. It was further observed that the finding given in Mohini Jain's case on this question was not necessary in that case and is therefore not binding law. For the purpose of Unnikrishnan's case it is enough to state that there is no fundamental right to education for a professional degree that flows from Art.21. 6. Justice Mohan in a separate judgment dealt with the question of free education vis-a-vis the economic resources of a State as follows: "50. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively thus full realization of the right to education by all appropriate means. But, with regard to the general obligation to provide education, the State could be said to have violated the same. If it deliberately started its educational system by resources that it manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. If it deliberately started its educational system by resources that it manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it has to take, under Art.45, within a prescribed time, which time limit has expired long ago." Justice Jeevan Reddy, along with Justice Ratnevel Pandian dealt with these aspects more elaborately. It is advantageous to quote paragraphs 144 and 145 from the above judgment to understand how far the dictum in Mohini Jain's case was not accepted in Unnikrishnan's case: "144. It is argued by some of the counsel for the petitioners that Art.21 is negative in character and that it merely declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Since the State is not depriving the respondents-students of their right to education, Art.21 is not attracted, it is submitted. If and when the State makes a law taking away the right to education, would Art.21 be attracted, according to them. This argument, in our opinion, is really born of confusion; at any rate, it is designed to confuse the issue. The first question is whether the right to life guaranteed by Art.21 does take in the right to education or not. It-is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law. 145. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law. 145. In the above state of law, it would not be correct to contend that Mohini Jain (1992 AIR SCW 2100) was wrong in so far as it declared that "the right to education flows directly from right to life." But the question is what is the content of this right? How must and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice? In other words, whether the citizens of this country can demand that the State should provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Art.21 must be construed in the light of the directive principles in Part IV of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Art.41 says that the "State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want". Art.45 says that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." Art.46 commands that "the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation". Education means knowledge - and "knowledge itself is power". Education means knowledge - and "knowledge itself is power". As rightly observed by John Adams, "the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country" (Dissertation on Canon and Feudal Law, 1765). It is this concern which seems to underline Art.46. It is the tyrants and bad rulers, who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said: "Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction." (Rauschning, The voice of destruction: Hitler speaks). A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Arts.45,46 and 41 are designed to achieve the said goal among others. It is in the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Arts.45 and 41 means: (a) every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately. Right to free education for all children until they complete the age of fourteen years (45-A). It is noteworthy that among the several articles in Part IV, only Art.45 speaks of a time-limit, no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to "endeavour to provide" the same and on the further ground that the said article is not enforceable by virtue of the declaration in Art.37. Does not the passage of 44 years - more than four times the period stipulated in Art.45 - convert the obligation created by the article into an enforceable right? Does not the passage of 44 years - more than four times the period stipulated in Art.45 - convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Art.45. It is relevant to notice that Art.45 does not speak of the "limits of its economic capacity and development" as does Art.41, which inter alia speaks of right to education. What has actually happened is - more money is spent and more attention is directed to higher education than to - and at the cost of- primary education. (By primary education, we mean the education, which a normal child receives by the lime he completes 14 years of age ). Neglected more so are the rural sectors, and the weaker sections of the society referred to in Art.46. We clarify, we are not seeking to lay down the priorities for the Government - we are only emphasising the constitutional policy as disclosed by Arts.45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question. The inversion of priorities has been commented upon adversely by both the educationists and economists." Thus we have to see in this case whether the petitioners' wards have got any fundamental right to get free education from the State as a part of their right to life, as enjoined under the fundamental rights, read with the Directive Principles of State Policy. 7. Sainik Schools cannot be equated with other primary or secondary schools of our country. It is a specialised school where the boys are trained "academically, physically and mentally" for entering into the National Defence Academy. Of course one of the objectives of establishing Sainik Schools is to bring public school education within the reach of the common man. But that does not mean that to get admission and education in a Sainik School is part of the fundamental right of the citizens of India. The admissions to Sainik Schools are made strictly in the order of merit on the basis of an entrance examination held once a year. The Scheme of entrance examination envisages a written examination and interview. The admissions to Sainik Schools are made strictly in the order of merit on the basis of an entrance examination held once a year. The Scheme of entrance examination envisages a written examination and interview. The Sainik Schools are residential schools running on public school lines. The Sainiks schools offer a common curriculam and are affiliated to CBSC. While developing sound character, team spirit, dedication to duty, patriotic outlook and desire to serve the country with efficiency, Sainik Schools prepare students academically for All India Secondary Schools Examination, All India Senior School Certificate Examination and also for the entrance examination to the National Defence Academy. The schools impart instruction in English medium. These are the features which could be gathered from Ext. P1. Thus it is obvious that the Sainik Schools cannot be equated with other ordinary schools of this country. Sainik Schools have been established with a particular object and it cannot come in the main stream of educational field of the country. I do not think that a citizen of this country can demand that the State should provide a particular type of education which is available in Sainik Schools free of costs. If that be so, the citizen can equally demand that their sons and daughters must be admitted to Medical and Engineering colleges free of costs or fees. Such a broad proposition enunciated by the Supreme Court in Mohini Jain's case was not agreed upon by the learned judges in Unnikrishnan's case. 8. Art.41 of the Constitution of India says that the State shall within the limits of its economic capacity and development make effective provision for securing the right to work to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art.45 enumerates that the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Art.46 mandates that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Art.46 mandates that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. A combined reading of these three articles will lead to the conclusion that the right to free education is only to a child until he completes the age of 14 years. After the child completes 14 years, his right to education is circumscribed by the constraints of economic capacity of the State and its development. 9. Therefore it is not possible to accede to the request of the petitioners that their wards must be given free education in the Sainik schools. 10. There are two other aspects also, which, it considered, will non-suit the petitioners. The petitioners had no objection in paying the fees of at least Rs. 14,000/- per year till July 1999. It is only the hike from Rs. 14,000/- to Rs. 25,500/ that pricked the petitioners. Therefore really the petitioners are not clamouring for free education but against the hike in fees. Secondly even free education is guaranteed only up to 14 years of age. As can be seen from Ext. P2, the age for admission to Standard IX is 13-14. The son of the petitioner in O.P. No. 21271/99 was studying in Xllth standard on the date of filing of the Original Petition. Therefore obviously he must be above 14 years. The sons of the petitioners in O.P. No. 21288/99 are studying in IXth standard. So they must also be in the age group of 13/14. 11. Under these circumstances none of the grounds mentioned in the Original Petitions is acceptable to this Court. The Original Petitions are therefore dismissed.