Judgment : The prayer in W.P.No.2908 of 1999 is for a writ of mandamus for bearing the second respondent from increasing the fees pursuant to their circular dated 112. 1998. 2. W.P.No.2909 has been preferred for a writ of mandamus directing the first respondent to notify Matriculation and Higher Secondary Schools as Educational Institutions as defined in Section 2(b) of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992. 3. The factual matrix necessary for the disposal of the writ petitions are as under: .(a) The petitioner is stated to be the convenor of the ad hoc Committee of C.S.I. Bain School Parents Association. The second respondent institution was originally an elementary school and subsequently it was upgraded up to plus two with a strength of over 3500 students. The school follows the matriculation pattern up to tenth standard, and beyond that they are following Higher Secondary pattern. The institution is stated to be one of the reputed schools in Chennai and they have teaching and non-teaching staff of about 150. The institution is stated to be managed by the Bishop of Madras CSI Diocese, the third respondent in the writ petition. .(b) The daughter of the petitioner was studying in-First Standard in the second respondent Institution in 1998-1999. Originally a calendar was issued by the second respondent which contains the fee structure for various classes for the academic year 1998-99. In the year 1997-98 the total fee payable for standards I to III was Rs.1,640/-for the first term, Rs.1,340/- each for second and third terms. During the academic year 1998-99 the fee payable for the first term was enhanced to Rs.1,990/- for standard-I and in the same way, the fees for II and III term were fixed at Rs.1,760/- and 1,560/-respectively. .(c) While so, the second respondent School had issued a circular dated 112. 1998 stating that in view of the implementation of the pay revision announced by the State Government, the third term fees payable for various classes have been increased. In respect of standards I to III, the fees payable for the third term was enhanced from Rs.1,560/- to Rs.2,060/- and there has been similar enhancement of Rs.500/- for all the other classes. In respect of standards I to III, the fees payable for the third term was enhanced from Rs.1,560/- to Rs.2,060/- and there has been similar enhancement of Rs.500/- for all the other classes. .(d) The parents, who have been already burdened on account of high fees were taken aback by the steep increase in the fees and as such a meeting of the parents were convened and it was decided to submit an appeal to the school authorities to withdraw the fees hike. However the same was not agreeable to the second respondent as according to them, they have to pay the revised salary to the teaching faculty on account of the recommendation of the pay commission. In such circumstances, the petitioner has come up with the present writ petitions to injunct the second respondent from taking further action on the basis of the impugned circular and for a further direction to the Government to notify Matriculation and Higher Secondary Schools as Educational Institutions as defined in Section 2(b) of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act 1992. 4. The second respondent has filed counter affidavit in W.P.No.2909 of 1999 wherein it was their contention that the institution is a minority institution and they are not getting any kind of aid from the Government and as such they are at liberty to fix the fees without any interference from the Government as well as from the parents. It was also indicated that even though the calendar does not provide for any escalation in the middle of the year, the management has got every right to increase the fees even in the middle of the academic year. The second respondent has also denied the various allegations of the petitioner with respect to the various fees collected by them, as according to them, they have collected the fees only for the purpose of the institution and there was no attempt to collect unreasonable fees so as to give a cause of action to the petitioner to file the writ petition. The second respondent has also disputed the very maintainability of the writ petition as according to them, writ petition against a private educational institution is not maintainable. 5. The second respondent has also disputed the very maintainability of the writ petition as according to them, writ petition against a private educational institution is not maintainable. 5. The learned counsel for the petitioner contended that the second respondent is a recognized educational institution and as such they are not entitled to revise the fees during the middle of the academic year like a commercial establishment, inasmuch as the education cannot be termed to be a business. According to the learned counsel, the entire fees were determined before the commencement of the academic year and only after ascertaining the fees fixed by the second respondent that the parents admitted their children in the institution and they have also planned their budget in such a way and therefore the second respondent was not justified in enhancing the fees during the middle of the academic year under the pretext of granting salary to the employees on the recommendation of the pay commission. It was also contended that under the guise of payment of revised salary to the employees, the second respondent attempted to collect huge amount much more than the amount actually to be paid to the employees, on account of revision. 6. None appeared for respondents 2 and 3. 7. The primary objection as per the counter filed by the second respondent is the non maintainability of the writ petition on account of the private character of the second respondent institution. According to the second respondent the institution is an unaided private minority institution and as such the writ petition against such a private institution is not maintainable. 8. It is trite that to come within the purview of "State", the authority must satisfy the inclusive definition as contained in Article 12 of the Constitution of India. However in Article 12. "State has not been defined and as such the definition is only an inclusive definition. The "State" as defined under Article 12 includes all other authorities within the territory of India or under the control of the Government of India. There is no mention that the other authorities must be within the jurisdiction or control of the Government of India. 9. The "State" as defined under Article 12 includes all other authorities within the territory of India or under the control of the Government of India. There is no mention that the other authorities must be within the jurisdiction or control of the Government of India. 9. The Apex Court in Zee Telefilms Ltd., v. Union of India AIR 2005 SC 2677 : (2005) 4 SCC 649 considered the term "State" within the meaning of Article 12 of the Constitution of India and observed that there are three different concepts which exist for determining the questions which fall within the expression "other authorities". "(i) The corporations and the societies created by the State for carrying on its trading activities in terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and financial aid, etc. are provided by the State and it also exercises regulation and control thereover. (ii) Bodies created for research and other developmental works which are otherwise governmental functions but may or may not be a part of the sovereign function. (iii) A private body is allowed to discharge public duty or positive obligation of public nature and furthermore is allowed to perform regulatory and controlling functions and activities which were otherwise the job of the Government". 10. It is found that in case a private body is allowed to discharge public duty or positive obligation of public nature, the said body can be treated as a "State" within the meaning of Article 12 of the Constitution of India. In Zee Telefilms Ltd., v. Union of India (supra) case the Apex Court observed that the concept of "State" under Article 12 is in relation to the fundamental rights guaranteed by Part Iii of the Constitution and the directive principles of State Policy as contained in Part IV thereof and the contents of these two parts manifest that Article 12 is confined to its independent or sovereign meaning, so as to include within its fold whatever comes within the purview thereof so as to instill public confidence in it. 11. The Apex Court in Zee Telefilms Ltd., v. Union of India (supra) also observed that Article 12 must receive a purposive interpretation and stated in paragraphs 75 and 76 thus: "75. 11. The Apex Court in Zee Telefilms Ltd., v. Union of India (supra) also observed that Article 12 must receive a purposive interpretation and stated in paragraphs 75 and 76 thus: "75. Article 12 must receive a purposive interpretation as by reason of Part III of the Constitution a charter of liberties against oppression and arbitrariness of all kinds of repositories of power has been conferred – the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. In those respects it would be same as is executive government established under the Constitution and the establishments of organizations funded or controlled by the Government. A traffic constable remains an authority even if his salary is paid from the parking charges inasmuch as he still would have the right to control the traffic and anybody violating the traffic rules may be prosecuted at his instance. 76. It is not that every body or association which is regulated in its private functions becomes a "State". What matters is the quality and character of functions discharged by the body and the State control flowing therefrom". 12. The second respondent is admittedly an educational institution recognized by the Government of Tamil Nadu. The examining authority for conduct of examination in respect of the second respondent is the department of public examination of the Government of Tamil Nadu. The certificates for passing the concerned course is also given by the Government of Tamil Nadu. The second respondent is under the control of the educational department in respect of academic matters, though in administration and other related matters, the second respondent has got the administrative autonomy on account of their minority character. Therefore it cannot be said that the second respondent is not amenable to writ jurisdiction. It is all the more so, as the second respondent has got a public duty to the society at large in view of their conduct of educational institution imparting education to the students. Therefore it cannot be said that the second respondent is not amenable to writ jurisdiction. It is all the more so, as the second respondent has got a public duty to the society at large in view of their conduct of educational institution imparting education to the students. As observed by the Supreme Court in Zee Telefilms Ltd., v. Union of India (supra) case, the expression "education" must be given a broader meaning having regard to Article 21-A of the Constitution as also the directive principles of State Policy and there is a need to look into the governing power subject to the fundamental constitutional limitations which requires expansion of the concept of State action. 13. The very fact that the second respondent is subject to certain restrictions as regards its right to spend its money out of the profit earned as indicated in T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355 : (2002) 8 SCC 481 as well as Islamic Academy of Education v. State of Karnataka AIR 2003 SC 3724 : (2003) 6 SCC 697 shows that the second respondent is exercising the public function and as such, they are amenable to writ jurisdiction. 14. The grievance of the petitioner is in relation to the exorbitant fees collected by the second respondent and the failure of the Government machinery to control such collection of fees. The second respondent is a minority educational institution and they are having certain privileges conferred on them under our Constitution. Article 30 of the Constitution of India specifically provides that, all minorities, whether based on religion or language shall have the right to establish and administer educational institutions of their choice. The extent of Governmental power in respect of minority educational institutions have been considered by the Apex Court in a large number of decisions and as per the majority view expressed in T.M.A. Pai Foundation v. State of Karnataka (supra) case as well as in Islamic Academy of Education v. State of Karnataka (supra) and P.A. Inamdar v. State of Maharashtra AIR 2005 SC 3226 : (2005) 6 SCC 537 : (2005) 3 MLJ 158, Governmental control in respect of the right of the minority to manage their educational institution including fixation of fees is very limited. 15. 15. In T.M.A. Pai Foundation v. State of Karnataka (supra) the Apex Court considered the grievance of the private educational institutions both minority and non-minority, that the unnecessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education and their prayer to allow them to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own self-importance and after elaborate discussion with respect to the various facets of administration of an educational institution, the Supreme Court observed thus: "55. ...... But essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the later case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged. 56. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. 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 is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. 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. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. 61. 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 powers, admission of students and the fees to be charged". 16. The Apex Court in Islamic Academy of Education v. State of Karnataka (supra), answered the question with respect to the right of the educational institutions to fix their own fee structure thus: "So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise". 17. While answering question No.4 in T.M.A. Pai Foundation v. State of Karnataka (supra), the Supreme Court indicated thus: "A. Admission of students to unaided minority educational institution viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards". 18. In P.A. Inamdar v. State of Maharashtra (supra) the Apex Court answered question No.3 in the following lines at p. 203 of MLJ: "143. To set up a reasonable fee structure is also a component of "the right to establish and administer an institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in T.M.A. Pai Foundation v. State of Karnataka (supra). Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form. 145. Our answer to Question 3 is 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". 19. 145. Our answer to Question 3 is 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". 19. The decision of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka (supra) case as explained by the subsequent judgments in Islamic Academy of Education v. State of Karnataka (supra) as well as P.A. Inamdar v. State of Maharashtra (supra) case clearly shows that the unaided minority institutions are at liberty to frame their own fee structure and Governments control in respect of such fee structure is very limited. Even though minority institutions are also not permitted to collect capitation fee, they would be entitled to collect just fee on the basis of a rational fee structure. Therefore no interference is possible in the fee structure so formulated by a minority institution like the second respondent. .20. However, the act of revision of fees during the middle of the academic session would cause considerable difficulties to the parents as they must have planned their finance in such a way to meet both the ends. In case of revision during the middle of the academic year, it would lead to discontentment among the parents. Therefore, even though it can be held that the second respondent has got a right to fix their own fee structure, their action to revise the fees during the middle of the academic year cannot be justified. In the present case, the revision was sought to be made in the year 1999 and by way of an interim order, the second respondent was restrained from collecting the revised fee during the said academic year. The matter is of the year 1999 and definitely the students, who were studying in various classes in the said institution must have completed their course by now and as such the very prayer in W.P.No.2908 of 1999 has become infructuous. In any case, the second respondent is not justified in collecting the fees at present in view of passage of time. .21. The prayer in W.P.No.2909 of 1999 is to notify Matriculation and Higher Secondary Schools as educational institutions as defined in Section 2(b) of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act 1992. In any case, the second respondent is not justified in collecting the fees at present in view of passage of time. .21. The prayer in W.P.No.2909 of 1999 is to notify Matriculation and Higher Secondary Schools as educational institutions as defined in Section 2(b) of the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act 1992. The definition as contained in Section 2(b) of Act 57 of 1992 is extracted below: ."Educational institution" means any institution by whatever name called; whether managed by any person, private body, local authority, trust or University carrying on the activity of imparting education leading to a degree or Diploma (including; a degree or diploma in law, medicine or engineering) conferred by any University established under any law made by the Legislature of the State of Tamil Nadu and any other educational institution or class or classes of educational institution (other than any educational institution established by the Central Government or under any law made by Parliament) as the Government may, by notification, specify". .22. It is found from the definition as contained in Section 2(b) that all the educational institutions whether it be private or public are covered by the said inclusive definition and as such there is no necessity to direct the Government to notify the Matriculation and Higher Secondary Schools as Educational Institution within the purview of the said Act. The very definition "Educational Institution" covers even the Matriculation and Higher Secondary Schools and as such there is no requirement of further including Matriculation and Higher Secondary Schools in the said notification. It is also found from Section 10 of the said Act that nothing contained in Act 57 of 1992 shall apply to any minority educational institution to the extent to which they are inconsistent with the rights guaranteed under Article 30 of the Constitution. Therefore, it is evident that the case as projected in the present writ petition in W.P.No.2909 of 1999 has already been take care of in the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992 and as such there is no requirement for the Government to notify the same afresh as prayed for in the writ petition. 23. The writ petitions are disposed of with the above observation. No costs.