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2016 DIGILAW 645 (KER)

Benno Jacob v. Union of India

2016-07-26

P.B.SURESH KUMAR

body2016
JUDGMENT : The petitioner is an association of the parents of the students in the sixth respondent school ('the school' for short). The school is affiliated to the Central Board of Secondary Education ('the CBSE' for short) on the strength of the no objection certificate (NOC) issued by the State Government, as required by the bye-laws of the CBSE. According to the petitioner, the monthly fee of the students in standards I to XII of the school as published in the website of the school does not exceed Rs.1,350/- per month. It is alleged by the petitioner that, nevertheless, the school is collecting a sum of Rs.8,000/- from every students at the time of admission. Ext.P2 is the communication issued by the school to the parent of a student who sought admission in the first standard. As per Ext.P2, the said parent was directed to pay a sum of Rs.8,000/- towards admission fee. Ext.P3 is the receipt issued by the school to a student named Yuan Sreejith, evidencing payment of Rs.8,000/- towards admission fee. It is the case of the petitioner that the tuition fee collected from the students is not in accordance with the tuition fee published in the website of the school. According to the petitioner, any amount collected by the school over and above the fee notified in the website of the school would amount to capitation, which is prohibited as per the terms of the bye-laws of the CBSE as also the guidelines issued by the Government for granting NOC to the schools. It is alleged by the petitioner that as per the bye-laws of the CBSE, the school is entitled to collect only fees and charges commensurate with the facilities provided by the school. It is also alleged by the petitioner that the conduct of the school in collecting more fees is contrary to the provisions contained in the Right to Children to Free and compulsory Education Act, 2009 as well. The petitioner, therefore, seeks the following reliefs:- (i) issue a writ of mandamus or appropriate writ, order or direction directing the respondents 1 to 5 to ensure that the 6th respondent is not collecting donations, capitation fee or other illegal charges from parents of the students at the time of admission or promotion or during the period of the study. The petitioner, therefore, seeks the following reliefs:- (i) issue a writ of mandamus or appropriate writ, order or direction directing the respondents 1 to 5 to ensure that the 6th respondent is not collecting donations, capitation fee or other illegal charges from parents of the students at the time of admission or promotion or during the period of the study. (ii) direct the respondents 2 and 4 to ensure that the 6th respondent school is functioning by complying the provisions of affiliation bye law of the CBSE and as per the provisions of the Right to Children to Free and Compulsory Education Act 2009. (iii) direct the 2nd respondent to give proper direction to the affiliated School to organise Parent Teachers Association and prescribe norms for its function. 2. On 29.4.2016, this Court passed an interim order in this writ petition directing the sixth respondent school to refrain from collecting any fee other than the fees prescribed in Ext.P1 website notification. 3. A detailed counter affidavit has been filed by the school in this matter. It is contended by the school in the counter affidavit that the petitioner association is neither a recognised association of the parents of the students of the school nor an association registered under any law and that therefore, the writ petition is not maintainable. It is also contended by the school in the counter affidavit that since the association is taking up the cause of the individual members of the association, the court fee has to be paid treating the writ petition as a writ petition filed for all its members. Without prejudice to the aforesaid contentions, on merits, it is contended that Ext.P1 is the information furnished by the school in the year 2012-13 and the same was deleted from the website of the school long before the institution of the writ petition. According to the school, the fees structure for each year is notified to the parents of all students by a circular, in addition to the communication sent to the parents through the school diary retained by the students. It is stated that the fees for the years 2016-17 was notified to the students as per Ext.R6(a) circular and the fees collected from the students is strictly in accordance with Ext.R6(a) circular. It is further stated that the school is charging only the fees commensurate with the facilities provided to the students. It is stated that the fees for the years 2016-17 was notified to the students as per Ext.R6(a) circular and the fees collected from the students is strictly in accordance with Ext.R6(a) circular. It is further stated that the school is charging only the fees commensurate with the facilities provided to the students. It is admitted in the counter affidavit that a sum of Rs.8,000/- is collected by the school towards admission fee for the students admitted in standard I and the said amount is collected in accordance with the decision taken by the school management committee on 7.3.2015. According to the school, as per the provisions of the bye-laws of the CBSE, the school shall have the power to fix the tuition fee and annual charges. Ext.R6(b) is the minutes of the meeting of the school management committee held on 7.3.2015. Ext.R6(d) is the fees structure of the school for the year 2016-17. Ext.R6(e) is the special fee structure split up for the year 2016-17. 4. A reply affidavit has been filed by the petitioner to the counter affidavit filed by the school. In the reply affidavit, it is stated by the petitioner that the petitioner association has been registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It is also stated that Ext.P1 website information is withdrawn only after the interim order was passed in this writ petition on 29.4.2016. It is reiterated by the petitioner in the reply affidavit that the fees charged by the school do not commensurate with the infrastructure provided to the students. As regards the admission fee, the stand taken in the reply affidavit is that the same can be treated only as a capitation fee in the light of the provisions contained in the bye-laws of the CBSE. 5. Heard the learned counsel for the petitioner as also the learned Senior Counsel for the school. 6. At the time of hearing, the learned counsel for the petitioner has not pressed the various contentions raised in the writ petition based on the provisions contained in the Right to Children to Free and compulsory Education Act as the school is a minority institution. 7. The fact that the petitioner is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 is not in dispute. 7. The fact that the petitioner is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 is not in dispute. Section 9 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act enables a society registered under the said Act to institute legal proceedings on behalf of its members in its name. True, the registration was obtained by the petitioner under the said Act only on 4.5.2016, after the institution of the writ petition. However, in so far as the petitioner is a registered society, I do not propose to dismiss the writ petition accepting the hyper technical contention that the petitioner was not a registered society as on the date of institution of the writ petition. 8. The reliefs claimed in the writ petition as extracted above would indicate that the reliefs are claimed on behalf of all parents of the students in the school. The learned Senior Counsel for the school, relying on the decision of this Court in Kerala Electric Trades Association v. State of Kerala (2010(1) KHC 248), contended that in so far as court fee has not been paid for all members of the petitioner association treating the writ petition as a collective writ petition on behalf of all the parents, the writ petition must be held to be not maintainable. The decision in Kerala Electric Trades Association v. State of Kerala (supra) is a decision dealing with a writ petition preferred by a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act challenging the constitutional validity of sub Section 5A of Section 14 of the Kerala General Sales Tax Act. In the context of the said case, this Court took the view that in so far as all the members of the said association are benefited by the challenge against the legislative competence of the provision, court fee needs to be paid for the individual members of the association. Paragraph 18 of the said judgment reads thus:- "18. Similarly, the petitioners have also not paid the requisite court-fee on behalf of all such members, but for having effected a sum of Rs.300/- in respect of the three petitioners. Schedule II, 11(I)(iii) under the Kerala Court-Fees and Suit Valuation Act clearly stipulates that the court-fee payable in respect of the Writ Petition filed before the High Court is Rs.100/- per petitioner. Schedule II, 11(I)(iii) under the Kerala Court-Fees and Suit Valuation Act clearly stipulates that the court-fee payable in respect of the Writ Petition filed before the High Court is Rs.100/- per petitioner. If any relief is claimed by several persons, the court-fee payable shall be Rs.100/- by each such person. In the instant case, the specific contention of the respondents is that, while challenging the legislative competence behind sub-section (5A) to demand fee for renewal of registration, admittedly since the Writ Petition has been filed on behalf of all the members of the first petitioner Association, who are enlisted in Ext.P2, the proceedings cannot be held as legally maintainable in respect of all such persons, unless requisite court-fee is paid by all the members as aforesaid. The legal position in this regard has already been made clear by this Court in Mathew v. Edathua Panchayat, 1988(2) KLT 329 . It becomes more clear from the verdict passed by a Division Bench of this Court in WA 1164 of 2002 and connected cases where the matter was entertained only after collecting the requisite court-fee from all the members, who were stated as the beneficiaries and pursuant to the order granting permission to prosecute the Writ Petition in a representative capacity on behalf of all such persons. Since the petitioners have not chosen to produce the requisite materials authorising them to file the Writ Petition in a representative capacity, nor have they filed any proceedings for obtaining permission in this regard and further since no separate court-fee in respect of all the members enlisted in Ext.P2 has been paid, the Writ Petition is not at all maintainable in respect of all other members, who are enlisted in Ext.P2 and the matter is being dealt with and confined to the petitioners alone. Merits having already been answered against the petitioners, the Writ Petition fails and it is dismissed accordingly." In the instant case, court fee is not seen paid for the individual members of the association. As such, in the light of the said decision of this Court, I am constrained to hold that the writ petition is not maintainable. 9. Though I have held that the writ petition is not maintainable, I deem it appropriate to deal with the contentions raised by the petitioner on merits as well. As such, in the light of the said decision of this Court, I am constrained to hold that the writ petition is not maintainable. 9. Though I have held that the writ petition is not maintainable, I deem it appropriate to deal with the contentions raised by the petitioner on merits as well. As noted above, the specific case of the petitioner is that only fees commensurate with the facilities provided in the school can be charged by the school from the students and that no capitation fee or voluntary donation can be accepted for granting admission in the schools or for any other purpose. Clause (11) of the Affiliation Bye Laws of the CBSE which is relied on by the petitioner in support of their contentions reads thus:- "$ Fees charges should be commensurate with the facilities provided by the institution. Fees should normally be charged under the heads prescribed by the Department of Education of the State/U.T. for schools of different categories. No capitation fee or voluntary donations for gaining admission in the school or for any other purpose should be charged/collected in the name of the school and the school should not subject the child or his or her parents or guardians to any screening procedure. In case of such malpractices, the Board may take drastic action leading to disaffiliation of the school. Further, any school or person violates the above provisions is liable for the following:- (i) Receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charges; (ii) Subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions." The petitioner also relies on, in support of their contention, the definition of 'capitation fee' as contained in the bye-laws, which reads thus: "$ "Capitation fee" means any kind of donation or contribution or payment other than the fee notified by the school." According to the petitioner, the fees charged by the school do not commensurate with the facilities provided and that the admission fee collected by the school can only, therefore, be regarded as capitation fee which is prohibited under the bye-laws. The contentions are raised based on the bye-laws of the CBSE. The consequence of violation of the bye-laws of the CBSE is provided in the bye-laws itself. The contentions are raised based on the bye-laws of the CBSE. The consequence of violation of the bye-laws of the CBSE is provided in the bye-laws itself. According to me, if the school violates the provisions of the bye-laws, the school is liable to be disaffiliated. I do not think that the students or the parents, as the case may be, can approach this Court for an adjudication as to whether the fees charged by the school commensurate with the facilities provided or as to whether a particular fee is permissible under the bye-laws. True, the petitioner can place this matter before the CBSE and seek appropriate directions in this regard so long as the petitioner does not want the school to be disaffiliated. As noted above, in the counter affidavit filed by the school, they have taken the stand that what is charged towards fees in the school is only fees which would commensurate with the facilities provided to the students in the school and it is permissible. It is also their specific case that they are charging Rs.8,000/- towards admission fee and the same is also permissible under the bye- laws of the school. A combined reading of the definition of 'capitation fee' as also Clause (11) contained in the bye-laws indicates that the only fees collected other than the fees notified by the school can be regarded as capitation fee. In the instant case, the school admits that admission fee collected from the students is a fee notified by the school. In the said circumstances, I do not think that the petitioner is justified in approaching this Court for claiming the reliefs as aforesaid. As regards the tuition fee collected by the school, it is seen that the tuition fee demanded by the school is in accordance with Exts.R6 (d) and R6(e) notifications published by the school. Since the school is collecting only the fees notified and since the fee notified is being paid by all the students, the petitioner cannot be heard to contend that the same is against the provisions of the bye-laws. 10. A copy of the order issued by the Government fixing the norms for grant of no objection certificate has been made available to me at the time of hearing. Clause (vii) of the said Government Order reads thus:- "vii. 10. A copy of the order issued by the Government fixing the norms for grant of no objection certificate has been made available to me at the time of hearing. Clause (vii) of the said Government Order reads thus:- "vii. The rate of tuition and other fees charged shall be commensurate with the facilities provided and a yearly return on the fee charged (all fees) shall be filed before the District Educational Officer concerned and in the school website." The provision extracted above also provides only that the fees charged should commensurate with the facilities provided. The question whether the fees charged would commensurate with the facilities provided is a pure question of fact. So long as the school does not dispute the fees charged, according to me, it is also a matter for the Government to consider. In the said view of the matter, there is no merit also in the writ petition and the same is, accordingly, dismissed.