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2020 DIGILAW 438 (GUJ)

Nirmala Society v. Union Of India Through Secretary

2020-03-11

BELA M.TRIVEDI, RAJENDRA M.SAREEN

body2020
ORDER : BELA M. TRIVEDI, J. LPA NO.43 OF 2017: 1. The Letters Patent Appeal No.43 of 2017 is directed against the judgment and order dated 26.12.2016 passed by the Single Bench in Special Civil Application No.6800 of 2013, whereby the Court has disposed of the said petition by giving certain directions in response to the prayers contained in Paragraph No.9(B) of the said petition. 2. The Special Civil Application No.6800 of 2013 was filed by the six petitioners claiming to be the parents and the representatives of the parents of the students of Nirmala Convent School run by the respondent No.7 Nirmala Society (the appellant herein), a registered Society engaged in the field of education. 2. The Special Civil Application No.6800 of 2013 was filed by the six petitioners claiming to be the parents and the representatives of the parents of the students of Nirmala Convent School run by the respondent No.7 Nirmala Society (the appellant herein), a registered Society engaged in the field of education. The petitioners had prayed for the prayers contained in Paragraph 9 of the petition, which read as under:- "9(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to hold that the steep hike in the fee for the academic year 2013-14 by the respondent No.7 amounts to profiteering, imposition of capitation fee and commercialization of education and further be pleased to direct the respondent authorities to take appropriate action against respondent No.7 against such steep hike in the fees, in the interest of justice and equity; (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to constitute a Committee of Experts to hear and consider the grievances of the petitioners and the Committee be directed to submit an appropriate report before this Hon'ble Court for making appropriate orders thereon, in the interest of justice and equity; (C) Your Lordships may be pleased to direct the respondent authorities to constitute a Committee consisting of Experts to consider the grievances of the petitioners and other parents against the steep hike of fees by respondent No.7 and submit an appropriate report before this Hon'ble Court, pending the admission, hearing and final disposal this petition; (D) Your Lordships may be pleased to direct the respondent authorities and the respondent No.7 to ensure that the respondent No.7 does not take any coercive action against the students so long as they pay the fees which was paid by them in the academic year 2012-13, pending the admission, hearing and final disposal of this petition;" 3. The Single Bench, after hearing the parties at length and considering the material on record passed the following order on 26.12.2016:- "10. The Single Bench, after hearing the parties at length and considering the material on record passed the following order on 26.12.2016:- "10. In view of the entire foregoing decision and looking to the facts, features and total position emerging, a case is clearly made out for granting relief of the nature prayed in paragraph 9(B) of the petition. A Committee is required to be appointed and constituted to examine the entire fee structure of the respondent No.7 and to address a solution for related issues and grievances of the petitioners. Final Directions 11. Therefore, the following directions are issued. (i) The Committee shall be headed by the Secretary, Department of Education, Government of Gujarat; (ii) An eminent educationist of the State who shall be the cochairperson of the Committee, to be named by the Secretary, Department of Education; (iii) The other Members of the Committee shall be (a) One representative of the parents the petitioners to be named by the petitioners from amongst themselves; (b) One representative of respondent No.7 management; (c) One representative by the Central Board of Secondary Education to be nominated by the Board; (d) One representative being an Officer from the Gujarat Secondary Education Board, to be named and nominated by the Chairman of the Board, of the rank of District Education Officer of the District other than Rajkot; (iv) The Committee comprised of the above Chairperson and Members shall consider the entire issue threadbare. For the purpose, it may evolve its own procedure and may also invite suggestions from the parents of children studying in respondent No.7 school as well as persons in the field of education as may be deemed fit. The Committee may take assistance of a Chartered Accountant for examining and assessing about the accounts and accounting details of the school if deems necessary; (v) The Committee shall examine the issue of charging of fees and the fee structure of the seventh respondent which is a private unaided school under Central Board of Secondary Education, but located and being run within the State; (vi) The Committee shall prepare and submit its report within a period of four months, that is latest by 30th April, 2017. The findings and recommendations of the Committee shall be binding to the parties and may take effect from the Academic Year 2017-18; (vii) Until the Committee as above decides and submits its report, there shall be no hike in fees for any standard by the seventh respondent. FURTHER ORDER At this stage, learned senior counsel Mr.Kavina with learned advocate Ms.Venu Nanavaty for respondent No.7 requested for stay of the aforesaid directions. Since the directions are to be carried out for constituting the Committee by the second respondent, it is provided that the second respondent shall not act pursuant to the directions for four weeks." 4. Being aggrieved by the said order, the appellant Society – original respondent No.7 has preferred the present LPA. The Coordinate Bench, while issuing the notices to the respondents in the LPA had passed the following order on 19.1.2017:- In LPA No.43 of 2017: "Notice returnable on 31.1.2017. Ms.Sangeeta Pahwa, learned Advocate waives service of notice of admission on behalf of the respondent Nos.8, 10 to 12 who is on caveat. For rest Direct Service is permitted." In CA No.1072 of 2017 in LPA No.43 of 2017: "Notice returnable on 31.1.2017. Ms.Sangeeta Pahwa, learned Advocate waives service of notice of admission on behalf of the respondent Nos.8, 10 to 12 who is on caveat. Considering the fact that learned Judge has already stayed his order for a period of four weeks, while passing the impugned judgment and order, the stay of the order which has been granted by the learned Single Judge is directed to be continued till next date of hearing. Further interim relief is not passed at this stage as it is reported that except few, majority of the students have already paid the fees as per the new fee structure. Direct service is permitted for rest of the respondents." 5. The interim relief granted in the said order has continued from time to time till this date. 6. Further interim relief is not passed at this stage as it is reported that except few, majority of the students have already paid the fees as per the new fee structure. Direct service is permitted for rest of the respondents." 5. The interim relief granted in the said order has continued from time to time till this date. 6. Learned Advocate Mr.S. B. Majmudar for the appellant – original respondent No.7 Society has submitted that the direction with regard to the constitution of the Committee as contained in the impugned order was stayed by the Division Bench as per the order dated 19.1.2017, and in the meantime, the Gujarat Self Financed Schools (Regulation of Fees) Act, 2017 (hereinafter referred to as "the said Act") and Gujarat Self Financed Schools (Regulation of Fees) Rules, 2017 (hereinafter referred to as "the said Rules") have come into force, and that the Fee Regulatory Committee constituted under the said Act has determined the fee structure for the academic year 2017-18, 2018-19, and 2019-20, as per the Annexure annexed to the Further- Affidavit filed on behalf of the appellant. According to him, in view of the said determination of fees made by the Fee Regulatory Committee, the directions contained in the impugned order qua the prayer contained in Paragraph 9(B) of the petition have become infructuous. He also submitted that the concerned respondents – original petitioners had chosen not to challenge the said order against non-granting of other prayers prayed for in the petition, and therefore, the LPA deserves to be disposed of in view of the said determination made by the Fee Regulatory Committee. 7. However, the learned Advocate Mrs.Sangeeta Pahwa appearing for the respondent Nos.7 to 12 (original petitioners) taking the Court to the observations made by the Single Bench in the impugned order vehemently submitted that the directions given in the impugned order deserve to be complied with in letter and spirit. According to her, the determination made by the Fee Regulatory Committee under the said Act and Rules would not have any effect on the observations made by the Single Bench as regards the hike in the fee structure made by the appellant – respondent No.7, for the previous years. According to her, the determination made by the Fee Regulatory Committee under the said Act and Rules would not have any effect on the observations made by the Single Bench as regards the hike in the fee structure made by the appellant – respondent No.7, for the previous years. She also submitted that the prayers contained in Paragraph 9(B) was dependent on the other prayers contained in Paragraph 9(A), and therefore, it could not be said that the directions given by the Single Bench have become infructuous. 8. Having regard to the submissions made by the learned Advocates for the parties, and to the documents on record, more particularly the impugned order passed by the Single Bench, as also the affidavits filed by the respective parties in the present LPA, it emerges that the Single Bench while disposing of the Special Civil Application No.6800 of 2013 had granted relief in the nature prayed for in Paragraph 9(B) of the petition and not granted any other reliefs, though elaborate submissions were made and other prayers sought in the petition by the petitioners. It is pertinent to note that the present respondent Nos.7 to 11 i.e. the original petitioners have not preferred any Letters Patent Appeal as regards non-granting of the other reliefs by the Single Bench. 9. It is further required to be noted that as per the direction No.6 of the directions given by the Single Bench in the impugned order, the Committee that may be constituted had to prepare and submit the report, which was to have effect from the academic year 2017-18, however, the said direction of constitution of Committee having never taken place and in the meantime the said Act having come into force, the Fee Regulatory Committee constituted under the said Act, has determined the fees structure as per the provisions contained in the said Act and the Rules. As per the Rule 8 of the said Rules, the Self-Financed Schools had to submit to the Fee Regulatory Committee constituted under the Act, a proposal for fixation of fees or fee structure in the prescribed Form-II along with the information as contained therein, including the audited accounts for the last two financial years i.e. 2014-15 and 2015-16, and provisional accounts of financial year 2016-17 along with a certificate of Chartered Accountant showing the income and expenditure. The Fee Regulatory Committee, considering the said proposal of the appellant, vide the order dated 2.7.2018 has recommended the fee structure for the academic years 2017-18, 2018-19 and 2019-2020. The said order also appears not to have been challenged by the respondents – petitioners before any forum. Under the circumstances, the statutory forum i.e. the Fee Regulatory Committee vide order dated 2.7.2018 having recommended the fee structure for the academic year 2017-18, 2018- 19, and 2019-2020 after considering the audited accounts for the previous years as per Rule 8 of the said Rules, the direction issued by the Single Bench for the constitution of the Committee as such does not survive and has paled into insignificance. 10. In the aforesaid premises, the present Letters Patent Appeal deserves to be disposed of in view of the order dated 2.7.2018 passed by the Fee Regulatory Committee pending the LPA, and the same is accordingly disposed of. SCA NOS.9566/2014, 10158/2014 AND 18958/2015: 11. In the LPA No.43 of 2017 following order was passed on 9.2.2017:- "It is represented that Special Civil Applications No.9566 of 2014, 10158 of 2014 and 18958 of 2015, pending before the learned Single Judge are connected to the issue involved in this Letters Patent Appeal. In view of the same, place this Letters Patent Appeal along with the aforesaid Special Civil Applications on 16.02.2017, by obtaining orders on Administrative Side. Interim relief granted on 19.01.2017 and operated upto 31.01.2017, to continue till the next date of hearing." 12. Thereafter the Single Bench passed following orders on 14.2.2017 in the afore-mentioned three Special Civil Applications:- "The captioned petition may follow and abide by order dated 09th February, 2017 passed in Letters Patent Appeal No.43 of 2017." 13. Now, since the LPA No.43 of 2017 is disposed of in terms of the afore-stated order, the three SCAs also deserve to be disposed of accordingly. 14. The learned Advocate Mr.Vatsa appearing for the petitioners in all the three petitions has sought to submit that since the prayers contained in the said petitions pertain to the illegal fee hikes made by the respective respondent Schools for the period prior to the date on which the said Act came into force, the said prayers are required to be considered. However, in the opinion of the Court, the said submission cannot be accepted. However, in the opinion of the Court, the said submission cannot be accepted. When the Division Bench had directed all the three petitions to be placed along with the present LPA, on the representation made by the petitioners that the issues involved in the petitions are connected with the LPA No.43 of 2017, and the said LPA having been disposed of in view of the above order, the said petitions also would meet with the same fate as the LPA. It is also not disputed that the Fee Regulatory Committee constituted under the said Act has determined the fee structures of the respective respondent Schools for the year 2017-18, 2018-19 and 2019- 2020, and the said determination also has remained unchallenged. The issues raised in the petitions as regards the fee hike for the earlier period i.e. of 2004-2005 onwards are highly disputed questions of facts, which cannot be considered now at this juncture. 15. In that view of the matter, the Special Civil Application Nos.9566 of 2014, 10158 of 2014 and 18958 of 2015 also deserve to be disposed of in terms of the afore-stated order passed in Letters Patent Appeal No.43 of 2017. Accordingly, the Letters Patent Appeal No.43 of 2017 and the Special Civil Application Nos.9566 of 2014, 10158 of 2014 and 18958 of 2015 stand disposed of.