TMI Blog2004 (4) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. A scheme of management for managing the affairs of the school is required to be framed in terms of Section 5 thereof conforming to the provisions of the rules made thereunder. However, in relation to the recognised private school which does not receive any aid, the scheme of management may apply with such variations and modifications in the rules as may be prescribed. It has not been brought to our notice as to whether any separate rules have been framed as regard scheme of management of recognised unaided private schools. The second proviso appended to Section 5, however, states that the scheme relating to the previous approval of the appropriate authority shall not apply to a scheme of management for unaided minority school. Section 6 of the Act provides for grant of aid to recognised schools. The matter relating to payment to salary to the employees of the school is controlled by Section 10 of the Act stating that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than the amount payable to employees of the corresponding status in school r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency found at the time of inspection or otherwise in the working of the school. (4) If the manager fails to comply with any direction given under sub-section (3) the Director may, after considering the explanation or report, if any, given or made by the manager, take such action as he may think fit, including (a) stoppage of aid, (b) withdrawal of recognition, or (c) except in the case of a minority school, taking over of the school under section 20. The Administrator in exercise of its power conferred upon it under Section 28 of the Act framed rules known as the Delhi School Education Rules, 1973 (The Rules). Rule 44 mandates that every society or trust desiring to establish a new school (not being a minority school) shall give an intimation therefor in writing communicating their intention to establish the school. Rule 50 provides for the conditions for recognition. Rule 51 enumerates the facilities to be provided by a school seeking recognition. Rule 59 provides for the scheme of management of recognised schools. Chapter VI of the Rules provide for grant-in-aid and conditions therefor. Chapter VIII provides for recruitment and terms and conditions of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... savings referred to in sub-rule (2). (4) The collections referred to in sub- rule (3) shall be administered in the same manner as the monies standing to the credit of the Pupils Fund as administered. Rule 180 mandates that the unaided schools shall submit returns. ANALYSIS: The said Act and the rules framed thereunder provide for a complete code not only as regard regulation of education but also organisation and development thereof. Establishment of a private educational institutional has been held to be a fundamental right by this Court in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others [(2002) 8 SCC 481]. The fundamental right to establish educational institution as contained in Article 19(1)(g) of the Constitution of India would, however, be subject only to the reasonable restrictions which may be imposed by any law in terms of Clause (6) thereof. The Act is a law regulating education. The Act seeks to regulate education necessary corollary whereof would be that education imparted in an individual institution may also be subjected to regulation. But any control or regulation over education or educational institution must be imposed only by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. The regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure would be an unacceptable restriction. The essence of a private educational institution is the autonomy that the institution must have in its management and administration. g) There, necessarily, has to be a difference in the administration of private unaided institutions and the government aided institutions. In the latter case, the Government will have greater say inter alia in fixing of fees but 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. h) While running an educational institution is not a business, in order to examine the degree of independence that can be given to a recogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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... The Court, having regard to the fact that the validity of the statutes/ regulations governing the fixation of fees had not been considered, directed constitution of a committee headed by a retired High Court Judge for the said purpose. One of us while concurring with the said directions stated: 147. On a bare reading of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pursuant to or in furtherance of the directions issued by the High Court a Committee known as Duggal Committee was constituted. The said Committee has submitted its report. Pursuant to the recommendations made by the Committee, a circular dated 15th December, 1999 has been issued purported to be in terms of Sub-Section (3) and (4) of Section 24 of the Act. The same apparently is beyond the scope and purport of the Act and the Rules as the directions thereunder can be issued only for the purpose of rectifying the defect and deficiencies found at the time of inspection or otherwise in the working of the school and not pursuant to the recommendations made by a committee constituted in terms of the judgment of the High Court. 'Defects and deficiencies' within the meaning of the said provisions would mean defects and deficiencies while applying the provisions of the Act and the rules framed thereunder only and not the recommendations of a committee de'hors 'the Act' and 'the rules'. The said directions, therefore, do not have the force of law within the meaning of Clause (6) of Article 19 of the Constitution of India. State indisputably can issue directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disables those schools from affording the best facilities because of lack of funds. It was suggested that if the lowering of standards from excellence to a level of mediocrity is to be avoided, the solution lies in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. We are bound by the decisions of the larger Benches of this Court. This Court, having regard to T.M.A. Pai Foundation(supra) cannot thus issue any direction or make a scheme which would not be constitutional being violative of clause (6) of Article 19 of the Constitution. Indisputably, the standard of education, the curricular and co-curricular activities available to the students and various other factors are matters which are relevant for determining of the fee structure. The courts of law having no expertise in the manner and/ or having regard to its own limitations keeping in view the principles of judicial review always refrain from laying down precise formulae in such matters. Furthermore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law. The aforementioned paragraph has been noticed by this Court in Chairman and M.D., BPL Ltd. Vs. S.P. Gururaja Ors [(2003) 8 SCC 567]. The States have a duty to impart education and particularly primary education having regard to the fact that the same is a fundamental right within the meaning of Article 21 of the Constitution of India, but as the Government had neither resources nor the ability to provide for the same, it appears, the Legislature permitted the Societies/Trusts to establish the educational institutions from the savings made by them from the Unaided Institutions. It is not the case of the respondents that Rule 177 is unconstitutional. The vires or otherwise of the said rule may be considered in an appropriate proceedings but without going into the said question in great details, it may not be appropriate for us to read down the provisions thereof and issue any direction in derogation thereto. I do not find any conflict in Rules 176 and 177 of the Rules. In view of the fact that the plain lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to Consequences: If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. This rule has no application when the words are susceptible to only one meaning and no alternative construction is reasonably open. (a) Hardship, inconvenience, injustice, absurdity and anomaly to be avoided In selecting out of different interpretations the court will adopt that which is just, reasonable and sensible rather than that which is none of those things as it may be presumed that the Legislature should have used the word in that interpretation which least offends our sense of justice . If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf should not be considered to be an indicia that all institutions are being run in an unprofessional or unethical manner. Once, the legislature has laid down an educational scheme, the jurisdiction of the court is merely to interpret the same. It cannot and should not issue any other or further direction. It would not supplant a statutory provision by issuing any direction except in some exceptional cases. The statutory scheme of the Act must be considered also from the point of view that a Society running several institutions may have to impart education in different areas; slum, semi urban or urban. It may not, therefore, be improper for an institution to generate some surplus fund from an institution which is situated within a metropolitan area for the purpose of starting a school in a slum or a semi urban area. It may also not be necessary to issue direction as to how and in what manner the institutions should maintain their accounts. In absence of any statutory provision governing the field, it is for the administration of the educational institution to determine the same having regard to the prevailing law like Income Tax Act, 1961. I am, furthermore of the opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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