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TMI Blog2020 (10) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... h IA No. CAN 17 of 2020 with IA No. CAN 18 of 2020 with IA No. CAN 19 of 2020 with IA No. CAN 20 of 2020 with IA No. CAN 21 of 2020 with IA No. CAN 22 of 2020 with IA No. CAN 23 of 2020 with IA No. CAN 24 of 2020 with CAN 25 of 2020 with CAN 26 of 2020 with CAN 27 of 2020 with CAN 28 of 2020 with CAN 29 of 2020 with CAN 30 of 2020 with CAN 31 of 2020 With WPA 5378 of 2020 IA No. CAN 2 of 2020 (CAN 3697 of 2020) with IA No. CAN 3 of 2020 (CAN 3698 of 2020) With WPA 5872 of 2020 With IA No. CAN 1 of 2020 (CAN 3956 of 2020) With WPA 5400 of 2020 With WPA 5530 of 2020 IA No. CAN 1 of 2020 (CAN 3252 of 2020) For the Petitioner In WPA 5890 of 2020 : Mr Sai Deepak, Adv., Mr Rishav Kumar Singh, Adv., Mr Anurag Mitra, Adv., Ms Priyanka Agarwal, Adv., Mr Avinash Kumar Sharma, Adv. For the Petitioner (in person) In WPA 5378 of 2020 : Mr Pratyush Patwari, Adv. For the State : Mr Kishore Datta, A-G, Sr Adv., Mr Sayan Sinha, Adv. For the Union of India : Mr Y. J. Dastoor, ASG, Sr Adv., Mr Siddhartha Lahiri, Adv. For the Respondent No.8 : Mr Arun Kumar Mandal, Adv., Mr Anirban Ray, Adv., Mr Debabrata Das, Adv., Mr Partha Banerjee, Adv. For the Respondent No.9 : Mr Aniruddha Mitra, Adv., Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anujit Mookherji, Adv. For Modern High School : Mr Ranjan Bachawat, Sr Adv., Mr Sanjay Ginodia, Adv., Mr Shwetank Ginodia, Adv., Mr Satyaki Mukherjee, Adv. For Purushottam Bhagchandika Academy School : Mr Arindam Guha, Adv., Mr Shuvasish Sengupta, Adv., Ms Richa Goyal, Adv. For the Applicants in CAN 4867 & 4869 of 2020 : Mr Soumya Majumdar, Adv., Mr Debashis Banerjee, Adv., Mr Kartik Kumar Roy, Adv. For some of the parents : Mr Bikash Ranjan Bhattacharya, Sr Adv., Mr Subir Sanyal, Adv., Mr Dibyendu Chatterjee, Adv., Ms Reshmi Ghosh, Adv., Mr Siddhartha Roy, Adv., Mr Sagnik Roy Chowdhury, Adv. For Assembly of God Church School : Ms Amrita Pandey, Adv., Ms Anamika Pandey, Adv. For Abhinav Bharati : Mr S. Samanta, Adv. For New Town School : Ms Lapita Banerjee, Adv., Ms Arijita Ghosh, Adv., Mr Souma Sil, Adv. For D.P.S. Ruby Park : Mr S.N. Mookherjee, Sr Adv., Mr Somopriya Chowdhury, Adv., Mr Dinabandhu Dan, Adv., Mr Dipayan Dan, Adv. For Mahadevi Birla World Academy and Birla Bharati : Mr Arun Alo Roy, Adv., Mr Saugata Roy, Adv. For the applicant in CAN 21 of 2020 and CAN 22 of 2020 : Mr Debasish Kundu, Adv., Ms Kakali Dutta, Adv., Ms Ayushi Kundu, Adv., Mr Monoj Kr. Mondal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the usual fees despite no classes being conducted for a considerable period and, thereafter, classes being resumed on the online mode in some cases with very limited resources being used by the schools. The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools. 3. Most of the schools say that they have retained all the teachers and have paid their salaries. Some of the schools go even as far as to suggest that they have enhanced the salaries of the teaching staff pursuant to the Central or State recommendations as adopted by such schools. Almost all the schools represented contend that they have not removed any regular employee from the payrolls; and some even claim that the contractual staff have also been retained and paid during the lockdown. 4. Some six or seven of the schools, particularly the institutions controlled by the Church of North India and another which claims to be a linguistic minority educational institution, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned from prohibiting any of the students from participating in the online examinations, if any, till August 15, 2020. Such directions were made applicable for all classes and all courses. The order proceeded to direct that outstanding dues of each student as at July 21, 2020 ought to be cleared to the extent of 80 per cent by August 15, 2020. Those students already debarred from online courses or online examinations were directed to be restored to the previous status. The schools were also requested to ensure that the online programmes were not stopped in the event there was any meagre shortfall in payment in any case. 7. By the time the principal matter was heard next on August 10, 2020, three other writ petitions were assigned to be taken up together. The order noticed the modern malaise of virulent and vituperative reactions in the social media, parents demonstrating at the school gates in some cases and a militant appeal on the virtual platform to not pay any school fees altogether. It was also noticed that several of the schools likely to be affected by any order may not have been served or afforded an opportunity to be represented. The State's affidavit was received, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave of the court. 10. Some of the CNI schools carried a petition for special leave to appeal against the orders passed in the present proceedings on July 21, 2020, August 17, 2020 and August 18, 2020. Such petitions were disposed of on the following lines by an order of September 3, 2020 passed by the Supreme Court: "... These special leave petitions have been filed challenging three interlocutory orders dated 21.07.2020, 17.08.2020 and 18.08.2020. With regard to orders dated 21.07.2020 and 17.08.2020, we are of the view that no interference is called for by this Court in these special leave petitions. In so far as order dated 18.08.2020 is concerned, we grant liberty to the petitioners to make an application before the High Court for recall/modification of the order dated 18.08.2020. Until orders are passed on such application of petitioner, the order dated 18.08.2020 shall not be given effect to; and the same is ordered to be kept in abeyance. We, however, are of the view that looking to the issues, which are involved in the writ petition, the High Court may decide all issues at an early date. Subject to above, the special leave petitions are disposed of. ..." 11. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wake of the pandemic and "the present scenario ... is unprecedented, extraordinary measures need to be taken which may not be treated as a precedent in future." 13. The matter has been heard on the virtual mode several days thereafter, affording all parties to make their submission. All schools involved which sought to be heard have been heard. It is evident that the concerned schools ranged from those charging more than Rs. 10,000/- a month to those charging a few thousand rupees or so a month to those receiving even less than Rs. 1,000/- per month. Most of the schools at the lowerend of the spectrum say they face almost subsistence existence and implore the court not to foist any concession on them or they may be altogether wiped out. 14. It is at this stage that the legal objections urged by the CNI schools and the linguistic minority school, in particular, together with the schools run by the Roman Catholics need to be seen. On behalf of the CNI and the linguistic minority schools, it is submitted that private unaided educational institutions such as these schools are not amenable to the writ jurisdiction under Article 226 of the Constitution as such schools cannot be regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible. The schools refer to their accounts and matters pertaining to their affairs being protected by the right of privacy which, according to them, has been accorded the status of a fundamental right by the Supreme Court. 16. The CNI and the linguistic minority schools first rely on a judgment reported at (2019) 16 SCC 303 (Ramakrishna Mission v. Kago Kunya) for the proposition that a petition under Article 226 of the Constitution may, ordinarily, not be maintained against a private unaided school. Paragraphs 20 and 26 of the judgment have been stressed on. However, it cannot be lost sight of that the grievance carried to the court under Article 226 of the Constitution in the reported case was by an employee. It was a service matter and, it is in such context, that the Supreme Court held that there was no public law involved in the enforcement of a private contract of service. 17. The said objectors next rely on a nine-member Constitution Bench decision reported at (2017) 10 SCC 1 (Justice K. S. Puttaswamy (Retd) v. Union of India) where the nature and facets of the right of privacy fell for the Supreme Court's consideration. Paragraphs 412 to 415 of the judgment are placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration, including the right of appointment, disciplinary powers, the mode of admission of students and the structuring of the fees to be charged. The said objectors herein submit that the Supreme Court recognised that the State did not have adequate resources to establish educational institutions of excellence and any attempt to curtail the income of private schools "disables those schools from affording the best facilities because of a lack of funds". A further passage from page 590 of the report is highlighted by the said objectors herein where the Supreme Court held that "Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee." 20. A further judgment reported at (2003) 6 SCC 697 (Islamic Academy of Education v. State of Karnataka) is placed by the said objectors for the Supreme Court's answer to the question framed by it as to "whether the educational institutions are entitled to fix their own fee structure ...". The answer to such question, in the context of the T M A Pai case, may be seen from the following passage at paragraph 7 of the report: "7. So far as the first question is concerned, in our view the majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a Code of Regulations in place under which the State, to a limited aspect, regulates and monitors the activities of such schools. According to these Roman Catholic schools, the latest circular issued by the State on July 20, 2020 is clear and categorical and the Anglo-Indian schools have complied therewith and there is no complaint in such regard. The substance of the submission on behalf of the Roman Catholic schools is that since the Code of Regulations for Anglo-Indian and other Listed Schools, 1993 was notified on December 24, 1993, the relevant schools covered by the regulations have submitted to the limited authority of the State executive and have adhered to the directions or advisories issued. These Anglo-Indian schools contend that if there is a mechanism already envisaged under the 1993 Regulations, there is no scope for interference under Article 226 of the Constitution without a case being made out that the State has been indifferent to the acts of mal-administration on the part of these schools. The relevant schools assert that no case of mal-administration has been made out and the principal petition hardly refers to anything pertaining to the Roman Catholic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State under Article 162 of the Constitution. 25. The Roman Catholic schools have referred to several judgments, particularly of this court, where the said Code of Regulations of 1993 fell for consideration. They first rely on a Division Bench judgment reported at AIR 1995 Cal 194 (The Association of Teachers in Anglo Indian School v. The Association of Aids of Anglo Indian School in India) which was rendered in an appeal from an order of a Single Bench declaring certain clauses of the Code of Regulations of 1993 to be unconstitutional. The writ petition was instituted by the heads of various Anglo-Indian schools in the State. The three specific clauses of the Code which were challenged pertained to religious instructions being imparted to pupils, the management of the schools run by managing committees and disciplinary proceedings against employees. The Division Bench ultimately allowed the appeal in part by holding that the provision pertaining to the disciplinary proceedings was ultra vires Article 30(1) of the Constitution. It must not be lost sight of that the court observed that the imparting of education was in the nature of performing a public duty. It is, however, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant school having to shut shop. The State says that it was sensitive to the difficulties faced by parents and guardians of school students in this State and did its bit to the extent permissible; but the State did not perceive the withdrawal of the NOC of any non-conforming school to be a solution since that would leave all the students of the relevant school without a school and stranded midstream. The State refers to the rules of the Central Boards like the CBSE and ICSE which stipulate that fees should be commensurate with the services and facilities made available and there should be no increase therein without the approval of the State government. However, both the State and the majority of the schools represented hasten to add that the State scarcely looks into the fee structures in private unaided schools and it is only because of the peculiar situation that has now arisen as a consequence of the pandemic that the State felt it necessary to issue the advisories. THE State submits that as far as the schools affiliated to the State Board are concerned, the fees are kept at a maximum of Rs. 245/- per month, but for other schools the State has traditionally not evinced any inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Rudani) and another reported at (1969) 1 SCC 585 (The Praga Tools Corporation v. Shri C. A. Imanual)). Paragraph 20 of the report in Andi Mukta is instructive: "20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied." 32. Further judgments on the amplitude of the authority conferred by Article 226 of the Constitution have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 27 of a more recent judgment reported at (2003) 4 SCC 225 (G. Bassi Reddy v. International Crops Research Institute). The relevant passage may be seen: "27. It is true that a writ under Article 226 also lies against a "person" for "any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to the well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to wellestablished principles issue. (Quoted from Carlsbad Mineral Water)" 34. On the same lines, an oft-quoted judgment of the last Sixties, reported at AIR 1966 SC 81 (Dwarka Nath v. Income Tax Officer, Special Circle, DWard, Kanpur), has been placed for the recognition therein of the wide authority available under Article 226 of the Constitution in the following sentence at paragraph 4 of the report: "4. ... This article is couched in comprehensive phraseolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words ..." 38. On behalf of the Union, the P.A. Inamdar case has been referred to for the dictum therein that monitoring admission procedure and determining fee structure in educational institutions are "permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions." Though the matter that fell for consideration in that case was advanced education or professional courses, the principle will apply to all educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been assured that no student would be kept away from the online classes or prevented from taking the board examinations despite non-payment of fees. As to any concession, it is suggested by such schools that the same should be left to the management of the schools to decide on a case-to-case basis. These schools go even as far as to suggest that they may agree to receive installments over a long period of time and even beyond the period of the relevant student's tenure in the school. 43. Several other schools have claimed that they have not increased their fees or prohibited any student from participating in the online classes. Such schools suggest that applications may be made by the parents by a specified date for such applications to be considered on merits and the maximum concession to be afforded keeping the financial position of the individual school in mind. Such schools have assured the court that no student would be debarred from participating in the online classes or from being sent up for the board examinations as long as the relevant board's fees are paid. These schools have also agreed to issue transfer certificates to those students who wish to leave, upon 80 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classes not being conducted over the last six months and more, the ordinary running expenses incurred by schools would be considerably less. Schools will still have to incur the fixed costs, but the variable costs must have come down. Again, there are schools and there are other schools. Though most of the schools represented here claim that they have not discontinued the services of any teacher or other member of the staff, it must be remembered that several schools engage contractual floating staff at times and it is inconceivable that even such contractual floating staff have been retained without obtaining any services from them. The first item of the basket of variable costs that comes to mind is electricity charges. The expenses incurred on account of electricity charges must have been considerably lower in all schools since most classrooms have not been opened and other physical facilities not availed of. But there is no data as to the percentage of electricity charges out of the total monthly expenditure incurred by a school or any definitive ratio in such regard that the court can go by. It is also possible that tiffin or transport services routinely provided by some schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise altogether by proffering one of the several credible excuses imaginable. 50. But the exercise to discover a line of best fit or to explore a common ground would only arise if the court's authority to do is seen to be available, notwithstanding the conciliatory stand adopted by most of the schools represented in the present proceedings. The objections raised by the CNI and the linguistic minority schools and the protest by the Roman Catholic or Anglo-India schools need to be addressed first along with the murmurs raised by some of the other schools as to the jurisdiction available under Article 226 of the Constitution and the amenability of private unaided schools to such jurisdiction. 51. A facile answer to the issue as to the maintainability of the present proceedings would be that whether or not the person or persons against whom an order is sought in this jurisdiction is an authority within the meaning of Article 12 of the Constitution, if the order sought bears a direct nexus with the character of the function discharged by the relevant person and such function is regarded as a public duty, the proceedings would be maintainable. But when an issue presents a broader c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " and "writs" may otherwise seem similar or, at times, be used interchangeably, they are distinct in the manner they have been used in the provision. Also, the inclusive words in the last limb of the subject expression describe the nature of the writs that may be issued and may be seen to only to govern the word "writs"; though, no doubt, when the words "directions", "orders" and "writs" have been used in the same breath, they must take a certain degree of colour from each other. Thus, in the usual course, directions and orders may issue in proceedings under Article 226 of the Constitution when the person so directed or ordered is amenable to the issuance of any of the writs indicated therein. But the everyday service may not be an excuse to constrain the broad freedom that the words "directions" and "orders" connote. The last feature of the provision is the purpose for which the directions or orders or writs may issue thereunder and the guidance in such regard is found in the expression "for the enforcement of any of the rights conferred by Part III and for any other purpose." It is true that, in a sense, the second part of the final expression, "and for any other purpose", has tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority available to it and its constitutional obligation to discharge its duties governed by the overarching established principles designed by what may be loosely said to be the rule of law. 55. Two other broad heads of objection have been taken by some of the schools as noticed above: under Article 30(1) of the Constitution and under Article 19 thereof read with the right of privacy as espoused. 56. Without detracting from the extent of the right of religious and linguistic minorities reserved in respect of educational institutions under Article 30(1) of the Constitution, it goes without saying that even minority educational institutions need to adhere to certain fundamental norms, the most basic of them being that they cannot be run for the purpose of making profit. The essence of such basic requirement is that the fees charged must have some reasonable correlation with the facilities provided. Such nexus need not be assessed or ascertained with arithmetical accuracy. If the facilities provided over a long stretch of time, as for the best part of a year and probably more, cost less because physical classes have not been held, a substantial part of the money saved has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trusive acts of the State; they cannot be used as swords to parry a credible charge of profit-making in an educational institution, minority or otherwise, whether aided or unaided. 58. In the present case, however, the widest authority available under Article 226 of the Constitution does not have to be invoked. As long as the lis carried to the writ jurisdiction and the reliefs claimed therein have substantial nexus with some public duty, the authority of the court to receive the action is justified, though the extent of the orders that may ensue will depend on the merits of the matter. Article 21-A of the Constitution requires the State to provide free and compulsory education to all children of the age of six to 14 years. The principal part of the provision is to provide compulsory education, the attendant or ancillary part thereof is to provide such education free. When a private body or person or any form of juristic entity takes upon itself the burden of imparting education it takes up a public duty and such public duty aspect of its functioning is open to judicial review in the usual course without even considering the much broader authority available under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then, the court should be circumspect in the absence of any executive or legislative regulation unless a case of virtual daylight robbery is made out. 60. Having accepted the autonomy and freedom that private unaided schools generally enjoy, it is completely unacceptable that schools have not incurred less expenditure than usual since the lockdown came to be in force from or about the end of March this year. Indeed, implicit in the submission of almost all the schools represented herein is that the usual expenses may not have been incurred by them during such period and may still not be incurred till physical classes resume, notwithstanding some additional expenses incurred by the majority of the schools since introducing online classes. 61. In the light of the foregoing discussion and purely as a one-time measure necessitated by the present unprecedented situation, the following directions are issued: i. There will no increase in fees during financial year 2020-21. ii. From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements should be certified by any qualified auditor and accompanied by a declaration by the applicant parent or guardian verifying the particulars to be true and correct. ix. Each application will be considered on merit. Such applications have to be filed before the respective schools by November 15, 2020 and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020. Till the decision on the individual application is communicated and for a further period of two months thereafter, no coercive action should be taken against the relevant student. In other words, the student must be allowed every facility that a similarly placed other student would enjoy, including the name of such student being put forward for the board examinations, subject, however, to the fees payable to the board being tendered within time on behalf of the relevant student. x. When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs. 1000/-, to a committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter for it to be disseminated to all parents and guardians. The money required to be deposited will be tendered in cash to a secretary or manager as may be indicated by the committee. The application will be deemed complete only upon the grievance in writing being forwarded to the relevant e-mail account and the deposit being made. No application will be entertained without the deposit being tendered. Full accounts of the monies received and expenses incurred must be maintained and presented in court, when sought. xiv. All schools should have the accounts for the financial year 2019-20 ready and also the accounts for the period of April to September, 2020 ready to be furnished within two days of the demand therefor by the committee. xv. Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school. xvi. The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid which are in excess of the directions contained herein, suitable adjustments will be made over the remaining months of the financial year, unless the parents agree in writing otherwise. xxiii. The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021. xxiv. The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy. xxv. No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable. xxvi. These directions will continue till such time that physical functioning of the schools resumes in the normal course. xxvii. The above directions for any form of concess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the committee should be retained in strict confidence by the office of Prof. Suranjan Das and destroyed after three months unless contrary directions are issued by this court. 66. All interim applications in the several writ petitions, including IA No. CAN 1 of 2020 to IA No. CAN 31 of 2020 in WPA 5890 of 2020; together with IA No. CAN 2 of 2020 and IA No. CAN 3 of 2020 in WPA 5378 of 2020; IA No. CAN 1 of 2020 in WPA 5872 of 2020; and IA No. CAN 1 of 2020 in WPA 5530 of 2020 stand disposed of without any order as to costs. 67. The parities will have liberty to apply for the removal of any difficulty. 68. Certified website copies of this judgment, if applied for, be urgently made available to the parties upon compliance with the requisite formalities. (Sanjib Banerjee, J.) Moushumi Bhattacharya, J. 1. I have read my senior colleague Justice Sanjib Banerjee's judgment and have been enriched, as always, by the exhaustive analysis of the points involved in the adjudication. I entirely support his reasons leading to the conclusions. The matter required several brainstorming sessions which we happily engaged in and which threw up interesting factual angles with the laws r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights guaranteed under Part III of the Constitution. The wide berth contemplated was recognised in Dwarka Nath vs Income Tax Officer AIR 1966 SC 81 as an enabler for tailoring the reliefs to fit the shape and peculiarities of the case and stretching the parameters of the power "to reach injustice wherever it is found". These striking words have resonated in recent decisions of the Supreme Court which held that the powers of the High Courts in exercise of its writ jurisdiction cannot be constricted by strict legal principles so as to immobilise the Court in upholding the rule of law (refer Maharashtra Chess Association vs Union of India 2019 SCC OnLine SC 932). 5. But does that mean that a court's authority to issue writs under Article 226 is unfettered? The answer, reiterated in numerous precedents, is an emphatic No. The court must set its own limits to the exercise of the power on an assessment of whether the violation complained of, warrants discretion to be exercised in favour of granting the relief prayed for. In other words, the court draws its own boundaries within which it decides the lis on a number of factors; including but not limited to whether there is an efficac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a limited period of time, with the paramount interest of the students in mind. 7. The privacy argument of the CNI and the linguistic minority schools is the second aspect which should be briefly dwelt on. K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1 has been placed to elevate the right to privacy as a 'travelling right' (per Justice S.A. Bobde at paragraph 412 of the report) and a consequent bar on any direction on the schools for furnishing their accounts. The right to privacy, taken at its most obvious connotation, is the right of a person to draw his or her boundaries in terms of sharing of information. It is a pro-individual right where the person can choose the company he keeps and the time and the agency to disclose what he wishes to. It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution. The argument against disclosing of accounts by the schools is not acceptable for two reasons. First, there is an unfounded apprehension that the court is trying to ferret information out to the detriment of the concerned schools. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great personal sacrifice, to get their children admitted to high-end schools with superior educational infrastructure and amenities. Such guardians would greatly benefit from a relaxation in the quantum of fees under the current financially stressed times. The writ petitioners are supported by guardians of students of 145 schools -representing the entire spectrum of school segments- from the schools serving the economically challenged, to the traditionally well-known 'English medium' schools, to the middle-level vernacular schools, to the newfangled high-end schools catering to the affluent sections of the society (there are no insinuations in these descriptions). In fact, seeing the diversity of the demographic, we were tempted to customise individual/special - fits instead of an omnibus best-fit solution to the dispute. However, we arrived at a considered decision that taking such a course would result in creating several classes and classifications of unintelligible differentiation based on arbitrary presumptions which would cause more injustice to those before us. The bottom line is simply this; a benefit, like a right, cannot be denied to a greater number merely on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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