Upload
phamdien
View
217
Download
3
Embed Size (px)
Citation preview
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY 2016
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.35134/2014 (EDN-RES) BETWEEN: KENDRIYA VIDYALAYA PARENTS ASSOCIATION BEML NAGAR, KGF REP. BY ITS PRESIDENT AT ANUSHREE COMPLEX GANESH TEMPLE STREET M V NAGAR, BEML NAGAR, KGF DISTRICT, KOLAR-563115
... PETITIONER
(BY SRI. N S BHAT, ADV.) AND:
1. KENDRIYA VIDYALAYA BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ITS PRINCIPAL
2. VIDYALAYA MANAGING COMMITTEE
KENDRIYA VIDYALAYA BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ITS CHAIRMAN
3. BHARAT EARTH MOVERS LIMITED
BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ASST. GENERAL MANAGER (HR)
4. THE DEPUTY COMMISSIONER
KENDRIYA VIDYALAYA REGIONAL OFFICE KAMARAJ ROAD BANGALORE
®
2
5. THE MEMBER HUMAN RESOURCES DEPARTMENT GOVT. OF INDIA K V M C BEML NAGAR, P. O. KGF-563115
... RESPONDENTS
(BY SRI. K G RAGHAVAN, Sr. COUNSEL FOR SRI ANIRUDH KRISHNAN & SRI NISCHAL DEV, ADVs. FOR R2 & 3 SRI VISHNU BHAT, ADV. FOR R1 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DECLARE THE IMPUGNED CIRCULAR DATED 26.3.2014 VIDE ANN-F ENHANCING THE TUITION FEE W.E.F. APRIL 2014 FROM NON-BEML WARDS ISSUED BY THE R-1 CITING THE LETTER DATED 17.3.2014 OF R-2 AS ILLEGAL, UNILATERAL, UNCONSTITUTIONAL, UNENFORCEABLE AND TO QUASH THE SAME AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner Association is before this Court
assailing the Circular dated 26.03.2014 (Annexure-F)
whereby the Tuition fee for Non-BEML Wards has been
enhanced. A declaration is also sought to the effect that
the same amounts to discrimination.
2. The petitioner association is formed to protect
the welfare of the students studying in Kendriya
Vidyalaya, BEML Nagar, KGF (‘The KV’ for short). The
3
present grievance being put forth by the Association is
on behalf of the Wards of Non-BEML employees who are
studying in the KV. The KV has provided admission to
both the Wards of BEML (‘Bharath Earth Movers Ltd’ for
short) employees as also to the other residents of the
area. Since the KV is being sponsored by BEML and the
expenses towards running the School is met by them,
the fee for imparting education to the children is to be
fixed by them. The Tuition fee had been fixed at an
earlier instance in the year 1982. While enhancing the
fee through the impugned Circular dated 26.03.2014,
the enhancement made is only in respect of Non-BEML
Wards. The existing fee inclusive of the Tuition and
computer fee is at Rs.600/- per month. The Tuition fee
has been enhanced by Rs.1,500/- per month which
would make the present enhanced fee payable at
Rs.2,100/- per month for standards I to VIII. The fee
fixed for standards IX and X is Rs.2,300/- for boys and
Rs.2,100/- for girls. The grievance of the petitioners is
that such enhancement for only Non-BEML wards
amounts to discrimination, even otherwise the fee as
4
enhanced from Rs.600/- per month to Rs.2,100/- per
month is excessive and without basis.
3. The gist of the objections filed by the third
respondent is that the first and third respondent have
reached certain understanding amongst themselves for
establishment of the school and with regard to the
obligations of the third respondent to establish and
maintain the school facilities. In that view, the third
respondent is required to provide all the infrastructure,
meet the salary of the staff and also the facilities to the
staff. The expenses therefore are to be wholly met by
the third respondent and as such the first respondent
has left it to the discretion of the third respondent
relating to the fee structure etc. It is their contention
that the fee structure had not been revised admittedly
for nearly three decades and if in that light the
enhancement is taken into consideration, the same is
not excessive. Further the third respondent being
public sector will also have to keep in view the outgoing
expenses without affecting the resources of the
5
company and the enhancement is made as a part of the
expenditure management.
4. Insofar as the decision taken to enhance the
fees only in respect of Non-BEML Wards, it is contended
that the benefit of providing the school for the children
of the BEML employees is as a welfare measure. Hence
if the enhancement of the Tuition fee in respect of such
Wards was also taken, it would have altered one of the
service benefits which was being given to the employees
of the third respondent. However, insofar as the
Non-BEML Wards, the very admission given to them in
the School is a concession as there is no obligation to do
so. Therefore, in such circumstance, when the third
respondent is incurring huge expenses to run the
School and in that light, when admission is provided to
them, they should make the contribution to the limited
extent at least by paying the reasonable fee which has
been fixed which is similar to the fee fixed by other
projects. It is therefore contended that the writ petition
is without merit as the two sets of students are not
6
similarly placed and as such the petitioner cannot plead
discrimination.
5. In the light of the rival contentions, I have
heard Sri N.S.Bhat, learned counsel for the petitioner,
Sri K.G.Raghavan, learned senior counsel appearing for
Sri Anirudh Krishnan, learned counsel for respondents
No.2 and 3 and Sri Vishnu Bhat, learned Central
Government counsel for respondents No.1 and 4 and
perused the petition papers.
6. At the outset, it is to be noticed that though
the petitioner is Parents’ Association of KV and the
issue relates to the fee structure of the students
admitted to KV, the fact that the KV in the instant case
is sponsored and is being run by BEML which is a
public sector undertaking is evident. The establishment
of the School is based on the understanding reached
between the KV and BEML. To aid the establishment of
the School, the Board of Directors of BEML in their
meeting held on 27.05.1981 resolved that the KV
Sanghatan may open the KV at BEML Nagar Township
7
and further resolved that the third respondent will bear
the entire costs that is recurring and non-recurring
expenditure including proportionate overhead charges
and future developmental expenditure and also to
provide suitable land, building, furniture, equipment as
also the residential accommodation for the staff of KV.
In that view, a meeting was held between the
representatives of the third respondent and the
representatives of the first respondent-KV on
26.08.1981 relating to the proposed opening of the KV
at BEML Campus at KGF. In the said meeting the
conditions with regard to the admission, recruitment of
staff and the issues relating to the infrastructure were
agreed. Insofar as admission in the case of KV in public
sector undertaking where all recurring and non-
recurring costs are met by sponsoring authority, the
priority of admission to the different categories were
also agreed upon. The children of the public sector
undertaking was considered as the first category and
thereafter the category of children of Government
employees holding transferable posts. As a last category
8
the children of other floating population which includes
civilian population desirous of joining the pattern of
studies adopted in KV are to be given admission. The
BEML Wards therefore fall under the first category while
the Non-BEML Wards fall under the other categories.
7. The Education Code for KV contains the
stipulations which provides for the manner in which the
KVs are to be conducted and the guidelines for the
same. Chapter XV of the Code relates to the fees and
funds etc. Article-118(d) therein is relied upon by the
second and third respondents to justify their present
action. In Article 118 relating to Tuition fee, the clauses
(a) to (c) relates to Tuition fee to be charged in KV run
by the Sanghatan while in clause (d), it refers to the KV
run by public sector undertakings, as in the case on
hand. It would be appropriate to extract that portion for
better understanding:
“Article 118. Tuition fee:
a) XXXX
b) XXXX
c) XXXX
9
d) Public Sector undertakings may prescribe
such scale of fee to be charged from students
of various classes as they may consider
appropriate in Kendriya Vidyalayas under
their sponsorship. This has been done in
order to help the projects to meet their
commitments to Kendriya Vidyalayas.”
8. In the light of the above, the second and third
respondents have further relied upon the order dated
12.11.1999 issued by the KV Sanghatan
(Annexure-R5). The said order is passed relating to
introduction/adoption of differential fee structure for
KVs in project sector. The relevant portions of the order
read as hereunder:
“It has now been decided to permit the
sponsoring authorities of the project sector
Kendriya Vidyalayas to adopt a fee structure
and charge/prescribe such scale of fee to be
charged from such classes of students as
they may consider appropriate in the
Kendriya Vidyalayas under their
sponsorship.
10
3(i) The project authorities who have
sponsored Kendriya Vidyalaya would
prescribe such scale of fees to be charged
from the students as they may consider
appropriate. This they would decide, keeping
in view the money that is required for running
the school and the amount they would like to
contribute for the same. In case it is felt that
the entire amount of expenditure should be
realised by way of fees and the School should
be self-financing, the project authorities would
have the option to do so. “
9. If the above aspects are taken note, the very
manner in which the KV has been set up in the campus
of the third respondent public sector undertaking will
establish that the same has been done primarily with
the object of providing school facilities to the Wards of
the employees who are working in BEML. No doubt,
when such School is established, the other legal and
statutory obligations with regard to providing right to
free education etc are to be followed. The admission to
the Non-BEML Wards is provided as an additional
facility to the persons residing in the area and such
11
admissions would be made if seats are available after
providing admission to the priority categories in the
order provided in the minutes of discussion dated
26.08.1981 (Annexure-R2).
10. When the primary object of establishing KV in
the campus of the third respondent is to provide school
facilities to the Wards of BEML employees and in that
light when the third respondent considers the same to
be a benefit provided as a welfare measure and in that
sense when they have priority in seeking admission,
such of the Wards cannot be considered to be similarly
placed as that of the Wards of Non-BEML
employees/civilians. This is more so insofar as the
fixation of fee is concerned since the Sanghatan which
has permitted the establishment of the School has itself
taken into consideration the recurring and non-
recurring expenses incurred by a public sector
undertaking which is considered as the sponsoring
authority and has allowed the discretion of adoption of
12
differential fee structure. Such order permitting the
same is not under challenge.
11. In the said circumstance, when the third
respondent incurs all the expenses for running the
school and when such expenses are incurred in order to
provide an additional facility to its employees by
ensuring educational avenues to their Wards at a
concessional fee, a person who is not of the same
category cannot seek for such concession when a
different fee is fixed. The two sets of students not being
similar in all respects cannot therefore be considered as
having been discriminated upon.
12. The learned counsel for the petitioner has
however relied on the order dated 18.12.2004 passed by
a learned Single Judge of this Court in
W.P.No.17355/2004 - Sri P.Raveendran -vs- Union of
India and Others. Having perused the order, it is seen
that though similar contentions urged herein also were
taken note, it cannot be considered as being done in
13
similar context. Further, the learned Judge had arrived
at the conclusion mainly being guided by the mandate
contained in Article 21A of the Constitution of India in
the background of the relief claimed by a single student.
However at this point, in order to further such mandate
the Right of Children to Free and Compulsory Education
Act, 2009 ('RTE Act' for short) has been enacted. In that
view, the right to free education has been qualified and
specified under that Act and the consideration herein is
about the students who are not covered under the RTE
Act.
13. If the above noticed aspect is kept in view, the
decision of the Division Bench of the High Court of
Delhi in the case of Social Jurist, A Civil Rights
Group -vs- Kendriya Vidyalaya Sanghatan and
Another [(2013) 205 DLT 659 (DB)] relied on by the
learned senior counsel for the respondents will be
relevant. In the said decision the Division Bench after
referring to the relevant provisions of the RTE Act in the
backdrop of the mandate in Article 21A of the
14
Constitution of India has taken note of the extent of
school's responsibility for free and compulsory
education as contained in Section 12 of RTE Act. In that
view, it is held therein that the KV school being run by
the project authority and not being financed by the
Government of India was entitled to a differential fee
structure. While saying so, it was also noticed that in
KV no fee was being charged from children admitted
under twenty five per cent viz., RTE admissions. To the
same effect is also the decision of a Division Bench of
the High Court of Kerala in the case of Kendriya
Vidyalaya Parents Association -vs- Union of India(
ILR2014(3)Kerala 861). In the instant case also,
Annexure-A to the impugned circular dated 26.03.2014
(Annexure-F) indicates that children admitted under
RTE Act are exempted from payment of fee. As such the
obligation as enjoined in law is not offended by the
impugned circular.
14. Therefore, the other question is as to whether
there could differential fee fixation between two sets of
15
students in the facts and circumstances of the case or
as to whether it is in violation of Article 14 of the
Constitution of India? The said issue had also arisen
for consideration before the Division Bench of the Delhi
High Court in the case of N.R.Choudhary -vs- Ministry
of Human Resource Development & Ors. [(2003) 103
DLT 389 (DB)] wherein the differential fee structure
between Wards of NTPC employees and Wards of non-
NTPC employees was considered and was held as
hereunder;
“7. From the fact that the Kendriya Vidyalaya
established by the public sector undertakings,
respondent No.1 neither bears the capital cost
incurred for establishing the school nor meets
the annual expenditure for running and
maintaining the school, the decision taken to
allow these schools to charge fee from their
students, to meet the cost of running the
school, cannot be said to be arbitrary or
unreasonable. There is no legal obligation
upon any public sector to impart free
education. As part of its larger social
obligation, if a public sector undertaking
establishes a school, it would be fully entitled
16
to charge fee from the students of the school.
Further, a decision clubbing the students of
the school into two categories i.e., wards of
the NTPC employees and wards of Non-NTPC
employees cannot be said to be arbitrary.
The classification is fair and reasonable and
is based on a valid criteria.”
15. If in the above backdrop, the manner and the
object with which the KV school in the BEML township
was set up, the entire funding being by the third
respondent and there being no absolute right of
admission for non-BEML wards is taken note, the
classification of the two sets of students for fixing the
fee structure will have to be accepted as intelligible
differentia as they are not similarly placed. If that be so,
the different rate of fee fixed for them cannot amount to
discrimination and will not offend Article 14 of the
Constitution of India. Hence, the decision of the Hon'ble
Supreme Court in the case of Subramanian Swamy -
vs- Director, Central Bureau of Investigation and
another [(2014) 8 SCC 682] relied on by the learned
counsel for the petitioner to contend violation of
17
Article 14 of the Constitution of India will not be of any
assistance as it was rendered in a totally different
context. In fact, in the very case the Hon'ble Supreme
Court has observed, whether an enactment providing
certain procedure is discriminatory and violative of
Article 14 of Constitution must be determined in its own
context.
16. Therefore, if all the above aspects are taken
into consideration, the impugned circular dated
26.03.2014 (Annexure-F) does not qualify as being
discriminatory and hence does not offend Article 14 of
the Constitution of India. The second and third
respondents would therefore be entitled to collect
different set of fees from the parents of BEML Wards
and Non-BEML Wards.
17. Despite the same, the next issue that would
arise for consideration is as whether the quantum of
enhancement made from Rs.600/- per month to
Rs.2100/- month is excessive or exorbitant? The
18
learned senior counsel for the respondents would
contend that the Courts will not go into the economics
of the decisions in financial matters. Though such
contention is put forth, in the instant case, the question
arising for consideration is not a business proposition in
that sense in a commercial litigation but is about the
educational avenue of young citizens and as such the
reasonableness of the decision can be considered by
this Court to the extent of ensuring that it is not
arbitrary, unreasonable or whimsical.
18. In that regard, to justify the decision, it is
contended that in order to ensure that the public sector
undertaking does not suffer financial setback it has
been undertaking expenditure management through
economy measures and rationalisation of expenditure.
In that view, it is contended that since huge expenditure
is incurred for the salaries and recurring expenses, the
tuition fee which had not been increased from the year
1982 is revised and the fee fixed is similar to the fee
being charged in other project schools. Even that be the
19
position, on the face of it, the increase if noticed is
about 300%. No doubt, if it is spread over for the entire
period from the date the fee had been fixed for the last
time to the present revision, it may not look to be
unreasonable.
19. However, in my considered view, such
consideration may not be appropriate in a matter of the
present nature, because it is not the same student who
would be enjoying the facilities for the entire duration
when the fee was not revised. Several students of Non-
BEML category would have studied and left but the
students who are presently studying should not bear
the brunt all of a sudden. If the increase is gradual, the
fee as on joining the course and increase thereafter will
be acceptable. The explanation offered that such
amount is required to be collected as the teacher's
salary etc should be met and as such the increase is
imminent will lead to a situation as if the fee collected
from the non-BEML Wards is used for subsidising the
fees of the BEML Wards, thereby it will have to be
20
inferred that the quantum of increase is not reasonable.
In the instant case, whether the students of the other
categories are there or not, the third respondent in any
event is required to run the school for BEML wards and
incur the expenses. When such obligation exists and
they cannot shutdown the school in view of
rationalisation in the company’s expenses, before taking
a decision to indicate the quantum of increase and that
too to one set of students, there were several other
factors which required consideration namely the total
number of students, among them, the ratio between the
BEML and Non-BEML Wards. From out of those
students, who are the ones who have been given the
exemption of fees including under RTE and if all such
categories are accounted for, what would be the final
number of Non-BEML Wards on whom the company is
incurring the expenses and in that light, if the fee is
enhanced, to what extent will it cover the expenses.
20. In that light, an assessment was also required
to find out the financial status of the students who have
21
been admitted under Non-BEML Wards category
because when such steep increase is made, it may even
force some students to leave the school being unable to
afford. On all these aspects, the respondents have not
indicated about such consideration having been made
either before the decision was taken nor has it been
explained in the objection statement except indicating
the rationalisation of the company’s finances. Being a
public sector undertaking and when the increase is
sought to be justified on the ground of expenditure
management of the Company as a whole, the benefit
that the Company will derive by such increase in fee
structure to few students is also an aspect which
required consideration at the hands of the third
respondent.
21. Therefore, on an overall consideration, though
the differential fee structure is not discriminatory and
the circular dated 26.03.2014 (Annexure-F) does not
call for interference on that ground, the quantum of the
increase made in the fee does not justify the reason for
22
which it was done due to lack of application of mind to
the aspects as pointed out above. Hence, in this regard,
it will call for reconsideration by the second and third
respondents. To enable the same, the circular dated
26.03.2014 (Annexure-F) is quashed with liberty to the
second and third respondents to redo the same in
accordance with law.
The petition is disposed of in the above terms with
no order as to costs.
Sd/- JUDGE akc/bms