संवैधानिक अधिकारों के प्रति जनता की जागरूकता की कमी के चलते ही समाज में एक दूसरे के हक़ लूटने का कारोबार चलता है| समाज सेवी संस्था बनाकर स्कूल खोल कर व्यापार करने की साफ़ साफ़ मनाही है| यही नहीं इन विद्यालयों के सञ्चालन की कमिटी में विद्यालय में पढ़ने वाले बच्चो के अभिभावकों का होना भी आवश्यक है| यही नहीं उत्तर प्रदेश में चल रहे सीबीएसई बोर्ड या आईसीएसई बोर्ड से मान्यता वाले शिक्षा संस्थान ये कह कर जनता को बेबकूफ बनाते है की उन पर उत्तर प्रदेश सरकार के शिक्षा विभाग का कोई कानून लागू नहीं होता| मगर हकीकत ये है सीबीएसई बोर्ड, आईसीएसई बोर्ड, बेसिक शिक्षा परिषद् उत्तर प्रदेश और माध्यमिक शिक्षा परिषद् इन सभी को प्रदेश सरकार के कानून का पलान करना आवश्यक है|
सरकार और सविधान ने हर नागरिक को व्यापक और बराबरी के अधिकार दिए है| ऐसी स्थिति में स्कूल जैसी संस्था को देश में कहीं भी शिक्षा का व्यापार करने की अनुमति नहीं है| शिक्षा संस्थानों को खर्चे से ज्यादा किसी भी प्रकार के मुनाफे के लिए बच्चो से शुल्क लेने का अधिकार नहीं वेशक वे सरकार की सहायत के बगैर चल रहे हो|
रोचक बात ये है इन सब के खिलाफ आवाज आज से 5 साल पहले लखनऊ की रहने वाली कक्षा ३ की ७ साल की छात्रा सुरभि ने उठायी थी| सीबीएसई से मान्यता लेकर चल रहे नवयुग रेदीआयंस सीनीयर सेकेंडरी स्कूल लखनऊ में तमाम मनमानी और प्रबंध तंत्र पर धन पैदा करने के लिए छात्रो के उत्पीडन के खिलाफ उच्च नयायालय में न केवल मुकदमा दायर किया बल्कि उसे जीत भी लिया| उसके बाद अदालत ने उस मुकदमे में मिले गंभीर तथ्यों पर गंभीरता से विचार करते हुए राज्य सरकार को तत्काल पूरे प्रदेश में शिक्षा संस्थानों में चल रहे विधि विरुद्ध कृत्यों को दूर करने के लिए आदेशित भी किया|
क्या था वो मुकदमा और क्या हुआ फैसला आप भी देखें-
(ये इलाहाबाद हाई कोर्ट की वेबसाईट से डाउनलोड किया गया है एवं उपलब्ध है|)
eLegalix – Allahabad High Court Judgment Information System (Judgment/Order in Text Format)
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Writ Petition No. 3173 (MS) of 2005
Km. Surya Shukla and others ……………….Petitioners
(Petitioners’ father Shri Udai Shukla appeared in persons)
Versus
State of U.P. and others ……………….Opp. Parties
(Learned Counsel for the opp. parties- Mohd. Arif Khan, Shri Anil Kumar and C.S.C/Shri S.P.Srivastava, learned Additional Chief Standing Counsel).
*********
Hon’ble Devi Prasad Singh,J.
1. Whether change in dress, curriculum or books and demanding advance fees for the closer period, compelling the students to purchase books and dress material from particular shops and Bookstall by the Schools or Colleges and also to compel the students to open Bank account in a specified bank, is justified and whether student can be expelled from an institution without serving prior notice in utter disregard of principle of natural justice, are some of the questions which have been cropped up for adjudication by this court in the present writ petition.
2. Petitioners, who are of tender age, being meted with unruly treatment imparted by the Principal and management of their institution and because of raising of their voice against certain malpractices, have approached this court under Article 226 of the Constitution of India, challenging their ouster from the school in question. The facts and circumstances, brought on record, also shows, how cruelly and in unsystematic manner, the children are treated in some of the schools of the State of U.P in the process of mending of money during the course of study through exploitation by the management while running the schools or colleges. The material and evidence on record also shows that School and Colleges in the State have been indulged into commercial activities to earn maximum income, may be at the cost of extreme hardships to the family of students.
3. Navyug Radiance Senior Secondary School Rajendra Nagar, Lucknow ( in short hereinafter referred as the institution) is a college which has been affiliated with CBSE Board, New Delhi. The College is managed by a society registered under Societies Registration Act. Petitioners Km. Surya Shukla aged about 13 years has been the student of Class VII, Km. Saumya Shukla aged about 9 years has been the student of Class IV and Km. Surbhi Shukla aged about 7 years has been the student of Class II in the institution in question.
4. Shri Udai Shukla, who is natural guardian and father of the petitioners, appeared in person to argue the case that all the three children have got bright academic record and cleared the annual examinations of the Session 2004-05 but they have been expelled from the institution in an arbitrary manner for oblique purpose in violation of principle of natural justice. Their next academic session started from 1st of April, 2005.
5. According to petitioners, on 1st April, 2005 when they have gone to school they were restrained to pursue their further studies. Thereafter, on 2nd April, 2005 on the instruction of Principal of the institution in question, petitioners were stopped to attend the classes and they were compelled to return back from the college gate. Hence, petitioner’s father had lodged a report in the police station Naka, Lucknow. Copy of the report lodged by the petitioner’s father in the police station has been filed as Annexure -4 to the writ petition. On 5th April 2005, a representation was submitted to Joint Director of Education to take appropriate action against the Principal of the institution in question (Annexure-5). The application dated 6th April, 2005 was submitted to Director of Education (Madhyamik) raising grievance against the non-issuance of marksheet and permission to prosecute further studies in higher classes. The Director of Education on 7th April, 2005 had instructed the District Inspector of Schools ( in short hereinafter referred as DIOS) to take appropriate action but DIOS had declined to take any action on the ground that he has got no jurisdiction. Applications were sent by the petitioners’ father to other authorities, as evident from Para 9 of the writ petition, to ventilate his grievance. A notice was also sent on 11.4.2005 to the management of the college by the petitioners’ father. Efforts made by the petitioner at various fronts failed to give any result . The guardian association had also sent the representation dated 7.10.2004 (Annexure 2) to the Assistant Inspector of Angal Bhartiya Vidyalaya, Lucknow pointing out various illegalities committed by the institution in question. According to petitioner the Joint Director of Education had also sent letter dated 28.4.2005 to consider the petitioners’ case for admission in higher classes and to ventilate the grievance, a copy of letter sent by Joint Director of Education dated 28.4.2005 has been filed as Annexure-10 to the writ petition. However, petitioner could not get any favour from the respondents, hence, approach this court under Article 226 of the Constitution of India.
6. According to petitioner’s father, the root cause of annoyance on the part of Principal of the institution in question is that petitioner’s father had raised objection against the selling of books from the premises of institution, change of dress in the mid session and charging of fees for the month of April, May and June, though teaching is done only for few days during these periods. According to petitioner’s father, advance fees should not be charged by the institution for the closer period. In spite of charging fees monthly the institution charges fees in three months advance with late payment. Students are being compelled to open account in a Bank which exists in the residence of management. It has also been submitted that almost every year the books are changed for extraneous reasons and students are compelled to purchase dress and books from the shop identified by the institution. According to petitioners institution charges fees beyond the prescribed limit and also enhance fees from time to time without providing receipts. Employees are engaged on contract basis from time to time for extraneous reasons. The hygienic condition of the institution is very bad and premises is not cleaned up every day. There is no forum comprising the members of management and representative of guardian to sort out the problems. Monthly tests is not held and the committee of management exploits the students on one or other grounds from time to time by compelling them to deposit fees on various counts. Because of poverty when petitioner’s father had raised objection against the malpractices adopted by the management petitioners were expelled from the institution in question. The institution in question is affiliated to CBSE Board. When during the course of argument it was brought into notice of this court allegations raised by petitioners are substantially prevailing in various schools of the State of U.P. then apart from CBSE Board, ICSE Board was also impleaded as party and notices were issued but they had not turned up to assist the court.
7. Though the writ petition has been preferred on account of private dispute arising between the parties but keeping in view the allegations on record and its public importance, in view of law settled by Apex Court in the cases reported in 2003 (7) SCC 546, Guruvayoor Devaswam Managing Committee and another Vs. C.K. Rajan and others; 2006 (4) ADJ 106, Suo Moto Action Vs. I.C.I.C.I. and others; AIR 2003 SC 4531 General Manager, Kishan Sahkari Chini Mills Ltd. Sultanpur, U.P. Vs. Shartughna Nishad; 2005 (5) SCC 598, Ashok Lanka and another Vs. Rishi Dixit and others, this court had directed the DIOS to hold an enquiry relating to State of affairs of the schools in Lucknow and later stage a report was called on from the State Government through its Secretary. In pursuance to order dated 4.08.2005, the DIOS, Lucknow had submitted report after random survey of 16 schools situated in the Lucknow. Reports were submitted by DIOS, Lucknow on 1.08.2006. In pursuance to order dated 23.11.2006, the Secretary Basic Education and Secretary Madhyamic Education Government of U.P. were directed to constitute a Committee and submit a report relating to issue raised by petitioner referred here in above as controversy which is of public importance.
8. In pursuance to order passed by this court, an enquiry committee was constituted by State Government headed by Shri Sarvendra Vikram Bahadur Singh, Joint Director of Education, VIth Division, Lucknow and Shri Vikas Srivastava, DIOS Lucknow, Shri S.P.Dwivedi, DIOS, Kanpur Nagar and Dr. Rajendra Singh, Assistant Inspector of Angal Bhartiya Vidyalaya, U.P. Lucknow as its member. Secretary Government of U.P. had filed their affidavits dated 7.2.2007 and 9.2.2007 along with enquiry report dated 24.11.2006.
9. Shri Vikas Srivastava DIOS in his counter affidavit dated 21st September 2005 had stated that he had made spot inspection and hold an enquiry relating to the allegations raised by the petitioner. It has been stated by DIOS that the Principal of the institution had informed him that petitioners’ father Shri Udai Shukla had misbehaved with the Principal and abuse the teachers and staff. It has also been stated that the Headmistress of the School had tendered resignation. It has been stated by the DIOS, lucknow (in para 15 of the counter affidavit) that petitioners were expelled from the institution in question without any prior notice in violation of Principal of natural justice.
10. DIOS after holding an enquiry had found that temporary book stall was installed in the institution in question by shopkeepers in pursuance to permission granted by Principal of the institution in question. The Principal of the institution had informed the DIOS that though the bookstall was installed but the students were being given option to purchase books from outside the institution. DIOS had also recorded a finding that tenders were invited by the institution in question from the booksellers to open their bookstall within the premises of school. This was done in spite of fact that several shops were available in nearby market of the institution in question.
11. On the basis of explanation given by the Headmistress of the institution it has been stated by the DIOS that books were changed in view of change of curriculum by the CBSE Board.
12. So far as purchase of dress is concerned the guardians of the students were persuaded to purchase dress from the shop namely Kiddy Garden situated in Aminabad, Lucknow. However, change of dress in the mid session has been denied by the institution.
13. During the course of enquiry, it was found by the DIOS that breakup of fees charged from the students is not given in receipts. Students are not informed the reason for charging of fees on various counts. The institution charges fees on the basis of decision taken by the committee of management. It has also been observed by DIOS that since the institution in question does not receive grant in aid from the state government and it is run by its own resources, government can not interfere in such activities.
14. So far as opening of account in Bank is concerned, the DIOS had stated that earlier account were in Punjab Bank and later on it was shifted in UTI Bank thereafter again new account has been opened in Punjab National Bank. Government can not interfere and compel the management to grant concession to students on account of fact that institution in question is private institution does not receive grant in aid. During the course of enquiry, DIOS Lucknow had obtained in writing from some of the students to demonstrate that students were not compelled to purchase dress from particular shop.
15. Petitioners father Shri Udai Shukla had filed an affidavit dated 28.11.2005 and submitted that DIOS had not conducted the enquiry in a fair manner and he was being influenced by Principal and committee of management of the institution in question.
16. In pursuance to order passed by this court DIOS Lucknow had submitted supplementary counter affidavit dated 28.7.2006 and stated that in some other institutions of the city of Lucknow on notice board name of the bookstalls and sample of dress in the form of advertisement was displayed. It has also been submitted by DIOS that the guardian should be informed relating to dress code at the time of admission and assurance should be given that dress shall not be changed in the mid session. While submitting enquiry report prepared in pursuance to order dated 4.8.2005 alongwith affidavit dated 28.7.2006 DIOS Lucknow stated that schools functioning in the city of Lucknow charges fees on various counts like monthly fees, development charges, newspaper fees, magzines fees, Library fees, science fees, sports fees and certain other fees but it has been noticed by DIOS that schools does not provide facilities in terms of fees charged by them. It has also been stated that though sports fees are charged but sports facilities are not being provided in most of the institutions. The break up of fees sometimes not disclosed. Accordingly guardians are not aware as to on what counts fees are being charged by the management of the institution. From the report of DIOS Lucknow, it appears that by opening bookstalls and shops selling dress the management exploit the students, hence, DIOS recommended that guardian should not be compelled to purchase books and dress from the stall open in the institutions.
17. By another order dated 23.11.2006 the Secretary Basic and Secretary Secondary Education were directed to constitute a committee to find out modes and means to check the exploitation of students in the State of U.P. keeping in view the facts and circumstances discussed hereinabove. The committee was constituted and according to report of the committee headed by Joint Director though books were not found to be changed but it was found that students were compelled to purchase dress and books from the specified book shops or stalls. The committee has found that in every academic session the non aided government institutions enhanced the fees on one or other ground. Sometimes fees are charged at the beginning of session for whole of the year and in case students left the college in mid session for any compelling reason then the fees is not returned. The charging of fees at the beginning of session on three or six monthly basis have been found by the committee constituted by state government as a measure of exploitation causing undue hardship over the students. The committee had recommended that in the mid session, colleges should not be permitted to change the books or curriculum. Meeting should be held of parents and school authorities at regular interval. The committee had also recommended that charging of high fees then prescribed should be regulated in appropriate manner and guardian and students should not be compelled to purchase the books and dress from particular shops. Appropriate forum should be created to decide the complaints of guardian and students against the college and management.
18. The committee of management while filing short counter affidavit dated 21.8.2006 had admitted that temporary bookstalls were opened in schools after inviting tender from the businessmen to make it convenient for the parent and students to purchase books within the campus of institutions in question. It has also been stated by the opposite party no. 7 that 10 per cent rebate was given on purchase of books. However, it has been denied that students were compelled to purchase the books. So far as uniform is concerned opposite party no. 7 stated that there are different uniform for summer and winter and on Saturday also students have to wear different uniform. A preliminary objection has been taken by the opposite party no. 7 that writ petition is not maintainable being filed against the private institution which does not receive grant in aid. The institution is affiliated to CBSE Board. It is not the state within meaning of Article 12 of the Constitution of India. Respondent no. 7 relied upon the judgements reported in 1986 UPLBEC 1147, 1991 (9) LCD 530, AIR 1997 Alld. 351, 1998 (1) UPLBEC 370 and 2005 (13) UPLBEC 2187.
19. So far as maintainability of writ petition is concerned, since there is individualised disputed question of fact between the petitioners and the institutions in question, ordinarily this court should not interfere with the present controversy under extraordinary remedy of Article 226 in view of settled law. During the pendency of writ petition, the petitioners were admitted to other institutions and they are pursuing their studies. According to report of DIOS students were expelled from the institution in question without providing opportunity of hearing or show cause notice. It appears that order of expulsion was bad in law. However, since, petitioners have been admitted in other institution hence also it is not necessary to adjudicate the dispute relating to expulsion of petitioners from the institution in question. It shall be open to petitioner to claim damage or other relief by preferring regular suit, in case, they are advised to do so.
20. In a case reported in AIR 1997 SC 993, State of M.P. and others VS. M/s. Vyavsaya & Co. Hon’ble Supreme Court held that power of Article 226 of the Constitution of India is not akin to appellate power. It is supervisory power of High Court normally should not go into or adjudicate the disputed question of fact.
Relevant portion from the judgement of M/s. Vyavsaya & Co(supra) is reproduced as under:-
“15. It has been repeatedly held by this court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the constitution…
18. A perusal of the orders extracted hereinabove show that the learned Single Judge- it appears that almost all the orders are made by the same learned Judge (T.S.Doabia,J.)- has not kept in view any of the norms governing the exercise of writ jurisdiction of the High Court. The relevant facts were seriously disputed before him, each, party alleging that the other has violated the terms and conditions of licence and the rules. The repeated interim orders passed permitting the supply of liquor to the writ petitions, sale of liquor by the writ petitioner under the supervision of the authorities, partial deposits of the amounts with the authorities and release of the balance of the amounts to the writ petitioner, appointment of an advocate commissioner to act a a “conduit” between the State and the writ petitioner and appointing a “commission” comprising of two advocates to look into and decide the daily disputes arising between the parties-are all the outcome of a total disregard of the norms governing the writ jurisdiction. We are surprised that such orders could ever have been passed by the High Court-at any rate, without safeguarding the interests of the State.”
21. However, keeping in view the allegations and material brought on record during the course of hearing by the DIOS Lucknow and State Government relating to exploitation of students in various colleges during admission and prosecution of studies, it shall be appropriate that extra ordinary jurisdiction of Article 226 of the Constitution of India should be exercised to that extent to lay down certain guidelines to check the exploitation of students till government does not legislate law. A mandamus may be issued by this court even to private institutions where fundamental rights are violated and exploitation of citizens is of general character with element of public importance.
22. In a case reported in 1993 (1) SCC 645, Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others, the Constitution Bench of Hon’ble Supreme Court held that education is a fundamental right up to the age of 14 years and it is the solemn duty of State to see that children are treated properly and they are being educated to meet out the challenges of life keeping in view the Article 45 of the Constitution of India.
23. In the case of Unni Krishnan, J.P. (supra), Hon’ble Supreme Court had dealt with the power of this court under Article 226 relating to prerogative writs. It has been held that prerogative writ particularly writ of mandamus may be issued by the High Court under Article 226 of the Constitution of India even against private bodies to enforce fundamental rights as well as non fundamental rights. The educational institutions discharges public duties. Accordingly prerogative writ in the form of mandamus may be issued to check any arbitrariness on their parts.
Relevant portion from the judgement of Unni Krishnan, J.P. (supra) is reproduced as under:
“76. Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the University could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the courses of study. Unless and until they are in accordance with the prescription the University, degrees would not be conferred. The educational institutions prepare the students for the examination conducted by the University. Therefore, they are obliged to follow the syllabi and the courses of the study.
77. As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution is a public duty, that requires duty to act fairly. In such case, it will be subject to Article 14.”
24. The Constitution Bench in the case of Unni Krishnan, J.P. (supra) reiterated the power of Article 226 as held in AIR 1966 SC 81 Dwarkanath Vs. Income Tax Officer by the Hon’ble Supreme Court in the following words:
“The scope of this article has been explained by Subba Rao,J., in Dwarkanath v. ITO:
“This Article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression”nature”, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.’
20. The term ‘authority’ used in Article 226, 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 word ‘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.”
Again Constitution Bench (supra) considered the ambit and scope of Article 12 as under:
“The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty.”
25. Keeping in view the aforementioned proposition of law and material and on record to the effect that young students are exploited in one or other way while charging fees or compelling them to purchase books and dresses at short span of time from specified shops and public interest involved therein, this Court has got ample power to issue writ of mandamus to the authorities to do needful to check such exploitation.
26. It is settled law that right to life, right to live with dignity and right to quality of life are the fundamental rights guaranteed under Article 21 of the Constitution of India vide ; 1994 SCC (L&S) 1321, Hindustan Lever Ltd. Vs. B.N.Dougre and others; 1997 (5) SCC 10, Ashok (DR) Vs. Union of India; 1997 (8) SCC 191, Samatha Vs. State of Andhra Pradesh; 1997 (9) SCC 377, Air India Statutory Corporation Vs. United Labour; 1999 (3) SCC 601, Secretary H.S.F.B. Vs. Suresh and others; 2003 (6) SCC 469, State of West Bengal and others Vs. Pantha Chatterji; 2003 (6) SCC1, Kapila Hingorani Vs. State of Bihar; (1998) UPLBEC 2125, Prayag Narain and others Vs. State of U.P.; AIR 1991 SC 537, Km. Shri Lekha Vidyarthi Vs. State of U.P.
The swift change of dress or compelling the students to purchase books and dresses from particular shop or non-disclosure of break up of fees charged by them resulted into financial loss to the students and also causes undue hardship. Accordingly, irregularities and arbitrariness noticed by the D.I.O.S. and State Level Committee affects the quality and dignity of the students guaranteed under Article 21 of the Constitution of India, hence prerogative writ in the nature of mandamus may be issued by this Court and writ petition is maintainable to that extent.
27. So far as cases relied upon by the opposite party no. 7 is concerned, in view of Constitution Bench Judgement in the case of Unni Krishnan, J.P.(supra) followed by T.M.A. Pai (2002) 8 SCC 481 , they do not create any hurdle in the way of this Court to exercise extra ordinary jurisdiction to solve the present controversy and discharge its constitutional obligations.
28. Educational institution cannot be termed as business. Nor can they be called trade and equally it is not a profession. Though it can be said that teaching is the profession but establishment of educational institution certainly is not a profession. It is fall within the category of occupation with the element of charitable activities to serve the society as a whole.
Hon’ble Supreme Court in a case reported in AIR 2002 S.C. 3176, Ms. Aruna Roy and others Versus Union of India and others, ruled that expressions used in the Constitution have no fixed meaning and must receive interpretation based on experience of the people in the course of working of the Constitution, to quote;
“Constitution is a permanent document framed by the people through their chosen of learned representatives for regulating their social and political life in free India. The Constitution has been accepted by the people who govern them for all times to come. The basic structure of the Constitution is unchangeable and only such amendments to the constitutions are allowed which do not affect its basic structure and robe it of its essential character. The constitution was framed by its makers keeping in view the situations and conditions prevailing at a time of its making; but being a permanent document, it has been conceived in a manner so as to apply to situations and conditions which might arise in future. The words and expressions used in the constitution, in that sense, have no fixed meaning and must receive interpretation based on experience of the people in the course of working of the constitution.”
Their Lordship’s of Apex Court with approval had cited, what Chief Justice holds as said as a guiding spirit to interpret Constitution, to reproduce :-
“The immortal words of the Chief Justice- Holmes, should guide us in interpreting words and expressions used in our constitution. He said, “spirit of law is not logic but it has been experience”. His words apply with greater force to constitutional law.”
29. Special Bench (consisting 11 judges) of Hon’ble Supreme Court in T.M.A.Pai Foundation and others Vs. State of Karnataka and others reported in (2002) 8 SCC 481 held that private unaided educational institutions imparting education have got right to manage their affairs in accordance to their choice. A statutory authority should not impose any terms and conditions which may effect their internal management. However, Hon’ble Supreme Court further held that the management of private educational institutions should be for charitable purpose and subject to public order, morality and health.
For convenience relevant portion from the judgement of T.M.A.Pai Foundation (supra) is reproduced as under:-
“The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious denominations or sections thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30 (1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase “private educational institution” as used in this judgement would include not only those educational institutions set up by secular persons or bodies, but also educational institutions set up by religious denominations: the word “private” is used in contradistinction to government institutions.
30. The ratio of T.M.A. Pai’s case (supra) was affirmed by the Apex Court in a case reported in AIR 2003 SC 3724, Islamic Academy of Education and another Vs. State of Karnataka and others. The right of unaided colleges to manage their affairs with maximum autonomy subject to statutory limitations have been affirmed by Apex Court in the case of Islamic Academy (supra). However, while doing so the educational institutions can not act in arbitrary manner on their whims and fancies. They have to act reasonably in a just and fair manner.
For convenience relevant portion from the judgement of Islamic Academy (supra) is reproduced as under:-
“74. Since the object of setting up of an educational institution is charitable in nature, capitation fee and profiteering cannot be allowed to be indulged in :
a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions.
b) for admission in a professional institutions, merit must play an important role and meritorious candidates should not be treated unfairly or put at a disadvantage by preferences shown to less meritorious but more influential applicants.
76. Educational institutions, however, cannot grant admission on their whims and fancies and must follow some identifiable or reasonable methodology of admitting the students. Any scheme, rule or regulation that does not give an institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects some students, such rejection must not be whimsical or for extraneous reasons.”
31. Hon’ble Supreme Court referred the Universal Declaration of Human Rights 1948 and Article 3 of the “Convention Against the Discrimination in Education” and along with individual to lead life with dignity in the following words; to quote:-
“200. The Universal Declaration of Human Rights, 1948 provides for 27 rights. Right of Education is also one of the human rights. Article 26 reads thus:
“(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedom. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
Parents have a prior right to choose the kind of education that shall be given to their children.”
201. Article 3 of Convention Against Discrimination in Education(1960) reads thus
” Article 3 undertakes “to ensure, by legislation, where necessary, that there is no discrimination in the admission of pupils to educational institutions; not to allow any difference of treatment by the public authorities between nationals, except on the basis of merit or need, in the matter of school fees and the grant of scholarships, to give foreign nationals resident with their territory the same access to education as that given to their own nationals.”
202. Apart from the aforementioned rights, right to Development is also a human right.”Development” connotes an on-going process. An economic prosperity or elimination of poverty is not the only goal to be achieved but along with allows individuals to lead a life with dignity with a view to participate in the Government process so as to enable them to preserve their identity and culture.”
32. While interpreting as to what may be proper education Nani Palkiwala has been quoted with approval Apex Court in a case reported in 2003 (6) SCC1, Kapila Hingorani Vs. State of Bihar, relevant portion from the judgement of Islamic Academy (supra) is reproduced as under:-
“209. “Proper education”, Nani Palkhiwala said, ” should lead to civilization.” Recently, in Kapila Hingorani Vs. State of Bihar (JT 2003 (5) SC 1], a Bench of this Court noticed that following observations of Field,J. in Munn V. Illinois [(1877) 94 US 113] as to what is “Life” which was in the following terms:
“[S]something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.”
Therein it was notices:
“The right to development in the developing countries is itself a human right. The same has been made a part of WTO and GATT. In “The World Trade Organization, Law, Practice, and Policy (Oxford) by Matsushita Schoenbaum and Mauroidis at page 389, it is stated:
“The United Nations has proclaimed the existence of a human right to development. This right refers not only to economic growth but also to human welfare, including health, education, employment, social security, and a wide-range of other human needs. This human right to development is vaguely defined as a so-called third-generation human right that cannot be implemented in the same way as civil and political human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of States and inter-Governmental Organizations to work within the scope of their authority to combat poverty and misery in disadvantage countries.”
33. According to Mahatma Gandhi, civilization does not mean only to achieve something for bodily comfort. Instead of bodily comfort civilization co-relate to generate the sense of duty in the coming generation. It co-relate with the good conduct of a person and sense of duty towards nations and society. In the words of Mahatma Gandhi, to quote:-
“Civilization is that mode of conduct which points out to man the path of duty. Performance of duty and observance of morality are convertible terms. To observe morality is to attain mastery over our mind and out passions. So doing, we know ourselves. The Gujarati equivalent for civilization means “good conduct”.[ Page 125, THE SELECTED WORKS OF MAHATMA GANDHI VOL. (III) THE BASIC WORKS]
34. Not only the atmosphere and condition of an educational institution but conduct and character of the teachers, members of managing body of an institutions also play important role to develop young minds, morality with sense of duty towards society and country, to quote Mahatma Gandhi again:-
“Man is neither mere intellect, nor the gross animal body, nor the heart or soul alone. A proper and harmonious combination of all the three is required for the making of the whole man and constitutes the true economics of education…” [Page 434, THE SELECTED WORKS OF MAHATMA GANDHI, VOL. (V) THE BASIC WORKS]
35. The movement of society at large to right way decide the fate of nation. The educational institutions, universities and charitable organisations play pivotal role to create a civilized State where everyone gets equal treatment not only from the State but by each other in their life. A great Indian Scholar, Nobel price winner and nationalist Shri Rabindranath Tagore once said, to quote:-
“The ideals that strive to take form in social institutions have two objects. One is to regulate our passions and appetites for the harmonious development of man, and the other is to help him to cultivate disinterested love for his fellow-creatures. Therefore society is the expression of those moral and spiritual aspirations of man which belong to his higher nature.”[Rabindranath Tagore, Nationalism, page 117]
36. In view of above, the purpose of educational institution is to produce coming generations who feel their sense of responsibilities to serve not only their families but the society and nation at large. The educational institution should function in such atmosphere so that coming generation while opening their eyes in society at the time of joining of school or college does not feel the pulse of hatred and ill-treatment. Educational institution must impart education in such a manner so that young students may over come their ill thoughts and be full of knowledge as well as love and affection for the fellow citizens.
Dr. S. Radhakrishnan, the former President of the India and great philosopher of this country while considering the meaning of real education once said, to quote:-
“It is, therefore, essential that we should try to find out what real education means. It is discrimination, it is the adoption of the right. Everyone has under the surface a streak of violence, a streak which makes him revolt, which makes him rabid, which makes him slay and murder, that streak is there. But you must try to overcome that. The beast in you will have to be overcome if you wish to call yourself a truly educated man. It is there, all the time, pointing out to us that we have a side of our nature which threatens to make us do things of which we will be ashamed in a cooler hour. You have to put yourself in proper form, so that wisdom may dominate, justice and truth might prevail and not injustice and violence.” [Dr. S.Radhakrishnan, Search for Truth page 120]
37. In view of above, in case any educational institution indulge into commercial activities or run the educational institution only with an aim to achieve profit and the management of the educational institutions do anything which may give impression to the young generation that sole aim of the life is to “eat drink and be marry” then we will not get a generation which will carry on the country to right directions. Commercialisation of educational institution or any action of the educational institution which may indicate the indulgence in commercial activities should not be permitted.
38. Shri Rabindra Nath Tagore great laureate had deprecated the commercialism in public life. According to Shri Rabindra Nath Tagore the commercialism shall develop a cult of self-seeking exult, to quote:-
“The commercialism with its barbarity of ugly decorations is a terrible menace to all humanity, because it is setting up the ideal of power over that of perfection. It is making the cult of self-seeking exult in its naked shamelessness. Our nerves are more delicate than our muscles. Things that are the most precious in us are helpless as babes when we take i away from them the careful protection which they claim from us for their very preciousness. Therefore, when the callous rudeness or power runs amuck in the broadway of humanity it scares away by its grossness the ideals which we have cherished with the martyrdom of centuries.[Rabindranath Tagore, Nationalism page 126]”
39. Because of non commercial activities in the educational institution great statesmen were born who fought for country to achieve independent. By commercialize educational system the country will not get men of high dignity, knowledge with sense of responsibility to society and nation rather such persons will be produced who shall concern with their own progress with wealth and prosperity at the cost of national interest.
40. Though the educational institution have got right to manage their own affairs as settled by Apex court in T.M.A. Pai (supra) and Islamic Academy (supra) but any action on the part of Principal or management of an unaided private institutions which may affect the fundamental right of the citizens or students is not permissible and forbidden by our constitutional scheme. Society established under Societies Registration Act for charitable purpose like establishment of educational institution have no right to indulge into commercial activities or profit making process.
41. Swift change of dress or curriculum at short span of time creates undue financial hardship to the guardians particularly the poor and downtrodden class of a society. Such incidents shatter the budget of lower class family. In this competitive era, it should be open for the students and their guardian to purchase books or dresses from the shops of their choice. There should not be compulsion either directly or indirectly to purchase the books and dresses from the particular shop. It should always be made open to the students to open Bank account in a Bank of their choice.
42. Books or curriculum should not be changed at short span of time as it imposes additional burden on the family budget of lower strata of the society. While issuing fees receipts, it should always be mandatory for the management of aided and non-aided institution to disclose the breakup of fees charged on various counts in the fees receipts. Students should not be compelled to deposit any fees without issuing fees receipts. The incident of charging of fees without disclosing the breakup of fees or without issuing a receipt, ordinarily may be treated as mode of exploitation for extraneous reasons or ulterior motive.
Keeping in view the present scenario of the society where corruption, casteism and materialism are increasing day by day State should take remedial measure by legislating law to stop the exploitation of students in the educational institutions whether they are recognised or not recognised. Similarly, charging of advance fees for three months, six months or whole of the year also seems to be an act which affect the financial budget of the families belonging to lower strata of the society. For the sake of better education peoples do everything to meet out the requirement of the educational institutions. Such practices should be prohibited by legislating law and students should be permitted to deposit fees each and every month. In case, a college is closed for more than a month then fees should not be charged for non-working period.
43. Since, charging of excess fees, change of dress at short span, charging of advance fees of three months, six months or of entire year, extend undue hardship to the poor class of the society, such action affects the quality of life of the citizens, hence, violative of Article 21 of the Constitution of India. State has got right to legislate law to stop exploitation of students by the institutions whether they are receiving grant in aid or not or whether they have been recognised by U.P. Board or by a Board situated outside the State. It is the constitutional obligation of the State Government to preserve and protect the fundamental rights of the citizens. Accordingly, in case any educational institution, even if, recognised by a body of outside the state, functions in such a manner which affects the fundamental rights of the students, guardians or citizens then State has got power to stop such activities by legislating law. To check exploitation of students, it shall be appropriate that every institution running in the State of U.P. must constitute a body comprising representative of guardians of the students, representatives of the teachers, Principal and the management to sort out the problems, to ventilate grievance raised by the students or their guardians. Under U.P. Intermediate Education Act in Chapter 5 rules have been framed namely “Abhivavak Adhyapak Association Viniyamavali, 1986” ( in short hereinafter referred as Regulation) but said regulation is applicable only to an institutions recognised by U.P. Board. However, on similar basis government has got power to legislate law to sort out such problems.
44. It is settled law that hygienic, clean and safe environment is the fundamental right guaranteed under Article 226 of the Constitution of India vide 2007 (2) SCC 413, Milk Man Colony Vikas Samiti Vs. State of Rajasthan and other cases. Accordingly, it shall be duty of every institution whether it is recognised by U.P. Board or a Board situated outside the State of U.P. to maintain the college premises in hygienic condition and provide clean and safe environment to the students. Chief Medical Officer of the district and other state authorities of the government must take appropriate recourse to ensure that students of all the institutions of the State of U.P. whether primary, high schools or intermediate must be given hygienic, clean and safe environment. Every institution must appoint sweepers in sufficient number to meet out the requirements.
45. Keeping in view the fact that at present there is no statutory body to ventilate the grievance of students or their guardians, it shall be appropriate that State Government may be directed to constitute District Level Committee to look into the allegations raised by students or their guardians relating to unfair activities of the educational institutions and if necessary, the State authorities may proceed to lodge criminal case or adopt other recourse of law to stop such malpractices.
46. By constitutional amendment Parliament had added Article 39 (f) in the Constitution and has been made operative w.e.f. 3.1.1977 providing that State shall endeavour to provide facilities to the children for their development in healthy manner and shall protect them from exploitation and against moral and material abandonment. For convenience Article 39(f) is reproduced as under:-
“39(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”
47. Thus apart from fundamental right of life, right to quality of life and right to live with dignity, State is also duty bound to protect the exploitation of children in any form like charging of excess fees, imparting education in a unhygienic condition, causing mental pain and agony because of change of dress or books at short span of time.
48. From the material on record, it appears that petitioners were expelled from the institution in question without serving a show cause notice or informing them the reason for expulsion from the institution in question. It is the consistent view of Apex Court that any order passed by an authority or person effecting the civil rights of a citizen or fundamental right in any other form must fulfil the requirement of Article 14 of the Constitution of India. In case, the management of institution, whether it is recognised or not, wants to rusticate or expel the students, a show cause notice must be served with precise statement of charges and only after receipt of reply and if necessary, after providing opportunity of hearing, the students may be expelled vide; AIR 1970 SC 1255, State of Assam Vs. Mahendra Kumar Das; 1990 (4) SCC 464, U.P. State Road Transport Corporation Vs. Muniruddin; and 1992 UPLBEC (1) 642, Mohd. Rauf-ul-Azam Vs. Vice Chancellor, Aligarh University Aligarh and others.
49. Needless to say that principle of natural justice is the heartbeat of Article 14 of the Constitution of India. Whether it is State authorities or private authorities involved in discharging of public duties they have to act in just and fair manner. Even if, there is no provision in the act or statute, in case, any action is taken against an individual, which affects the right of an individual, then reasonable opportunity must be provided. Hon’ble Supreme Court in a case reported in AIR 1978 SC 597, Smt. Maneka Gandhi Vs. Union of India and another held as under:-
“It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa Vs. Dr. (Miss) Binapani Dei (AIR 1967 SC 1269 at p. 1271)………”
The aforementioned principle has been reiterated by Hon’ble Supreme Court in the cases reported in AIR 1991 SC 101, Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and 1995 (5) SCC 482, LIC of India and another Vs. Consumer Education & Research Centres and others.
50. Just and fair treatment is not expected only from the state authorities but also from private bodies. In case, any decision is taken by a person involved in public duties in an unjust and unfair manner or in violation of principle of natural justice, such action can be challenged not only by preferring a prerogative writ under Article 226 of the Constitution of India but also by filing the regular suit in a court of competent jurisdiction. In case, writ petition is not maintainable then such plea can be taken in a regular suit to assail an order affecting civil rights of the aggrieved person.
51. It is settled law that in the absence of any statute, rules or regulations, while exercising extraordinary jurisdiction, this court has got jurisdiction to issue appropriate order or directions to protect the fundamental rights of the citizens to fulfil immediate requirement. Accordingly, till State Government does not legislate law to protect the rights of students of aided or non-aided institutions or the institutions which have been recognised by boards situated outside the State of U.P. like CBSE Board, ICSE Board State should proceed as under:-
(a) In every district of the State an “Educational Dispute Redressal Committee” should be constituted headed by an Additional District Magistrate nominated by District Magistrate of the District concerned. The District Inspector of Schools or Basic Shiksha Adhikari as the case may be and a Principal of a recognised intermediate college preferably Government Intermediate College nominated by District Magistrate shall be the members of Committee. The committee shall entertain complaints of students and their guardians to ventilate their grievance. It shall be open to the Government to increase the number of members of the committee by adding one or two more persons to meet out the requirement, if necessary. Government may chalk out modalities accordingly.
(b) The selling of books or dress material from the institutions of the State of U.P. should be stopped forthwith, whether they are recognized by U.P. Board or they are recognised by any other Board like ICSE or CBSE. Students should not be compelled directly or indirectly to purchase the books or dress from the shops notified by the committee of management or Principal of an institutions.
(c) All schools and colleges of State of U.P. should be restrained to change dress at short span of time. Dresses should not be changed before expiry of five years, from the date when they were for the first time prescribed by the respective educational institutions. In case management or the institutions decide to change the dress after lapse of five years then information should be communicated one year prior to the old students or their guardians in writing. The books and curriculum should not be changed by the institutions concerned at their end unless it is changed by the Board or the Body which has recognised them.
(d) The change of books, curriculum or dress should be communicated to Educational Dispute Redressal Committee in advance constituted in pursuance to present judgement.
(e) No fees should be charged from the students for the continuous closure period of colleges, in case, the college or institution is closed for more than a month. Students should not be compelled to pay fees in advance for whole of the year or six months or three months. It should be made open to the students to deposit fees on monthly basis.
(f) Students should not be compelled to deposit fees without receipts. Every receipt must contain the breakup of fees charged by the institutions in clear words. Students should not be compelled to open bank account in a bank specified by educational institution.
(g) Students shall not be directed to deposit any fees or contribution under whatsoever name it may be called unless it has been provided in the prospectus and charged for genuine reasons, with due communication to Educational Dispute Redressal Committee of the District. Institution shall issue receipts for every amount charged by them.
(h) It shall be duty of every school, institutions or college imparting education to provide hygienic, clean and safe environment in their institution. It shall be open to the officers of health department to visit each and every school whether recognised or not recognised to make inspection and in case condition of the school premises is not up to mark then officers of the health department may issue appropriate order or direction to take necessary step to provide hygienic, clean and safe environment to the students.
(i) No students may be expelled from any institutions in violation of principle of natural justice. It shall be appropriate that in case students are expelled then the Principal or committee of management as the case may be must serve a show cause notice containing the precise detail of allegations and also if necessary provide opportunity of hearing and only thereafter order of expulsion may be passed.
(j) In case, in spite of direction/instruction issued by Committee the educational institution does not enforce the order of this court or they do not correct themselves or they continue with the irregularities in violation of direction issued, the District Level Committee, if necessary, may take steps to close the institution after serving show cause notice may be by using of force.
52. I wish to quote what Oliver Wendell Holmes once said, to quote:-
“The life of the law has not been logic: it has been experience….The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if if contained only the axioms and corrollaries of a book of mathematics.”[A Dictionary of Legal Quotations by Simon James and Chantal Stebbings]
53. The day to day experience of problems and suffering in a society creates new field for the judiciary as well as government to lay down or legislate laws to meet the needs of the society. That is why it has consistently been held that constitution is a living organism and it should be interpreted afresh to meet the needs of society and to achieve the “Nehru’s tryst with destiny”. It is the duty of State to preserve and protect the fundamental rights of the citizen within its territory. The action of the educational institutions which affects the fundamental rights of the citizen or in case students are exploited for any reason whatsoever the government should not be moot spectator. It is the common citizens and persons belonging to lower strata of society who are majority in number in our country and who are adversely affected and not the hierups, because of change of dress, books or charging of advance fees of entire year or directing the students to deposit funds for a purpose which is extraneous to the normal course of admission and studying in the educational institution. Such action on the part of educational institutions affect the quality of life of the citizens. The test to decide is as to whether an act amount to exploitation is as to what a man of common prudence shall think over the act of an institution in question.
54. As held hereinabove, since exploitation of petitioner from the institutions in question involves disputed question of fact and because of rival submission made by the parties, it may not be adjudicated under extraordinary remedy of Article 226 of the Constitution of India. Petitioner has got alternative remedy to file a regular suit in a court of competent jurisdiction to ventilate their grievance against the expulsion as well as if necessary, may claim damages. Moreover, since, petitioners have already been admitted in other institution during the pendency of writ petition, hence, also they may very well, if advised, approach the competent court in a regular suit to ventilate their grievance.
55. For other problems emerges during the course of hearing relating to exploitation of students in the colleges in various way in the institutions not receiving grant in aid or even by institutions in case they are receiving grant in aid it shall be appropriate that State Government may legislate appropriate law to meet out the requirement. For the period the State Government does not make any statutory provisions to check the exploitation of the students studying in primary school, junior high school or intermediate colleges, the State of U.P. must issue a direction in the light of observation made by this court in the judgement particularly para (51) forthwith. While issuing the direction or circular, State Government may without changing the basic direction contained in the present judgement may make appropriate addition to meet out the requirement.
56. In view of above, writ petition is allowed in part. A writ in the nature of mandamus is issued commanding the State of U.P. to take necessary steps in the light of present judgment for the creation of Educational Dispute Redressal Committee in every district of the State and every institutions whether aided or non aided may be commanded to constitute a body consisting of guardians, teachers and member of management in the light of present judgement.
State Government shall chalk out appropriate modalities and development infrastructure in the light of present judgement forthwith.
Chief Secretary, Government of U.P. is directed to issue appropriate order or direction keeping in view the observation made in the present judgement expeditiously and preferably within a period of six weeks from the date of receipt of certified copy of this judgement and file his personal affidavit alongwith compliance report by the next date of listing. State Government shall propagate widely through media including publication in newspapers relating to constitution of Educational Dispute Redressal Committee in every District so that peoples may approach to ventilate their grievance, if any.
Registry shall list the present case again on 25th of May, 2007 for monitoring of compliance report.
Office shall send the copy of present judgement to the Chief Secretary, Government of U.P. within three days.
Subject to above directions, writ petition is allowed in part. No order as to costs.
(Justice Devi Prasad Singh)
4th April, 2007
Madhu/
