M.H.S. Ansari, J.
1. The instant writ application has been assigned to be heard by this Court by an order passed by His Lordship the Chief Justice dated 1.2.2000.
2. The Guardians Council of Sri Auroblndo Institute of Education, a registered body of Association of Guardians of the students of the said Institution registered under the West Bengal Societies Registration Act, 1961 and its General Secretary are the petitioners 1 and 2 herein.
3. The petitioners have questioned the circular dated 26.7.1999 whereby the Institute in question has enhanced the tuition fees from 1st September, 1999. The following scheduled of tuition fees for various classes have been made effective from 1st September, 1999 by the Impugned circular.
'ClassPresent rate of Tuition Fee.Tuition Fee enhanced byEffective Tuition FeeSept. 1999
(i) Nursery to KGRs. 185/-Rs. 80/-Rs. 265/-(ii) I to VRs. 185/-Rs. 90/-Rs. 275/-(iii) VI to VIIIRs. 185/-Rs. 125/-Rs. 310/-(iv) IX and XRs. 185/-Rs. 130/-Rs. 315/-(v) XI and XIIRs. 255/-Rs. 130/-Rs. 385/-'
4. According to the petitioners, the said enhancement of tuition fees as is purported to be done by the circular dated 26.7.1999 is whimsical, capricious and of dubious and duplicitous conduct, complete burying into oblivion that in April, 1999 an enhancement of development fees had already taken place behind the back of guardian council. The instant exercise is an autocratic, dictatorial and malafide throwing to the winds the cardinal principles of natural Justice. It has been submitted that the guardian councils had made repeatedly umpteen number of representations to sit for discussions or deliberations but due to bureaucratic arrogance and in a cavalier fashion the institute has sought to scuttle and/or whittle down the voice of the guardians council by not sitting in any discussion or deliberations and also not disclosing or divulging the financial position of the Institute. The institute it has been submitted, takes Rs. 2,500/-for the purpose of admission of a student which is not refundable and in addition to the admission fees and tuition fees apart from a sum of Rs. 250/- towards development fees of the Institute. There is no warrant for enhancement of the tuition fees, it was submitted.
5. It is also submitted that the petitioners council has been called by the governing body of the Institution on various occasions in the past andhave taken the views and suggestions of the guardians council in the matter of the administration of the institution in question. There existed a healthy atmosphere and the guardians council, petitioner herein, had played a vital and prominent role in all the discussions and deliberations. However, the matter of enhancement of tuition fees by the Impugned circular, the guardians council has not been consulted. The Impugned action Js, therefore, violative of principles of natural justice, it is submitted.
6. The respondent institution is affiliated to Indian School Certificate Examination Council (1CSE) and, therefore, comes within the periphery of the Delhi School Education Act, 1973 and/or Delhi Education Rules, 1973. It is submitted that the respondent institute is required to comply with and/ or all actions taken by the school authority and/or its governing body are confined itself to the administration of the school vis-a-vis its students in accordance with the provisions as contained in the said Delhi Education Act, 1973 and/or the rules framed thereunder, which, unfortunately, respondent institute, it has been submitted, had failed to do.
7. The further submission is that the school authority had violated the memorandum dated 10.4.87 whereby the Slate had granted its 'no objection' and based whereupon the institute in question was accorded affiliation with ICSE. Therein, it had been stipulated that the school will not enhance the fees from the students without prior approval of the State Government.
8. Mr. P.K- Guha, learned counsel for the petitioners has reiterated the above submissions before Court and relied upon the Judgment of the Delhi High Court in Delhi Abibhavak Mahasangh v. Union of India & Ors., reported in AIR 1999 Delhi 124, and in the case of N.K. Chakrabarty, IAS (Retd), President, Executive Committee & Ors. v. The Councillor the Indian School Certificate Examination & Ors., reported in 1999(1) CLT 42.
9. In the affidavit-in-opposition affirmed by the Principal, an objection as to the maintainability of the writ petition has been raised. It has been stated that the Institute is affiliated to the Council for Indian School Certificate Examination and has been granted temporary affiliation. The permanent affiliation could not be given to the school unless it fulfils all the conditions prescribed by the said council. An inspection was made of the respondent Institute on 22nd September, 1998 and in terms of the said Inspection, the school has been informed that unless the salaries of the teaching and non-teaching staff of the school are revised and making it on par with that of the teaching and non-teaching staff of the Government aided school in the State, it would be possible for them to grant permanent affiliation in favour of the school. The council in its letter dated 20.1.99 have warned the school that 'unless and until pay structure is revised, the council would not consider the case for permanent affiliation. 'The school was not in a position to pay 100% D.A. which the other schools were giving. An agitation was started against the governing body which was also supported by the writ petitioners. 75% of the D.A. was granted, the same was thereafter enhanced to 90% but tuition fees were not correspondingly increased by the school authorities. The governing body of the school appointed a Committee to review mobilisation of funds to meet additional financial burden necessary for the purpose of payment of higher pay scalesto the teaching and non-teaching staff. The said Committee was headed by Professor Alok Ghosh who was the Head of the Department of Economics, University of Calcutta and an eminent Economist. Based on the recommendation of the said Committee, the governing body of the institution accepted the said recommendations and enhanced the tuition fees as recommended by the said Committee. The recommendation of the said Committee on restructuring of pay for employees of Sri Aurobindo Institute of Education is in the following terms;
'The total amount of additional fund to be mobilisation for enhancement of proposed tuition fees comes to as follows;
ClassesNo. of Student.Amount.
Pre Primary263 x Rs. 80/-Rs. 21040/-Primary/ I to V467 x Rs. 90/-Rs. 42030/-VI to VIII432 x Rs. 125/-Rs. 54000/-IX to XII280 x Rs. 130/-Rs. 36400/-
It is stated that in the Impugned circular dated 26,7.99 the tuition fees have been accordingly enhanced in terms of the recommendation of the said Committee.
10. It is stated that the respondent institute is a privately managed institute and is not getting any aid from the Government nor even D.A. from the State Government. It is further stated that while granting no objection certification, the State has imposed a conditions that the school will not get any D.A. or assistance from the State Government.
11. It has been asserted in the affidavit-in-opposition that no part of the receipts of the said school taken as tuition fees goes to any other fund. Annexure 'D' to the affidavit-in-opposition is a comparative chart showing the tuition fees charged by some of the schools affiliated under the Indian School Certificate Examination. There are two categories of such schools in the State of West Bengal. First category is those gelling D.A. from the State Government and the second category being those who are not getting any D.A. from the State.
12. In the Government D.A. getting schools, category number one, the fees are ranging between Rs. 300/- to Rs. 700/- per month.
13. In category number two i.e. Non-Government D.A. getting schools, the fees are ranging between Rs. 350/- to Rs. 650/- per month.
14. In comparison, it is submitted that the fees Including the enhanced tuition fees are ranging between Rs. 250/- to Rs. 385/- with respect to different classes as extracted supra. The fees Including the enhancement thereof is neither exorbitant nor whimsical nor arbitrary, it was submitted.
15. The question of maintainability of the writ petition requires to be disposed of at the outset. The Division Bench of this High Court in its judgment in N. K. Chakrabarty's case, cited supra, observed as a under;
'..... The test of the pervasive control by the Government is not applicable to a case where the Court is concerned with examining theissue about an authority exercising such duties and functions as would amount to public service or utility duties, and if the Court comes to a finding that the authority in fact is engaged in such duties and functions it should not hesitate in holding that the authority would be amenable to the writ Jurisdiction of the High Court in terms of Article 226 of the Constitution of India. This is more so when the exercise of public duty and the discharge of responsibility in the nature of public utility services are directly linked to the imparting of education to children which has been held and declared to be a fundamental right, subject to the limitations imposed upon it by the Supreme Court. We are fortified in our view by two Judgments of the Supreme Court-one in the case of Unnikrishnan JP v. The State of Andhra. Pradesh & Ors., reported in : 1SCR594 and the other in the case of K. Krishnamacharyulu & Ors. v. Sri Kenkateswara Hindu College of Engineering & Anr., reported in AIR 1993 SC 295..... '
16. Though in that case, the Division Bench was considering the maintainability of the writ petition against the council for Indian School Certificate Examination, the ratio laid down therein on analogy would be applicable to the respondent school authorities which are discharging a public utility services directly linked to the imparting of education to the children and, therefore, it must be held that the writ petition is maintainable.
17. The respondent Institution has noticed supra is not one such Institution which has been either recognised by the West Bengal Board of Secondary Education nor is it getting any financial assistance from the State in any form. By virtue of a no objection certificate issued by the Joint Secretary (At pg. 65 of A/R) of the State of West Bengal, the school was granted temporary affiliation to the Council for ICSE. None of the rules and regulations applicable to the secondary schools recognised by the West Bengal Board of Secondary Education are applicable to the respondent school. There is no statutory provision at least none has been placed before the Court which Interdict the enhancement of fees By such school as the respondent institution.
18. A Division Bench of this High Court to which I was a Member has considered a similar challenge to the enhancement of tuition fees in the case of The Principal, Jutten Day School & Ors. v. Shri Arun Kumar Mozumdar & Ors., reported in 2000(1) CHN 225. In paragraph 19 of the said judgment, it has been held as under;
'Unfortunately, no such statute or executive Instructions having the force of law, operates in the field in the State of West Bengal. In absence of such statute it, in our considered opinion, is difficult to conceive as to how the writ Court in exercise of its Jurisdiction under Article 226 of the Constitution of India can interfere with the mater particularly when it is evident that the fee structure depends upon the facilities which are made available to the students. If the students Intend to have better facilities and amenities, they may have to bear higher financial burden.'
19. The enhancement of tuition fees in the Instant case cannot be said to be either arbitrary or capricious. This is for the reason that thecomparative chart of fees for similar institutions disclosed that the fees chart by the respondent Institute by its impugned circular is neither exorbitant nor arbitrary. Many of the similar institutions in the State are charging fees higher than those prescribed by the impugned circular.
20. The Division Bench has considered the ratio of the Judgment of the Delhi High Court in the case of Delhi Abibhavak Mahasangh's case, cited supra, and distinguished the same on the ground that the provisions of the Delhi School Education Act, 1973 do not impose any restriction on charging of any fees by unaided Institution. It was further observed therein as under;
'.....Thus, the Stage in a given case, may regulate the functions of all the schools including minority institution except to the extent protected under Article 30 of the Constitution of India by enacting a statute. The Delhi Abibhavak Mahasangh's case (supra), must, therefore, be considered in the light of the statute governing the field.'
21. Mr. Guha, learned counsel for the petitioner contended that as the school is affiliated to ICSE the provisions of the Delhi Act, 1973 and the rules made thereunder are applicable has, therefore, to be rejected, That apart, the Delhi Act, 1973 can have no extra territorial application over schools in the Slate of West Bengal nor on that ground can it be said that the schools established in the West Bengal would be governed by the said Delhi Act, 1973.
22. The respondent Institution have set out the reasons for enhancement of their tuition fees, the manner in which the governing body constituted a Finance Committee, the reasons for constitution of the same viz., to comply with the conditions of affiliation for payment of salaries to the teaching and non-teaching staff on par with the Government aided institutions. The recommendation of the Finance Committee have been given effect to by the governing body by its impugned circular. The enhancement effected by the Impugned circular is thus at the same rate as recommended by the Finance Committee. A report of the Committee has been annexed to the affidavit-in-opposition.
23. In the light of the Division Bench Judgment in the case of the Principal, Julien Day School, cited supra, this Court is of the view that no interference is warranted with the aforesaid action of the respondent school in enhancing the tuition fees.
24. Mr. Guha, learned counsel for the petitioner, however, sought to distinguish the Division Bench Judgment in The Principal, Julien Day School's case on the ground that although there are no statutory rules, Interdicting the enhancement of fees. In the Instant case, however, the letter of no objection Issued by the State Government based on which affiliation has been granted to the respondent Institute, there is a specific condition to the effect that 'the authority of the school will not enhance the fees from the students without the prior approval of the State Government as per the assurance given by the school authority in this respect.' (See at page 65 of the affidavit-in-reply). It was contended by Mr. Guha that the aforesaid conditions Imposed by State is enforceable by a writ and the school cannot enhance the tuition fees without prior approval of the State Government.
25. The aforesaid contention is plausible and even attractive. However, the same would have merited consideration by this Court If it could be established that the aforesaid letter of 'no objection' had been issued by the State in exercise of its executive power or the exercise of the said power was traceable to any statutory provision, rule or notification having the force of law. No such statutory provision, rule or notification having the force of law which enables or authorises or governs the Issue of such 'no objection' certificate has been placed before Court. The said certificate is in the form of a letter and is not expressed to have been made in the name of the Governor nor does the same stand authenticated in terms of Clause 2 of Article 116 of the Constitution of India and. therefore, cannot create any right in favour of the petitioners which could be enforced by Issue of a writ of mandamus as prayed for.
26. When the field is not occupied by any statute, the State is empowered to issue executive orders, it is well settled. However, in the case of schools established in the State and seeking affiliation to institutions outside the State, there is no statutory provision, rule or notification having the force of law which governed the exercise of the power to grant no objection certificates. The conditions for applying or the authority to whom such applications can be made or 'no objection' applied for can be granted have been enumberated or specified. It appears that based upon the conditions Imposed by the Council for the Indian School Certificate Examination, New Delhi, a no objection certificate is required to be obtained from the State Department of Education concerned. The said conditions has been Imposed by the Council in the guidelines issued by it for affiliation. The said guidelines are framed by the Society which may be regarded as an authority amenable to the writ Jurisdiction of the High Court in the exercise of power under Article 226 of the Constitution but it is not having any statutory powers much less the rules or guidelines framed by it are statutory in nature. The no objection certificate Issued by the Joint Secretary in terms of the saJd guidelines of the Council cannot, therefore, be said to have any statutory force for that reason.
27. As to the contention of Mr. Guha, learned counsel for the petitioner with respect to violation of principles of natural Justice, in my Judgment, for an action such as the one impugned in the instant application, the principles of audi alterem partem are not attracted. Merely because the petitioner Council was consulted in the past by the governing body of the school, no rights can be said to have been created in favour of the petitioners that in any every matter, the respondent Institution is required to first consult the Guardians Council before taking any action in the matter. In my Judgment, therefore, the Impugned action cannot be said to have been vitiated on account of not having consulted the petitioners Council before enhancement of the tuition fees.
For the reasons aforesaid, the writ application must fail and is accordingly dismissed, however, without any order as to costs.
urgent xerox certified copy of the order be supplied to the learned counsel appearing for the parties on priority basis.
28. Application dismissed