(Prayer: This Writ Petition is filed under Articles 226 and 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.)
1. 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 KVfor short). The 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 Ltdfor 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 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 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 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 ParentsAssociation 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 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 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
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.
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 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 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 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 Actfor 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 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 (ILR 2014(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 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 and 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 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 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 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 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 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 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 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.