ORDER
'Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land'. (See: Unni Krishnan, J.P. v. State of A.P., : [1993]1SCR594 );
--Sharma, CJI.
1. The petitioners in the instant writ petition challenged the action of the first respondent-Management in proposing to close the school Kendriya Vidyalaya from the academic year 2001-2002. The proceedings in letter No.CEO/4-1/KV (EDN)/2001, dated 15-1-2001 proposing to close the school is impugned in this writ petition.
2. The petitioners are employees' Unions and claim to represent 1500 employees working in the first respondent unit.
3. The second respondent herein accorded sanction at the request of the first respondent for setting up and establishing a Kendriya Vidyalaya in the campus of the Fertilizer Corporation of India Limited, Ramagundam from the academic year 1975-76 onwards for providing education to the children of employees of the Fertilizer Corporation of India Limited. There is no dispute whatsoever that the entire cost including the building, salaries, infrastructure, maintenance etc., is required to be met by the first respondent Management. The Kendriya Vidyalaya so established follows CBSE syllabus. The school is in existence ever since 1975-76. This school is meant to cater the needs of the children of employees working in the Fertilizer Corporation of India Limited.
4. The first respondent by proceedings dated 15-1-2001 declared its intention proposing to close the Kendriya Vidyalaya from the academic year 2001-2002. The letter is self-explanatory. Admissions to Class 1 and Class XI in Kendriya Vidyalaya were stopped even during the academicyear 2000-2001. It is noticed that, as at present, there are only 316 students on the rolls of Kendriya Vidyalaya, out of which 199 are the wards of employees, 66 are the wards of CISF and the rest are outsiders. In the said letter itself, it is stated that the expected expenditure over and above fees collection would be about Rs.53-00 lakhs per academic year. The Kendriya Vidyalaya Management has been insisting for clearance of outstanding dues and payment of the expenditure spent for the year 2000-2001 in advance, which could not be met by the Management of the Corporation. The decision appears to have been taken in view of severe financial constraints. The Management is compelled to look for ways and means to curtail the expenditure even in essential areas. It is observed by the Management that 'efforts have been made to reduce/cut down all the non-essential or not so essential expenditures, but inspite of all efforts, we are not able to meet the expenditures on even essential items like medical, education, security etc., and outstandings are increasing every day'. The said decision of the first respondent Corporation is impugned in this writ petition.
5. It is the case of the petitioners that the school itself was established by the Corporation with the sole object of providing education to the children of the employees working in the Corporation. The action of closing down the school would defeat the very object and purpose of establishing the school. The closure will cause untold hardship to the children of the employees. The right to get children admitted into Kendriya Vidyalaya on transfer from one place to the other place would get defeated since such automatic admission in Kendriya Vidyalaya would be available only to such of those wards who are already admitted into Kendriya Vidyataya at the place where the employees are working.
6. It is submitted that the value of education and its importance cannot be considered in terms of money. Education is a facility, which should be continued at any cost. There cannot be any better welfare activity than that of providing education to the children.
7. In the counter-affidavit filed by the respondent Corporation, it is admitted that it is the responsibility of the Corporation to provide suitable accommodation and remittance of recurring/non-recurring expenditure incurred in running the school. It is further explained that there has been steep decline of the strength of students in both DAV and Kendriya Vidyalaya since the academic year 1996-97 onwards owing to gradual reduction in the employees strength and because of increase in the average age of employee to 48 years, consequently there is a decrease in the number of school going children. The strength in Kendriya Vidyataya is reduced to 318 in the academic year 2000-2001 from 598 in 1996-97. Out of the total number of 318 students, only 119 are the children of employees of the Corporation. The expenditure for the academic year 2000-2001 was estimated at Rs.40-22 lakhs, which means that an amount of over Rs.2,800/-per month per child has to be spent for providing education in Kendriya Vidyalaya, which is exorbitant.
8. The Corporation has been incurring huge losses since its reorganisation in the year 1978 and was referred to BIFR. It is declared to be a sick unit in November, 1992.
9. The Corporation has been carrying on its operations on the basis of financial support from the Government of India, which is being drastically reduced, as a result of which the Board of Directors of the Company decided to suspend the operation of the plant at Ramagundam and keep it under preservation. The Corporation hasaccumulated losses to an extent of Rs.5,904 crores as on 31-3-2000 and its net worth is (-) Rs.5,166 crores. What a fall! It is further explained that with the reduction in non-plan budgetary support from Government of India, the Corporation has resorted to various cost reduction measures, so that minimum plant preservation activities can be carried out and salaries of the employees are paid. It is under those painful circumstances, the Corporation came to the conclusion that it is not possible to spend huge amount of Rs.40-22 lakhs for imparting education to 119 children of its employees.
10. It is further explained that The Corporation strove hard for promoting education not only for the children of employees but also to the employees themselves. The Corporation claims that it made a significant contribution in that direction. Schools were got established in its ownerships through Kendriya Vidyalaya Sanghatan, Zilla Parishad, Chinmaya Mission, DAV Trust etc. The institutions so established cater not only the educational needs of the children of the employees, but also the children in the entire locality and neighbourhood. But the present circumstances and financial constraints made the Management to take a painful decision to close down the school.
11. Yet another aspect of the matter, BIFR has issued a public notice on 16-3-2001 for winding up of the company giving 90 days time for filing objections/ suggestions. BIFR found, prima facie, that it is just and equitable and in public interest that the company should be wound up under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. The objections/suggestions are scheduled to be heard on 28-6-2001. It is submitted that the DAV authorities have expressed their willingness to accommodate Kendriya Vidyalaya children and necessary steps in that direction are being taken by theCorporation. Thus the right of education of the children of the employees is in no manner effected as there are other schools under the Management of local authorities as well as DAV which is one of the premier bodies imparting education in various institutions throughout the country.
12. In the counter-affidavit filed by the second respondent, it is stated that it had conveyed its approval for closure of the school with effect from 1-4-2001 on request of the sponsoring authority, that is to say, Fertilizer Corporation of India Limited. It is also stated that in terms of the said office order further proceedings for adjusting the teachers and staff and students are in progress. As at present, the first respondent Management is due to pay an amount of Rs.29 lakhs to the second respondent. It is conceded that the existing students in Kendriya Vidyalaya School can be accommodated in DAV school being run in the same fertilizer city.
13. The question that falls for consideration is as to whether a writ of mandamus would lie, in the circumstances, compelling the first respondent Corporation not to close down the school. Can this Court direct the Management to run the school irrespective of the fact as to whether it has the requisite financial viability and resources to run the school? Can this Court compel the Corporation to utilise its limited financial resources to be spent in a particular manner?
Right to Education:
The Supreme Court in Unni Krishnan (supra) re-affirmed its view in Mohini Jain (1992 AIR SCW 2100) that the right to education has been treated as one of transcendental importance in the life of an individual has been recognised not only in this country since thousands of years, but all over the world. The Court also reaffirmed its view expressed in Bandhua MM Morcha : [1984]2SCR67 that the right to life guaranteed by Article 21 does take in 'educational facilities'. The Court accordingly held that 'the right to education is implicit in and flow from the right to life guaranteed by Article 21'. There cannot be any dispute whatsoever that the Education is most important function of the State and its instrumentalities. 'It is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment'. (See: Brown v. Board of Education, (1953) 98 Law Ed 873).
14. In Unni Krishnan (supra), it is further observed:-
'The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution ..... A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Articles 45, 46, and 41 are designed to achieve the said goal among others. It is in the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately'.
In conclusion, the Apex Court declared:
'We hold that a child (citizen) has a fundamental right to free education up to the age of 14 years.The Supreme Court having said so observed, 'we do realise that ultimately it is a question of resources and resources wise this Court is not in a happy position. All we are saying is that while allocating the available resources, due regard should be had to the wise words of Founding Fathers in Articles 45 and 46'.
15. No doubt, the first respondent Corporation is an instrumentality of the State. It is not a private organisation. The Corporation with a view to impart education to the children of its employees established the school in question as early as in the year 1975-76. But its obligation to provide education to the children of its employees cannot be stretched and understood in the same manner and similar to that of the constitutional obligation of the State to provide free education to the children up to the age of 14 years. The first respondent Corporation may have incidentally taken up the responsibility upon itself to establish a school with a view to provide education to the children of its employees and in the process may have undertaken to expend a portion of its financial resources for the said purpose. The first respondent Corporation is not formed with an object of providing education to the children of its employees. It is not a part of its obligation to its employees. The Corporation may have undertaken to establish the school as a welfare measure with laudable object of providing education to the children of its employees. The Corporation had not stepped into the shoes of the State to discharge the constitutional obligation of the State to provide free education to all the children up to the age of 14 years. The availability of resources with the Corporation is not the same as of the State. The State in its wisdom may formulate policies and raise financial resources to implement such policies to give effect to any or all the directive principles enshrined in the Constitution. Such a course is not availableto the first respondent Corporation. It has to manage its affairs within the available financial resources and expend and utilise the amounts for the primary purposes, for which the Corporation itself has come into existence. It is a different matter altogether that the Corporation even failed to achieve the purposes for which it has come into existence.
16. It is not necessary to notice to detail the object and purposes for which the Corporation came into existence. It is a company registered under the Companies Act and owned by the Government of India. It is a Government of India Undertaking. In the circumstances, it would not be possible to accede to the submissions made by the learned Counsel for the petitioners that the first respondent Corporation is bound to provide education to the children of its employees irrespective of the availability of financial resources with the Corporation. We have already noticed the position in which the Corporation is placed for whatever reason and the observation of the BIFR to the effect that the public interest requires winding up of the first respondent Company. The first respondent Corporation cannot be permitted to run the school as long as it exists. At any rate, its life itself appears to be coming to an end, similar to that of the lives of many public sector undertakings, once considered to be the commanding heights of the Indian economy.
17. It is not the case of the Corporation that it need not provide education to its employees' children even within the limits of its financial capacity. On the other hand, the decision to close down the school is characterised as a painful one by the Corporation itself. The limit of its economic capacity is matter within the subject to the satisfaction of the Corporation. It is explained and there is absolutely no reason or justification not to accept the explanationthat on account of acute financial stringency, the Management is not in a position to expend Rs.40-22 lakhs in running the school, which has an un-economic strength. However, an attempt is made to contend that the Corporation should be compelled to utilise its whatever available economic capacity to run the school. The case of the Corporation is that it is not even in a position to pay salaries to its employees. Right to receive remuneration for the work done is also a fundamental right of an employee guaranteed by Article 21 of the Constitution of India. This Court could only consider the lawfulness of the decision in this application for judicial review. It is not for this Court to decide as to how a Corporation's limited financial resources should be allocated between the opposing claims upon its resources.
18. In R. v. Cambridge Health Authority, (1995) 2 A1I.ER 129, Bingham, MR in relation to the decisions which have to be taken by health authoritiesobserved:
'Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the Court can make'.
19. Where the use of limited resources has to be decided, the undesirability of the Court stepping in too quickly was made very clear in the said decision. The Corporation in exercising its discretion clearly had regard to the resources available to it.
20. In my considered opinion, the Court cannot interfere with such discretions of the authorities. Any mandamus from this Court may amount to compelling the respondent Corporation to perform an impossible act. It is well established and made clear that, though the Courts will readily review theway in which decisions are reached, the Courts will always respect the margin of appreciation or discretion, which a decision maker has. What is required, in a case like the present one, is to ask whether the Corporation did all that proportionately and reasonably, which could be expected to do with the resources available to it. The Corporation, after all, is dealing with the situation of lack of resources and there is no question of funds being deliberately withheld by it to hamper the continuation of school. The Court cannot compel, whether, some how the Corporation should find, somewhere, the money necessary to take steps to run the school.
21. The only question that remains for consideration is as to whether the decision of the Corporation is contrary to Section 26 of the Andhra Pradesh Education Act 1982 (for short 'the Act'). Section 26 of the Act prohibits the private institutions from closing down without issuing notice of not less than one academic year expiring with the end of any academic year. The notice should clearly indicate the intention to close down or discontinue the institution to be served upon the officer authorised by the competent authority. Sub-section (2) of Section 26 of the Act provides that 'if any Manager of such private institutions fails to give notice as required under subsection (1), he shall, on conviction, be punished with fine which may extend to five thousand rupees or with simple imprisonment which may extend to one year or both and with a fine of rupees one hundred for every day of further default'. It is a penal provision.
22. As per Section 2(35) of the Act 'private institution' means an institution imparting education or training, established and administered or maintained by any body of persons, and recognised as educational institution by the Government, and includesa college, a special institution and a minority educational institution, but does not include an educational institution-
(a) established and administered or maintained by the Central Government or the State Government or any local authority;
(b) established and administered by any University established by law; or
(c) giving, providing or imparting only religious instruction, but not any other instruction.
23. There is no dispute whatsoever that the second respondent is an organisation under the Ministry of Human Resources Development, Government of India. In strict sense, neither the first respondent nor the second respondent answers the description of private institution in Section 2(35) of the Act. There is no averment in the affidavit that the Government recognised the school in question as an educational institution imparting education and established and administered or maintained by any body of persons as such. Therefore, Section 26 of the Act has no application.
24. The decision of the first respondent to close down the school is, therefore, not hit by Section 26 of the Act.
25. No other point is urged.
26. For the aforesaid reasons, I do not find any merit in this writ petition and the same shall accordingly stand dismissed. There shall be no order as to costs.