Meghalaya Parents and Guardian Association and Etc. Vs. State of Meghalaya and ors. - Court Judgment

Excerpt:
- - 35/- per month since the year 1979, and considering the existing realities including the enhanced pay of the teachers and staff as well as quality-education imparted in the schools it became necessary to enhance the tuition fee to rs. he submitted referring to para 7 of the affidavit-in-opposition that the private schools, like st. ' (rauschning, the voice of destruction :hitler speaks). a true democracy is one where education is universal, where people understand what is good for them and the nation and knowhow to govern themselves. the question is :can such public schools established and maintained by the government in the state of meghalaya and providing quality education with better facilities than those of government primary and upper primary schools be made beyond the reach of weaker sections of the society by fixing higher fees for the students? his lordship has quoted john adams who has said :the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country. , observed :we have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the state and that what applies to the main activity applies equally to the supplemental activity as well. a.k. patnaik, j.1. in these two writ petitions under article 226 of the constitution, the petitioners have challenged the orders of the government of meghalaya, education department, fixing the fees of all public schools including the pine mount public school, shillong, in the state of meghalaya.2. there are 4 public schools in the state of meghalaya, these are -- (a) shillong public school, shillong; (b) public school at jowai(c) public school at tura; and (d) pine mount public school at shillong. these schools are managed by the government of meghalaya, and tuition fee of rs. 35/- per month was being collected from every student besides development fee, games fee, library fee, etc. till the year 2000, by order dated 22-11-2000, the government of meghalaya, education department fixed the tuition fee and other fees for all the aforesaid public schools for the academic session 2001. thereafter, in supersession of the aforesaid order dated 22-11-2000, the government of meghalaya, education department by order dated 15-2-2001 revised the rates of tuition fee and other fees for all the public schools with effect from the commencement of academic session 2001 as follows :'1. tuition fees --- rs. 250/- p.m. from classes kg to xiiconcessions.(i) low income parents :-- in the case of students of parents whose family income from all sources does not exceed rs. 24,000/- per annum (rs. 2000/- per month) concessional fees may be realized at 25% of the tuition fees (rs. g3 per month) on production of a family income certificate from the dc of the district concerned.(ii) parents having more than one child studying in the same school: in such cases full tuition fees may be realized in respect of the first child and half fees (rs. 125/- per month) in respect of the others.(iii) low income parents having more than one child studying in the same school:-- in such cases, concessional fees of rs. 63/-may be realized in respect of the first child and half fees thereof (rs. 32/-) in respect of the others.2. annual charges :(a)development fees :classes kg to x-- rs. 300/-classes xi to xii--rs. 500/-(b)game fees :classes kg to xi-- rs. 50/-(c)prize distribution fees-do--- rs. 50/-(d)library fees-do--- rs. 50/-(e)class party fees-do---rs. 50/-'the parents and guardians of the students studying in the said public schools have filed these two writ petitions praying for quashing the aforesaid orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya, education department, fixing the fees for the students of the public schools in the state of meghalaya.3. on 26-3-2001, this court while admitting w.p. (c) 42 (sh)/2001 directed maintenance of status quo as on the said date. the respondents, however, filed an application for vacating the said interim order of status quo passed on 26-3-2001 which was numbered as misc. case 48 (sh)/2001. on 11-4-2001, the court passed an order that the court was of the view that the writ petition itself should be heard and disposed of finally, and passed orders accordingly in the said misc. case posting the case for hearing on 23-4-2001. when the matter was taken upon 9-5-2001, the court allowed the school authorities to collect the required fees from the students at the prevailing rates adopted by the school authorities pending disposal of the writ petition, but made it clear that the collection of required fees would be subject to the outcome of the main writ petition. the case was finally heard on 8-6-2001 and 11-6-2001.4. at the hearing, mr. n. k. deb, learned counsel for the petitioners, submitted that under article 45 of the constitution it is provided as a directive principle of state policy that the state shall endeavour to provide, within a period of ten years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of fourteen years, and interpreting this provision along with article 21 of the constitution, the supreme court has held in unni krishnan's case. air 1993 sc 2178, that every child/citizen of this country has a right to free education till he completes the age of 14 years and after he completes the age of 14 years he has a further right to call upon the state to provide educational facilities to him within the limits of its economic capacity and development. mr. deb argued that the high tuition fee of rs. 250/- per student fixed under the impugned orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya, education department, ignores the fundamental right to education of every child/citizen as explained by the supreme court in unni krishnan's case. mr. deb further submitted that section 4 of the meghalaya school education act, 1981, provides that the government may regulate education in all the schools in meghalaya in accordance with the provisions of the act and the rules made there under, and in exercise of this power the government could have prescribed the fees for students in its public schools by rules made under the said act, but no such rules have been framed by the government prescribing the fees for the public schools. according to mr. deb, the fees for public schools cannot be fixed or enhanced by an executive order passed by the government as has been done in the impugned orders dated 22-11-2000 and 15-2-2001. it was next submitted by mr. deb that since the fees for the students of the four public schools are payable by the parents/guardians of the students, they should have been heard before fees were fixed by the impugned orders dated 22-11 -2000 and 15-2-2001. but no such hearing has been given to the parents and guardians of the students studying in the public schools. in support of this argument, mr. deb relied on the decision of 1 he delhi high court in delhi abibhavak mahasangh v. union of india, air 1999 delhi 124, in which it was held, inter alia, that the tuition fee and other charges were required to be fixed in a validly constituted meeting giving opportunity to the representatives of parent teachers association and nominee of director of education to place their view-points. he submitted that the justification given in the affidavit-in-opposition filed on behalf of the respondents for enhancement of ices under the impugned orders dated 22-11-2000 and 15-2-2001 is that the four public schools are affiliated to the council for the indian school certificate examinations, new delhi, and that the said council for the indian school certificate examinations has imposed as a condition for such affiliation that the fees charged by the school should be commensurate with the facilities provided. mr. deb vehemently argued that the said justification is not at all valid because the four public schools are funded by the government and are in fact government schools and the government is required to provide educational facilities in the said four public schools and, therefore, the fees to be collected from the students of the four public schools need not be commensurate with the facilities provided therein as stipulated in the conditions for affiliation to the council for indian school certificate examinations. he argued that the four public schools cannot be equated with the private schools, such as st. edmunds school, as the private schools are run out of their own funds whereas the four public schools are run out of the funds of the government, and it is the duty of the government to provide sufficient funds for education of school children. it appears, mr. deb submitted, that the tuition fee of rs. 250/-per month has been fixed because higher amount of tuition fee per month is being collected by the st. edmunds school from its students. mr. deb, therefore, submitted that since the basis of fixation of tuition fee of rs. 250/- per month in the impugned orders dated 22-11-2000 and 15-2-2001 is incorrect, the same are liable to be quashed. 5. mr. s. p. mahanta, learned counsel appearing for the petitioner in w.p. (c) 21 (sh) 2001, adopted the aforesaid arguments as advanced by mr. n. k. deb. and further submitted that 81% of the parents of the students studying in the public school at jowai are daily labourers and many of these labourers belong to tribal population of the state, and cannot afford the tuition fee of rs. 250/- per month as fixed in the impugned orders dated 22- i 1-2000 and 15-2-2001 for the public school at jowai. he submitted that as per the prospectus of the public school at jowai, the school is a government institution and is open to children of all citizens. according to mr. mahanta, the public school is thus open for ail classes of citizens including the labourers who are working in and around jowai, and great hardship will be suffered by them if such people belonging to labour class are made to pay the enhanced tuition fee of rs 250/-per month per child. he further argued that the principles of natural justice required that the parents were beard before fees were fixed/enhanced and relied on the decision of the delhi high court in delhi ablbhavak mahasangh v. union of india, (air 1999 delhi 124) (supra), cited mr. n. k. deb, in support of this argument. he further submitted that in the impugned order dated 15-2-2001 some concessions have been given in the case of low income parents, parents having more than one child studying in the same school, and low income parents having more than one child studying in the same school, but there is no provision in the said impugned order dated 15-2-2001 for parents below the poverty line who cannot afford any fee. mr. mahanta finally submitted that when the students in the schools were admitted, the tuition fee was only rs. 35/-per month, and the parents who could afford the said fee of rs. 35/- per month, admitted their children in the school. the enhancement of tuition few from rs. 35/- to rs. 250/- per month has come at a time when the students arc in the midst of their studies in the said schools and they cannot withdraw their children from the school even if they cannot afford the high tuition fee of rs. 250/- per month. according to mr. mahanta, this is very relevant aspect which has been ignored by the authorities while fixing the tuition fee in the impugned orders dated 22-11-2000 and 15-2-2001.6. in reply to the aforesaid contentions of mr. n. k. deb and mr. s. p. mahanta, learned counsel for the petitioners. mr. h. s. thangkhiew, learned government advocate, meghalaya, referred to the averments in the affidavit-in-opposition on behalf of the respondents filed in w.p. (c) no. 42 (sh)/2001 to show the justification for increase of tuition fee by the impugned orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya, education department. he referred to para 5 of the said affidavit-in-opposition to show that the tuition fee of the students of the public schools remained stagnant at rs. 35/- per month since the year 1979, and considering the existing realities including the enhanced pay of the teachers and staff as well as quality-education imparted in the schools it became necessary to enhance the tuition fee to rs. 250/- per month. in this context, mr. thangkhiew referring to said para 5 of the affidavit-in-opposition submitted that the tuition fee of rs. 35/- was fixed in the year 1979 when the pay of the teachers was rs. 725/- to rs. 1,650/- (for headmistress), and rs. 675/- to rs. 1,450/- (for assistant teachers). but the pay of headmistress has now increased and is between rs. 6,850/-and rs. 11,600/- and the pay of the assistant teachers has increased and is now between rs. 5,750/- and rs. 10,120/-. again, referring to paragraphs 4 and 5 of the affidavit-in-opposition of the respondents, mr. thangkhiew submitted that the four public schools are affiliated to the council for the indian school certificate examinations, new delhi, and the said council by its rules, regulations and resolutions has laid down the details with regard to the modalities, syllabus, infrastructure, management, etc. with regard to the running and supervision of public schools affiliated to it. thus, the contention that the public schools in the state are governed by the meghalaya school education act, 1981, is not correct. instead they are governed by such rules, regulations and resolutions of the council for the indian school certificate examinations, new delhi. he submitted that condition no. 7 of the conditions for affiliation to the said council provides that the fees charged by the school should be commensurate with the facilities provided. he submitted referring to para 7 of the affidavit-in-opposition that the private schools, like st. edmunds school. loretto convent, etc. in shillong, providing quality education are charging monthly tuition fee above rs. 400/-. hence, fee of rs. 250/- per month fixed as (tuition fee by the impugned orders dated 22-11-2000 and 15-2-2001 is commensurate with the facilities provided in the four public schools and is reasonable. according to mr. thangkhiew, therefore, the impugned orders dated 22-11-2000 as superseded by the impugned order dated 15-2-2001 satisfies the test of reasonableness and should not be interfered with by this court in exercise of its power of judicial review. regarding free education, mr. thangkhiew relying on the averments in paragraph 7 of the affidavit-in-opposition submitted that free education with no tuition fee is being imparted in all government primary and upper primary schools with nominal fee of rs. 50/- per annum only for government secondary schools. but the four public schools in question are special category schools where a different course and syllabus are being followed as prescribed by the council for the indian school certificate examinations and the said four public schools in meghalaya are at par with other public schools in the country. the enhanced fees in the four public schools, therefore, have no relation with the government policies for universalisation of education in the state. he finally submitted that in any case fixation of tuition fee of the students of the public schools in the state of meghalaya is purely a question of government's policy-decision and the impugned orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya, education department, are really a policy-decision of the government which ought not to be interfered with by the court under article 226 of the constitution.7. mr. thangkhiew is right in his submission that the court in exercise of its powers under article 226 of the constitution does not normally interfere with the policy-decision of the government, but the court while exercising its power of judicial review has to ensure that the government while taking policy or administrative decisions does not disregard the constitutional provisions. in unni krishnan's case, (air 1993 sc 2178) (supra), the supreme court had the occasion to deal with the constitutional provisions relating to education. in the said case, the earlier decision in mohini jain v. state of karnataka, (1992) 3 scc 666 : 1992 air scw 2100 : (air 1992 sc 1858), that the right to education is a fundamental right flowing from article 21 of the constitution was under consideration by a constitution bench. l. m. sharma, c.j. delivering the judgment for himself and on behalf of s. p. bharucha, j. held that the question whether the right to primary education, as mentioned in article 45 of the constitution of india, is a fundamental right under article 21 did not arise in mohini jain's case and no finding or observation on that question was called for (para 2). s. mohan, j. held that if really article 21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of article 45 wherein the state is obligated to provide education upto 14 years of age, within the prescribed time limit (para 32). b. p. jeevan reddy, j. delivering the judgment for himself and on behalf of s. ratnavel pandian, j. held that it would not be correct to contend that mohini jain was wrong insofar as it declared that 'the right to education flows directly from right to life'. portion of the judgment of b.p. jeevan reddy, j. which is relevant for the purpose of deciding this case is quoted hereinbelow:'........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. so far as the right to education is concerned, there are several articles in part iv which expressly speak of it. article 41 says that the 'state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want'. article 45 says that 'the state shall endeavour to provide, within a period often years from the commencement of this constitution, for free and compulsory education for all children until they complete the age of fourteen years.' article 46 commands that 'the state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and scheduled tribes, and shall protect them from social injustice and all forms of exploitation.' education means knowledge -- and 'knowledge itself is power.' as rightly observed by john adams, 'the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country (dissertation on canon and feudal law, 1765). it is this concern which seems to underline article 46. it is the tyrants and bad rulers, who are afraid of spread of education and knowledge among the deprived classes. witness hitler railing against universal education. he said : 'universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction.' (rauschning, the voice of destruction : hitler speaks). a true democracy is one where education is universal, where people understand what is good for them and the nation and knowhow 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.'(para 145)thus, the majority view in the case of unni krishnan (air 1993 sc 2178) was that the right to education is implicit in the right to life and personal liberty guaranteed under article 21 of the constitution and must be construed in the light of the directive principles in part iv of the constitution.8. when such right to education is construed in the light of article 45 of the constitution, it would mean that every child/ citizen of the country has a right to free education until he completes the age of fourteen years. in the affidavit-in-opposition filed by the respondents in w.p. (c) no. 42(sh) 2001, it has been stated in para 7 that free education with no tuition fee is being imparted in all government primary and upper primary schools with nominal fee of rs. 50/- per annum only for government' secondary schools and that the enhanced fees in the public schools do not relate to government policy towards universalisation of education in the state. thus, it appears that the right of every child/citizen to free education upto the age of fourteen years as provided in article 21 read with article 45 of the constitution is sought to be made effective by the state government through its primary and upper primary school. hence, in a sense the fees for four public schools in the state of meghalaya fixed in the impugned orders dated 22-11-2000 and 15-2-2001 may not be relevant to the issue of free and universal education for all citizens/children in the state of meghalaya after the age of fourteen years as provided in article 45 of the constitution.8a. but in the said affidavit-in-opposition of the respondents, it is stated in para 6 that the public schools including the pine mount school in shillong is open to all with an object to impart quality education maintaining the high standard of a public school as prevalent in other parts of the country. in para 7 of the said affidavit-in-opposition, it has further been stated by the respondents that the four public schools in the state including the pine mount school are special category schools where a different course and syllabus are being followed as per the indian council of school education. the question is : can such public schools established and maintained by the government in the state of meghalaya and providing quality education with better facilities than those of government primary and upper primary schools be made beyond the reach of weaker sections of the society by fixing higher fees for the students? the answer to this question is in article 46 of the constitution which commands that the state shall promote with special care the educational and economic interests of the weaker sections of the people, 'and, in particular, of the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation. the purport of article 46 of the constitution has been explained in the judgment of b.p. jeevan reddy, j. quoted above. his lordship has quoted john adams who has said : 'the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country.' his lordship b.p. jeevan reddy, j. has held that 'it is this concern which seems to underline article 46.' the preamble to the constitution of india also attempts to secure to all its citizens equality of status and opportunity. if weaker sections of the society, and, in particular, the scheduled castes and the scheduled tribes in the state of meghalaya may not be able to afford the fees fixed for the four public schools in the impugned orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya, education department, they may either withdraw their children already studying in the said public schools or may not be able to admit their children in the said schools though the children may have the required merit to study in the said schools. in unni krishnan's case (air 1993 sc 2178), jeevan reddy, j., observed :'we have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the state and that what applies to the main activity applies equally to the supplemental activity as well. if article 14 of the constitution applies -- as it does, without a doubt -- to the state institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations -- wherein too, merit inter se has to be followed) the applicability of article 14 cannot be excluded from the supplemental effort/activity. the state legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. no such immunity from the constitutional obligation can be claimed or conferred by the state legislature. on this ground alone, the section is liable to fall.'(para 174)it will be clear from the aforesaid portion of the judgment of jeevan reddy, j. that the consideration for admitting students in educational institutions and particularly those maintained by the state is merit and merit alone subject to any permissible reservations wherein too, merit inter se has to be followed, and that no immunity can be claimed from the aforesaid constitutional obligation. these being the constitutional provisions, i am of the considered opinion that while fixing the fees for four public schools in the state of meghalaya which are said to be imparting quality education to the students, the government has to keep in mind the aforesaid constitutional obligations and ensure that the fees are not beyond the reach of weaker sections of the society including the scheduled castes and the scheduled tribes.9. under article 162 of the constitution, the state of meghalaya can fix the fees for the four public schools in meghalaya maintained by the government by executive orders until the fees are prescribed by a statute. on a reading of the impugned order dated 15-2-2001 which superseded the earlier impugned order dated 22-11-20001 find that some concessions have been granted for low income parents, parents having more than one child studying in the same school and low income parents having more than one child studying in the same school. after the interim orders passed by this court were vacated as discussed above the fees fixed in the impugned order dated 15-2-2001 may also have been collected in the meanwhile. for these reasons, i am not inclined to quash the impugned orders dated 22-11-2000 and 15-2-2001, but i make it clear that the said impugned orders would be effective only for the academic session 2001 and will not apply for the academic session 2002 onwards.10. section 4 of the meghalaya school education act, 1981, (for short, 'the act, 1981'), provides that the government may, subject to the provisions of clause (1) of article 30 of the constitution, regulate education' in all the schools in meghalava' in accordance with the provisions of the act and the rules made thereunder. the expression 'all the schools in meghalaya' in section 4 will obviously include the four public schools established and maintained by the state of meghalaya. obviously, the power to regulate education in section 4 of the act, 1981, would include the power to fix fees for the four public schools in the state of meghalaya. but such power has to be exercised in accordance with the provisions of the act, 1981, and the rules made thereunder. section 17 of the act, 1981, provides for fees and other charges for aided schools. 'aided school' has been defined in section 3(ii) of the act, 1981, to mean a recognised private school which receives aid in the form of maintenance and/or development grant from the state government or any other authority designated by the state government. hence, the said section 17 of the act, 1981, has no application to public schools established and maintained by the government. section 31(1) of the act, 1981, further provides that the state government may, subject to the condition of previous publication, make rules to carry out the provisions of the act. section 31 of the act, 1981, states that tn particular, such rules provide for all matters expressly required or allowed by the act to be prescribed, or in respect of which the act makes no provision, or makes insufficient provisions for the proper implementation of the act. considering all these provisions of the act, 1981, the fees for the four public schools in the state of meghalaya for the academic session 2002 onwards will have to be prescribed by the state government by framing rules made under the act, 1981, subject to the condition of previous publication.11. section 36 of the meghalaya interpretation and general clauses act, 1972, (for short, 'the act, 1972'), provides that where, by any enactment, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then, the authority having the power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby and the authority shall consider any objection or suggestion which may be received by the authority with respect to the draft before the date so specified. thus, when the draft of the rules prescribing the fees for the four public schools in the state of meghalaya is published in accordance with section 36 of the act, 1972, the parents and guardians of the students studying in the four public schools can submit their objections or suggestions before the date specified in the notice published along with the draft rules, and if such objections or suggestions are filed, the state government will have to consider the said objections or suggestions received from such parents or guardians of the students studying in the four public schools. this will take care of the grievance of the petitioners in these writ petitions that the views of the parents and guardians of the students studying in the four public schools in the state of meghalaya were not taken into consideration before fixation of the fees for the four public schools in the impugned orders dated 22-11-2000 and 15-2-2001. the provisions of the act, 1982, however, do not provide for any hearing to be given to any party before framing of the rules under the act, 1981, and for this reason, no direction can be given to the respondents to hear the parents and guardians or their association before framing the rules relating to fees for the four public schools in the state of meghalaya.12. for the aforesaid reasons. i dispose of the writ petitions by holding that the impugned orders dated 22-11-2000 and 15-2-2001 of the government of meghalaya in the department of education fixing the fees for the four public schools in the state of meghalaya will not be effective for the academic session 2002 onwards, and the state government will frame rules under section 31 of the meghalaya school education act, 1981, prescribing the fees for the four public schools in the state of meghalaya for the academic session, 2002 onwards keeping in mind its constitutional obligations as discussed above in this judgment, and before finally framing the rules will publish a draft of the said rules in accordance with section 36 of the meghalaya interpretation and general clauses act, 1972, and take into consideration any objection or suggestion to the draft rules submitted by the petitioners or any other person(s) before the date specified in the notice published along with the draft rules in accordance with the said section 36 of the act, 1972.considering, however, the entire facts and circumstances of the case, the parties shall bear their respective costs.

Judgment:

A.K. Patnaik, J.

1. In these two writ petitions under Article 226 of the Constitution, the petitioners have challenged the orders of the Government of Meghalaya, Education Department, fixing the fees of all Public Schools including the Pine Mount Public School, Shillong, in the State of Meghalaya.

2. There are 4 Public Schools in the State of Meghalaya, These are -- (a) Shillong Public School, Shillong; (b) Public School at Jowai(c) Public School at Tura; and (d) Pine Mount Public School at Shillong. These schools are managed by the Government of Meghalaya, and tuition fee of Rs. 35/- per month was being collected from every student besides development fee, games fee, library fee, etc. till the year 2000, By order dated 22-11-2000, the Government of Meghalaya, Education Department fixed the tuition fee and other fees for all the aforesaid Public Schools for the academic session 2001. Thereafter, in supersession of the aforesaid order dated 22-11-2000, the Government of Meghalaya, Education Department by order dated 15-2-2001 revised the rates of tuition fee and other fees for all the Public Schools with effect from the commencement of academic session 2001 as follows :

'1. Tuition fees --- Rs. 250/- p.m. from Classes KG to XII

Concessions.

(i) Low income Parents :-- In the case of students of Parents whose family income from all sources does not exceed Rs. 24,000/- per annum (Rs. 2000/- per month) concessional fees may be realized at 25% of the tuition fees (Rs. G3 per month) on production of a family income certificate from the DC of the District concerned.

(ii) Parents having more than one child studying in the same school: In such cases full tuition fees may be realized in respect of the first child and half fees (Rs. 125/- per month) in respect of the others.

(iii) Low income parents having more than one child studying in the same school:-- In such cases, concessional fees of Rs. 63/-may be realized in respect of the first child and half fees thereof (Rs. 32/-) in respect of the others.

2. Annual charges :

(a)

Development fees :

Classes KG to X

--

Rs. 300/-

Classes XI to XII

--

Rs. 500/-

(b)

Game fees :

Classes KG to XI

--

Rs. 50/-

(c)

Prize distribution fees

-do-

--

Rs. 50/-

(d)

Library fees

-do-

--

Rs. 50/-

(e)

Class party fees

-do-

--

Rs. 50/-'

The parents and guardians of the students studying in the said Public Schools have filed these two writ petitions praying for quashing the aforesaid orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya, Education Department, fixing the fees for the students of the Public Schools in the State of Meghalaya.

3. On 26-3-2001, this Court while admitting W.P. (C) 42 (SH)/2001 directed maintenance of status quo as on the said date. The respondents, however, filed an application for vacating the said interim order of status quo passed on 26-3-2001 which was numbered as Misc. Case 48 (SH)/2001. On 11-4-2001, the Court passed an order that the Court was of the view that the writ petition itself should be heard and disposed of finally, and passed orders accordingly in the said Misc. Case posting the case for hearing on 23-4-2001. When the matter was taken upon 9-5-2001, the Court allowed the school authorities to collect the required fees from the students at the prevailing rates adopted by the school authorities pending disposal of the writ petition, but made It clear that the collection of required fees would be subject to the outcome of the main writ petition. The case was finally heard on 8-6-2001 and 11-6-2001.

4. At the hearing, Mr. N. K. Deb, learned counsel for the petitioners, submitted that under Article 45 of the Constitution it is provided as a Directive Principle of State Policy that the State shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years, and interpreting this provision along with Article 21 of the Constitution, the Supreme Court has held in Unni Krishnan's case. AIR 1993 SC 2178, that every child/citizen of this country has a right to free education till he completes the age of 14 years and after he completes the age of 14 years he has a further right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. Mr. Deb argued that the high tuition fee of Rs. 250/- per student fixed under the impugned orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya, Education Department, ignores the fundamental right to education of every child/citizen as explained by the Supreme Court in Unni Krishnan's case. Mr. Deb further submitted that Section 4 of the Meghalaya School Education Act, 1981, provides that the Government may regulate education in all the schools in Meghalaya in accordance with the provisions of the Act and the Rules made there under, and in exercise of this power the Government could have prescribed the fees for students in its Public Schools by Rules made under the said Act, but no such Rules have been framed by the Government prescribing the fees for the Public Schools. According to Mr. Deb, the fees for Public Schools cannot be fixed or enhanced by an executive order passed by the Government as has been done in the impugned orders dated 22-11-2000 and 15-2-2001. It was next submitted by Mr. Deb that since the fees for the students of the four Public Schools are payable by the parents/guardians of the students, they should have been heard before fees were fixed by the impugned orders dated 22-11 -2000 and 15-2-2001. But no such hearing has been given to the parents and guardians of the students studying in the Public Schools. In support of this argument, Mr. Deb relied on the decision of 1 he Delhi High Court in Delhi Abibhavak Mahasangh v. Union of India, AIR 1999 Delhi 124, in which it was held, inter alia, that the tuition fee and other charges were required to be fixed in a validly constituted meeting giving opportunity to the representatives of Parent Teachers Association and Nominee of Director of Education to place their view-points. He submitted that the justification given in the affidavit-in-opposition filed on behalf of the respondents for enhancement of ices under the impugned orders dated 22-11-2000 and 15-2-2001 is that the four Public Schools are affiliated to the Council for the Indian School Certificate Examinations, New Delhi, and that the said Council for the Indian School Certificate Examinations has imposed as a condition for such affiliation that the fees charged by the school should be commensurate with the facilities provided. Mr. Deb vehemently argued that the said justification is not at all valid because the four Public Schools are funded by the Government and are in fact Government Schools and the Government is required to provide educational facilities in the said four Public Schools and, therefore, the fees to be collected from the students of the four Public Schools need not be commensurate with the facilities provided therein as stipulated in the conditions for affiliation to the Council for Indian School Certificate Examinations. He argued that the four Public Schools cannot be equated with the private schools, such as St. Edmunds School, as the private schools are run out of their own funds whereas the four Public Schools are run out of the funds of the Government, and it is the duty of the Government to provide sufficient funds for education of school children. It appears, Mr. Deb submitted, that the tuition fee of Rs. 250/-per month has been fixed because higher amount of tuition fee per month is being collected by the St. Edmunds School from its students. Mr. Deb, therefore, submitted that since the basis of fixation of tuition fee of Rs. 250/- per month in the Impugned orders dated 22-11-2000 and 15-2-2001 is incorrect, the same are liable to be quashed.

5. Mr. S. P. Mahanta, learned counsel appearing for the petitioner in W.P. (C) 21 (SH) 2001, adopted the aforesaid arguments as advanced by Mr. N. K. Deb. and further submitted that 81% of the parents of the students studying in the Public School at Jowai are daily labourers and many of these labourers belong to tribal population of the State, and cannot afford the tuition fee of Rs. 250/- per month as fixed in the impugned orders dated 22- i 1-2000 and 15-2-2001 for the Public School at Jowai. He submitted that as per the Prospectus of the Public School at Jowai, the school is a Government institution and is open to children of all citizens. According to Mr. Mahanta, the Public School is thus open for ail classes of citizens including the labourers who are working in and around Jowai, and great hardship will be suffered by them if such people belonging to labour class are made to pay the enhanced tuition fee of Rs 250/-per month per child. He further argued that the principles of natural justice required that the parents were beard before fees were fixed/enhanced and relied on the decision of the Delhi High Court in Delhi Ablbhavak Mahasangh v. Union of India, (AIR 1999 Delhi 124) (supra), cited Mr. N. K. Deb, in support of this argument. He further submitted that in the impugned order dated 15-2-2001 some concessions have been given in the case of low income parents, parents having more than one child studying in the same school, and low income parents having more than one child studying in the same school, but there is no provision In the said impugned order dated 15-2-2001 for parents below the poverty line who cannot afford any fee. Mr. Mahanta finally submitted that when the students in the schools were admitted, the tuition fee was only Rs. 35/-per month, and the parents who could afford the said fee of Rs. 35/- per month, admitted their children in the school. The enhancement of tuition few from Rs. 35/- to Rs. 250/- per month has come at a time when the students arc in the midst of their studies in the said schools and they cannot withdraw their children from the school even if they cannot afford the high tuition fee of Rs. 250/- per month. According to Mr. Mahanta, this is very relevant aspect which has been ignored by the authorities while fixing the tuition fee in the impugned orders dated 22-11-2000 and 15-2-2001.

6. In reply to the aforesaid contentions of Mr. N. K. Deb and Mr. S. P. Mahanta, learned counsel for the petitioners. Mr. H. S. Thangkhiew, learned Government Advocate, Meghalaya, referred to the averments in the affidavit-in-opposition on behalf of the respondents filed in W.P. (C) No. 42 (SH)/2001 to show the justification for increase of tuition fee by the impugned orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya, Education Department. He referred to Para 5 of the said affidavit-in-opposition to show that the tuition fee of the students of the Public Schools remained stagnant at Rs. 35/- per month since the year 1979, and considering the existing realities including the enhanced pay of the teachers and staff as well as quality-education imparted in the schools it became necessary to enhance the tuition fee to Rs. 250/- per month. In this context, Mr. Thangkhiew referring to said Para 5 of the affidavit-in-opposition submitted that the tuition fee of Rs. 35/- was fixed in the year 1979 when the pay of the teachers was Rs. 725/- to Rs. 1,650/- (for Headmistress), and Rs. 675/- to Rs. 1,450/- (for Assistant Teachers). But the pay of Headmistress has now increased and is between Rs. 6,850/-and Rs. 11,600/- and the pay of the Assistant Teachers has increased and is now between Rs. 5,750/- and Rs. 10,120/-. Again, referring to Paragraphs 4 and 5 of the affidavit-in-opposition of the respondents, Mr. Thangkhiew submitted that the four Public Schools are affiliated to the Council for the Indian School Certificate Examinations, New Delhi, and the said Council by its Rules, Regulations and Resolutions has laid down the details with regard to the modalities, syllabus, infrastructure, management, etc. with regard to the running and supervision of Public Schools affiliated to it. Thus, the contention that the Public Schools in the State are governed by the Meghalaya School Education Act, 1981, is not correct. Instead they are governed by such Rules, Regulations and Resolutions of the Council for the Indian School Certificate Examinations, New Delhi. He submitted that condition No. 7 of the Conditions for affiliation to the said Council provides that the fees charged by the school should be commensurate with the facilities provided. He submitted referring to Para 7 of the affidavit-in-opposition that the private schools, like St. Edmunds School. Loretto Convent, etc. in Shillong, providing quality education are charging monthly tuition fee above Rs. 400/-. Hence, fee of Rs. 250/- per month fixed as (tuition fee by the impugned orders dated 22-11-2000 and 15-2-2001 is commensurate with the facilities provided in the four Public Schools and is reasonable. According to Mr. Thangkhiew, therefore, the impugned orders dated 22-11-2000 as superseded by the impugned order dated 15-2-2001 satisfies the test of reasonableness and should not be interfered with by this Court in exercise of its power of judicial review. Regarding free education, Mr. Thangkhiew relying on the averments in Paragraph 7 of the affidavit-in-opposition submitted that free education with no tuition fee is being imparted in all Government Primary and Upper Primary Schools with nominal fee of Rs. 50/- per annum only for Government Secondary Schools. But the four Public Schools in question are special category schools where a different course and syllabus are being followed as prescribed by the Council for the Indian School Certificate Examinations and the said four Public Schools in Meghalaya are at par with other Public Schools in the country. The enhanced fees in the four Public Schools, therefore, have no relation with the Government policies for universalisation of education in the State. He finally submitted that in any case fixation of tuition fee of the students of the Public Schools in the State of Meghalaya is purely a question of Government's policy-decision and the impugned orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya, Education Department, are really a policy-decision of the Government which ought not to be interfered with by the Court under Article 226 of the Constitution.

7. Mr. Thangkhiew is right in his submission that the Court in exercise of its powers under Article 226 of the Constitution does not normally interfere with the policy-decision of the Government, but the Court while exercising its power of judicial review has to ensure that the Government while taking policy or administrative decisions does not disregard the constitutional provisions. In Unni Krishnan's case, (AIR 1993 SC 2178) (supra), the Supreme Court had the occasion to deal with the constitutional provisions relating to education. In the said case, the earlier decision in Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 : 1992 AIR SCW 2100 : (AIR 1992 SC 1858), that the right to education is a fundamental right flowing from Article 21 of the Constitution was under consideration by a Constitution Bench. L. M. Sharma, C.J. delivering the judgment for himself and on behalf of S. P. Bharucha, J. held that the question whether the right to primary education, as mentioned in Article 45 of the Constitution of India, is a fundamental right under Article 21 did not arise in Mohini Jain's case and no finding or observation on that question was called for (para 2). S. Mohan, J. held that if really Article 21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education upto 14 years of age, within the prescribed time limit (Para 32). B. P. Jeevan Reddy, J. delivering the judgment for himself and on behalf of S. Ratnavel Pandian, J. held that it would not be correct to contend that Mohini Jain was wrong insofar as it declared that 'the right to education flows directly from right to life'. Portion of the judgment of B.P. Jeevan Reddy, J. which is relevant for the purpose of deciding this case is quoted hereinbelow:

'........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. So far as the right to education is concerned, there are several Articles in Part IV which expressly speak of it. Article 41 says that the 'State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want'. Article 45 says that 'the State shall endeavour to provide, within a period often years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.' Article 46 commands that 'the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.' Education means knowledge -- and 'knowledge itself is power.' As rightly observed by John Adams, 'the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country (Dissertation on canon and feudal law, 1765). It is this concern which seems to underline Article 46. It is the tyrants and bad rulers, who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said : 'Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction.' (Rauschning, The voice of destruction : Hitler speaks). A true democracy is one where education is universal, where people understand what Is good for them and the nation and knowhow 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.'

(Para 145)

Thus, the majority view in the case of Unni Krishnan (AIR 1993 SC 2178) was that the right to education is implicit in the right to life and personal liberty guaranteed under Article 21 of the Constitution and must be construed in the light of the directive principles In Part IV of the Constitution.

8. When such right to education is construed in the light of Article 45 of the Constitution, it would mean that every child/ citizen of the country has a right to free education until he completes the age of fourteen years. In the affidavit-in-opposition filed by the respondents in W.P. (C) No. 42(SH) 2001, it has been stated in para 7 that free education with no tuition fee is being imparted in all Government Primary and Upper Primary Schools with nominal fee of Rs. 50/- per annum only for Government' Secondary Schools and that the enhanced fees in the Public Schools do not relate to Government policy towards universalisation of education in the State. Thus, it appears that the right of every child/citizen to free education upto the age of fourteen years as provided in Article 21 read with Article 45 of the Constitution is sought to be made effective by the State Government through its Primary and Upper Primary School. Hence, in a sense the fees for four Public Schools in the State of Meghalaya fixed in the impugned orders dated 22-11-2000 and 15-2-2001 may not be relevant to the issue of free and universal education for all citizens/children in the State of Meghalaya after the age of fourteen years as provided in Article 45 of the Constitution.

8A. But in the said affidavit-in-opposition of the respondents, it is stated in para 6 that the Public Schools including the Pine Mount School in Shillong is open to all with an object to impart quality education maintaining the high standard of a Public School as prevalent in other parts of the country. In para 7 of the said affidavit-in-opposition, it has further been stated by the respondents that the four Public Schools in the State including the Pine Mount School are special category schools where a different course and syllabus are being followed as per the Indian Council of School Education. The question is : Can such Public Schools established and maintained by the Government in the State of Meghalaya and providing quality education with better facilities than those of Government Primary and Upper Primary Schools be made beyond the reach of weaker sections of the society by fixing higher fees for the students? The answer to this question is in Article 46 of the Constitution which commands that the State shall promote with special care the educational and economic interests of the weaker sections of the people, 'and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. The purport of Article 46 of the Constitution has been explained in the Judgment of B.P. Jeevan Reddy, J. quoted above. His Lordship has quoted John Adams who has said : 'the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country.' His Lordship B.P. Jeevan Reddy, J. has held that 'it is this concern which seems to underline Article 46.' The Preamble to the Constitution of India also attempts to secure to all its citizens equality of status and opportunity. If weaker sections of the society, and, in particular, the Scheduled Castes and the Scheduled Tribes in the State of Meghalaya may not be able to afford the fees fixed for the four Public Schools in the impugned orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya, Education Department, they may either withdraw their children already studying in the said Public Schools or may not be able to admit their children in the said Schools though the children may have the required merit to study in the said Schools. In Unni Krishnan's case (AIR 1993 SC 2178), Jeevan Reddy, J., observed :

'We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies -- as it does, without a doubt -- to the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations -- wherein too, merit inter se has to be followed) the applicability of Article 14 cannot be excluded from the supplemental effort/activity. The State Legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the State Legislature. On this ground alone, the Section is liable to fall.'

(Para 174)

It will be clear from the aforesaid portion of the judgment of Jeevan Reddy, J. that the consideration for admitting students in educational institutions and particularly those maintained by the State is merit and merit alone subject to any permissible reservations wherein too, merit inter se has to be followed, and that no Immunity can be claimed from the aforesaid constitutional obligation. These being the constitutional provisions, I am of the considered opinion that while fixing the fees for four Public Schools in the State of Meghalaya which are said to be imparting quality education to the students, the Government has to keep in mind the aforesaid constitutional obligations and ensure that the fees are not beyond the reach of weaker sections of the society including the Scheduled Castes and the Scheduled Tribes.

9. Under Article 162 of the Constitution, the State of Meghalaya can fix the fees for the four Public Schools in Meghalaya maintained by the Government by executive orders until the fees are prescribed by a statute. On a reading of the impugned order dated 15-2-2001 which superseded the earlier impugned order dated 22-11-20001 find that some concessions have been granted for low Income parents, parents having more than one child studying in the same school and low income parents having more than one child studying in the same school. After the interim orders passed by this Court were vacated as discussed above the fees fixed in the impugned order dated 15-2-2001 may also have been collected in the meanwhile. For these reasons, I am not inclined to quash the impugned orders dated 22-11-2000 and 15-2-2001, but I make it clear that the said impugned orders would be effective only for the academic session 2001 and will not apply for the academic session 2002 onwards.

10. Section 4 of the Meghalaya School Education Act, 1981, (for short, 'the Act, 1981'), provides that the Government may, subject to the provisions of clause (1) of Article 30 of the Constitution, regulate education' in all the schools in Meghalava' in accordance with the provisions of the Act and the Rules made thereunder. The expression 'all the schools in Meghalaya' In Section 4 will obviously Include the four Public Schools established and maintained by the State of Meghalaya. Obviously, the power to regulate education in Section 4 of the Act, 1981, would include the power to fix fees for the four Public Schools in the State of Meghalaya. But such power has to be exercised in accordance with the provisions of the Act, 1981, and the Rules made thereunder. Section 17 of the Act, 1981, provides for fees and other charges for aided schools. 'Aided school' has been defined in Section 3(ii) of the Act, 1981, to mean a recognised private school which receives aid in the form of maintenance and/or development grant from the State Government or any other authority designated by the State Government. Hence, the said Section 17 of the Act, 1981, has no application to Public Schools established and maintained by the Government. Section 31(1) of the Act, 1981, further provides that the State Government may, subject to the condition of previous publication, make rules to carry out the provisions of the Act. Section 31 of the Act, 1981, states that tn particular, such rules provide for all matters expressly required or allowed by the Act to be prescribed, or in respect of which the Act makes no provision, or makes insufficient provisions for the proper implementation of the Act. Considering all these provisions of the Act, 1981, the fees for the four Public Schools in the State of Meghalaya for the academic session 2002 onwards will have to be prescribed by the State Government by framing Rules made under the Act, 1981, subject to the condition of previous publication.

11. Section 36 of the Meghalaya Interpretation and General Clauses Act, 1972, (for short, 'the Act, 1972'), provides that where, by any enactment, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then, the authority having the power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the Information of persons likely to be affected thereby and the authority shall consider any objection or suggestion which may be received by the authority with respect to the draft before the date so specified. Thus, when the draft of the Rules prescribing the fees for the four Public Schools in the State of Meghalaya is published in accordance with Section 36 of the Act, 1972, the parents and guardians of the students studying in the four Public Schools can submit their objections or suggestions before the date specified in the notice published along with the draft rules, and if such objections or suggestions are filed, the State Government will have to consider the said objections or suggestions received from such parents or guardians of the students studying in the four Public Schools. This will take care of the grievance of the petitioners in these writ petitions that the views of the parents and guardians of the students studying in the four Public Schools in the State of Meghalaya were not taken into consideration before fixation of the fees for the four Public Schools in the impugned orders dated 22-11-2000 and 15-2-2001. The provisions of the Act, 1982, however, do not provide for any hearing to be given to any party before framing of the Rules under the Act, 1981, and for this reason, no direction can be given to the respondents to hear the parents and guardians or their Association before framing the Rules relating to fees for the four Public Schools in the State of Meghalaya.

12. For the aforesaid reasons. I dispose of the writ petitions by holding that the impugned orders dated 22-11-2000 and 15-2-2001 of the Government of Meghalaya in the Department of Education fixing the fees for the four Public Schools in the State of Meghalaya will not be effective for the academic session 2002 onwards, and the State Government will frame Rules under Section 31 of the Meghalaya School Education Act, 1981, prescribing the fees for the four Public Schools in the State of Meghalaya for the academic session, 2002 onwards keeping in mind its constitutional obligations as discussed above in this judgment, and before finally framing the Rules will publish a draft of the said Rules in accordance with Section 36 of the Meghalaya Interpretation and General Clauses Act, 1972, and take into consideration any objection or suggestion to the draft Rules submitted by the petitioners or any other person(s) before the date specified in the notice published along with the draft Rules in accordance with the said Section 36 of the Act, 1972.

Considering, however, the entire facts and circumstances of the case, the parties shall bear their respective costs.