East Godavari Private Schools ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 5499 AP

        IN THE HIGH COURT OF ANDHRA PRADESH

                                 ****

W.P. Nos.18555, 18831, 18993 and 19145 of 2021

W.P.No.18555 of 2021

Between:

East Godavari Private Schools Association (Regd. 576/2020) Represented by its President Sri Dasari Durga Srinivasarao, R/o D.No.2-2-119, Shirdi Nagar, Yeleswaram, East Godavari District Andhra Pradesh - 533 429 and six others .... Petitioners

AND State of Andhra Pradesh Rep. by its Principal Secretary, School Education (IE) Department, Secretariat, Tullur, Velagapudi, Guntur District and three others

.... Respondents DATE OF JUDGMENT PRONOUNCED: 27.12.2021

SUBMITTED FOR APPROVAL:

   THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

1. Whether Reporters of Local Newspapers
   may be allowed to see the judgment?                    Yes / No


2. Whether the copies of judgment may be
   marked to Law Reporters / Journals?                    Yes / No


3. Whether His Lordship wish to
   see the fair copy of the Judgment?                     Yes / No



                                        _________________________
                                        U. DURGA PRASAD RAO, J





  * THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

          + W.P. Nos. 18555, 18831, 18993 and 19145 of 2021

                       W.P.No.18555 of 2021


% 27.12.2021

Between:

East Godavari Private Schools Association (Regd. 576/2020) Represented by its President Sri Dasari Durga Srinivasarao, R/o D.No.2-2-119, Shirdi Nagar, Yeleswaram, East Godavari District Andhra Pradesh - 533 429 and six others .... Petitioners

AND State of Andhra Pradesh Rep. by its Principal Secretary, School Education (IE) Department, Secretariat, Tullur, Velagapudi, Guntur District and three others .... Respondents

! Counsel for Petitioners : Sri Vedula Venkataramana, Senior Counsel representing Sri M. Sri Vijay

^Counsel for Respondents : Government Pleader for School Education representing respondent Nos.1 and 4, Sri B.S.N. Naidu, learned Standing Counsel for respondent No.2 and Ms. Elipe Santha Sree, learned Standing Counsel for respondent No.3

< Gist:

> Head Note:

? Cases referred:

1. (2002) 8 SCC 481

2. MANU/SC/0580/2003

3. MANU/SC/042/2004 = AIR 2004 SC 2236

4. 2005 (6) SCC 537 = MANU/SC/2621/2005

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

Writ Petition Nos.18555, 18831, 18993 & 19145 of 2021

COMMON ORDER:

The petitioners in this batch of writ petitions are different

Private Unaided School Associations, Junior College Management

Associations, Junior Colleges and High Schools. In these writ

petitions they are challenging the propriety and legality of

G.O.Ms.No.53, School Education (PS) Department, dated 24.08.2021

and G.O.Ms.No.54, School Education (IE.A2) Department, dated

24.08.2021.

2. Briefly stating, G.O.Ms.No.53 spells out that the Andhra

Pradesh School Education Regulatory and Monitoring Commission

(for short, 'the APSERMC) in its meeting held on 24.04.2021

reviewed and determined the fee structure for Nursery to 10th class in

private unaided schools in the State of A.P. for the block period 2021-

2022 to 2023-2024 in terms of Section 9(ii) of the Andhra Pradesh

School Education Regulatory and Monitoring Commission Act, 2019

(for short, 'the Act 21 of 2019') by considering the plight of common

man/parents and also keeping in view the judgment of the Hon'ble

Apex Court in the case of TMA Pai Foundation v. State of

Karnataka1, Islamic Academy of Education v. State of

Karnataka2 and Modern School v. Union of India3 and other

(2002) 8 SCC 481

MANU/SC/0580/2003

judgments and forwarded its recommendations to the Government

regarding fee structure for Nursery to 10th class of private unaided

schools in the State of A.P. for the aforesaid block period. Pursuant

thereof the Government of A.P. issued the notification by fixing the

Composite Tuition/Annual Fee for schools collectible in three equal

instalments by dividing schools location wise i.e., Gram Panchayats,

Municipalities and Municipal Corporations. The fee structure is

prescribed as per the location of the school and class wise. The G.O.

inter alia reads about the Transportation charges and Hostel

(Boarding and Lodging) charges etc.

(a) Whereas, the G.O.Ms.No.54 would depict that the

APSERMC in its meeting held on 03.03.2021 reviewed and

determined the fee structure of two years Intermediate course of

private unaided junior colleges in the State of A.P. for block period

2021-2022 to 2023-2024 and made recommendations to the

Government of A.P. and accordingly, the Government have issued

notification in exercise of the powers conferred under Section 7 of the

Andhra Pradesh Educational Institutions (Regulation of Admission

and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983) [for

short, 'Capitation Fee Act, 1983']. Like in the earlier G.O., the

Composite Tuition / Annual Fee of junior colleges is fixed basing on

the location of the junior colleges in Gram Panchayats, Municipalities

and Municipal Corporations. This G.O. also inter alia deals with the

MANU/SC/042/2004 = AIR 2004 SC 2236

Transportation charges, Hostel (Boarding and Lodging) charges,

maintenance of accounts etc.

3. The legality and validity of the above G.O.s is challenged in

these writ petitions.

(a) The facts in all these writ petitions are more or less identical

but for slight variations. Since the ultimate prayer in all these writ

petitions is to set aside the two impugned GOs, it is considered

apposite to adjudicate all these petitions by this common order

treating W.P.No.18993/2021 as a lead case.

(b) The petitioner in W.P.No.18993/2021 is an Association of

Independent Schools Management. Its case is that its member schools

are imparting elementary and secondary education by affiliating

themselves with CBSE and ICSE. Their schools are different from

the regular schools and other public or private aided or unaided

institutions either in composition, infrastructure facilities or teaching

methodology. Some of their schools are offering various international

curriculums like International General Certificate of secondary

education, Cambridge (IGCSE) and International Baccalaureate

Program (IBP), Geneva to commensurate with the international

standards. Their schools have state of art indoor and outdoor

amenities, digital classrooms, learning resource centres with extensive

collection of books, DVDs, audio-visual rooms and labs. These

schools have been fixing fee commensurate with their individual

capital and revenue expenditures. The fixation of fee is wholly

transparent, done after deliberation with representatives of the parents.

There is absolutely no element of profiteering. In that view, if the

impugned G.O.Ms.No.53 is implemented, their schools have to be

shut down immediately.

(c) The first tirade against impugned G.O.Ms.No.53 is that it

was imbued with factual falsities. Though in the G.O. it was claimed

that before arriving at the fee fixation, the Commission had discussed

with private unaided management association members, it was

factually incorrect. Not even one of the 119 members of the

petitioner's association was consulted and they were unaware of any

meeting being called for by the Commission. The Commission has

not followed the Act 21 of 2019 and its Rules. No individual notices

were served on the private educational institutions calling for their

proposals of fee structure along with relevant documents and books of

accounts. It is only after inviting proposals from the individual

schools and upon considering the same, the Commission has to make

an objective assessment as to whether fee structures proposed by the

individual managements are reasonable taking into account the de-

profiteering and de-commercialization aspects, the Commission shall

make its recommendations class and category wise keeping in view

the location, infrastructure of the institution, operational costs,

medium of instruction and the expenditure on administration and

maintenance. The Commission can only make recommendations on

the proposal submitted by the individual schools, but it cannot fix fee

by itself. The proposals have to be considered only on the basis of

empirical frame work devised by the Commission for grading the

schools class and category wise. However, nothing of the sort has

been done. Instead all the Schools have been painted with the same

brush effacing the distinguishing features of individual schools.

(d) Nextly, it is pleaded that the impugned G.O makes an

artificial classification among schools based on location which is

irrational to the hilt. In fact, some international schools are located in

rural areas and economy schools in corporate areas. For instance,

Laurel High English Medium School, a prestigious school in Andhra

Pradesh is located in a Village Gadala of East Godavari District in

Andhra Pradesh. Similarly, another famous school by name

Westberry High School is located in Peda Amiram Village near

Bhimavaram in West Godavari District. There are many such

examples which would prove that the impugned order suffers from the

vice of unreasonable classification having no nexus with the objective

sought to be achieved. Therefore, the geographical locations of

schools cannot be taken as a basis for fixation of fee structure.

(e) Nextly, it is contended that by fixing the lowest fee possible

commonly for all the schools in the State unilaterally the Government

have bypassed the rule in TMA Pai Foundation's case (supra 1),

wherein it was observed that the fixing of a rigid fee structure,

dictating the formation and composition of governing body,

compulsory nomination of teachers and staff for appointment or

nominating students for admissions would be unacceptable

restrictions.

(f) Nextly, it is contended that the Capitation Fee Act, 1983

only gives power to regulate the fee. However, the 1st respondent

proceeded to fix not just fee but also it fixed the transportation and

hostel charges which are beyond the power of the Government. Even

the transportation charges are ridiculously low.

4. In W.P.No.18555/2021 also the pleadings are similar. It is

stated that challenging the constitutional validity of the Act 21 of

2019 W.P.No.4268/2021 is filed and the same is pending.

(a) It is contended that the fixation of fee under the two

impugned G.Os by the Government orders is in total contravention of

the procedure laid down by Rule 8 of the Andhra Pradesh School

Education Regulatory and Monitoring Commission Rules, 2020 (for

short, 'Rules, 2020'). The 2nd respondent has not called proposals

from the respective schools/junior colleges before recommending the

fee structure. Further, the 2nd respondent has not taken into

consideration the parameters such as infrastructure of the institution,

operational cost, medium of instructions, expenditure on the

administration etc. except the location of the institutions for fixing the

fee. The Government orders are imaginative and speculative as there

is no proper method for fixation of the fee. There cannot be any

mathematical equity based upon the location of educational

institutions in a Gram Panchayat, Municipality or Municipal

Corporation for fixation of the fee. It is further contended that the

State can only play regulatory role in the matter of fixation of fee.

The college education also requires adequate/excellent infrastructure,

teaching facility, laboratory facility etc. Therefore, educational

institutions cannot be equated to Fair Price Shops to have a uniform

standard rate for groceries sold/distributed. Thus, there is a serious

error in grouping the educational institutions basing on their location.

Next it is contended that as per the GOs, a post decisional opportunity

has been given to the educational institutions to apply to the

Commission in case the institutions are not satisfied by the fee fixed

in the impugned GOs. Thus, the impugned GOs themselves are self-

explanatory that the fee fixed in those GOs is arbitrary and

unscientific. On the other hand, if Rule 8 is followed in letter and

spirit, there can be no room for re-fixation/revision of the fee. So,

both the GOs i.e., G.O.Ms.No.53 and 54 are liable to be set aside.

5. In the W.P.Nos.18831 & 19145 of 2021 also the pleadings are

similar whereunder the petitioners remonstrated the fixation of fee by

the Government basing on the location of the schools.

6. No counter is filed by the respondents.

7. Heard the arguments of Sri B.Adinarayana Rao, learned Senior

Counsel representing Sri Bodduluri Srinivas Rao, learned counsel for

petitioners in W.P.Nos.18993 & 19145 of 2021, and Sri Vedula

Venkata Ramana, learned Senior Counsel representing Sri M. Sri

Vijay, learned counsel for petitioners in W.P.No.18555/2021, and Sri

P.Veera Reddy, learned Senior Counsel representing Sri Sodum

Anvesha, learned counsel for petitioner in W.P.No.18831/2021.

Heard arguments of learned Government Pleader for School

Education, Sri B.S.N.Naidu, learned Standing Counsel for

APSERMC, and Ms. Elipe Santha Sree, learned Standing Counsel for

Board of Intermediate Education.

8. All the learned counsel in their arguments, have reiterated their

pleadings in the respective writ petitions, from which the following

main points would emerge:

(1) Rule 8 of the A.P. School Education Regulatory and Monitoring Commission Rules, 2020 which is in pari materia with Rule 8 of the A.P. Higher Education Regulatory and Monitoring Commission Rules, 2019, pellucidly laid down that the APSERMC and APHERMC shall call for the proposals from the educational institutions regarding the fee structure and thereafter they shall invariably consider the parameters given in the said Rule and then prescribe the fee so as to regulate the educational institutions from resorting to profiteering or charging Capitation fee. However, in this case the APSERMC has not at all called for the proposals and relevant record from the petitioners and no notification was issued in that regard. As such, the petitioners and their ilk were totally ignorant of any exercise being conducted by the APSERMC in terms of Rule 8. Hence, the impugned G.Os fall foul of the said Rule.

(2) The fixation of fee under the impugned G.Os basing on the geographical location of educational institutions is wholly unjust, illegal, illogical and contrary to Rule 8. As per the said Rule, the Commission has to consider several parameters enumerated in the said Rule before recommending the appropriate fee. The location of an educational institution is only one of the several parameters but it alone is not be all and end all.

(3) The Capitation Fee Act, 1983 and Act 21 of 2019 only gave power to the Government to regulate the "fee", however, the 1st respondent proceeded to fix not just "fee", but also the transportation, hostel charges etc. which are beyond the scope of the above enactments and power of the Government. Even such fixation of the transportation charges on location wise is ridiculously low and only aimed at scuttling private school education in the State and migration of students and the flight of capital to the neighbouring states. On this ground alone the impugned G.Os are liable to be struck down.

9. Projecting the above points, it is unanimously argued by the

learned Senior Counsels that ignoring the series of judicial

pronouncements of the Hon'ble Supreme Court exhorting that the

State may regulate fee structure of private unaided schools to prevent

them from indulging in profiteering but cannot impinge upon the

autonomy of the schools to fix and collect the just and permissible fee,

and also violating the statutory Rules, the Government brought forth

the two G.Os.

10. In oppugnation, Sri B.S.N. Naidu, learned Standing Counsel for

APSERMC would argue that as per Rule 8 the duty is cast on the

petitioners and other educational institutions to submit their proposals

and they have not submitted their proposals for fixation of fee

structure. Therefore, the writ petitions are not maintainable.

11. Nextly, he argued that as per Point No.XII in both G.Os, an

opportunity has been given to the concerned educational institutions,

who felt that fee structure is low, to submit their own proposals for

consideration of APSERMC. Such objections and proposals will be

disposed of by the Commission within three months thereof. Learned

Standing Counsel would argue that without availing the said

opportunity, the petitioners have rushed to the Court and filed the writ

petitions which are premature and hence, liable to be dismissed. It is

further argued that the APSERMC made recommendations after

consulting the parents Committees, educational institutions etc., and

therefore, the fee structure mentioned in the impugned G.Os is just

and reasonable and therefore, the writ petitions are liable to be

dismissed on that score also. He thus prayed to dismiss the writ

petitions.

12. The points for consideration in these writ petitions are:

(1) Whether G.O.Nos.53 and 54 fell foul of statutory provisions and rules and thus liable to be set aside?

(2) To what relief ?

13. Point No.1: It is harsh but true to say that 'education' in India,

like river Ganga which slipped off from high mountainous regions to

murky brooks, has gradually slided down from a high status of

'charity or philanthropy' to 'occupation' and further to 'industry' and

finally to 'a livelihood'. Education has thus since long been a subject

matter of litigation between the competing interests. While one

section who sponsors the private educational institutions independent

of government aid claims that the establishment and administration of

private educational institutions is their fundamental right under Article

19(1)(g) of the Constitution and State's intervention therein is like a

'bull in a china shop', the other section i.e., the State and a section of

the society clamour that though establishment of institutions is a

fundamental right but not an absolute right so as to convert

educational institutions into lucrative auction houses. On the other

hand, the State has right and obligation to regulate such institutions in

the context of admission of students and collection of fees so as to

prevent the education being profaned. In the friction, beckoning

judgments have been rendered balancing the rights and interests of the

two competing sections.

14. In the above context, a eleven Judge Bench of the Apex Court

rendered the judgment in TMA Pai Foundation's case (supra 1).

Dealing with the question as to whether in respect of private

institution, can there be government regulations and if so to what

extent, the Apex Court observed that since providing good amenities

to the students in the form of competent teaching faculty and other

infrastructure need money, it has to be left to the private unaided

institutions to determine the scale of fee that can be charged.

However, inasmuch as, the education is regarded as charitable, the

Government can provide regulations that will ensure excellence in

education, while forbidding the charging of capitation fee and

profiteering by the institution.

15. Various State Governments and educational institutions

interpreted the judgment, in individual perspectivism which led to

multiplicity of cases in respect of education in India. It ultimately led

to constitute a constitutional Bench of five Judges in Islamic

Academy of Education (supra 2) for resolving the tangle. Basing on

the rival submissions, the Bench framed the following four questions

for consideration, of which question No.1 is germane for the present

writ petitions, which is as follows:

(1) Whether educational institutions arc entitled to fix their own fee structure?

16. So far as question No.1 is concerned, the constitutional Bench

held that there can be no fixing of rigid fee structure by the

Government. Each institution must have the freedom to fix its own

fee structure taking into consideration the need to generate funds to

run the institution and to provide facilities necessary for the benefit of

the students. Further, they must also be able to generate surplus

which must be used for the betterment and growth of that educational

institution. It was further held, there can be no profiteering and no

capitation fee can be charged. At the outset, imparting of education

shall be essentially charitable in nature. Most importantly, with

regard to the regulation of the fee structure of private unaided

educational institutions, the Bench held that in order to give effect to

the judgment in TMA Pai Foundation (supra 1), the respective State

Governments / concerned authority shall set up, in each State, a

Committee headed by a retired High Court Judge and other members

from different disciplines. Each educational institution must place

before the said Committee, well in advance of the academic year, its

proposed fee structure by submitting the relevant documents and

books of accounts for its scrutiny. The Committee shall then decide

whether the fees proposed by that institution are justified or meant for

profiteering or charging capitation fee. The Committee will be at

liberty to approve the fee structure or to propose some other fee which

can be charged by the institute and the fee structure so fixed shall be

binding for a period of three years. Once fees are fixed by the

Committee, the institute cannot charge either directly or indirectly any

other amount over and above the amount fixed as fees. The

Government shall frame appropriate regulations for penalizing the

institutions charging more fee than fixed.

17. The judgment in TMA Pai Foundation (supra 1) was rendered

by eleven Judges whereas the judgment in Islamic Academy of

Education (supra 2) was rendered by five Judges. Questions were

raised that while giving clarifications and explanations to the findings

in TMA Pai Foundation's judgement, the Islamic Academy runs

counter to earlier judgment. Therefore, to clarify whether Islamic

Academy of Education's case went in conflict with TMA Pai

Foundation's case and if so, to what extent and to overrule to the

extent of such over reaches, the matter was referred to seven Judges in

the case of P.A.Inamdar v. State of Maharashtra4. After the

exhaustive study of the judgments in TMA Pai Foundation and

Islamic Academy of Education, the Apex Court in P.A.Inamdar'

case (supra 4) gave several clarifications. Of them, we are concerned

with right of the private unaided educational institutions to fix their

fee structure vis-a-vis the right of the State to regulate the same.

18. It should be noted that the direction made in Islamic Academy

of Education (supra 2) for appointment of the Committees has been

vehemently assailed in P.A. Inamdar (supra 4). It was argued that

the right to charge fees so as to run the college and to generate

sufficient funds for its betterment and growth cannot be controlled by

the State. That would seriously encroach upon the autonomy of the

private unaided institutions. It was further argued that Islamic

Academy of Education's case (supra 2) virtually reviewed the larger

bench decision in TMA Pai Foundation (supra 1) in the guise of

implementation of the said decision and went far beyond the law laid

2005 (6) SCC 537 = MANU/SC/2621/2005

down by TMA Pai Foundation (supra 1) and directed each State to

set up permanent Committees headed by the retired High Court

Judges to decide the justification of the fee proposed by the

institutions.

19. In P.A. Inamdar (supra 4), the Apex Court framed few

questions to resolve the issues between TMA Pai Foundation and

Islamic Academy of Education. Question No.3 is pertinent which is

as follows:

(3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?

On the above question, the Apex Court ultimately held thus:

"146. The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non- exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.

(xxx)

149. In our considered view, on the basis of judgment in Pai Foundation and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities.

A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature."

20. In Indian School, Jodhpur v. State of Rajasthan5, when the

validity of the Rajasthan Schools (Regulation of fee) Act, 2016 was

assailed as being violative of Article 19(1)(g) of the Constitution, the

Apex Court held that the High Court of Rajasthan had rightly

concluded that the said Act was intra vires to the Constitution.

21. Thus, on a conspectus of the jurisprudential exposition by the

Apex Court, it is pellucidly clear that while it is the fundamental right

of private unaided educational institutions, guaranteed under Article

19(1)(g) of the Constitution of India to establish and administer

institutions which includes fixation of fee structure, at the same time,

the State Governments have power and obligation to regulate the fee

structure so as to prevent such institutions resorting to profiteering and

collecting Capitation Fee. It should be noted that in the wake of

above judgments, particularly Islamic Academy of Education (supra

2), the State Government of Andhra Pradesh has enacted the A.P.

School Education Regulatory and Monitoring Commission Act, 2019,

and also framed the Rules thereunder for maintaining the standards of

education, regulation of fee, competence of teachers, effective

inspection, monitoring of schools etc. in respect of school education

upto intermediate level including teacher education. The State has

also enacted a similar enactment called 'the A.P. Higher Education

Regulatory and Monitoring Commission Act, 2019' applicable to Post

Secondary School Level with which we are not concerned now. Thus,

2021 (3) CTC 531 = MANU/SC/0338/2021

it has now to be seen whether the two impugned G.Os were issued in

accordance with or in violation of the provisions of Act 21 of 2019

and Rules made thereunder.

22. A perusal of the Act 21 of 2019 would show, it mainly deals

with establishment of School Education Regulatory and Monitoring

Commission and powers and functions of the said Commission. As

per Section 3 of the Act, the State Government, by notification in

Official Gazette, appoints the Regulatory and Monitoring

Commission. Section 4 deals with the composition of the

Commission which shall consist of a Chairperson who is a retired

Judge of the High Court, one Vice Chairman and eight other

academicians. Section 9 speaks about different powers of the

Commission. Section 9(ii) says that the Commission shall have the

power to monitor and regulate fee across all private schools in the

State duly developing parameters of fee structure and grading of

schools, irrespective of their Board of Affiliation or curriculum.

Section 19 speaks about the power of State Government to review,

revise and modify any of the decisions of the Commission in public

interest. Rulemaking power is vested with State Government under

Section 22. In consonance thereof, the Government have framed the

Andhra Pradesh School Education Regulatory and Monitoring

Commission Rules, 2020.

Rule 8 deals with fee regulation. It reads thus:

8. Fee Regulation

(i) Every Educational institution shall submit the proposed fee structure of admissions along with all the relevant documents and books of accounts for scrutiny to the Commission based on the notification issued by the Commission from time to time.

(ii) The Commission shall decide whether the fees proposed by the institution is justified and does not amount to profiteering or charging of capitation fee.

(iii) The commission shall be at liberty to approve or alter the proposed fee.

(iv) The Commission shall recommend the fee to be charged by the Private Educational Institutions Class and category wise in the State by duly taking into consideration of all the relevant parameters such as

(a) Location

(b) Infrastructure of the institution

(c) The operational costs in processing applications and registrations and other relevant circumstances

(d) Medium of Instruction

(e) The expenditure on administration and maintenance

(f) In case of transfer of Students from one Institution to other Institution, the procedure for payment of fee in the Institution to which the Student is transferred.

(v) No Educational Institutions like Primary, Upper-Primary, Secondary, Intermediate and Teacher Education including Tutorial Institutions shall collect at a time a fee which is more than one year's fee from a candidate.

23. It should be noted, the petitioners have challenged the

impugned G.Os for violation of Rule 8 on two counts - firstly, no

prior notification was issued to educational institutions calling for

their proposals regarding fee structures and secondly, the fee structure

was fixed by the State Government basing on the geographical

location of the educational institutions alone without considering the

other parameters laid in the said Rule.

24. I carefully scrutinized Rule 8 in the light of above arguments.

Rule 8(i) on one hand directs that educational institutions shall submit

the proposed fee structure of admissions along with relevant

documents and books of accounts for scrutiny of the Commission and

on the other hand, imposes responsibility on the Commission to issue

"notification" in that regard from time to time. The phrase "based

on" employed in the Rule explains that the responsibility of

educational institutions to submit proposed fee structure and relevant

record comes only after the notification is issued by the Commission.

Therefore, it is clear that the Commission, whenever it proposes to

recommend the fee structure, shall issue notification calling for the fee

structure proposals from the institutions. In the instant case, except

arguing that a duty is cast on the educational institutions to submit fee

proposals, learned Standing Counsel has not produced any record

before this Court showing issuance of prior notification by the

APSERMC. It should be noted that the respondents filed some

material papers wherein we find a copy of notification dated

26.05.2020 issued by the APSERMC calling for the fee proposals

from the managements of all private unaided schools and junior

colleges in the State of A.P. to enable it to review and determine the

fee structure for the Academic Year 2020-21. Needless to say that the

said notification does not relate to the fees fixation for the Academic

Years 2021-2022, 2022-2023 & 2023-2024. Most of the other

material papers are the inspection reports relating to the inspections of

the educational institutions conducted by the administrative members

of APSERMC. Those papers are of no use to show that prior

notification was indeed issued. In the impugned G.Os, no doubt it is

mentioned as if the Commission before arriving the fee fixation, had

discussions with managements of educational institutions and parents

of the students in the State. In the material papers, the 2nd respondent

filed a xerox copy of the paper showing signatures said to be that of

parents of the students relating to different colleges who have attended

the fee fixation meeting said to be held on 02.03.2021. Apart from it,

a xerox copy of a part of letter dated 19.04.2021 said to be addressed

by NIL of Independent Schools Managements' Association was also

filed to show that said Association was thanking the Commission for

inviting them for a discussion on the proposed fee structure fixation.

In my considered view, the afore two documents will not supplant the

requirement of issuing prior notification by the Commission as

ordained by Rule 8. Thus, it is clear that the Commission has not

issued prior notification calling for the fee proposals from the

petitioners and other institutions. Therefore, I agree with the argument

of the petitioners that no prior notification was issued by the

Commission and thereby Rule 8 and principles of natural justice were

violated.

25. The next attack on G.Os is that the parameters, set out in Rule 8

were not at all considered to fix the fee under impugned G.Os. In

Rule 8(iv), six parameters as stated supra are given, in consideration

of which the Commission shall be required to recommend the fee.

There can be no demur that those parameters were not considered by

the Commission as it did not issue notification to call for the

proposals. In Para No.4 of the impugned G.Os, we will find as if the

Commission has recommended the fee structure, and basing on such

recommendation the Government issued the G.Os. When no prior

notification was issued by Commission calling for fee proposals from

the educational institutions, it is highly incomprehensible as to how

the APSERMC has verified the several parameters mentioned in Rule

8 with reference to each educational institution and recommended the

fee as per class and category-wise to the government. From this the

only conclusion that can be drawn is that the fee structure fixed in the

impugned G.Os is not backed up by any relevant data to arrive at just

and reasonable fees to govern for three consecutive academic years.

26. The next argument is that fixation of fees, solely on the basis of

geographical location of the educational institution is neither legal nor

logical. It is argued that many premier institutes having sprawling

buildings, larger playgrounds and other State of art infrastructure are

established in Gram Panchayats also and therefore, if fee is fixed to all

the educational institutions, solely on the basis of their location

without categorizing them in terms of their facilities, infrastructure,

expenditure etc. by ignoring other parameters, will result in grave

injustice.

27. A bare perusal of the impugned G.Os shows, the fees was fixed

basing on the geographical location of the concerned educational

institutions i.e., in Gram Panchayats, Municipalities and Municipal

Corporations. As rightly argued by the petitioners, geographical

location of an institution alone cannot be the basis for fixation of fee.

As per Rule 8(iv), in addition to location, other parameters shall also

be taken into consideration by the Commission. It has to ultimately

recommend the fee to be charged by the private educational

institutions 'class' and 'category' wise. Therefore, the categorization

of the educational institutions is an essential component for fixing the

fee. Institutions can be categorized viz., A, B, C, D etc. basing on

varied infrastructural and pedagogic facilities offered by them. It is a

fact that all the educational institutions cannot and will not offer

identical facilities. It is also a fact that for various reasons,

particularly for having large space, high profiled concept schools and

colleges are located even in Gram Panchayats, whereas medium and

low level schools and colleges are functioning in Municipalities and

Corporations. In that view, as rightly pointed out by the petitioners,

geographical location alone cannot be taken as a parameter for

grouping the educational institutions to fix their fee. On the other

hand, to meet the requirements of Rule 8(iv), the Commission after

calling for the fee proposals and relevant records from the institutions

showing their infrastructural capabilities, has to classify the

educational institutions into different categories and then recommend

the fee structure for each class basing on their location as well as their

category. Thus, different fee has to be fixed for each class of a

particular category of school basing on its location. However,

impugned G.Os clearly fell foul of the required parameters enshrined

in Rule 8. Added to it, under the impugned G.Os the Government has

fixed not only the fee structure but also the transportation charges

which do not directly fall within the ambit of the fee. For these gross

violations the impugned G.Os are liable to be set aside. It is argued

by learned counsel for respondents that in the impugned G.Os, a

provision has been created that of the School managements felt that

fee fixed in the G.Os is low, they may file a proposal before the

Commission for its consideration which has to be disposed of within

three months and in view of the availability of the efficacious and

alternative remedy, the writ petitions are liable to be dismissed in

limini. I am afraid this argument cannot be appreciated for the reason

that Act 19 of 2019 and its Rules have not laid down any provision for

post-fixation reconsideration. What is laid down is pre-fixational

exercise and recommendation by the Commission. Such facilitation in

the impugned G.Os runs counter to the statutory rules. Since there is

a gross violation of statutory rules and principles of natural justice, the

writ petitions are very much maintainable.

28. Before parting, it must be noted that since we are in the middle

of the block period 2021-2022, some or all the educational institutions

in the State might have collected fees for the said block period either

as per their own fee structure or following the impugned G.Os.

Keeping this in view, the following order is passed:

Accordingly, the Writ Petitions are allowed and G.O.Ms.No.53,

School Education (PS) Department, dated 24.08.2021 and

G.O.Ms.No.54, School Education (IE.A2) Department, dated

24.08.2021 are hereby set aside with a direction to the Andhra

Pradesh School Education Regulatory and Monitoring Commission

(APSERMC) to issue notification in terms of Rule 8 of the A.P.

School Education Regulatory and Monitoring Commission Rules,

2020 and call for proposed fee structure of admissions along with

relevant documents and books of accounts from all the educational

institutions and afford a personal hearing to all the stakeholders and

categorize the educational institutions taking into consideration the

parameters stated in Rule 8 and recommend the fee structure for the

block period 2021-2022, 2022-2023 & 2023-2024. This exercise shall

be completed by 31.03.2022. In the event educational institutions

collected any fee from the students for the block period 2021-2022,

the same shall be adjusted in terms of fee recommended by the

Commission and notified by the State Government. No costs.

As a sequel, interlocutory application pending, if any, shall

stand closed.

__________________________ U. DURGA PRASAD RAO, J 27.12.2021 KRK/MVA