Bombay High Court
The Society Of St. Mary'S School & ... vs The Pune Zilla Parishad & Others on 24 December, 2013
Bench: A.S. Oka, R.P. Mohite-Dere
ash 1 wp-5576,4479,6710,7505n27990.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.5576 OF 2013
with
CIVIL APPLICATION NO.1885 OF 2013 IN WP NO.5576 OF 2013
with
WRIT PETITION NO.4479 OF 2013
with
CIVIL APPLICATION NOS.1337, 1608, 1610, 1611 AND 1301 OF 2013
in WP NO.4479 OF 2013
with
WRIT PETITION NO.6710 OF 2013
ig with
WRIT PETITION NO.7505OF 2013
with
WRIT PETITION STAMP NO.27990 OF 2013
WP NO.5576 OF 2013 with CA NO.1885 OF 2013
The Society of St. Mary's School & Another. ..Petitioners
Vs
The Pune Zilla Parishad & Others. .. Respondents
-
Shri Gaurav Joshi along with Shri J.P. Sen, Shri Piyush Raheja, Shri
Rohan Dakshini, Shri Vishesh Malviya and Ms. Nikita Mishra i/by M/s.
Federal & Rashmikant for the Petitioners.
Shri Jatin Adhav, the Applicant in person present in Civil Application
No.1885 of 2013.
Shri S.J. Rairkar along with Shri Nikhil R. Vidhwans for Respondent
No.2.
Shri P.J. Thorat for the Respondent No.9.
Shri Kevic Setalwad, Additional Solicitor General along with Shri Girish
Kulkarni and Shri R. Ashokan for the Respondent No.6 -Union of India.
Shri S.K. Shinde, Government Pleader along with Shri A.B. Vagyani,
Additional Government Pleader for the Respondent-State in all matters.
--
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ash 2 wp-5576,4479,6710,7505n27990.13
WP NO.4479 OF 2013 with C.A.NOS.1608 OF 2013, 1610 OF 2013,
1611 OF 2013, 1337 OF 2013, 1301 OF 2013 IN WP NO.4479 OF 2013.
The Bishop's Education Society, Pune
and Another. .. Petitioners
Vs
The State of Maharashtra & Others. .. Respondents
-
Shri R.A. Dada, Senior Counsel along with Shri Gaurav Joshi, Shri
Piyush Raheja, Shri Rohan Dakshini, Shri Vishesh Malviya and Ms.
Nikita Mishra i/by M/s. Federal & Rashmikant for the Petitioners.
Shri Purushottam G. Chavan for the Applicant in Civil Application
No.1337 of 2013.
Shri Manoj Harit i/by M/s. Jay & Co for the Applicant in Civil
Application No.1608 of 2013.
Shri Mihir Desai for the Applicant in Civil Application No.1610 of 2013.
Shri Ravikiran Tribhuwan for the Applicant in Civil Application No.1611
of 2013.
Shri S.C. Wakankar for the Applicant in Civil Application No.1301 of
2013.
Shri S.J. Rairkar along with Shri Nikhil R. Vidhwans for Respondent
No.3.
Shri Kevic Setalwad, Additional Solicitor General along with Shri Girish
Kulkarni and Shri R. Ashokan for the Respondent No.6 -Union of India.
Shri S.K. Shinde, Government Pleader along with Shri A.B. Vagyani,
Additional Government Pleader for the Respondent-State.
--
WP NO.6710 OF 2013
Saraswati Vidyalaya Union & Another. .. Petitioners
Vs
The Pune Zilla Parishad & Others. .. Respondents
-
Shri P.K. Dhakephalkar, Senior Counsel along with Shri Piyush Raheja,
Shri Rohan Dakshini, Shri Vishesh Malviya and Ms. Nikita Mishra i/by
M/s. Federal & Rashmikant for the Petitioners.
Shri S.J. Rairkar along with Shri Nikhil R. Vidhwans for Nos.1, 2 and 5.
Shri P.J. Thorat for Respondent Nos.6 and 7.
Shri Abhijeet Anturkar for the Respondent No.8.
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ash 3 wp-5576,4479,6710,7505n27990.13
Shri M.I. Sethna, Senior Advocate along with Shri R. Ashokan for the
Respondent No.9.
Shri S.K. Shinde, Government Pleader along with Shri A.B. Vagyani,
Additional Government Pleader for the Respondent-State.
--
WP NO.7505 OF 2013
P.A. Inamdar & Others. .. Petitioners
Vs
The Union of India & Others. .. Respondents
--
Shri Sandeep R. Waghmare for the Petitioners.
Shri D.R. Shah for the Respondent No.1-Union of India.
Shri S.K. Shinde, Government Pleader along with Shri A.B. Vagyani,
Additional Government Pleader for the Respondent-State.
--
WP ST. NO.27990 OF 2013
Amar Digambar Shinde. .. Petitioner
Vs
The State of Maharashtra & Others. .. Respondents
--
Shri S. Gawde i/by Shree & Company for the Petitioners.
Shri S.K. Shinde, Government Pleader along with Shri A.B. Vagyani,
Additional Government Pleader for the Respondent-State.
--
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD :
11 th
OCTOBER 2013
th
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24
DECEMBER 2013
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ash 4 wp-5576,4479,6710,7505n27990.13
JUDGMENT ( PER A.S. OKA, J. )
1. These Petitions can be disposed of by a common judgment.
The first issue involved in these Petitions is whether in the light of the
decision of the Apex Court in the case of Society for Unaided Private
School of Rajasthan Vs. Union of India 1 the provisions of the Right of
Children to Free and Compulsory Education Act, 2009 ( for short "the
Education Act") are applicable to the unaided minority schools not
receiving aid or grants to meet the whole or part of its expenses from
the Appropriate Government or the Local Authority. If the answer to the
said question is affirmative, the second question involved is whether the
Schools subject matter of these Petitions are the unaided minority
schools.
2. Under Clause (c) of Sub-section (1) of Section 12 of the
Education Act, an unaided school not receiving any kind of aid or grants
to meet its expenses from the appropriate Government or the local
Authority is under an obligation to admit in Class-I, to the extent of at
least 25% of the strength of that class, the children belonging to weaker
section and disadvantaged group in the neighbourhood and provide
free and compulsory education to them till its completion. In Writ
Petitions the issue which arises for consideration is whether the
concerned schools are bound by the Clause (c) of Sub-section (1) of
1 (2012)6 SCC 1
ash 5 wp-5576,4479,6710,7505n27990.13
Section 12 of the Education Act .
3. With a view to appreciate the submissions made across the
bar, it will be necessary to make a reference to the factual controversy
arising in each petition.
FACTS OF WRIT PETITION NO.5576 OF 2013
4.
The first Petitioner is a Society registered under the
Societies Registration Act, 1860 and a Public Charitable Trust. The first
Petitioner has been formed with an object of providing education for
children of Anglo-Indian and European Communities in India through
the medium of English. The first Petitioner is conducting a minority
school by the name St. Mary's School. The State Government has
issued Minority Status Certificate to the St. Mary's School on 30 th March
2013. The challenge in this Petition is to the order dated 4 th May 2013
passed by the Education Officer (Secondary) of Pune, Zilla Parishad,
Pune. By the said order, the Education Officer rejected the contention
of the Petitioner that the Education Act was not applicable to the St.
Mary's School. He held that the Union of India has granted land
admeasuring 7.630 Acres on "old grant" basis to the said School and,
therefore, though the said School may be a minority school, it is not an
unaided school. He, therefore, held that the entire admission process
ash 6 wp-5576,4479,6710,7505n27990.13
adopted by the school was illegal as 25% of the seats were not reserved
in accordance with clause (c) of Sub-section (1) of Section 12 of the
Education Act. By setting aside the admission process, a fresh process
was ordered to be conducted in accordance with the Education Act.
5. An affidavit-in-reply has been filed to the said Petition by
Shri Mushtak Mohammad Shaikh, the Education Officer (Primary), Zilla
Parishad, Pune. In Paragraph 6 of the reply, it is contended that the
land on which the said school is situated belongs to the Central
Government. It is contended that the land is availed at a concessional
rate either on lease or is occupied under old grant. Therefore, it
cannot be contended that the school is unaided.
6. In this Petition, Civil Application No.1885 of 2013 has been
filed by an Intervener who is an Advocate. The Application is filed on
the ground that due to the illegality in the admission process, his
daughter has been denied admission.
7. The Respondent No.9 has filed a reply contending that the
exemption under old grant/concession in the lease rent by the
Appropriate Government itself amounts to an aid. Reliance is placed
on the Government Resolution dated 19 th May 2012 by which certain
directions were given to the schools for implementation of the
ash 7 wp-5576,4479,6710,7505n27990.13
admission process. It was contended that the admission process
adopted by the school was not transparent.
FACTS OF WRIT PETITION NO.4479 OF 2013
8. This Petition has been filed by Bishop's Education Society,
Pune. The first Petitioner Society is running three schools. The first is
Bishop's School located in Pune Cantonment area (for short "Camp
school"). The second school is Bishop's Co-Ed School at Kalyani Nagar,
Pune(for short "Kalyani Nagar School") and the third school is Bishop's
Co-Ed School at Undri (for short "Undri school"). It is contended that
all the three schools are minority educational institutions. The
certificates granted by the State Government have been annexed to the
Petition. It is contended that all the three schools are private, unaided
and minority institutions which do not receive any kind of grant or aid
either from the State Government or from the Central Government.
9. In the Petition, there is a challenge to the letter dated 19 th
January 2013 (Exhibit-I to the Petition), letter dated 14 th/22nd February
2013 (Exhibit-N to the Petition), three letters all dated 7 th March 2013
(Exhibits-P, P-1 and P2 to the Petition), the purported interim order
dated 22nd March 2013 (Exhibit-W to the Petition), two letters dated 1 st
April 2013 (Exhibits-EE and FF to the Petition), letter dated 17 th April
ash 8 wp-5576,4479,6710,7505n27990.13
2013 (Exhibits-JJ to the Petition) and the letter dated 26 th April 2013
(Exhibit -NN to the Petition). The first letter which is under challenge
is dated 19th January 2013 issued by the Education Officer (Primary),
Pune District Parishad, Pune to Block Education Officer, Panchayat
Samiti, Haveli, District Pune. By the said letter, the Education Officer
(Primary) called upon the Block Education Officer to look into the
allegations regarding breach of the Education Act committed by the
Petitioners in the complaint filed by the Pune City Congress Committee
and to submit a report. On 14 th/22nd February 2013, the Block
Education Officer, Panchayat Samiti Haveli, Pune informed the Head
Master of Camp School that the school was an aided school within the
meaning of Education Act and, therefore, 25% reservation for the
students of the weaker section and disadvantage group of the society
will apply. It was stated in the letter that the Camp School has been
situated on the land given on lease by the Central Government for
educational purpose. The Extension Officer (Education) of Panchayat
Samiti addressed a letter to the Head Master of the Camp school calling
upon the Head Master to submit a reply to the earlier letter dated 18 th
February 2013. Similar letters were addressed to Kalyani Nagar School
as well as Undri school on the same date. On 22 nd March 2013, an
interim order was issued by the Education Officer (Primary) of Pune
Zilla Parishad, Pune. In the said interim order, it was held that the
Camp school of the Petitioners was using a Government land in
ash 9 wp-5576,4479,6710,7505n27990.13
cantonment area on lease for a nominal rent of Rs.2,400/- per year for
an area of 5.330 acres. It was held that the school was an aided school
and, therefore, 25% reservation under Section 12 of the Education Act
was applicable. It was alleged that one division consisting of 45
students was illegally started by the school. Therefore, the admission
process in all the three schools was temporarily stayed by calling upon
the schools to initiate a fresh process of admission. On 1 st April 2013,
the Petitioners were called upon to attend hearing before the Deputy
Director of Education Pune Division, Pune. Initially the hearing was
fixed on 8th April 2013 which was postponed to 12 th April 2013. By
communication dated 17th April 2013, the Petitioners were informed to
produce certain documents on 15th April 2013. It was observed in the
said letter that in the hearing conducted on 12 th April 2013, the
Petitioners were called upon to produce the said documents. By letter
dated 26th April 2013 issued by the Education Officer (Primary) of Zilla
Parishad, Pune, the Petitioners have been informed that they have not
submitted documents and, therefore, if by 30 th April 2013 the
documents were not furnished, an ex parte order will be passed as
regards the process of admission for the Academic Year 2013-2014. By
letter dated 29th April 2013, the Advocate for the Petitioners informed
the Education Officer (Primary) of Pune Zilla Parishad, Pune that the
provisions of the Education Act were not applicable to the unaided
minority schools. The challenge in the Petition is to the interim order
ash 10 wp-5576,4479,6710,7505n27990.13
dated 22nd March 2013 and various other communications set out
above.
10. Shri Sunil J. Kurhade, In-charge Education Officer
(Primary), Pune Zilla Parishad, Pune has filed a reply. It is contended
that the Camp school is situated on a land owned by the Central
Government which was leased at a concessional rate of rent. It is
alleged that in the past the Camp school has availed grant-in-aid for
construction under the "old Grant-in-Aid" from the State. He filed
additional reply. Firstly it is contended in the reply that the schools at
Kalyaninagar and Undri were receiving aid in the form of concession in
the property taxes. Reliance was placed in the said reply on letter
dated 9th May 2013 issued by the Pune Municipal Corporation regarding
the school at Kalyaninagar. It was contended that the audited accounts
of the Petitioners show that the rent has been received from all the
three schools totally amounting to Rs.4,93,57,391/- and there is interest
income. It was contended that though the schools are situated in Pune
Cantonment area, Kalyaninagar and Undri respectively, the Education
Officer (Primary) of Zilla Parishad has control over the schools on
various aspects. There is a reply filed on behalf of the State
Government by Nana Uttamrao Raurale, Joint Secretary of the
Education Department. The said reply contains various legal
submissions on the concept of grant-in-aid. We must state here that the
ash 11 wp-5576,4479,6710,7505n27990.13
learned Government Pleader made a statement on instructions that the
State Government does not desire to rely upon Paragraphs 7 and 8 of
the said reply which are really the main averments in the reply and,
therefore, it is not necessary to reproduce the same in detail what is
stated in the said two paragraphs.
11. Civil Application No.1608 of 2013 has been filed for
intervention. It is contended that the Applicants are the parents of the
students who were denied admission to class LKG in the Bishop's Camp
School, Pune. Civil Application No.1610 of 2013 has been filed by a
third party who is a practicing Doctor. The prayer is for permitting
intervention. It is contended that the schools of the Petitioners do not
qualify for minority status. Civil Application No.1611 of 2013 has been
filed by the Applicant who claims to have applied on 18 th March 2013
before Zilla Parishad, Pune, on the basis of which the interim order
which is impugned in the writ petition was passed. The prayer is for
admitting the wards of the intervenors in the school of the Petitioners.
Civil Application no.1337 of 2013 has been filed by a third party for
intervention with a prayer to confirm the admission granted to his child.
Civil Application No.1301 of 2013 has been filed again by the parents of
the children who have been granted admissions earlier.
ash 12 wp-5576,4479,6710,7505n27990.13
FACTS OF WRIT PETITION NO.6710 OF 2013
12. This Petition has been preferred by Saraswati Vidyalaya
Union, a Society registered under the Societies Registration Act, 1860.
According to the case of the Petitioners, the said Society is running
three schools, the first school is Saraswati Vidyalaya Union Pre-Primary
& Primary School (English Medium). The said school is referred to as
"the English medium school". It is contended that the said school is an
unaided minority school. It conducts classes pre-primary and primary
classes ie Lower Kinder Garden to Standard IV. The second school is
Saraswati Vidyalaya Union Primary School (Tamil Medium). The said
school is referred to as "the Tamil medium school" which is stated to be
an aided minority school. The third school is Saraswati Vidyalaya
Union High School and Junior College. The said School is referred to as
the "High School". It is stated that the said school receives salary
grant from Respondent No.1.
13. According to the case of the Petitioners, the first Petitioner
society has been recognized as a linguistic minority and a certificate to
that effect has been issued to it by the State Government. Reliance is
placed on the Government Resolution dated 24 th May 2012 by which
minority unaided institutions have been excluded from the purview of
the Education Act.
ash 13 wp-5576,4479,6710,7505n27990.13
14. According to the Petitioners, in January 2012 the
admissions in the English medium school for the Academic Year 2012-
2013 commenced. It is stated that the school issued admission forms in
the format prescribed under the Rules framed by the State Government
under the Education Act. Correspondence was made by and on behalf
of the English medium school regarding process of admission. The
Education Board of Pune Municipal Corporation by letter dated 30 th
January 2013 contended that at the time of granting approval to the
schools, a minority status certificate was not obtained and hence, the
Petitioners were not entitled to a benefit of minority status. It will be
necessary to make a reference to the letter dated 22 nd January 2013
addressed by English medium school to the Education Officer of the
School Board. In the said letter, it was stated that, as demanded
verbally by the officers, the school submitted a list in July 2012
containing details of 45 students who were otherwise eligible for free
education. However, it was contended that the Petitioners did not
implement the provisions of the Education Act for the said Academic
Year.
15. The challenge in the Petition is to the communication dated
30th January 2013 addressed by the Head of the Education Board of the
Pune Municipal Corporation (for short "Education Board") addressed to
ash 14 wp-5576,4479,6710,7505n27990.13
the Petitioners and the English Medium School alleging that in the year
2012-13, 45 students were admitted in the said school as per the
Education Act. It was alleged that the school has received amounts
under the Sarva Shiksha Abhiyan and Mid-day meal scheme and hence,
it is an aided school. The challenge is also to the communication dated
25th March 2013 issued by the Education Officer (Primary), Zilla
Parishad, Pune, addressed to the Head Mistress of the English medium
school. It was observed in the said letter that the school is receiving
100% grant for V to X standards. The Tamil medium school was
receiving grant-in-aid. It was alleged that the school has received salary
grants for the years 2010-11 and 2011-12. It is alleged that the
amounts of Rs.9,758/- and Rs.6,669/- for the years 2010-1011 and
2011-2012 respectively were received by the school towards the Mid-
day meal scheme. From the funds of a Member of Parliament, 20
computers have been received by the school. The Pune Municipal
Corporation has made available a play-ground to the School. From the
funds of Sarva Shiksha Abhiyan, a sum of Rs.5,500/- has been received
by the school for the year 2010-2011 and for the year 2011-2012, a
sum of Rs.6,000/- has been received by the school. It is stated that
though the school is having classes from pre-primary to senior college,
by showing technicalities, fresh admissions were given to the students
in the primary school and the high school. It was further alleged that
the Education Act was applicable to the said school.
ash 15 wp-5576,4479,6710,7505n27990.13
16. A reply was issued to the said letter by the English
medium school on 26th March 2013. It is stated that it is an
independent and autonomous unaided school functioning in the
separate campus. The said school does not receive any grant or aid.
It is clarified that 100% grant is being received by the High School
which is running the classes from V to X which has been recognized by
the Zilla Parishad. The salary grants have been received by the High
School. It is stated that Tamil medium school is not getting any salary
grant though it is recognized as an aided school. It is contended that it
is an independent entity. It is stated that the amounts under the Mid-
day Meal Scheme have been received by the said Tamil School. It is
stated that the computers and printers were received by the High
School and not by English medium school. It is stated that the High
School was using a public ground of Pune Municipal Corporation
which is being used not only by the students of the school but also by
the local residents. It is stated that the said ground is not at all
granted by the Pune Municipal Corporation to the school. It is stated
that the amounts received in the Sarva Shiksha Abhiyan were by Tamil
School. It is thus contended that the English Medium School is not
receiving any kind of grant-in-aid and thus, it is an unaided minority
school.
ash 16 wp-5576,4479,6710,7505n27990.13
17. Another challenge in the Petition is to the order dated 3 rd
June 2013 passed by the Education Officer (Primary) of Pune Zilla
Parishad, Pune. By the said order, it was held that though the school
run by the Petitioners was a minority school, it is receiving various
categories of grants-in-aid from the Government. It is stated that out
of the funds of a Member of Parliament, twenty computers and two
printers were received by the school. A direction was issued to refund
the fees collected from 45 students in the year 2013-2014.These
students were admitted in the year 2012-13 against 25% quota under
clause (c) of sub-section (1) of Section 12 of the Education Act. It was
observed that receipt of caution fee of Rs.12,000/- amounts to
accepting capitation fees. It was alleged that an extra division was being
run without approval. It was directed that a separate action will be
taken for accepting the caution money and running extra divisions. A
direction was issued to keep 25% seats reserved for the Academic Year
2013-2014 as per section 12 of the Education Act.
18. One of the contentions raised in the Petition is that the
authorities got confused and did not notice that the Petitioners were
running three separate schools as different entities. It is contended that
the English medium school which is a primary school is distinct from
the High School and the Tamil school. In this behalf, various
ash 17 wp-5576,4479,6710,7505n27990.13
documents have been relied upon. It is contended that the primary
school (English medium school) is not receiving any grant-in-aid and
hence, the provisions of the Education Act are not applicable. We
must note here that the learned Senior Counsel appearing for the
Petitioner on instructions of the Petitioners stated that the Petitioners
will refund the fees collected from the 45 students who were admitted
in the Academic Year 2013-2014 to the English medium school a list of
which has been tendered on record and marked "X" for identification.
19. A reply was filed by the 7 th Respondent to which annual
report of the first Petitioner has been annexed to show that the school
is receiving grant-in-aid. A reply has been filed by the Education Officer
(primary) of the Pune Zilla Parishad. It was contended that an open
ground having an area of 3865 sq.meters owned by the Pune Municipal
Corporation was allowed to be used by the students of the schools of
the Petitioners free of cost. It was contended that Tamil school and High
school were aided schools. It was contended that the Petitioners have
availed of the benefits under the Sarva Shiksha Abhiyan, Mid-day meal
scheme and computers from MLA Fund. However, the reply proceeds on
the basis that the three schools were distinct and it is specifically
admitted that the English medium school had undertaken a separate
process of admission. But it is alleged that the process is contrary to
the provisions of the Education Act. A reply was also filed by the
ash 18 wp-5576,4479,6710,7505n27990.13
assistant Administrative Officer of the school board of the Pune
Municipal Corporation raising similar contentions.
FACTS OF WRIT PETITION NO.7505 OF 2013
20. As far as this Petition is concerned, the same takes an
exception to the Government Resolution dated 13 th February 2013 and
order dated 31st July 2013 passed by the Education Officer (Primary),
Pune. By the communication dated 31st July 2013 (Exhibit-B to the
Petition ) which is addressed to the members of the School Board of
Pune Municipal Corporation, it is stated that considering various
irregularities, an inquiry in respect of the affairs of the Crescent High
School, Pune, run by the third Petitioner should be made and a report
should be submitted. According to the case of the Petitioners, the said
school viz. Crescent High School is recognized as a minority educational
institution by the State Government. It is contended that the
Petitioners addressed a letter dated 28th May 2013 to the State
Government for issuing an order that the Education Act is not
applicable to the minority unaided schools. The contention of the
Petitioners is that the impugned communication dated 31 st July 2013
proceeds on the erroneous footing that the provisions of the Education
Act are applicable to the said school and therefore, a prayer is made for
quashing the said communication. The challenge to the Government
Resolution dated 13th February 2013 is on the ground that the
ash 19 wp-5576,4479,6710,7505n27990.13
provisions of the Education Act are sought to be applied even to the
unaided minority schools.
FACTS OF WRIT PETITION ST.27990 OF 2013
21. This is a Petition filed by the Petitioner who is a parent of
whose son has been admitted to a Junior Kindergarten run by the
Bishop's Education Society. The grievance is that 25% quota of seats in
the school are kept vacant. A writ of mandamus is prayed for directing
the concerned Respondents to allow the Petitioner's son to attend
classes.
SUBMISSIONS OF THE PETITIONERS IN WRIT
PETITION NO.5576 OF 2013.
22. The learned counsel appearing for the Petitioners submitted
that the St. Mary's School is an unaided school and that a certificate of
the minority status issued by the State Government has been annexed
to the Petition. He relied upon the decision of the Apex Court in the
case of Society for Unaided Private School of Rajasthan Vs. Union of
India. He pointed out that the Apex Court has declared that the
Education Act is unconstitutional qua unaided minority schools as it
violates their fundamental rights guaranteed by Article 30 of the
Constitution of India. He pointed out that a Public Charitable Trust by
the name "Bombay Diocesan Trust Association Limited" is the lessee of
the Central Government under the Lease dated 10 th July 1996 of a land
admeasuring 1.49 acres. The remaining 7.55 acres of the total land
ash 20 wp-5576,4479,6710,7505n27990.13
which was granted to the said Trust under the old grant from the
Central Government has been occupied by the said school as a
beneficial user. He placed reliance on the extract of General Land
Register maintained by the Pune Cantonment. He urged that the
second Respondent has completely misunderstood the meaning of the
term "old grant". He urged that the term"old grant" signifies the
manner of occupation of the land and the same has nothing to do with
the grant within the meaning of the Education Act. He urged that
there is nothing on record to show that the Lease rent is being charged
at a concessional rate. He relied upon a letter dated 7 th March 2013
issued by the Defence Estates Officer which records that no special
concession has been granted to the said school. It is urged that even
assuming that the land has been provided to the school at a
concessional rate, the grant or concession will not amount to aid or
grants within the meaning of the Education Act. Additionally, he
submitted that even assuming that there is a concession granted by the
Central Government, it does not amount to grant or aid from the
Appropriate Government or the Local Authority. He urged that in view
of the definition of the "Appropriate Government" in clause (a) of
Section 2 of the Education Act, the Appropriate Government in this case
will be the State Government. He submitted that by letter dated 21 st
August 2013, the Chief Executive Officer of Pune Cantonment Board
has clarified that the school does not receive any concession in the levy
ash 21 wp-5576,4479,6710,7505n27990.13
of property taxes and does not receive any grant, aid, benefit,
advantage, special concession etc from the Central Government. Thus,
the submission is that the school being an unaided minority school, the
provisions of the Education Act will not apply. He submitted that the
aid or grant contemplated by the Education Act is the one which is
received from the Appropriate Government or a local Authority for
meeting the recurring expenses of the schools such as teacher's salaries,
maintenance of schools, etc. He urged that in the State of Maharashtra,
only the schools receiving grant-in-aid can be said to be aided schools
and admittedly the St. Mary's School is not receiving any grant-in-aid.
He urged that treating the unaided minority schools as aided schools
will have drastic consequences. It is pointed out that non-minority
unaided schools are required to admit at least 25% of the children of
specified categories at the entry level and to provide them free
education for which they are entitled to reimbursement from the
Government but the aided schools are not entitled to. He, therefore,
submitted that if the grant of a land to minority school at a concessional
rate, supply of free school equipment to the school or a concession in
the property taxes are to be equated with grants or aid, the minority
schools which are not receiving grant-in-aid from the State Government
will be treated as aided schools and they will not get reimbursement for
admitting 25% of the students as per Clause (c ) of Sub-section 1 of
Section 12 of the Education Act.
ash 22 wp-5576,4479,6710,7505n27990.13
SUBMISSIONS OF THE PETITONERS IN WRIT
PETITION NO.4479 OF 2013
23. Learned counsel appearing for the Petitioners pointed out
that there are three schools run by the first Petitioner Bishop's School
Society. The first school is Bishop's school in the cantonment area at
Pune. The Bishop's Co-Ed School is in Kalyani Nagar within the limits
of Pune Municipal Corporation. The third school is a Bishop's Co-Ed
School at village Undri. He pointed out that none of the schools are
receiving any grant or aid and in fact the schools at Kalyani Nagar and
Undri are recognized as unaided schools by the Government. He
submitted that all the three schools are recognized as minority
institutions as per the certificates issued by the State Government which
are annexed to the Petition. He pointed out that the camp school in
cantonment area is constructed on a land leased by the Central
Government. He urged that there is a Building Lease dated 24 th March
1970 which discloses that a premium was paid and there is a clause for
renewal of the lease with corresponding increase in the rent. He
urged that there is no material on record to show that any concession
has been granted in the matter of payment of lease rent. He submitted
that in the impugned order even the schools at Kalyani Nagar and Undri
have been included and for the first time in this Petition, 3 rd to 5th
Respondents have contended that the said schools are aided schools as
they are receiving concession in payment of property taxes. He urged
ash 23 wp-5576,4479,6710,7505n27990.13
that the schools have been paying property taxes at the prescribed rates
which are applicable to all the schools in the jurisdiction of the local
authority. He submitted that considering the fact that education
being a charitable activity, all the schools have been charged property
taxes at a particular rate which is being paid by the Petitioners. He
urged that as far as the schools in the cantonment area and Kalyani
Nagar are concerned, the Zilla Parishad does not have jurisdiction over
those areas. He submitted that as the schools in question are unaided
minority schools, the provisions of the Education Act are not applicable
to them.
SUBMISSIONS IN WRIT PETITION NO.6710 OF
24. Learned senior counsel appearing for the Petitioners
submitted that the Education Officer has created confusion by ignoring
that there are three distinct schools run by the Petitioners. The first
school is Saraswati Vidyalaya Union Pre-Primary and Primary School
( English Medium) which is an unaided minority school. The second
school is Saraswati Vidyalaya Union Primary School (Tamil Medium)
which is an aided minority school. The third school is Saraswati
Vidyalaya Union High School and Junior College which conducts classes
from standards V to XII which is receiving salary grants from the Zilla
Parishad, Pune, the first Respondent. He pointed out that none of the
ash 24 wp-5576,4479,6710,7505n27990.13
benefits under the Mid-day Meal Scheme or Sarva Shiksha Abhiyaan
have been received by the English medium Primary School. He urged
that there is absolutely no material on record to show that the English
medium Primary School receives any aid or grant and that the grant-in-
aid received by other two schools cannot be taken into consideration.
He pointed out that even twenty computers and two printers provided
under the funds of Member of Parliament were given to the high school.
He pointed out that the play-ground of Pune Municipal Corporation is a
public play-ground which is being used by the students as well as the
residents of the adjoining areas. He urged that the English medium
Primary School pays property taxes at the rate fixed by the Appropriate
Government. He, therefore, urged that the English medium Primary
School being unaided minority school will not be governed by the
Education Act.
WRIT PETITION NO.7505 OF 2013
25. The learned counsel appearing for the Petitioners again
relied upon the decision of the Apex Court in the case of Society for
Unaided Private School of Rajasthan Vs. Union of India and urged that
the 4th Petitioner School is an unaided minority educational institution
to which the provisions of the Education Act are not applicable.
ash 25 wp-5576,4479,6710,7505n27990.13
SUBMISSIONS IN WRIT PETITION ST. NO.27990
OF 2013
26. The learned counsel appearing for the Petitioners has not
made separate legal submissions and he has adopted the legal
submissions made in the other Petitions.
CONSIDERATION OF SUBMISSIONS ON THE
QUESTION WHETHER THE PROVISIONS OF
THE EDUCATION ACT ARE APPLICABLE TO THE
MINORITY UNAIDED SCHOOLS
27. We have given careful consideration to the submissions.
We have perused the averments made in the Petitions, reply and
documents on record. The first issue which arises for our consideration
is whether the provisions of the Education Act are applicable to the
minority unaided schools. Therefore, it will be necessary to make a
reference to the decision of the Apex Court in the case of Society for
Unaided Private School of Rajasthan v. Union of India. The majority
view was expressed by S.H. Kapadia, CJ (as he then was) for himself
and on behalf of Swatanter Kumar, J. The third Hon'ble Judge (K.S.P.
Radhakrishnan, J) has partly dissented. The majority judgment
considers various issues. The majority decision specifically considers
the issue of validity and applicability of the Education Act qua unaided
minority schools. In paragraph 62, the majority judgment holds as
under:
ash 26 wp-5576,4479,6710,7505n27990.13
"62. Reservations of 25% in such unaided
minority schools result in changing the character of
the schools if right to establish and administer such
schools flows from the right to conserve the
language, script or culture, which right is conferred
on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right
conferred on such unaided minority schools under
Article 30(1)".
In paragraph 63 of the majority decision, it is held that the Education
Act is constitutionally valid qua aided minority schools. In paragraph
64 of the said decision, the conclusions of the majority view are
summed up. Paragraph 64 reads thus:
"64. 20. Accordingly, we hold that the Right of
Children to Free and Compulsory Education Act, 2009
is constitutionally valid and shall apply to the
following:
(i) a school established, owned or
controlled by the appropriate
Government or a local authority;
(ii) an aided school including aided
minority school(s) receiving aid
or grants to meet whole or part of
its expenses from the appropriate
Government or the local
authority;
(iii) a school belonging to specified
category; and
(iv) an unaided non-minority school not
receiving any kind of aid or grants
to meet its expenses from the
appropriate Government or the local
authority."
(emphasis added)
ash 27 wp-5576,4479,6710,7505n27990.13
In paragraph 65, the majority view proceeds to hold as under:
"65. However, the said 2009 Act and in
particular Sections 12(1)(c) and 18(3)
infringes the fundamental freedom
guaranteed to unaided minority schools
under Article 30(1) and, consequently,
applying the R.M.D. Chamarbaugwalla v. Union
of India MANU/SC/0020/1957 : 1957 SCR 930
principle of severability, the said 2009 Act shall
not apply to such schools."
(emphasis added)
28.
On conjoint reading of paragraphs 64 and 65 of the
majority view, we find that there is a categorical pronouncement of law
that the Education Act qua unaided minority schools is not valid and,
therefore, the Education Act will not apply to the unaided minority
schools. The minority view holds that in case of unaided non-minority
as well as unaided minority educational institutions, clause (c) of Sub-
section (1) of Section 12 will have to be read down by holding that it
can be given effect to only on the principles of voluntariness and
conscience and not on compulsion or threat of non-recognition. Thus,
the minority view holds that Clause (c) of Sub-section (1) of Section 12
of the Education Act insofar as it relates to both non-minority and
minority unaided schools is directory and not mandatory Therefore,
going by the majority view, the Education Act is not applicable to the
unaided minority schools.
ash 28 wp-5576,4479,6710,7505n27990.13
CONSIDERATION OF THE SECOND QUESTION:
WHAT IS THE MEANING OF "AID OR GRANTS"
UNDER THE EDUCATION ACT
29. The second issue which will now arise for consideration is
whether the schools with which we are concerned can be termed as
"unaided minority schools". If answer to the said question is that the
schools are unaided minority schools, then none of the impugned
orders/notices/or actions can be valid as they proceed on the footing
that the Education Act is applicable to the schools concerned. For
deciding the said issue it is necessary to consider the meaning of "aid
or grants" under the Education Act. It will be necessary to make a
reference to certain relevant provisions of Education Act.
30. Clause (n) of Section 2 of the Education Act reads thus:
"2(n) "school" means any recognised school imparting
elementary education and includes--
(i) a school established, owned or controlled
by the appropriate Government or a local
authority;
(ii) an aided school receiving aid or grants to
meet whole or part of its expenses from the
appropriate Government or the local
authority;
(iii) a school belonging to specified category;
and
(iv) an unaided school not receiving any kind of
aid or grants to meet its expenses from the
appropriate Government or the local
authority."
ash 29 wp-5576,4479,6710,7505n27990.13
In these Petitions, we are concerned with sub-Clause (iv) of
clause (n) of Section 2 of the Education Act. Clause (iv) is a category
of recognized schools imparting elementary education which are
unaided not receiving any kind of aid or grants to meet its expenses
from the Appropriate Government or the Local Authority.
31. The Appropriate Government is defined under Clause (a)
of Section 2 of the Education Act which reads thus:
"2(a) "appropriate Government" means -
(i) in relation to a school established,
owned or controlled by the Central
Government, or the administrator of the
Union territory, having no legislature,
the Central Government;
(ii) in relation to a school, other than the
school referred to in sub-clause (I),
established within the territory of -
(A) a State, the State Government;
(B) a Union territory having
legislature, the Government of
that Union territory".
32. In the case in hand, none of the schools have been
established, owned or controlled by the Central Government or the
Administrator of any Union Territory having no legislature. None of
the schools have been established in any union territory having
legislature. Therefore, all the schools subject matter of these Petitions
ash 30 wp-5576,4479,6710,7505n27990.13
will be governed by Clause (A) of clause (ii) of Section 2(a) of the
Education Act and therefore, in case of all the schools which are subject
matter of these Petitions, the State Government will be the appropriate
Government. Hence, even assuming that any of the schools subject
matter of these Petitions are receiving any aid or grant from the Central
Government, the same will not be "aid or grants" within the meaning of
the Education Act.
33.
Clause (h) of Section 2 of the Education Act defines the
Local Authority which reads thus:
"2(h) "local authority" means a Municipal
Corporation or Municipal Council or Zila Parishad
or Nagar Panchayat or Panchayat, by whatever
name called, and includes such other authority or
body having administrative control over the school
or empowered by or under any law for the time
being in force to function as a local authority in any
city, town or village;"
Thus, the Local Authority means a Municipal Corporation
or a Municipal Council or a Zilla Parishad or a Nagar Panchayat or a
Panchayat. It will include such other Authority or body having
administrative control over the school.
34. It will be also necessary to make a reference to Section 12
of the Education Act, which reads thus:
ash 31 wp-5576,4479,6710,7505n27990.13
"12. Extent of school's responsibility for free and
compulsory education-
(1) For the purposes of this Act, a school,--
(a) specified in sub-clause (i) of clause (n)
of section 2 shall provide free and
compulsory elementary education to
all children admitted therein;
(b) specified in sub-clause (ii) of clause
(n) of section 2 shall provide free and
compulsory elementary education to
ig such proportion of children admitted
therein as its annual recurring aid or
grants so received bears to its annual
recurring expenses, subject to a
minimum of twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv)
of clause (n) of section 2 shall admit
in class I, to the extent of at least
twenty-five per cent. of the strength of
that class, children belonging to
weaker section and disadvantaged
group in the neighbourhood and
provide free and compulsory
elementary education till its
completion:
Provided further that where a school
specified in clause (n) of section 2 imparts
pre-school education, the provisions of
clauses (a) to (c) shall apply for admission to
such pre-school education.
(2) The school specified in sub-clause (iv) of
clause (n) of section 2 providing free and
compulsory elementary education as
specified in clause (c) of sub-section (1) shall
be reimbursed expenditure so incurred by it
to the extent of per-child-expenditure
incurred by the State, or the actual amount
ash 32 wp-5576,4479,6710,7505n27990.13
charged from the child, whichever is less, in
such manner as may be prescribed:
Provided that such reimbursement shall not
exceed per-child-expenditure incurred by a
school specified in sub-clause (i) of clause
(n) of section 2:
Provided further that where such school is
already under obligation to provide free
education to a specified number of children
on account of it having received any land,
building, equipment or other facilities, either
free of cost or at a concessional rate, such
school shall not be entitled for
igreimbursement to the extent of such
obligation.
(3) Every school shall provide such information
as may be required by the appropriate
Government or the local authority, as the
case may be."
35. Clause (c) of Sub-section (1) of Section 12 of the Education
Act applies to the schools specified in Sub-clause (iv) of Clause (n) of
Section 2 of the Education Act. Sub-clause (iv) is the category of
unaided schools not receiving any kind of grants or aid to meet its
expenses either from the Appropriate Government or from the Local
Authority. In view of the decision of the Apex Court in the case of
Society for Unaided Private School of Rajasthan Vs. Union of India, the
Education Act will not apply to an unaided minority school.
Consequently, Clause (c) of Sub-section (1) of Section 12 of the
Education Act which applies to unaided schools will not apply to
unaided minority schools.
ash 33 wp-5576,4479,6710,7505n27990.13
36. It is true that the Education Act does not define an unaided
school. However, on this aspect, it will be necessary to go back to the
Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act.
Sub-clause (ii) indicates that an aided school is the one which is
receiving aid or grants to meet whole or part of its expenses from the
Appropriate Government or the Local Authority. Correspondingly,
Clause (iv) provides that an unaided school is the one which is not
receiving any kind of aid or grants to meet its expenses either from the
Appropriate Government or from the Local Authority. Thus, going by
Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act,
a school becomes an aided school provided it is receiving aid or grants
to meet whole or part of its expenses. Thus, receiving any aid or grants
will not make a school an aided school within the meaning of sub-
clause (ii) of Clause (n) of Section 2 of the Education Act unless the aid
or grant is received either from the Appropriate Government or the
Local Authority to meet whole or part of its expenses.
37. It will be also necessary to look at Section 12 of the
Education Act. As stated earlier, Sub-section (2) of Section 12 of the
Education Act deals only with the unaided schools within the meaning
of Sub-clause (iv) of Clause (n) of Section 2 of the Education Act. Such
schools are required to admit in Class-I to the extent of at least 25% of
ash 34 wp-5576,4479,6710,7505n27990.13
the strength of that class, children belonging to weaker section and
disadvantaged group in the neighbourhood and to provide free and
compulsory elementary education to them till its completion. Sub-
section (2) of Section 12 of the Education Act provides that an unaided
school specified in Sub-clause (iv) of Clause (n) of Section 2 of the
Education Act providing free and compulsory elementary education as
specified in Clause (c) of Sub-section (1) of Section 12 of the Education
Act is entitled to reimbursement of the expenditure so incurred by it to
the extent of per child expenditure incurred by the State, or the actual
amount charged from the child, whichever is less. The second proviso
to Sub-section (2) of Section 12 of the Education Act provides that
where such a school is already under an obligation to provide free
education to a specified number of children on account of it having
received any land, building, equipment or other facilities, either free of
cost or at a concessional rate, such school shall not be entitled for
reimbursement to the extent of such obligation. We must note here
that Sub-section (2) is applicable only to the schools specified in Sub-
clause (iv) of Clause (n) of Section 2 of the Education Act in the
category of unaided schools not receiving any kind of aid or grants to
meet its expenses. The second proviso to Sub-section (2), therefore, is
applicable only to an unaided school within the meaning of Sub-clause
(iv) of Clause (n) of Section 2 of the Education Act. The second proviso
shows that in the category of unaided schools there can be schools
ash 35 wp-5576,4479,6710,7505n27990.13
which have received any land, building, equipment or other facilities,
either free of cost or at a concessional rate. This shows that the
legislature never intended to treat a school which has received a land,
building, equipment or other facilities either free of cost or at a
concessional rate, as aided schools. Sub-section (2) applies only to
unaided schools as provided in Sub-clause (iv) of Clause (n) of Section
2 of the Education Act and therefore, the second proviso also applies
only to such unaided schools. It follows that merely because a school
has received any land or building or equipment or other facilities either
free of cost or at a concessional rate, the said school does not cease to
be an unaided school. If intention of the legislature was to treat such a
school receiving land, building, equipment or other facilities as
aforesaid as an aided school, there was no reason to incorporate the
second proviso which applies only to unaided schools specified in Sub-
clause (iv) of Clause (n) of Section 2 of the Education Act. Thus, going
back to Sub-clause (iv) of Clause (n) of Section 2 of the Education Act,
a school becomes unaided school provided it is not receiving any kind
of aid or grants to meet its expenses from the Appropriate Government
or the Local Authority. Even if such school has received land, building
or equipment at a concessional rate or free of cost, such a school
continues to be unaided school so long as it does not receive any aid or
grants to meet its whole or part of expenses from Appropriate
Government or the local authority. If interpretation sought to be put by
ash 36 wp-5576,4479,6710,7505n27990.13
some of the Respondents that a school which has received any land,
building, equipment or other facilities either free of cost or at a
concessional rate becomes aided school is accepted, the second proviso
to Sub-section (2) of Section 12 of the Education Act becomes
completely redundant. The intention of the legislature which can be
gathered from the second proviso to Sub-section (2) of Section 12 of
the Education Act is crystal clear. It never intended to treat a school as
an aided school which is not receiving "aid" or "grants" from the
Appropriate Government or local authority to meet its expenses, but has
received a land, building or equipment or other facilities either free of
cost or at a concessional rate. Thus, a school which is receiving aid or
grants to meet whole or part of its expenses can be said to be an aided
school within the meaning of the Education Act. Thus, a school
becomes an aided school provided it receives aid or grants in terms of
money to meet its expenditure. The aid in the form of a land, building,
equipment or any other facilities by itself will not be an aid or grants
within the meaning of Sub-clause (iv) of Clause (n) of Section 2 of the
Education Act.
38. Thus, on plain reading of the provisions of the Education
Act, a school becomes aided school provided it receives aid or grants in
terms of money to meet whole or part of its expenses. Obviously, for
running a school , there is a recurring expenditure on the payment of
salaries and allowances to the teaching and non-teaching staff,
ash 37 wp-5576,4479,6710,7505n27990.13
maintenance of the school building, and purchase of articles such as
stationary etc required for day-to-day functioning of the school. If any
amount is received by a school either from an Appropriate Government
or a local authority to meet whole or a part of such expenditure, a
school can be treated as an aided school.
39. In the State of Maharashtra, the Secondary Schools Code
contains provisions for "grants" or "aid". Paragraph 92.1 deals with
grants to vocational and technical schools. It provides that vocational
and technical high schools subject to availability of funds will be eligible
for maintenance grant on their total admissible expenditure in
accordance with the formula laid down therein. The Secondary
Schools Code provides for payment of salary grants and non-salary
grants. Paragraph 101.1 provides for release of building grants to
managements of the schools for erecting, purchasing, extending or
reconstructing the school buildings. Paragraph 101.8 provides for
payment of grant for purchase of sites. Paragraph 101.9 provides for
grant-in-aid for building hostels, laboratories, libraries, observatories,
school workshops or gymnasia or for providing play-grounds provided
the funds are available. Clause 105 provides that expenditure on
equipment such as school furniture, library, laboratory, workshop, audio
visual and other teaching aid including equipments on craft will be
shows shown under ordinary expenditure for the year and will be
ash 38 wp-5576,4479,6710,7505n27990.13
admissible for non-salary grant subject to further conditions
incorporated therein. Paragraph 106.1 provides for grant for meeting
reasonable expenditure on hostels attached to secondary schools in
rural areas, such as salaries or allowances of the hostel superintendent
and his assistants, if any, the rent of the hostel building and other
necessary expenditures connected with the proper management of
hostel. Therefore, the grant contemplated under the Secondary Schools
Code to a recognized school is a grant in terms of money for meeting
the expenditure incurred by the managements of the schools. There
are Rules framed under the Bombay Primary Education Act,1947. The
said Rules are the Bombay Primary Education Rules, 1949 ( for short
"the said Rules of 1949") which apply to the primary schools under the
control of Municipal School Boards under the Bombay Primary
Education Act, 1947. Rule 115 of the said Rules of 1949 provides that
normally grant paid to an approved private school in any year is the
grant for that year and shall be calculated on the basis of the total
admissible expenditure of the preceding year. Various Sub-rules of Rule
115 provide that the grant-in-aid is provided for payment of actual
expenditure on salaries of teaching and non-teaching staff, leave
salaries, provident funds contribution, amount of rent, taxes, insurance
of the building and play-grounds, office expenditure such as printing of
letter-heads, etc., furniture and equipments, repairs to the school
building, electricity charges and medical charges. There is a separate
ash 39 wp-5576,4479,6710,7505n27990.13
grant-in-Code which is applicable to primary schools under the
Municipal Corporation of Greater Bombay. Chapter III and in particular
Rule 45 thereof provides that while assessing the grant-in-aid in favour
of the schools, the expenditure incurred on salaries of teaching and
non-teaching staff, rent paid for the buildings, money spent on books,
prizes and equipments for schools, gathering, excursion and
expenditure on ordinary repairs of the building are the categories of the
expenditures for which the grant-in-aid will be payable.
40. Thus, the scheme of all the aforesaid provisions of the
Rules appears to be that the grant-in-aid is made payable to the schools
for meeting the expenses for running the school the most of which is of
a recurring nature. Thus, the concept of grants or aid appears to be
payment of amounts for meeting the expenditure of the schools on
various heads which we have discussed above.
41. At this stage, it will be necessary to make a reference to the
submissions made by the learned Additional Solicitor General of India
as well as the learned Government Pleader on the meaning of "aid" or
"grants" under the Education Act. The learned Additional Solicitor
General of India stated that though he has not received any instructions
from the Union of India, he is advancing submissions as an officer of
this Court. His basic submission is that the words "aid" or "grants"
ash 40 wp-5576,4479,6710,7505n27990.13
under the Education Act must be given widest possible meaning to
include every kind of grant or aid whether direct or indirect. He relied
upon a decision of the Apex Court in the case of Gramophone Company
of India Limited v. Birendra Bahadur Pandey and Others 2 in support of
his submissions. Relying upon the said decision, he submitted that the
words in a statute cannot be always interpreted as per its dictionary
meaning and such words take colour from the context. He also relied
upon a decision of the learned Single Judge of this Court in the case of
The Appellate Authority & Chairman Shikshan Prasarak Mandal and
Another v. State Information Commissioner and Another 3. He submitted
that the interpretation of the word "aid" in the said decision will have to
be accepted.
42. It is true that the meaning to the word "aid" or "grants" will
have to be assigned in the context of the provisions of the Education
Act. We have extensively discussed the said aspect in the earlier part of
the judgment and, in fact, we have held that considering the second
proviso to Sub-section (2) of Section 12 of the Education Act, a grant
of land, building, equipment or other facilities free of cost or at a
concessional rate is neither a grant nor an aid within the meaning of
Sub-clauses (ii) and (iv) of Clause (n) of Section 2 of the Education Act.
The learned Single Judge in the case of Appellate Authority & Chairman
2 AIR 1984 SC 667
ash 41 wp-5576,4479,6710,7505n27990.13
Shikshan Prasarak Mandal considered the concept of the term "aid" in
light of the objects of the Right to Information Act, 2005 and especially
in the context of the definition of the term "public authority" under the
said Act of 2005. The emphasis on the said definition is on direct or
indirect funding provided by the Appropriate Government. It is held
that an educational institution which receives grant-in-aid from the
State is a body substantially financed by the State. In the present case,
going by the provisions of the Education Act, receiving any aid or grant
even in indirect manner does not make a school an aided school. The
aid or grant has to be for meeting the whole or part of it expenses
which is received from the Appropriate Government or the Local
Authority. We are of the view that no other interpretation is possible
except the one which we have tried to give considering the context.
The words "aid or grants" take a colour from the context.
43. The learned Government Pleader also stated that he has
not received any specific instructions from the State Government as
regards the stand of the State Government. He, however, stated that
he is making submissions as an officer of this Court. His first
submission is that Section 35 of the Education Act gives powers to the
Central Government to issue guidelines to the Appropriate Government
or to the Local Authority for the purposes of implementation of the
provisions of the Education Act. There are provisions for constituting
ash 42 wp-5576,4479,6710,7505n27990.13
National Advisory Council and State Advisory Council. Therefore, his
submission is that the interpretation of the words aid or grant should be
left to the authorities under the Education Act. Without prejudice to the
said contention, he submitted that a school becomes an aided school
provided it receives grant or aid to meet its recurring expenses. He
also derived support for this submission on the basis of the second
proviso to Sub-section (2) of Section 12 of the Education Act.
44. At this stage, we must make a reference to the decision of the
Apex Court relied upon by one of the Respondents in the case of Rohit
Pulp and Paper Mills Ltd. v. Collector of Central Excise, Baroda 4. He
relied upon the principles of "Noscitur a sociis". It is urged that the
meaning of the word is to be judged by the company it keeps. The
submission is that the word "expenses" has to be given a wide meaning
so as to include any help to meet any kind of expenditure. Reliance
was also placed by the parties in some of the Petitions on a decision of
the Constitution Bench of the Apex Court in the case of In re The Kerala
Education Bill, 19575. The Kerala Education bill provided for a
definition of the aided school to mean a private school which is
recognized by and is receiving aid from the Government. The Apex
Court considered the question in the context of Article 336 of the
Constitution of India. It was held that the amount received by the
4 (1990)3 SCC 447
5 AIR 1958 SC 956
ash 43 wp-5576,4479,6710,7505n27990.13
Anglo Indian Educational Institutions under Article 337 of the
Constitution of India must be construed to mean as an aid within the
meaning of Kerala Education Bill. It was held that the word "aid" has
not been defined in the Bill and, therefore, simple English word should
be given its ordinary and natural meaning.
45. In the present case, though the aided or unaided schools
may not have been defined, the words "aid or grants" in Sub-clause (ii)
of Clause (n) of Section 2 of the Education Act are qualified by the
words "to meet the whole or part of its expenses". The words "aid or
grants" cannot be interpreted independently of the qualification "to
meet whole or part of its expenses" provided under Sub-clause (ii) of
Clause (n) of Section 2 of the Education Act. Moreover, as held by us,
the second proviso is also a pointer for the interpretation. We have held
that if wide meaning is assigned to the words "aid or grants", the
second proviso to Sub-section (2) of Section 12 of the Education Act
becomes redundant.
46. To conclude, a school becomes an aided school under the
Education Act provided it receives aid or grants from the Appropriate
Government or a local authority in terms of money to meet its whole or
part of expenditure. Thus, a school becomes an aided school provided
it receives aid or grants in terms of money to meet its recurring
ash 44 wp-5576,4479,6710,7505n27990.13
expenditure. The grant of land, building, equipment or any other
facilities free of costs or at a concessional rate by itself will not be an aid
or grant within the meaning of Sub-clause (iv) of Clause (n) of Section
2 of the Education Act.
FINDINGS ON FACTUAL ASPECTS
WRIT PETITION NO.5576 OF 2012
47. In the context of what we have held above on the meaning
of the word "aid" or "grants", now we will have to consider the facts of
each cases. Firstly we deal with Writ Petition No.5576 of 2012. We
have already extensively referred to the facts of each cases. In the
impugned order dated 4th May 2013, the Education Officer accepted
that the St. Mary's School has been given minority status by certificate
dated 30th March 2013. The only ground held against the school is in
Paragraph 2 of the operative part of the said order, the English
translation of which reads thus:-
"2. The school has received land under old grant
from Central Government admeasuring 4.750 +
2.880 total 7.630. Therefore under RTE Act, 2009
clause 12C admission for weaker and under
privilege group has to be reserved and as per
Government Resolution 15/03/2013 completed."
48. It will be necessary to make a reference to the averments
made in the Petition. In Paragraph 7 of the Petition, it is stated that
the lands on which the said school is situated is in two parts. The first
ash 45 wp-5576,4479,6710,7505n27990.13
part admeasuring 1.49 acres, is held on lease from the Central
Government and the remaining part, admeasuring 7.55 acres, is
occupied by the Bombay Diocesan Trust Association Limited under the
Old Grant from the Central Government. At this stage, a reference will
have to be made to the communication dated 7 th March 2013 addressed
by the Defence Estate Officer to the Principal of the St. Mary's School
which is at Exhibit-B to the Petition. It is stated that the land is held on
old grant term which provides that the occupants enjoy only the
occupancy rights and the Government retains the power with it to
resume the land whenever it requires it by issuing a notice to the
occupants. The old grant is a nature of land tenure which signifies the
terms and conditions on which the land is granted. Reference to the
words "old grant" has nothing to do with the word "grant" or "aid" to a
school within the meaning of Education Act. The old grant is a
nomenclature of a land tenure which is often distinguished from the
"new grant" tenure. We must make a useful reference to the decision
of the Apex Court in the case of Chief Executive Officer v. Surendra
Kumar Vakil and Others6. The said decision and in particular Paragraph
12 explains the nature of old grant tenure. Paragraph 12 reads thus:-
"12. Under the Cantonment Land Administration
Rules, 1925, General Land Registers are being
maintained in respect of Sagar Cantonment.
These registers were produced before the High
Court and were also produced before us. These
are old registers maintained in the form
6 (1999)3 SCC 555
ash 46 wp-5576,4479,6710,7505n27990.13
prescribed by the said Rules. In these registers,
the property in question is shown as being held
by S.N. Mukherjee on old grant basis. As
explained by Mittal in the passage cited above,
the tenures under which permission was
given to civilians to occupy government
land in the cantonments for construction of
bungalows on the condition of a right of
resumption of the ground, if required, came
to be known as old grant tenures. Such
tenures were given in accordance with the terms
of Order No. 179 issued by the Governor
General-in-Council in the year 1836. These
require that the ownership of land shall remain
with the Government and the land cannot be
sold by the grantee. Only the house or other
property thereon may be transferred. Such
transfers would require consent of the officer
commanding the station when the transfer is to a
person not belonging to the army. In respect of
old grant tenure, therefore, the Government
retains the right of resumption of land."
(emphasis added)
Therefore, the Education Officer has committed a gross error by
completely ignoring that the "old grant" is a land tenure and not a grant
in that sense. The portion of the land held on lease is under a lease
executed by the Central Government which is not an Appropriate
Government. Hence, in any event, what is received from the Central
Government will not be a grant or aid under the Education Act as it is
not the appropriate Government for any school subject matter of the
Petitions.
49. At this stage, we must make a reference to the affidavit-in-
reply filed by the Education Officer. In the first reply, the main
contention is regarding power of the Education Officer. It is contended
that reasonable opportunity of being heard was given to the Petitioners.
ash 47 wp-5576,4479,6710,7505n27990.13
Learned counsel appearing for the Petitioners has placed on record a
letter dated 21st August 2013 sent by the Chief Executive Officer of the
Cantonment Board addressed to the Principal of the school in which
there is a categorical statement that no concession has been granted to
the school in the matter of payment of property taxes.
50. Therefore, the order of the Education Officer is
unsustainable and it will have to be held that the St. Mary's School is an
un-aided minority school and hence, the provisions of the Education Act
and in particular, the provisions of Section 12 of the Education Act will
have no application. Hence, the Petition must succeed.
WRIT PETITION NO.6710 OF 2013
51. Now we deal with Writ Petition No.6710 of 2013. We have
already adverted to the facts of the case. Relying upon the documents
at Exhibit - J and J-1 to J-45, it was contended that in the year 2012-
2013, admissions were granted by the Petitioners to the English
medium school ( Saraswati Vidyalaya Union Pre-primary and primary
School) in 25% quota and, therefore, it was accepted by the Petitioners
that the said school will be governed by the Education Act and in
particular Clause (c) of Sub-section (1) of Section 12 of the Education
Act. Various explanations are offered by the Petitioners. We must note
here that the issue is whether the Education Act is applicable to the
ash 48 wp-5576,4479,6710,7505n27990.13
school in question. Merely because in the year 2012-2013, the
Petitioners granted admissions against 25% quota provided by Clause
(c) of Section 12(1) of the Education Act to the children of weaker
section and disadvantaged group, there cannot be an estoppel against
the statute and the issue regarding applicability of the Education Act
will have to be decided on merits. However, we must note here that
the learned senior counsel appearing for the Petitioners on instructions
stated that the fees received by the school in the year 2013-2014 from
the said 45 students who were admitted in the year 2012-2013 shall be
refunded to the concerned students. The said statement is made
without prejudice to the rights and contentions of the Petitioners. We
accept the statement and accordingly we propose to direct that if the
fees are not refunded till today, the same shall be refunded within a
period of two months from the date of the judgment.
52. In paragraph 3 of the Writ Petition, a specific case is made
out that the first Petitioner Society is running three distinct schools
which are as under:
(i) The Saraswati Vidyalaya Union Pre-Primary and
Primary School (English Medium) (for short
"English medium school"). It is stated that it is
private unaided minority school;
ash 49 wp-5576,4479,6710,7505n27990.13
(ii) The Saraswati Vidyalaya Union Primary School
(Tamil Medium) (for short "Tamil medium school")
which is stated to be a private aided minority school
established for providing education to the children
especially in Tamil language; and
(iii) The Saraswati Vidyalaya Union High School and
Junior College ( for short "High School") which runs
the classes from standards V to XII.
53. Some of the impugned communications proceed on the
footing there is only one school. In fact it is tried to be contended that
artificially it is shown that the Primary and Secondary schools are
separate by giving fresh admissions to the students in standard V.
However, the affidavit-in-reply of the Education Officer(Primary) of the
Pune Zilla Parishad accepts that the the Saraswati Vidyalaya Union Pre-
Primary and Primary School ( "English medium school") is a separate
school and it is contended in paragraph 4 that the said school ought to
have been made a Petitioner. In paragraphs 9 and 14 of the reply it is
accepted that the English medium school is a separate school. Even the
affidavit filed on behalf of the School Board of the Pune Municipal
Corporation accepts the fact that the English medium school is a
ash 50 wp-5576,4479,6710,7505n27990.13
separate school. In paragraph 4 of the reply, a specific contention has
been raised that the said English medium school should have been
made a party Petitioner. In Paragraph 6 of the reply, there is a reference
made to three distinct schools of the Petitioners being a primary school,
a high school and junior college as well as a senior college. In the
reply, it is not the case made out that the English medium school is not
a different school and that it is a part of the secondary school. On the
contrary, repeatedly, there is a reference to English medium school by
treating the same as a separate school. Exhibit-R-3 which is annexed
to the said reply is a report submitted by the Assistant Education Head
of the School Board to the Education Board. Page 325 of the said
reply specifically refers to pre-primary and primary school consisting of
classes from LKG to Standard V.
54. We have perused the reply filed by the Respondent No.7.
Even in the said reply, a separate existence of the English medium
school is not disputed. Apart from the undisputed position which
emerges from the reply of the Education Officer and the School Board,
there are large number of documents annexed to the Petition to show
the existence of the three separate schools. In view of the undisputed
factual position, we are not making a reference to large number of
documents.
ash 51 wp-5576,4479,6710,7505n27990.13
55. Therefore, we will have to consider whether the English
Medium School is an unaided minority school. It will be necessary
now to make a reference to the impugned communications. It is alleged
therein that on the following grounds the school will have to be treated
as an aided school.
(i) The schools are receiving salary grants;
(ii)
ig The schools have received amounts under Sarva
Shiksha Abhiyan and Mid-day meal scheme;
(iii) The schools have received 20 computers and 2
printers from the funds of a Member of
Parliament;
(iv) The schools are using a play-ground made
available by the Municipal Corporation.
56. In the subsequent communication/order dated 3 rd June
2013 ( Exhibit -W to the Petition), again it is reiterated that there are
pre-primary and primary, high school and junior and senior college
sections in the school. The gist of what is stated in the said
communication is as under:
ash 52 wp-5576,4479,6710,7505n27990.13
(a) The school is receiving Government aid and grants;
(b) The school has received 20 computers and 2
printers from the funds of a Member of Parliament;
(c) A play-ground has been made available to the
school by the Municipal Corporation of City of
Pune;
(d) A direction is issued to refund the fees of 45
students collected in the year 2013-2014;
(e) Further direction is issued to admit students against
25% quota as per Clause (c) of Sub-section (1) of
Section 12 of the Education Act;
(f) Further direction is that separate action will be
taken as regards the collection of caution money
and running additional division of 4th standard.
57. We must note here that there is not a single document
produced on record by any of the Respondents to show that (a) any
ash 53 wp-5576,4479,6710,7505n27990.13
grants or aid from the State Government or local authority in terms of
money have been received by the English medium school; (b) the 20
computers and 2 printers have been received by the English medium
school; (c) the municipal play-ground has been made available
exclusively to the English medium school of the Petitioners and (d) any
amount has been received by the English medium school either under
the Sarva Shikshan Abhiyan or under the Mid-day meal scheme.
58.
In the reply filed by the 7 th Respondent, several documents
have been annexed including the audited accounts of the Petitioners.
The said audited accounts itself show that there are separate accounts
and separate budgets of the English Medium School, the Tamil medium
school and the High School. The salary grants and non-salary grants
have been received by the High School and not by the English medium
school. To the said reply, a letter dated 17 th April 1995 addressed by
the Assistant Commissioner of Pune Municipal Corporation to the Vice-
President of the first Petitioner has been annexed. The said letter itself
records that the municipal play-ground will be made available to the
first Petitioner only to enable the children to play on it. The letter
specifically records that the play-ground was not being given either on
the basis of an agreement or on rent. This supports the specific case
made out by the Petitioners that the play-ground has not been given to
the schools for exclusive use and the schools have no right in respect of
ash 54 wp-5576,4479,6710,7505n27990.13
the play-ground. It is merely a facility granted. In the reply of the 6 th
Respondent it is contended that the Municipal Corporation has granted
exemption to the school from payment of property tax.
59. In view of the interpretation which we have made, even
assuming that what is alleged in the impugned communications which
we have summarised in paragraphs 55 and 56 above is correct, the
English medium school cannot be an aided school within the meaning
of the Education Act. In the impugned communication dated 3 rd June
2013, the minority status of the school has been admitted. Therefore,
the Education Act is not applicable to the English medium school.
WRIT PETITION NO.4479 OF 2013
60. Now, we turn to Writ Petition No.4479 of 2013. We have
already referred to the facts of the case. The challenge in this Petition
is to various communications which we have set out earlier. The main
communication is dated 14th/22nd February 2013 issued by the Block
Education officer, Panchayat Samiti, Haveli, Pune, to the Head Master of
the Bishop's School. The only contention raised in the said
communication is that the land on which the school is situated is owned
by the Central Government and the said land has been given on lease to
the school. In the first affidavit-in-reply filed by Shri Sunil J. Kurhade,
ash 55 wp-5576,4479,6710,7505n27990.13
In-charge Education Officer (Primary), Pune Zilla Parishad, Pune, it is
contended that the land is leased at a nominal rate of Rs.2,400/- per
year and the said school has availed the grant-in-aid for construction
under the Old Grant Scheme from the State Government. It is accepted
that the school is a minority school. Additional affidavit-in-reply of the
3rd Respondent again affirmed by Shri Sunil J. Kurhade is more
elaborate. Firstly it is contended that the school at Kalyani Nagar is
assessed at a concessional rate for property taxes. The second ground
is that the rent is shown to have been received from the said three
schools in the audit report of the Bishop's Education Society. The
specific stand is that the rent has been received from the schools by the
Government. We fail to understand how these facts will show that the
schools are aided schools. To the said reply, Exhibit R-1 is the letter
addressed by the Inspector of Pune Municipal Corporation to Advocate
Shri Nilesh Borade in which it is stated that the school at Kalyani Nagar
is assessed at a concessional rate for the property taxes from 1 st July
2004. When we made a specific query to the learned counsel appearing
for the 3rd Respondent as to whether the said rate has been applied by
the Pune Municipal Corporation to the schools run by all the public
trusts, he fairly stated that the said rate is made applicable to all the
schools run by the public trusts.
ash 56 wp-5576,4479,6710,7505n27990.13
61. In any event, there is no material placed on record to show
that any of the three schools are receiving any aid or grants from the
Appropriate Government for meeting expenditure. There is no
material placed on record to show that the lease has been granted by
the Cantonment Board at a concessional rate. We may note here that a
copy of the Building Lease dated 24th March 1970 was tendered on
record does not show that any concession has been granted to the
school in the matter of payment of rent. We have already held that even
if the Appropriate Government or a local authority makes a land
available to a school at a concessional rate that will not amount to aid
or grants. Therefore, even in this Writ Petition, the schools will have to
be held to be unaided minority educational schools. Therefore, this
Petition must succeed.
WRIT PETITION NO.7505 OF 2013
62. Now we turn to Writ Petition No.7505 of 2013. The
challenge therein is to the Government Resolution dated 13 th February
2013 as well as to the communication dated 31 st July 2013 issued by
the Education Officer (Primary) to Shri V.D.Jarad and Others. It is
contended in the communication dated 31 st July 2013 that the
provisions of the Education Act are applicable to the 4 th Petitioner
school. It alleged in the communication that the said school has not
ash 57 wp-5576,4479,6710,7505n27990.13
submitted the minority certificate. Various other irregularities have
been alleged and a direction has been given to make inquiry and
submit a report. The said communication cannot be said to be adverse
to the Petitioners. In any case, it only directs an in-depth inquiry and
submission of a report.
63. In the Petition, it is contended that the 4th Petitioner is a
minority school. We have already held that the provisions of the
Education Act and in particular Section 12 thereof are not applicable to
the unaided minority schools. We find that a minority certificate of the
4th Petitioner has not been annexed to the Petition. It is, therefore, for
the Petitioners to satisfy the concerned authority that the 4 th Petitioner
is a minority unaided school. Therefore, it is not necessary to issue any
writ in this Petition.
WRIT PETITION STAMP NO.27990 OF 2013
64. Now, we turn to Writ Petition Stamp No.27990 of 2013.
This Petition has been filed by the Petitioner, who claims that he secured
admission for his son in the Bishop's school at Pune. It is stated that
the Petitioner deposited the fees on 23rd March 2013. However, the
Petitioner's son is not allowed to continue and sit in the class. It is
contended that 25% seats, out of the total seats are vacant. But the
Petitioner's son was prevented from attending the class.
ash 58 wp-5576,4479,6710,7505n27990.13
65. We must note here that in Writ Petition No.4479 of 2013
filed by the said school, under the ad-interim order dated 15 th May
2013, the Petitioners were permitted to fill up only 75% seats.
Perhaps, that is the reason why the Petitioner's son was not allowed to
continue the class. We have held that Clause (c) of Sub-section (1) of
Section 12 of the Education Act is not applicable to the said school.
Therefore, it is not necessary to pass a separate order in this Writ
Petition.
66. Some of the parents and the interveners have contended
that as a result of the ad-interim orders of this Court which permitted
admissions only to the extent of 75% seats, some of the students who
were admitted in the schools, could not pursue their studies. We make
it clear that as a substantial part of the academic year is over, it is not
possible for us to issue a direction at this stage to allow the children to
join the schools against remaining 25% seats. It is for the school
authorities to consider whether they can be accommodated in the next
academic year.
67. Hence, we dispose of the Petitions by passing the following
order:
ash 59 wp-5576,4479,6710,7505n27990.13
ORDER :
(a) In view of the conclusions in Paragraph 46 above,
we uphold the case made out by the Petitioners that
(i) St. Mary's School, Pune; (ii) Bishop's School,
Camp, Pune; (iii) Bishop's Co-Ed School, Kalyani
Nagar, Pune; (iv) Bishop's Co-Ed School, Undri,
Pune; and (v) Saraswati Vidyalaya Union Pre-
primary and Primary School (English Medium),
Pune are unaided minority schools to which the
provisions of clause (c) of sub-section (1) of section
12 of the Right of Children to Free and Compulsory
Education Act, 2009 are not applicable;
(b) All orders/communications holding to the contrary
are quashed and set aside.
(c) We direct that the Petitioners in Writ Petition
No.6710 of 2013 shall refund fees of 45 students
(admitted in the Academic Year 2012-2013)
received for the current academic year. The refund
shall be made within two months from today;
ash 60 wp-5576,4479,6710,7505n27990.13
(d) Writ Petition Nos.5576 of 2013, 4479 of 2013 and
6710 of 2013 are allowed on above terms subject to
what we have observed in Paragraph 66 above;
(e) Writ Petition No.7505 of 2013 and Writ Petition
Stamp No.27990 of 2013 are disposed of in terms of
Paragraphs 62 to 65 above;
(f)
All pending Civil Applications stand disposed of;
(g) There will be no order as to costs.
( REVATI MOHITE DERE, J ) ( A.S. OKA, J )
