Shishti Solkar & Ors. vs Mahavir Sr. Model School & Ors.
2011 Latest Caselaw 6359 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   Judgment reserved on:    14.9.2011
                                   Judgment delivered on:    23.12.2011


              W.P.(C) No. 1659/2011


SHISHTI SOLKAR & ORS.                              ......Petitioners

                        Through: Mr. U.M. Tripathi, Adv.

                             Vs.

MAHAVIR SR.MODEL SCHOOL & ORS.                     ......Respondents

                 Through: Mr. Rakesh Kumar Khanna, Sr. Advocate
                             With Ms. Seema Rao, Adv. for
                             respondents    1 and 2
                             Ms. Koplin Kaur proxy counsel for DOE.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR


KAILASH GAMBHIR, J.

1. The petitioner no.1 who is a student of 10th

standard and the petitioner no.2, the father of the petitioner

no.1 have invoked the writ jurisdiction of this court under

Article 226 of the Constitution of India to seek directions to

direct the respondent no.1/Mahavir Senior Model School and

the respondent no.2, the Manager of the said school to issue

admit card of the petitioner no.1 for appearing in the Board

Examination of 10th class commencing from 15th March,

2011. The petitioners also seek directions to direct the

respondents 1 and 2 to grant entire fee concession to the

petitioner no.1 for the academic session 2010-2011 and also

for the future academic sessions.

2. The aforesaid directions have been sought by the

petitioners based on the facts that the petitioner no.1 was

admitted in the respondent no.1 school in the year 1999 in

the nursery class and at present she is studying in the 10 th

standard and was slated to appear in the forthcoming Board

examination scheduled to be held from 15th March, 2011.

The petitioner no.2 has claimed that he belongs to the

economically weaker section of the society and also belongs

to the scheduled castes category and thus his daughter is

eligible for grant of fee concession . The petitioner no.2 has

placed on record a copy of income certificate duly

certified by the Office of the Deputy Commissioner (North

West District) Delhi to show that his income is Rs.4,000/-. It

is also the case of the petitioners that looking into the

financial condition of the petitioner no.2, the respondent no.1

school had granted fee concession in favour of the petitioner

no.1 to the extent of 50% since 2004 to 2007-2008. The

petitioners have further stated that in the year 2009-2010 they

had applied for full fee concession in the category of EWS as

per the circular issued by the Directorate of Education

granting fee concession to those whose earning is up to

Rs.40,000/- annually, but since the fee concession was not

granted by the respondent nos. 1 and 2, the petitioners filed a

writ petition bearing W.P.(C) No. 12775/2009 before this

court and vide order dated 29.1.2010, the said petition filed

by the petitioner was disposed of by this court in view of the

statement made by the counsel for the respondents that they

had already granted 50% concession in terms of Rule 158 of

the Delhi School Education Rules, 1973. It is also the case

of the petitioners that the petitioner no.1 was promoted in

10th class but her name was struck off from the roll of the

school as she was in arrears of the school fee and because of

the alleged illegal act of the respondents 1 and 2, the

petitioners preferred another writ petition bearing W.P.(C)

No. 4707/2010 which was disposed of by this court vide order

dated 6.12.2010 and while disposing of the said writ petition,

this court left the option of the petitioners open to apply for

claiming fee concession for the current academic year

provided such an application is filed by the petitioner within

a period of thirty days from the commencement of the then

current academic session and in compliance of the said

directions, the petitioners had applied for full fee concession

for the present and future academic session. It is also the

case of the petitioners that the said request made by the

petitioners was rejected by the respondent no.1 school vide

their letter dated 15.1.2011. It is also the case of the

petitioners that even on payment of the arrears of the fee

amount and of the current dues the respondent nos. 1 and 2

had withheld the admit card of the petitioner no.1 and being

aggrieved by such acts of the respondent nos. 1 and 2, the

petitioners have filed the present petition.

3. A detailed counter affidavit was filed by the

respondent nos. 1 and 2 taking various legal and factual

objections. The respondents in their counter affidavit have

seriously disputed the income of the petitioner no.2. The

respondents have also stated that there was an outstanding

amount Rs.59,574/- against the petitioners at the end of the

academic year 2008-2009 and the said amount was not paid by

them to the detriment of respondent school which being a

minority school is dependent upon the said earnings from fees

as a source to run the school. The respondents have also

taken a stand that the petitioner no.2 is the owner of a house

constructed on a plot of land measuring 200 sq. yards in a

prime locality in Delhi and he is also a professional teacher of

painting and music and earns a good income by giving private

tuitions to the students. The respondents have also submitted

that in the year 1999-2000 the petitioner no.2 had shown his

monthly income to be at Rs.10,000/- p.m. and later in the

academic session 2009-2010 he had pretended his income to

be Rs.4,000/- p.m. with a sole intent to evade and avoid

payment of the school fees. The respondents have also

taken a stand that after coming into force the 6 th Pay

Commission the expenses of the school have increased

manifold and the financial burden on the school has also

increased after the commencement of the Right of Children to

Free & Compulsory Education Act 2009, which act as per

Section 12 mandates every school to provide free and

compulsory education to 25% students at the entry level and

due to that the financial condition of the school has

deteriorated to the extent that the school is no longer in a

position to provide any more fee concessions. The

respondents have also taken a stand that their bona fides can

be gauged from the fact that on the very first date fixed

before this court they had brought the admit card of the

petitioner no.1 so that she could appear in her Board

Examination, but the petitioners have been avoiding to pay

the outstanding amount of school fee and a sum of Rs. 16,570/-

is still outstanding against the petitioners.

4. In the aforesaid backdrop of facts, arguments were

addressed by both the parties. The petitioners were

represented through Mr. U.M. Tripathi, learned advocate

while arguments on behalf of respondents were led by Mr.

Rakesh Kumar Khanna, learned Senior Advocate. No counter

affidavit was filed by the respondent nos. 3 and 4 except

placing on record the necessary circulars and orders and that

too when directions to this effect were given by this court.

5. I have heard learned counsel for the parties at

great length and given my thoughtful consideration to the

arguments advanced by them.

6. The present is yet another addition to the

consecutive writ petitions filed by the petitioner no.2 for

claiming fee concession for his daughter. Expressing

displeasure on the filing of this writ petition two months after

his application for fee concession was rejected and just one

day before the commencement of the Board Examination, this

court vide order dated 14.3.2011 showed its disinclination to

entertain this writ petition, but taking into consideration the

future of the child, directions were given to the petitioner no.2

to deposit a sum of Rs.2,500/- with the respondent no.1 on the

same day and another sum of Rs.2,500/- on 30.3.2011 for the

release of the admit card of the petitioner no.1, which

directions were complied by the petitioners and the admit card

released.

7. Thus, now the controversy that remains to be laid

to rest is that whether the petitioner no.1 is entitled to the fee

concession or not. The respondent no.1 school is an unaided

private school duly recognized under the Delhi School

Education Act. Under Rule 158 of Delhi School Education

Rules, 1973, there exists a provision for the grant of fee

concession and the said rule for better appreciation is

reproduced as under:

"158. Fee Concession- (1) The head of the school may exempt deserving students, whose parents or guardians are not financially solvent to pay the fees specified by these rules, from payment of the whole or one-half of such fees for a period of twelve months commencing from the 1st day of May of each year or from the date of admission of the child or ward, whichever is later, and such exemption shall be regulated in the manner specified in sub-rule(3).

(2) Exemption made to any student under sub-rule(1) shall, so long as the conditions for eligibility for exemption are fulfilled and the student continues in the school, be renewed from year to year.

(3) Up to a limit of twenty per cent of the total number of students on the rolls of the school in all the classes in the [Secondary or Senior Secondary stage} as on the 7 th day of May of the year may be exempted from the payment of the whole or one-half of the fees, and where any student is admitted after the 7 th day of May but before the 31st day of August of that year, up to a limit of twenty per cent of the students so admitted may be exempted from the payment of the whole or one-half of the fees.

(4) The proportion of the students receiving exemption from the payment of the whole or one-half of the fees may be varied in any of classes in the 2{Secondary or Senior Secondary stage} at the discretion of the head of the school, so however, that the number of students enjoying exemption from payment of the whole of the fee shall not exceed fifteen per cent, of the students at any time of the year.

(5) The percentage of the students receiving exemption from payment of the fee shall be calculated on the total number of students in all the classes in the 2{Senior or Senior Secondary stage} reduced by the number of students granted exemption from payment of fee under the provision relating to:

(a) the concessions to students belonging to the Scheduled Castes or Scheduled Tribes;

(b) students having brothers or sisters studying in the same school or a school under the same management;

(c)students who are wards of teachers.

(6) In calculating the number of exemptions, the fraction of one- half or more shall be treated as one.

(7) The number of exemptions from payment of the fee shall not be altered during the year except where, owing to the departure from the school of any student enjoying exemption, a vacancy arises, it shall be permissible to pass on the exemption enjoyed by the student so departing, to any other deserving student of the school.

(8) Where the number o students eligible for receiving exemption from payment of fee is in excess of the number of students to whom exemption is admissible under these rules, the exemption shall be made in order of merit on the basis of the results of the immediately previous annual examination or, if necessary, on the basis of a special competitive examination held to determine the order of merit of the eligible students."

It would be seen from the above rule that up to a limit of

twenty percent of the total number of students in all the

classes can be exempted from the payment of the whole or

one half of the fees and the discretion to grant such

exemption vests with the head of the school and such a

discretion is exercised by the head of the school in deserving

cases of the students whose parents or guardians are not

financially solvent to pay the fees specified by the said rules.

There is no quarrel with the fact that the grant of fee

exemption is not a matter of right and it is for the parents to

satisfy the head of the school that he/she is not financially

solvent enough to bear the expenses of his/her wards towards

the school fees and taking into consideration the material

placed before the head of the school, decision is to be taken by

the head of the school to grant full fees concession or the

concession for one half of the fees. Apart from the already

existing Delhi School Education Act, 1973 which is a

applicable to Delhi only, another central legislation which aims

to fulfill the much desired goal of the right for education for all

within this country is the Right of Children to Free &

Compulsory Education Act 2009, wherein a provision under

Section 12 has been made for the grant of free and

compulsory education to the economically weaker sections of

the society and the children belonging to the disadvantaged

group subject to a minimum of 25%. After the

commencement of this new Central Statute, every school has

a legal obligation to provide free education at the entry level

to the children belonging to the weaker sections and

disadvantaged group subject to the minimum of 25%. The

Directive Principles of State Policy enumerated in our

Constitution lay down that the State shall provide free and

compulsory education to all children upto the age of 14 years.

Later on, through the 86th Constitutional Act, 2002, Article

21A was inserted with a view to achieve the said objective of

providing free and compulsory education to children in the

age group of 6-14 years as a Fundamental Right and through

the said Central Act, that is, Right of Children to Free &

Compulsory Education Act 2009, free elementary education

has been made available to the extent of 25 per cent of the

strength of the class of those children who belong to

economically weaker and disadvantaged sections of the

society.

8. As is seen from the abovesaid two enactments, free

seats to the extent of 25 per cent upto the level of elementary

education is taken care of under the Right of Children to Free

& Compulsory Education Act 2009 and so far as Delhi School

Education Act, 1973 is concerned, Rule 158 of the same takes

care of providing free seats to the students of all levels which

would mean even Secondary and Senior Secondary level. The

petitioner, who is now a student of Xth standard is eligible for

the grant of free seat under Rule 158 of the Delhi School

Education Rules, 1973 and not under the Right of Children to

Free & Compulsory Education Act 2009. Indisputably, the

petitioner no.1 was granted the advantage of fee concession

by respondent no.1 school but the petitioner no.2, father of the

petitioner no.1, had not been depositing the amount of the

outstanding fee from the Academic Year 2004-2005 till 2009-

2010 and thus a total amount of Rupees 59,574/- was

outstanding against the petitioner no.2 towards the school fee.

The petitioner has earlier filed two writ petitions before this

court for claiming fee concession which were disposed off by

this court with the necessary directions.

9. The grant of freeship or fee concession as per rule

158 of the DSER, 1973 is a discretion exercised by the head of

the school and cannot be necessarily exercised in each and

every case. The scheme envisaged forming part B of the said

rules details as to how the number of students to be granted

the said benefit are to be calculated and thus every parent

canvassing himself to be unable to pay the fees cannot claim

the discretion to be exercised in his or her favour. There are

various circulars and notifications issued by the Directorate of

Education to define the parameters of income of the parents to

make them eligible for the grant of such benefit. In the case at

hand, it is pertinent to mention that two distressing facts have

come to light regarding the petitioner no.2. The first is that

petitioner No.2 has not been consistent in disclosing his

proper income. In the year 1999 he had disclosed his income

at Rupees 10,000/- per month and in the forms submitted by

him to claim fee concession for the Academic Year 2010-2011,

he has disclosed his income to be Rupees 4,000/- per month.

This Court, vide order dated 22.7.2011, gave directions to

petitioner no.2 to file an affidavit to disclose his exact assets,

moveable and immoveable and in compliance thereof, the

petitioner no.2 had filed his affidavit dated 26.8.2011 wherein

he has taken the stand that he does not own any immoveable

property in his name; that for his day-to-day needs, he imparts

dance training to the students and through these dance

classes, he earns about Rupees 48,000/- per annum. In the

reply affidavit filed by the respondent school on 7.9.2011, it

has been pointed out that the petitioner no.2 is also carrying

on another profession of slaughtering pigs, which fact is

fortified from the First Information Report (FIR) filed by

petitioner no.2 against one Mr. Puran Chand leveling

allegations of threatening him when he tried to stop them from

slaughtering pigs. On 20.3.2007, in the said FIR, petitioner

no.2 had also disclosed that he was imparting education of

music, painting and folk dance. The respondent no.2 has

further taken a stand that in the said case, the petitioner no.2

has given evidence as PW2 on 10.8.2010 where he took a

stand that he had studied upto B.A. and he is a private tutor of

painting and music and used to go to teach at Ashok Vihar,

Deepali, Model Town, Saraswati Vihar, Subhadara Colony and

Gur Mandi for the last 30 years. Respondent no.2 has also

taken a stand that a music teacher teaching in Delhi is not

charging less than Rupees 500/- per hour and going by the

admission of petitioner no.2 in the case referred above, if he

has been teaching for 3 hours a day, then his income would

not be less than Rupees 45,000/- per month. Be that as it may,

the fact that is crystal clear from the aforesaid is that the

petitioner no.2 has not come forward to truthfully disclose his

correct income and has not even given any rejoinder to the

reply affidavit of respondent no.2. It cannot be accepted that

the Petitioner no.2, who has studied upto B.A. and is imparting

private tuition of dance and music is earning a meager amount

of Rupees 4,000/- per month.

10. The other fact which has come forth to cast a shadow of

doubt on the bonafides of the petitioner no.2 is that in the year

1999, at the time of admission of petitioner no.1, the

admission was under the general category while in the

enrolment form for the year 2010-11, the petitioner no.2 has

claimed himself to be belonging to the Scheduled Caste

category thus claiming fee concession for his daughter. A

caste certificate dated 29.9.2011 issued by the Office of the

Deputy Commissioner (North West District) has been annexed

as Annexure P2, wherein in the column of the caste to which

the petitioner no.2 belongs is left blank, which goes on to

show that the said certificate has been obtained fraudulently

and cannot be believed. The caste of a person is inherent and

whether he belongs to the Scheduled Caste or not is known to

him and it cannot be the case that a person belonging to the

general category can be converted to the reserved category.

However, it can be the case that the person belonging to the

reserved category does not claim the benefit and does not

disclose the same, but in that case he himself forfeits his

benefits, which however is not the case made out by the

petitioner and thus cannot be acceded to.

11. Reliance has also been placed by the petitioner on the

notification dated 07.1.2011 issued by the Directorate Of

Education for providing fee concession to the students

belonging to the weaker section of the society and

disadvantaged group. The said notification however would not

aid the petitioner in any way as it is only applicable to the

students at the entry level till elementary education and the

petitioner no.1 being a student of class Xth cannot be given

the advantage of the said notification.

12. This court, however, finds merit in the contention of

the Respondent no.2 school that it being an unaided private

school has the burden of giving salaries of staff according to

the 6th Pay Commission and the grant of fee concession as per

the Delhi School Education Rules is also to be met from the

fee income only. Undoubtedly, the respondent no.2 cannot run

its School efficiently and effectively if it lacks proper financial

resources. The School generates financial resources only

through the school fee and if schools are deprived of the

payment of school fee, then such schools will not be in a

position to provide proper education and recruiting

meritorious teachers, who, after the VIth Pay Commission, are

entitled to a handsome amount of salary at par with the

Government teachers in term of Section 10 of the Delhi School

Education Act, 1973.

13. Before parting with the judgment, this court would

like to observe that the concept of fee concession and freeship

as envisaged in the two statutes is with the aim and object

that those who do not have the means to give education to

their children are not deprived, as education has become the

necessity for survival in this day of cut throat competition.

Education is a right not a luxury in our country and the

statutes are to abridge the gap between the goal and the

reality. The country has gone through a long struggle to put

itself on the world map and be known for its brilliantly trained

minds, but this has not been without the struggle that the

parents go through for making every possible endeavour to

educate their child. Today, education is empowerment and

with a view that the economically weaker sections and the

disadvantaged groups are not left behind, a social obligation

has been cast upon the private unaided schools to provide fee

concession to the deserving students, but this does not mean

that the parents who have the prime responsibility to provide

education to their child put the burden on the school. The

parents cannot in any manner shirk away from their duty in

the garb of belonging to the weaker section of society and as a

matter of right demand concessions from the schools. Indians

today are highly aware and informed citizens and the demand

for inclusive education has never been as fervent as it is today,

and for the State to fulfil the expectation of every common

man for providing a better tomorrow to his child through

education should no doubt be the ambition of this country, but

the chasm that exists between achieving this goal and the

reality cannot be overlooked and shied away from. The present

is a classic example of the parent, petitioner no.2 herein, who

is educated and is in a profession, but does not wish to pay for

the education of his child, and falsely claims to be a man of no

means and wants to realize the education of his child through

the portals of law, is nothing but an exploitation of the

beneficial social legislations and an abuse of the court of law,

besides an assault on the opportunities of the ones truly

deserving these concessions. The petitioner no.2 is a

compulsive litigator, who has not come to the court with clean

hands, coupled with his recalcitrant attitude of not paying the

outstanding arrears of fee to respondent no.2 discredits him

from any relief by this court.

14. In the light of the aforesaid discussion, this Court

does not find petitioner no.1 eligible for the grant of fee

concession in terms of Rule 158 of the Delhi School Education

Act, 1973. Petitioner No.2 is accordingly directed to pay the

entire outstanding amount of the School fee for the current

academic session, failing which the School is entitled to take

steps for non-payment of fees as per the Delhi School

Education Rules, 1973.

15. In the light of the above, there is no merit in the present

petition and the same is hereby dismissed.

December 23, 2011                        KAILASH GAMBHIR, J
mg