Delhi High Court
Association Of School Vendors & ... vs Central Board Of Secondary ... on 21 February, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.7414/2017 & C.M.Nos.30616/2017 & 30617/2017.
Reserved on: 9th February, 2018.
Date of Decision: 21st February, 2018.
ASSOCIATION OF SCHOOL VENDORS & ORS.
.... PETITIONERS
Through: Mr.Tanmaya Mehta with
Mr.S.Anand, Advs.
Versus
CENTRAL BOARD OF SECONDARY EDUCATION & ORS.
.....RESPONDENTS
Through: Mr.Amit Bansal, Adv. with
Ms.Manisha Singh, Adv. for R-1/CBSE.
Ms.Isha Khanna, Adv. with Ms.Anam
Ahmed, Adv. for GNCTD.
+ WP(C) No.10052/2017& C.M.No.41018/2017.
PARENTS-STUDENTS WELFARE ASSOCIATION
....PETITIONER
Through: None.
Versus
THE DIRECTORATE OF EDUCATION & ANR.
.....RESPONDENTS
Through: Mr.Gautam Narayan,
Adv.for R-1.
Mr.Amit Bansal, Adv.
with Ms.Manisha Singh,
Adv for CBSE.
W.P.(C)7414-2017 with WP(C) No.10052/2017 Page 1 of 40
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
REKHA PALLI, J
1. The present writ petitions involve inter-related issues, though
the prayers made therein are diametrically opposite and are
accordingly being decided vide this common judgment. The first
petition which has been filed by an Association of persons engaged in
the business of trading and sale of uniforms, books, stationery etc. in
different Schools of Delhi and two parents of School going children,
challenges the Circular dated 19th April, 2017 as also the order dated
4th July, 2017 rejecting the Petitioner‟s representation dated 26.5.2017,
both passed by Respondent no.1/CBSE, whereby the affiliated Schools
have been prohibited from selling books, both NCERT and non-
NCERT, stationery items, as also uniform from shops within the
School premises.
2. The second writ petition has been filed by Parent-Students
Welfare Association, claiming to be an association of parents of
school-going children, challenging Circular dated 24th/25th August,
2017, issued by CBSE, primarily on the ground that the said circular
permits commercial activities of selling books and stationery through
vendors within the School premises and is therefore not only in
contravention of its earlier Circular dated 19 th April, 2017, but is also
violative of various CBSE Affiliation Bye-Laws and more particularly
of Affiliation Bye-laws No.14(B) & 19.1 (ii) & (iii), which prohibits
commercialization or carrying out business activities in the School.
3. For the sake of convenience, parties in the first petition are
being referred to as the Petitioners/Respondents hereinafter and the
Petitioner in the second petition is being referred to as the Parents-
Students Welfare Association.
4. The facts which emerge from the two petitions are that the
CBSE is one of the Boards as defined in Section 2(s) of Delhi School
Education Act & Rules, 1973 (hereinafter referred to as DSEAR,
1973) established for the purpose of conducting "public examination".
5. The private unaided Schools are granted recognition upto
Elementary, Secondary and Senior Secondary levels by the
Directorate of Education (hereinafter referred to as DOE), Govt. of
NCT of Delhi/Respondent no.2, under the provisions of DSEAR, 1973
and Right to Education Act, 2009 (hereinafter referred to as "RTE
Act, 2009"), and are governed by the provisions of these Acts. The
Managing Committees of these Schools are bound to comply with the
provisions of DSEAR, 1973 and the RTE Act, 2009, for managing the
affairs of the School. The DOE is the regulatory authority over the
said private unaided recognised Schools within the provisions of
DSEAR, 1973 and the RTE Act, 2009, and the said Schools are bound
to follow the guidelines, orders, notification etc. issued by the DOE
from time to time.
6. The Respondent no.1 issued a Circular dated 19th April, 2017,
which was in the nature of an advisory to the Schools not to indulge in
any commercial activity by way of selling of books, stationery,
uniforms and School bags etc. within the School premises and to
adhere to the provisions of Affiliation Bye-laws of the Board. The
Schools were further directed to desist from the unhealthy practice of
coercing the parents to purchase books/uniform etc. from within the
School premises or from selected vendors only.
7. Aggrieved by the issuance of circular dated 19.04.2017, the
Petitioners challenged the same before this Court by way of writ
petition being WP (C) No.4322/2017 titled as Association of School
Vendors Vs. Central Board of Secondary Education & Ors., wherein
this Court, after noticing the fact that even though the circular had
been addressed to all the heads of CBSE affiliated schools, but the
Petitioner being the association of school vendors, may have a
grievance, disposed of the petition vide its order dated 19 th May, 2017
by holding that it would be appropriate if the Petitioners were to make
a representation to the CBSE within ten days and directed the CBSE to
decide the same within a period of four weeks.
8. Pursuant to the aforesaid directions of this Court, the Petitioner
no.1 made a representation dated 26th May, 2017 to the
CBSE/Respondent no.1, seeking a clarification, or in the alternative, a
modification of the Circular dated 19th April, 2017, with a request to
clarify that the effect of the Circular dated 19th April, 2017 was not to
prohibit the sale „per se‟ of the items mentioned therein within the
School premises, but only to prohibit the Schools from forcing parents
to purchase those products only from the said vendors within the
School, and to further clarify that as long as an option was available to
the students and/or parents and there was no coercion of any kind, the
operation of such shops in the schools would be valid.
9. The CBSE rejected the Petitioner‟s representation vide its order
dated 4th July, 2017, by holding that the clarification sought therein
was untenable in view of Rule 15(b) of Right to Education Rules 2010
(hereinafter referred to as "RTE Rules, 2010") read with Rules 14(B)
and 19.1(II) of the Affiliation Bye-laws of the Board which prohibits
any commercial activity in School premises. The CBSE also opined
therein that the Petitioner No.1/Association of School Vendors did not
have any locus standi to challenge the circular, as the same had been
issued by CBSE to the Schools which had been granted affiliation as
per the conditions stipulated in Affiliation Bye-laws of the Board.
10. Aggrieved by the rejection of its representation by the CBSE,
vide its order dated 4th July, 2017, the Petitioners have filed the
present petition with the following prayers:-
"a. Quash and set aside the impugned order dated
04.07.2017 passed by the Respondent No.1 rejecting
the representation made by Petitioner No.1;
b. Quash the circular dated 19/04/2017 issued by
the Respondent No.1;
c. In the alternative, a direction may be issued to
the respondent No.1 to clarify that the effect of the
circular dated 19.4.2017 is not to prohibit sale per se
of the above stated items within the school premises,
but that the prohibition only applies to the extent that
schools force parents to purchase products only from
the said vendors within the school, and that as long as
an option is available, the operation of such shops
would be valid;
d. Read down Clause 19 of the CBSE Affiliation
Bye Laws to clarify that running of uniform, stationery
and text book shops etc. in schools does not amount to
commercialization."
11. Soon after the present petition was filed, the CBSE/Respondent
no.1, with an aim to augment the availability of NCERT books for the
students of CBSE affiliated Schools, issued a circular dated 9th
August, 2017 addressed to all the Heads of the affiliated Schools,
calling upon them to place their online indent for purchase of the
NCERT books as per the requirements assessed by the Schools for the
Academic year 2018-19 and place their demand for the same through
the online site www.ncertbooks.ncert.gov.in.
12. The aforesaid circular was followed by another circular dated
24th/25th August, 2017 issued by the Respondent no.1/CBSE wherein
while amending its earlier circular dated 19th April, 2017, the
Respondent no.1 permitted the Schools to open a `Tuck Shop‟ inside
the premises of the School where besides the sale of NCERT books,
stationery and other materials, as required by the students, could also
be sold. It may be relevant to reproduce para 3 of the aforesaid
circular in extenso as learned counsel for the Petitioners, in both the
petitions have referred to it, at great length:-
"3. In view of the above, the schools are allowed to
place indent for purchase of NCERT books directly
through NCERT website for distribution among their
students and for this purpose, a `Tuck Shop‟ may be
opened inside the premises of the schools. The
stationery and other materials required by the
students are also allowed to be sold from the `Tuck
Shop‟. To this extent, the circular
No.CBSE/AFF/CIRCULAR/10/2017 dated 19.04.2017
stands amended."
13. It is the issuance of this Circular dated 24 th/25th August, 2017
that has led to the filing of the present writ petition by the Parents-
Students Welfare Association, who has while challenging the circular,
contended that under the garb of the same, commercial activities have
been allowed in the Schools by virtually superseding Respondent
no.1‟s own Circular dated 19th April, 2017 and by ignoring the
mandate of the Affiliation Bye-laws of the CBSE, which specifically
prohibit commercial activities in the School. It is also claimed that as a
result of the shops in the schools being permitted to sell books,
stationery and other items, the students were now being forced to buy
books and other materials from the `Tuck Shops‟ in the Schools.
14. Opposing both the petitions, Respondent no.1/CBSE and
Respondent no.2/Directorate of Education, Govt. of NCT of Delhi,
have filed their counter affidavits in the first petition while placing
reliance on the same in response to the second petition as well.
15. Since the circulars impugned in both the petitions have been
issued by the CBSE and not by Respondent No.2 i.e. the Directorate of
Education, Govt. of NCT of Delhi, it is primarily the CBSE which has
defended its circulars while the Directorate of Education, Govt. of
NCT of Delhi has by placing reliance on Rule 15(b) of the Right to
Education Rules, 2010 and Rule 50(ix) of the Delhi School Education
Rules, 1973 contended that no commercialization can be allowed in
the Schools. Respondent No.2 has also emphasized that all private
unaided recognized Schools are bound to follow the provisions of the
Delhi School Education Act & Rules, 1973 as also the Right to
Education Act, 2009 & Right to Education Rules, 2010.
16. In its counter affidavit, the CBSE has, besides challenging the
locus of the petitioners to challenge the circular issued to the schools,
defended the impugned circulars by contending that the same have
been issued only with an intention to prohibit commercialization of
education, for which there is a specific bar in its Affiliation Bye-laws.
It is averred that Rule 14(B) of Affiliation Bye-Laws of the Board
clearly mandates that the School shall not use its building and
infrastructure for any commercial activity. Reliance has also been
placed on Rule 19.1 (ii) of Affiliation Bye- Laws mandating that the
School should run as a community service and not as a business and no
kind of commercialization should take place in the school. Reliance
has also been placed on Rule 15 (b) of Right to Education Rules, 2010
which stipulates that the School is not run for profit to any individual,
group or association of individuals or any other persons.
17. The CBSE claims that in consonance of the aforesaid
provisions, it had issued a circular dated 12th April, 2016 directing all
the affiliated schools to prescribe NCERT/CBSE books with a caution
that coercing the students and their parents to buy books of private
publishers is an unhealthy practice which is educationally unsound as
it is the NCERT textual materials which are used as the base for
preparing question papers in the Board Examinations.
18. It is further claimed in the counter affidavit that despite issuance
of various communications to all the affiliated schools to refrain from
indulging in commercial activities by way of selling text books of
publishers other than those of NCERT/CBSE and other stationery
items, uniform etc., the CBSE continued to receive complaints from
parents and other stakeholders that the schools were still indulging in
the aforesaid commercial activities. The CBSE contends that in these
circumstances, the impugned circular dated 19.04.2017 had been
issued by it reiterating its directions to the affiliated Schools to desist
from the unhealthy practice of coercing students/parents to buy text
books, uniforms, note-books, stationery, shoes, school bags etc., from
the shops within the school premises or from selected vendors only.
19. It is further averred that with an aim to encourage availability of
NCERT books and to prevent commercialization of education, circular
dated 9th August, 2017 was issued by the CBSE, advising the schools
to register and place their demand for NCERT books through the
online link-www.ncertbooks.ncert.gov.in.
20. The further case of the CBSE is that since it was receiving
various communications from stakeholders, seeking clarification on
the scope of the circular dated 19.04.2017, a clarificatory circular
dated 24/25.08.2017 was issued permitting the schools to open small
tuck shops for sale of NCERT books, stationery and other material
required by the students. The aforesaid circular was further clarified
vide circular dated 18.12.2017 clearly specifying that only NCERT
books and stationery items like pen, pencil, copy, register, notebook,
eraser, sharpener, blank sheets and art and craft materials etc. could be
sold in these shops and that sale of books of other publishers was
specifically prohibited in these shops. Vide this circular, the schools
were also directed not to charge any price higher than the maximum
retail price of these items. The issuance of these two circulars dated
24/25.08.2017 and 18.12.2017 is sought to be justified by the CBSE on
the ground that permitting the sale of small and petty stationery items
in school premises, was done only with an intent to fulfill the
urgent/contingent requirement of the students during school hours.
Thus, the CBSE while defending its action of permitting the sale of
stationery items in the schools, has claimed that it was found that these
items were fulfilling the everyday needs of the students and were of
low value and, therefore, would not lead to commercialization of
education, unlike sale of books of other publishers, which had high
probability of being used as tools to economically exploit the students
and their parents by coercing them to purchase the same from school
specified vendor.
21. Arguing for the Petitioners, Mr.Tanmay Mehta submits that
since para 5 of the impugned circular dated 19.04.2017 suggests that it
does not per se prohibit the sale of books, uniforms, stationery etc. in
Schools and only prohibits the schools from forcing or coercing
parents to purchase products from the said vendors within the school
only, the Petitioner would be satisfied if directions were to be issued to
CBSE to clarify the circular in terms of prayer (c) of the writ petition.
He, thus, seeks a clarification to the effect that the impugned circular
dated 19.04.2017 does not per se prohibit the sale of books, both
NCERT and non NCERT, stationery and uniform by the shops within
the school premises but only prohibits the schools from forcing the
parents/students to purchase these products only from the vendors
within the school, meaning thereby that the running of these shops in
the schools should be permitted subject to an option being available to
the parents/students to buy these items from vendors outside the school
premises.
22. While drawing my attention to the language used in Para 1 of
the impugned circular dated 19.04.2017, Mr.Mehta submits that the
Petitioners are aggrieved because immediately upon issuance of the
aforesaid circular, schools all across Delhi had taken a view that the
circular absolutely prohibits the operation of shops in the schools,
irrespective of whether or not, there was any coercion and accordingly
all the vendors running shops in the schools were instructed to cease
operations and vacate the premises, compelling the Petitioners to
challenge the circular dated 19.04.2017.
23. Before elaborating his submissions in support of his challenge to
the impugned circular, the learned counsel for the Petitioners submits
that while issuing the impugned circular and treating the sale of these
essential items in the schools premises as „commercialization‟ activity
by the Schools, the CBSE/Respondent no.1 has overlooked the most
vital fact that, these items being sold in the school premises, are only
for the students of the school and are being sold through these shops in
the schools for the last many years and can by no stretch of
imagination, be treated as „commercialization‟.
24. Mr. Mehta further submits that though the Affiliation Bye-laws
of Respondent no.1/CBSE as well as the provisions of the Rules under
the Right to Education Act, 2010 prohibit commercialization in the
schools, but the crucial fact which the Respondents have failed to
consider is that the operation of a shop selling products including text
books, both NCERT and non-NCERT, stationery items and uniform
exclusively to the students studying in the school, cannot be treated as
commercialization. He submits that the context in which the term
„commercialization‟ is used in the Byelaws and Right to Education Act
and Rules, cannot include an activity intrinsically connected with
educational activities.
25. The learned counsel for the Petitioner further submits that while
issuing the impugned circular, Respondent no.1 has also ignored the
fact that the presence of these small shops in the school, actually
benefits the entire student community as it not only provides
convenience but also promotes equality by ensuring that there is
uniformity in the products being sold and used by the children. He
further submits that the impugned circular completely ignores the need
of students who are hostellers/boarders, who generally have time
restrictions and ought not to be compelled to travel long distances to
buy books, uniform and stationery items and therefore contends that
the decision of the CBSE is ex facie discriminatory and violative of
Article 14 of the Constitution.
26. In response to the objection raised by the Respondents that the
Petitioners had no locus to challenge a circular issued by the CBSE to
the Heads of the Affiliated Schools, Mr.Mehta contends that the
Petitioner and its constituent members have a fundamental right to
carry out their trade and business under Article 19(1)(g) of the
Constitution of India and the same can only be subject to reasonable
restrictions imposed by the State under Article 19(6) of Constitution of
India. He submits that by prohibiting shops in the Schools, the
Respondents have virtually banned the vendors who are members of
Petitioner no.1/Association of School Vendors, from carrying out their
trade and business. He submits that even though the impugned
circulars are not addressed to the vendors or members of Petitioner
No.1- Association, but the direct effect thereof is imposition of wholly
unjustified restrictions on the right of the vendors to carry out their
trade and business. In support of his submission that since the
impugned circular is directly impacting the trade activities of the
members of Petitioner No.1, they would have the locus to challenge
the same, Mr.Mehta relies on the decision of Supreme Court in the
case of Benett.Coleman and Co. And Ors. Vs.Union of India & Ors.
reported as (1972) 2 SCC 788. He also places reliance on an order
dated 19.05.2017 passed by this Court in the writ petition earlier filed
by the Petitioners i.e. W.P.(C) 4322/2017, to contend that this Court
has already upheld the Petitioner‟s locus by opining that even if it was
not directly addressed to them, they did have a valid grievance qua the
impugned circular. Mr.Mehta further contends that in any event, the
two other Petitioners i.e., Petitioner Nos.2 and 3 are parents of children
studying in CBSE Affiliated Schools and they were vitally affected by
the impugned circulars as their children were, without any justifiable
reason, being deprived of availing the facility of buying books and
uniform in their schools.
27. Learned counsel for the Petitioner submits that merely because
some schools may have been found violating the prescribed norms and
guidelines, it was absolutely unfair on the part of the CBSE to direct
the closure of all shops being run in schools across the country. He
submits that the CBSE instead of regulating the schools, has taken a
wholly arbitrary and unreasonable decision to shut down the shops in
all the Affiliated Schools. The submission, thus, is that a complete
prohibition, merely on account of the possibility of misuse, was
violative of the fundamental rights of the Petitioners under Article
19(1)(g) of the Constitution. Mr. Mehta also contends that Article
19(6) of the Constitution of India permits only imposition of
reasonable restrictions by the State on the right of a citizen to practice
any profession/business/trade and does not permit a complete
prohibition. In support of his submissions, he places reliance on the
decisions of the Supreme Court in the case of State of Bombay vs.
F.N.Balsara reported as AIR 1951 SC 318, Ajit Kumar Nag vs.
General Manager reported as (2005) 7 SCC 764 and Ramlila Maidan
in RE reported as (2012) 5 SCC 1.
28. The last submission of Mr.Mehta is that, even otherwise once
the CBSE itself, has, after realizing the daily needs of the students,
issued the circular dated 25.08.2017 in partial amendment of its
circular dated 19.04.2017 thereby permitting the sale of NCERT
textbooks and stationery items in the school shops, there was no
justification to prohibit the sale of only non-NCERT books and
uniforms in those shops. He submits that uniform is an equally
essential item for the students in the schools and contends that
availability of non-NCERT reference books in those shops would only
add to the convenience of the students and their parents. He submits
that there is no intelligible differentia for permitting the sale of some
items needed by the students while prohibiting the sale of other equally
essential items in these shops in the schools and contends that this
action of CBSE prohibiting sale of non-NCERT books and uniform in
the school, had no nexus with the purported object of preventing
commercialization in the schools and was thus clearly violative of
Article 14 of the Constitution of India.
29. On the other hand, Mr.Dahiya learned counsel for the Parents-
Students Welfare Association, in support of his challenge to the
circular dated 24/25.08.2017, permitting the sale of NCERT textbooks
and stationery items in the school shops, contends that this subsequent
circular virtually supersedes the earlier circular dated 19.04.2017, the
legality whereof had already been tested, before this Court in the case
of Sunil Pokhriyal Vs. The Directorate of Education & Ors. i.e.
W.P(C) 1954/2017. Mr.Dahiya submits that the circular dated
24/25.08.2017, by permitting sale of textbooks and stationery items,
through the school shops, is promoting commercialization which is
specifically prohibited not only by the affiliation bye-laws of CBSE
but also by Rules under the RTE Act. Placing reliance on decision of
Supreme Court in the case of Ex Capt K.Balasubramanium & Ors.
titled as (1991) 2 SCC 708 and in the case of Subhash vs. State of
Mahrashtra titled as 1995 Supp(3) SCC 332, Mr.Dahiya submits that
it is a well settled legal position that a circular cannot supersede a
statutory rule or bye-laws. He, therefore, submits that the impugned
circulars dated 24/25.08.2017 and 18.12.2017, being inconsistent with
the statutory Rules and Bye-laws prohibiting commercialization in the
schools, are liable to be quashed.
30. Learned counsel for DOE, Mr.Gautam Narayan, also opposes
the petition and submits that it is the obligation of the affiliated schools
to not only follow the Affiliation Bye-laws of the CBSE but also to
follow the provisions of DSEAR as well as the RTE Act and Rules. He
submits that any kind of commercialization in the schools has to be
curbed and thus supports the impugned circulars issued by the
CBSE/Respondent no.1.
31. Arguing for the CBSE, Mr.Amit Bansal, while seeking dismissal
of both the writ petitions, submits that the impugned circulars have
been issued in consonance with and to effectively implement Rule
14(B) of Affiliation Bye Laws of the Board which provides that, the
school shall not use its building and infrastructure for any commercial
activity. He submits that Rule 19.1(ii) of Affiliation Bye Laws, clearly
mandates that the school should run as a community service and not as
a business and contends that no kind of commercialization can be
permitted in the schools. While reiterating the stand taken in the
CBSE‟s counter affidavit, Mr.Bansal submits that the CBSE had
received complaints against schools from parents, students, social
activists and other stakeholders, from all over India, alleging that
commercial activities were being undertaken by schools in their
premises by way of coercion to buy books, essentially of private
publishers, uniforms, etc from the shops located in the school
premises. He submits that parents and students were especially
aggrieved by prescription of costly books of private publishers and
uniform by the school and their sale from the shops located in school
premises, whose prices were arbitrarily fixed by the school vendors.
He further submits that in order to alleviate the grievances of the
students and parents and in keeping with its duty to curb unhealthy
practices in the field of education, the CBSE had initially issued
circular dated 12.04.2016 directing the schools not to prescribe too
many books of private publishers or to coerce the students and their
parents to buy books of private publishers and further requested them
to procure NCERT books for its students from various sale counters of
NCERT. He submits that despite the issuance of circular dated
12.04.2016, the CBSE continued to receive complaints from parents
and other stakeholders about the schools indulging in commercial
activities by way of selling books of private publishers, uniforms, etc.,
the Respondent no.1/CBSE had no other option but to issue the
impugned circular dated 19.04.2017, thereby directing the schools not
to sell books, stationery and uniform etc. in the shops in the schools.
32. Mr.Bansal further submits that the CBSE has acted in a most
reasonable and fair manner which is evident from the fact that upon
realising the difficulties likely to be faced by the students and parents
upon directing complete prohibition of the sale of essential items in the
shops in the schools, the CBSE had issued circulars dated 24/25-08-
2017 & 18.12.2017 permitting the sale of NCERT books and
stationary items in school. He, thus, contends that the prohibition on
the sale of non-NCERT books and uniform in the school shops, was
essential and fully justified and was taken after due consideration of all
the relevant factors. Placing reliance on a decision of a Division
Bench of this Court in the case of CBSE v.Tushar Welfare reported as
127 (2006) DLT 409, he contends that the scope of judicial review in a
case of policy decision like the present one, was extremely limited and
once a decision is taken by the CBSE consisting of experts in the field
of education, it is not proper for this Court to interfere with its
functioning.
33. Mr.Bansal has also placed reliance on the decision of the
Supreme Court in the case of Rai Sahib Ram Jawaya Kapur & Ors.v.
State of Punjab reported as AIR 1955 SC 549 in support of his plea
that the Petitioner had no locus to challenge the impugned circular
dated 19.04.2017 as a mere prospect of being able to sell books in the
schools could not be treated as a right to property. He thus contends
that the petition is liable to be rejected outrightly for want of locus.
34. Having heard the learned counsel for the parties, before I deal
with the rival contentions raised by the parties, it would be appropriate
to refer to Section 19(1) of DSEAR,1973, Rules No.14(B)(1) &
19.1(ii) & (iii) of CBSE Affiliation Bye-laws as also the circulars
dated 01.04.2017, 19.04.2017, 24/25.08.2017 and 18.12.2017 issued
by CBSE which are reproduced hereinbelow:-
"19. Affiliations.--(1) For the purpose of any public
examination every recognised higher secondary
school shall be affiliated to one or more of the
Boards or Council conducting such examination and
shall fulfill the conditions specified by the Board or
Council in this behalf.
xxxxx
14(B) The school shall not use its building and
infrastructure for any commercial activity but
multiple use of school building is allowed for the
limited purposes of :-
1. Promotion of Education and Skill
Development including Vocational Education;
xxxxx
19. ROLE/AIMS OF SOCIETY/TRUST/# COMPANY
REGISTERED UNDER SECTION 25 OF THE
COMPANIES ACT, 1956.
1. The Society / Trust/# Company Registered under
section 25 of the Companies Act, 1956 running the
school has a critical and key role to play in
providing a good and healthy climate to the school
to fulfil its aim and objects, to enable the staff
provide quality education and to be a centre for
educational excellence. To achieve this aim, the role
and responsibilities of the Society/ Trust/# Company
Registered under section 25 of the Companies Act,
1956 are defined as under:
(i) xxxxx
(ii) It shall ensure that the school is run as a
community service and not as a business and that
commercialization does not take place in the school
in any shape whatsoever.
(iii) It shall ensure that the funds accruing from the
school are spent for the benefit of the school and for
its expansion.
xxxxx
No.CBSE/RO/DDN/PA/NCERT/2017
DATED:01.04.2017
To,
The Principles/Heads of the Institutions
All the CBSE Affiliated Schools
Under jurisdiction of CBSE, RO-Dehradun
SUB: Use of NCERT textbooks by the Schools
affiliated with the Board - Reg.
Madam/Sir,
The CBSE has always been emphasizing on the
usage of NCERT Books in its affiliated schools,
since NCERT textual materials are the base for
preparing test items in the Board Examination and
the Question Paper of the CBSE is set in accordance
to the prescribed syllabus of the subject. NCERT
books are reasonably priced, scientifically designed
and are in conformity with National Curriculum
Framework 2005. They also keep in view the
integrated nature of learning from Class I onwards.
The Board has been issuing circulars from time to
time for usage of NCERT books since the syllabus
prescribed by the CBSE recommends the textbooks
published by NCERT for classes IX-XII for all the
major subjects. For Classes I-VIII, as per Rule 15-
1(d) of the Affiliation Bye-Law "The schools will
follow the textbooks published by NCERT for the
Middle Classes as far as practicable". The same
was disseminated to the affiliated schools vide the
Circular No.20/2014 dated 06.02.2014 followed by
Circular No. Acad-41/2015 dt. 20.07.2015 and
Circular No. Acad 13/2016 dt. 12.04.2016 (available
on www.cbseaff.nic.in; www.cbse.nic.in).
Recently, the Board also took the initiative of
providing NCERT text books for all classes (from I
to XII) through the empanelled distributors/vendors
of the NCERT. An online INDENT was raised for
procuring the requirement of NCERT books by the
affiliated schools. I am sure, your school must have
submitted the requirement of NCERT Books through
the Online Indent and most of the school must have
received/procured the NCERT books from the
vendor as per their requirement. The schools who
have still not implemented the usage of NCERT text
books in their schools are once again requested to
follow the guideline issued by the Board and ensure
to use only genuine NCERT textbooks in their
schools from the Session 2017-18 onwards up to the
maximum possible extent (for the middle classes ie.,
I to VIII). It may be noted that the NCERT books are
being published after due research by team of
experts.
Despite of the initiatives taken by the CBSE to
implement the usage of NCERT Books in its
affiliated schools, it has been often brought to the
knowledge of the Board, by means of Print Media,
complaints/grievances of parents, RTI by General
Public or Social Activist, Telecommunications and
other sources that schools are not following to the
guidelines/directions issued by the CBSE and
several schools are exerting pressure on children
and their parents to buy an excessive number of
textbooks predominantly published by Private
Publishers other than NCERT which are costly,
voluminous and unscientifically designed which
should not be brought into the practice.
Therefore, it is once again reiterated that the
principal/Head of Instt. Must pay personal attention
towards implementation of usage of NCERT Books
in their school. It may be marked that this office may
make surprise visits in the schools to ensure, if the
NCERT textbooks are used or not. Also, in the event
of receipt of any complaint regarding non-
implementation of NCERT Books through any
source, this office will be bound to initiate action
against the defaulters as per rules of the Board.
Also, the parents should not be coerced to nuy the
textbooks of private publisher/additional textbooks
by the school authorities and the schools must
mandatorily use the NCETT textbooks in their
schools.
Principals/Head of Instt. Are also requested to
widely disseminate this information on the Notice
Board at the prominent places in the school
premises for awareness of the students/parents and
stake holders about the worth of the NCERT Books.
The above instruction must be strictly complied
with please.
Yours faithfully
-Sd-
(Ranber Singh)
Regional Officer
xxxxx
No.CBSE/AFF/CIRCULAR/10/2017
DATED:19.04.2017
To
The Managers and
Heads of all CBSE affiliated schools
Subject: Advisory to schools not to indulge in
commercial activities by way of selling of books,
stationery, uniforms, school bag etc and to adhere
to the provisions of Affiliation Bye-Laws of the
Board.
The Board, time and again have issued advisories
to all its affiliated schools not to indulge in
commercial activities by way of selling of text books,
note books, stationary items, uniforms etc. and to
adhere to the provisions of Affiliation Bye-Laws of
the Board. However, it has been brought to the
notice of the Board through various complaints
received from parents and other stakeholders that
still schools are indulging in commercial activities
by way of selling of books and uniforms etc within
the school premises or through selected vendors.
2. Rule 19.1 (ii) of CBSE Affiliation Bye-Laws
mandates that the society/Trust/Company registered
under section 25 of the Companies Act, 1956 shall
ensure that the school is run as a community service
and not as a business and that commercialization
does not take place in school in any shape
whatsoever.
3. Further, all the schools affiliated to CBSE
are required to follow directions given in circular
No.Acad/13/2016 dated 12.04.2016 regarding use of
NCERT/CBSE textbooks but often the Board
receives reports and complaints regarding the
pressure exercised by schools on children and their
parents to buy textbooks other than NCERT/CBSE.
4. The Board has taken serious view of the
above violations. Hence, once again your attention
is drawn that Educational Institutions are not
commercial establishments and their sole purpose is
to provide quality education.
5. Therefore, the schools are directed to desist
from the unhealthy practice of coercing parents to
buy textbooks, notebooks, stationery, uniforms,
shoes, school bags etc. from within the premise or
from selected vendors only.
6. The school management shall ensure strict
compliance of the above.
-
Sd-
(K.SRINIVASAN)
DEPUTY SECRETARY (AFFILIATION)
xxxxx
"No.CBSE/AFF/CIRCULAR/16/2017/1293271
DATED:24/25.08.2017
To
All the Heads of Schools affiliated to the CBSE
Sub: Placing of indent for the requirement of
textbooks published by NCERT through NCERT
website-reg.
The CBSE, vide circular
No.CBSE/AFF/CIRCULAR/10-/2017 dated
19.04.2017 has issued instructions to follow the
directions given in circular No.ACAd/13/2016 dated
12.04.2016 along with the advice to schools to desist
from forcing the parents to buy the books and
stationery items from the commercial shops located
inside the school premises.
2. the NCERT, in order to augment the
availability of NCERT books for the students of
CBSE affiliated schools, has called for indent
through their website for purchase of books as per
the requirement assessed by the schools. The
academic branch of CBSE vide circular no. Acad-
29/2017 dated 09.08.2017 advised the schools to
register and place their demand for NCERT books
required for academic year 2018-19 through the
online link www.ncertbooks.ncert.gov.in.
3. In view of the above, the schools are
allowed to place indent for purchase of NCERT
books directly through NCERT website for
distribution among their students and for this
purpose, a „tuck Shop‟ may be opened inside the
premises of the schools. The stationery and other
materials required by the students are also allowed
to be sold from this „Tuck Shop‟. To this extent, the
circular No.CBSE/AFF/CIRCULAR/10/2017 dated
19.04.2017 stands amended.
-
Sd-
(K.SRINIVASAN)
DEPUTY SECRETARY (AFFILIATION)
xxxxx
"No.CBSE/AFF/CIRCULAR/16a/2017
DATED:18.12.2017
To
All the Heads of Schools affiliated to the CBSE
Sub: Clarification related to Board's circular dated
25.08.2017 regarding placing of indent for NCERT
books -reg.
Ref: 1. Circular No.Acad/13/2016 dated
12.04.2016
2. Circular No.CBSE/AFF/circular/10/2017
dated 19.04.2017
3. Circular No.Acad-29/2017 dated
09.08.2017
4.. Circular
No.CBSE/AFF/circular/16/2017/1293271 dated
25.08.2017
This is in continuation to Board‟s circular
No.CBSE/AFF/CIRCULAR/16/2017/1293271 dated
25.08.2017, wherein the schools were allowed to
place indent for purchase of NCERT books directly
through NCERT website for distribution among their
students and for this purpose, a „Tuck Shop‟ may be
opened inside the premises of the schools.
2. In this connection, the CBSE vide circular
No.Acad/13/2016 dated 12.04.2016 has directed the
schools not to force children and their parents to
buy textbooks other than NCERT/CBSE textbooks.
The Board has also issued circular
No.CBSE/AFF/CIRCULAR/10/2017 dated
19.04.2017 directing the schools affiliated with
Board to desist from the unhealthy practice of
coercing parents to buy text books and stationery
items from within the premises or from selected
vendors only.
3. The NCERT, in order to augment the
availability of NCERT books for the students of
CBSE affiliated schools, has called for indent
through their website for purchase of books as per
the requirement assessed by the schools. The
Academic unit of CBSE vide circular NoT.Acad-
29/2017 dated 09.08.2017 advised the schools to
register and place their demand for NCER books
required for academic year 2018-19 through the
online link www.ncertbooks.ncert.gov.in.
4. The Board is in receipt of various
communications from stakeholders seeking
clarification on the scope of the circular.
Accordingly, it is clarified that vide circular dated
25.08.2017, the schools can open small outlets for
supply of only NCERT books and shall not sell books
of any other publishers. Besides, the schools are
also permitted to provide stationery items to its
students such as pen, pencil, copy, register,
notebooks, eraser, sharpener, blank sheets, art &
craft materials etc. The price charged for all these
items should not be more than maximum retail price
(m.r.p). Parents are free to buy textbooks and
stationery items from within the premises or from
any other vendor of their choice. Further, it may be
noted that selling books other than NCERT books in
these shops, will be considered a violation of this
circular, and will attract action against the school.
-Sd-
(ANURAG TRIPATHI)
SECRETARY, CBSE"
35. Upon consideration of the rival submissions made by the
parties, I find that besides the issue of locus of the Petitioners to
challenge the impugned circulars issued by Respondent No.1/CBSE,
three inter-related issues arise for consideration in the present case.
The first issue relates to the term „commercialization‟ used in
the context of school affiliation bye-laws of CBSE as well as the
various circulars issued by the C.B.S.E. It is necessary to first decide
as to what can be termed as „commercialization‟ in the context of
schools as it is the common case of the parties that commercialization
is prohibited by the Affiliation Bye-laws of CBSE, the provision of the
RTE as well as the provisions of DSEAR. While the learned counsel
for the Petitioner in the first petition would contend that opening of
shops in the school for selling items for convenience of the students &
parents, would not amount to commercialization, it is the stand of the
Parents-Student Welfare Association-the Petitioner in the second writ
petition, as well as that of both the Respondents, that the said activity
of sale of books, uniform, stationery etc. by the affiliated schools
through shops within their premises, clearly falls within the ambit of
the term „commercialization‟. However, an inter-related question
which arises is as to whether the imposition of absolute prohibition of
sale of non-NCERT books and uniform in the school shops, is a
„reasonable restriction‟ as contemplated under Article 19(6) of the
Constitution of India or whether it is violative of the Petitioner‟s
fundamental right under Article 19 (1) (g) of Constitution of India as
is contended by the learned counsel for the Petitioner.
36. The second issue which arises for consideration is, as to
whether, there is any justifiable basis, for the classification sought to
be done by the CBSE by placing uniforms and non NCERT books in a
category different than NCERT books and stationery items. The
admitted case of the parties being that vide circulars dated 25.08.2017
and 18.12.2017, the CBSE has not only permitted opening of „Tuck
shops‟ in the affiliated schools, but has also permitted the sale of
NCERT books and all stationery items therein while prohibiting the
sale of non-NCERT books and uniform in these shops.
37. The third issue, which is the only issue, raised by the learned
counsel for Parents-Students Welfare Association is, as to whether a
circular issued by the CBSE can override the provisions of the
Affiliation Bye-laws of Board and other statutory rules.
38. The first issue, as to whether the sale of the aforementioned
items in the school shops, would amount to „commercialization‟ or
not, cannot in my view, be decided in isolation or as an abstract
proposition, as is sought to be contended by the learned counsel for
the Respondents. The question will necessarily have to be decided
with reference to the context, in which the term „commercialization‟ is
being used. When the provisions of Affiliation Bye Laws of CBSE,
Delhi School Education Act and Rules as also that of the Right to
Education Act and Rules, prohibit „commercialization‟, it obviously
would mean that the school premises ought not to be permitted to be
used for any purpose other than for education. The question, thus
would be, as to whether the term „education‟ would mean only
„classroom teaching‟ or as to whether it would encompass all the
ancillary activities necessary to provide „education‟ in the schools.
39. In my considered opinion, the use of the school buildings for
purposes of education, would put a corresponding duty on the school
management to ensure that the students are provided with all
necessary facilities so as to help them pursue education in the school.
The availability of books, both NCERT and non NCERT, stationery
items and uniform in the School premises would only add to the
convenience of the parents and the students. The admitted case of the
parties is that the aforesaid items in the school shops would be
available only to the students of the school and not to outsiders and,
therefore, I see no element of commercialization in sale of these
essential items in the school shops. If the sale of books and uniform in
the school shops without any coercion on the students/parents to buy
the same from these shops, is treated as „commercialization‟, there is
no reason as to why even the sale of food items in canteen facilities
would also not be treated as „commercialization‟. Such an
interpretation would lead to a wholly absurd situation where on the
analogy sought to be propounded by the Respondents, a request for
prohibition of sale of food items may also be raised. This, in my
opinion, cannot be the intent of the provisions in the bye-laws or the
Rules, relied on by Respondents, while prohibiting commercialization
in schools. The term „commercialization‟ in schools, would thus mean
only carrying out of activities wholly unconnected with education.
The availability of uniform, non-NCERT reference books or even food
items for sale only to the students of the school, in my opinion, does
not fall in the category of and cannot at all be considered as
„commercialization‟.
40. Once it is found that the sale of these items in the school shops
without coercing the students/parents to buy them only from those
shops, cannot be termed as „commercialization‟, the connected issue
would be as to whether the CBSE, upon receipt of complaints that the
students/parents were being coerced by the school to buy the said
items from these shops, could have outrightly prohibited their sale in
these school shops or whether it ought to have only regulated the same
by ensuring that stringent action is taken against those erring schools,
which coerce the student/parents to buy these items from the school
shops only. The question, thus, would be as to whether the mischief
sought to be curbed by the petitioners, warranted a complete
prohibition or a reasonable restriction by CBSE. It may be appropriate
to refer to the decision of the Supreme Court in the case Ramlila
Maidan Incident, IN RE reported as (2012) 5 SCC 1, on which
reliance has been placed by the learned counsel for the Petitioner. In
the aforesaid decision, the Supreme Court observed as under:-
"32. For adjudging the reasonableness of a
restriction, factors such as the duration and extent of
the restrictions, the circumstances under which and
the manner in which that imposition has been
authorized, the nature of the right infringed, the
underlining purpose of the restrictions imposed, the
extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the
prevailing conditions at the time, amongst others,
enter into the judicial verdict. [See: Chintamanrao v.
State of M.P.
33. The courts must bear a clear distinction in
mind with regard to `restriction' and `prohibition'.
They are expressions which cannot be used inter-
changeably as they have different connotations and
consequences in law. Wherever a `prohibition' is
imposed, besides satisfying all the tests of a
reasonable `restriction', it must also satisfy the
requirement that any lesser alternative would be
inadequate. Furthermore, whether a restriction, in
effect, amounts to a total prohibition or not, is a
question of fact which has to be determined with
regard to facts and circumstances of each case."
41. Thus, if the prohibition of the sale of the non NCERT books and
uniform etc. within the School premises by the CBSE is considered in
the light of the observations of the Supreme Court in the aforesaid
decision, I find no justification on the part of the Respondent
no.1/CBSE to altogether prohibit the sale of the aforesaid items in the
School instead of regulating their sale by imposing reasonable
restrictions. Even though learned counsel for the Respondent
No.1/CBSE, by placing reliance on this judgment, has taken pains to
urge that in policy matters wherein the experts in the CBSE have taken
a decision, this Court should exercise judicial restraint from interfering
with the said policy, I am unable to accept the said plea since I find
that in the facts of the present case, the impugned decision does not
relate to any academic matter or is in any way related to maintenance
of standards of education to be imparted to the students of the
affiliated schools and, therefore, I see no reason not to examine
whether the impugned circulars are unfair or unreasonable, irrational
and arbitrary. Reliance may be placed on the decision of the Supreme
Court in Manohar Lal Sharma Vs. Union of India & Anr. reported
as (2013) 6 SCC 616, wherein, in para 14, it was held as under:-
"14. On matters affecting policy, this Court does not
interfere unless the policy is unconstitutional or
contrary to the statutory provisions or arbitrary or
irrational or in abuse of power. The impugned Policy
that allows FDI up to 51% in multi-brand retail
trading does not appear to suffer from any of these
vices."
Reference may also be placed on the decision of the Supreme
Court in UGAR Sugar Works Ltd. Vs. Delhi Administration & Ors.
reported as (2001) 3 SCC 635, wherein the Supreme Court while
reiterating the well settled position that Courts in exercise of their
powers of judicial review, do not ordinarily interfere in the policy
decision unless the policy is found to be vitiated on the grounds of
mala fide, unreasonableness, arbitrariness or unfairness etc., has in
Para 24 held as under:-
"24. The argument that since MSF laid down for the
year 1994-1995 were not changed till 1998-99, there
was no need to increase MSF requirements in 1999-
2000 or to further increase the same in the year 2000-
2001 for the lowest price tag brand of liquor from
60,000 cases (7.2 lakh bottles) to 75,000 cases (9 lakh
bottles) for the current year, suffers from the basic
infirmity that it invites the court to enter into an area
of testing the executive policy, not on grounds whether
it is "just, fair and reasonable", but whether the
object could not have been achieved by fixing
a lower MSF requirement. In other words the court is
being invited to prescribe MSF requirements in
exercise of its power of judicial review. That is not
permissible and we must decline the invitation to enter
that area. It is not within the province of this Court to
lay down that the executive policy must always remain
static, even if its revision is "just, fair and
reasonable". What is relevant is to find out whether
the executive action is mala fide, unreasonable or
irrational as a criterion. As already observed the
court in exercise of its power of judicial review cannot
sit in judgment over the policy of administration
except on the limited grounds already noted. Each
State is empowered to formulate its own liquor policy
keeping in view the interest of its citizens.
Determination of wide-scale acceptability of a
particular brand of liquor, on the basis of National
Sales Figures, does not strike us as being
unreasonable, much less irrational. The basis for
determination is not only relevant but also fair. No
direction can be given or expected from the court
regarding the "correctness" of an executive policy
unless while implementing such policies, there is
infringement or violation of any constitutional or
statutory provision. In the present case, not only is
there no such violation but on the other hand, the
State in formulating its policy has exercised its
statutory powers and applied them uniformly. "
42. In my view, the decision of the Respondents to prohibit the sale
of items, needed by the students in the Schools, merely on the premise
that the availability of these items in the school shops for sale, could
be misused as the students and parents could be forced to buy the
same only from the School shop, appears to be wholly arbitrary and
quite irrational. It appears that the Respondents while issuing the
aforesaid circulars, have not at all considered the various relevant
factors including the fact that it may be more in the interest of students
that the option to buy books, both NCERT and non NCERT,
stationery and uniform items from the school shops should be
available to them.
43. For all the aforesaid reasons, I have no hesitation in coming to
the conclusion that the prohibition imposed vide the impugned
Circulars, does not satisfy the test of „reasonable restrictions‟ under
Article 19(6) of the Constitution of India.
44. In relation to second issue regarding the justifiable basis for
classification by CBSE by placing uniforms & non-NCERT books in a
category different than NCERT books and stationery items, I find
merit in the submissions made by learned counsel for the Petitioner
that once the Respondent has itself permitted the sale of NCERT
books and stationery items in the School, there is no justification or
reason as to why sale of only non NCERT books and uniform should
be prohibited in the School. There is no reason for placing the
NCERT books and stationery items in the permissible category while
placing the non NCERT books and uniform in the non-permissible
category. There is no valid reason for this classification which is
discriminatory on the face of it as it cannot be denied that all these
items including uniform, are essential requirements of the students.
45. Reference may also be made to the decision of the Supreme
Court in case of S. Seshachalam & Ors. Vs. Chairman, Bar Council
of Tamil Nadu & Ors. reported as (2014) 16 SCC 72, wherein the
Supreme Court held, that Article 14 forbids class legislation but it
does not forbid reasonable classification of persons, objects and
transactions by legislature for purpose of achieving specific ends. The
classification must however not be arbitrary, artificial or evasive and
there must be a nexus between the basis of classification and object of
the act and if it is found that there is no reasonable basis for
classification, then such classification may be declared discriminatory.
Paras 21 & 22 of the aforesaid decision of the Supreme Court reads as
under:-
"21. Article 14 of the Constitution of India states that:
"14.Equality before law.--The State shall not deny to
any person equality before the law or the equal
protection of the laws within the territory of India."
Article 14 forbids class legislation but it does not
forbid reasonable classification. The classification,
however, must not be "arbitrary, artificial or evasive"
but must be based on some real and substantial
bearing, a just and reasonable relation to the object
sought to be achieved by the legislation. Article 14
applies where equals are treated differently without
any reasonable basis. But where equals and unequals
are treated differently, Article 14 does not apply.
Class legislation is that which makes an improper
discrimination by conferring particular privileges
upon a class of persons arbitrarily selected from a
large number of persons all of whom stand in the
same relation to the privilege granted and between
those on whom the privilege is conferred and the
persons not so favoured, no reasonable distinction or
substantial difference can be found justifying the
inclusion of one and the exclusion of the other from
such privilege.
22. While Article 14 forbids class legislation, it does
not forbid reasonable classification of persons, objects
and transactions by the legislature for the purpose of
achieving specific ends. But classification must not be
"arbitrary, artificial or evasive". It must always rest
upon some real and substantial distinction bearing a
just and reasonable relation to the object sought to be
achieved by the legislation. Classification to be
reasonable must fulfil the following two conditions:
firstly, the classification must be founded on the
intelligible differentia which distinguishes persons or
things that are grouped together from others left out of
the group. Secondly, the differentia must have a
rational relation to the object sought to be achieved by
the Act. The differentia which is the basis of the
classification and the object of the Act are two distinct
things. What is necessary is that there must be nexus
between the basis of classification and the object of
the Act. It is only when there is no reasonable basis for
a classification that legislation making such
classification may be declared discriminatory."
46. In so far as the third issue as to whether the impugned Circulars
dated 24th/25th August, 2017 and 18th December, 2017 issued by the
CBSE could override the provisions of the statutory bye-laws and
rules, I find that though there can be no doubt about the legal position,
as enunciated by various decisions of the Supreme Court as also of
this Court, that a circular or an Office Memorandum cannot override
the statutory provisions, but the issue which arises in the present case
is as to whether the impugned circulars actually violates any statutory
provision as is sought to be contended by learned counsel for the
Parents-Students Welfare Association. The learned counsel for the
Parents-Students Welfare Association submits that the CBSE by
permitting opening of „tuck shops‟ to sell NCERT books and
stationery items in the school premises, is promoting
commercialization in the schools and thereby violating the statutory
provisions of CBSE Affiliation Byelaws, RTE Act and Rules as also
the DSEAR. This issue is interlinked with the first and foremost issue
that whether permitting sale of items required/used by the students in
the school shops can be termed as „commercialization‟. However,
once I have come to a conclusion that the sale of these items in the
School, does not amount to any kind of commercialization, the
issuance of the said circulars permitting the said sale in the school
shops in any manner, cannot be said to be contrary to the statutory
bye-laws and rules which prohibit commercialization. No other
ground has been urged by the learned counsel for Parents and Students
Welfare Association.
47. Before I conclude, I must also deal with the submission of
learned counsel for the Respondent wherein he has sought to
challenge the locus standi of the Petitioners to impugn the circulars
issued by CBSE. I find, that, even though the impugned circulars may
not be issued directly to the Members of the Petitioner
no.1/Association of School Vendors, there can be no doubt about the
fact that the said circulars directly impact their right to sell books in
the Schools thus they would necessarily be an aggrieved party. I find
that the decision of the Supreme Court in the case of Rai Sahib Ram
Jawaya Kapur & Ors. vs. State of Punjab reported as AIR 1955 SC
549 on which reliance has been placed by learned counsel for
Respondent no.1, is not at all applicable to the facts of the present case
and on the other hand, the decision of the Supreme Court in the case
of Indian Express Newspaper (Bombay) Pvt. Ltd. Vs. Union of
India reported as (1985) 1 SCC 641, on which reliance has been
placed by learned counsel for the Petitioner, actually deals with the
issue of impact of the impugned actions as arising in the present case.
In the said decision, the Supreme Court while dealing with the
question of impact of imposition of the import duty on newsprint
under the Customs Tariff Act, 1975 on the cost and circulation of
newspapers as well as on the right to freedom to practice any
trade/occupation/profession under Article 19(1)(g) of the Constitution
of India, of the Petitioners therein, observed as under:-
"102. The question in the present cases is whether the
tax has been shown to be so burdensome as to warrant
its being struck down? The petitioners have succeeded in
showing a fall in circulation but whether it is a direct
consequence of the customs levy and the increase in
price has not been duly established. It may be due to
various circumstances. The fall in circulation may be
due to the general rise in cost of living and the
reluctance of people to buy as many newspapers as they
used to buy before. It may be due to bad management. It
may be due to change of editorial policy. It may be due
to the absence of certain feature writers. It may be due
to other circumstances which it is not possible to
enumerate. Except the synchronising of time, there is
nothing to indicate that the slight fall in circulation is
directly due to the levy of customs duty. One curious
feature of the case is that the petitioners have made no
efforts to produce their balance sheets or profit and loss
statements to give us a true idea of how burdensome the
customs levy really is. On the other hand, the
Government also has made no efforts to show the effect
of the impact of the levy on the newspaper industry as a
whole. All these years, the very exemption which they
"granted was an indication that the levy was likely to
have a serious impact on the newspaper industry. Even
now the exemption given to the small and medium
newspapers shows that there is bound to be an impact.
No effort has been made on the part of the Government
to show the precise nature of the impact. On the other
hand, the case of the Government appears to be that
such considerations are entirely irrelevant, though the
outstanding fact remains that for several years, the
Government itself thought that the newsprint deserved
total exemption. On the material now available to us,
while it is not possible to come to the conclusion that the
effect of the levy is indeed so burdensome as to affect the
freedom of the press, we are also not able to come to the
conclusion that it will not be burdensome. This is a
matter which touches the freedom of the press which is,
as we said, the very soul of democracy. This is certainly
not a question which should be decided on the mere
question of burden of proof. There are factors indicating
that the present levy is heavy is perhaps heavy enough to
affect circulation. On such a vital issue, we cannot
merely say that the petitioners have not placed sufficient
material to establish the drop in circulation is directly
linked to the increase of the levy when, on the side of the
Government, the entire exercise is thought to be
irrelevant. Hence there appears to be a good ground to
direct the Central Government to reconsider the matter
afresh in the light of what has been said here."
48. Be that as it may, even if I were to accept the plea of the
Respondent that the Petitioner/Association of School Vendors does
not have any locus standi to challenge circulars of CBSE, I cannot
lose sight of the fact that the other two Petitioners i.e., Petitioner nos.
2 and 3, who are the parents of school going children, are being
deprived of opportunity to buy the Non NCERT reference books and
uniform from the shops within the School premises as a direct
consequence of the impugned circulars. The objection raised by the
Respondents regarding the locus standi of the Petitioners, is thus liable
to be rejected.
49. For the aforesaid reasons, the Writ Petition No.7414/2017 filed
by the Petitioners/Association of School Vendors is allowed and the
circular dated 19th April, 2017 issued by CBSE is quashed and set
aside. It is further directed that the Petitioners shall not be prohibited
from selling of non NCERT books and uniforms also in the tuck shops
which have been allowed to be set up in the CBSE affiliated schools
for selling NCERT books and stationery items vide circular dated
24th/25th August, 2017. The conditions in circular dated 18.12.2017
prohibiting sale of Non-NCERT books in the school shops also stand
quashed. The Respondents would however be free to take regulatory
steps to ensure that the students and parents are not coerced in any
manner, to buy any items from these shops.
50. The writ petition No.10052/2017 filed by the Parents-Students
Welfare Association is dismissed. Parties to bear their own costs.
REKHA PALLI, J
FEBRUARY 21,2018
sr
