Modern School Vs. Union of India & Ors [2004] Insc 323
(27 April 2004)
S.B.
Sinha.
with C.A. Nos. 2700, 2701, 2702, 2703, 2704, 2705-2706, 2707,
2708, 2709 and 2710 of 2001 S.B. SINHA, J :
INTRODUCTION:
How
far and to what extent unaided private institutions can be subjected to
regulations is the core question involved in these appeals which arise out of a
common judgment and order dated 30.10.1998 passed by the High Court of Delhi in
C.W.P. No. 3723, 4021, 4119, 5330 of 1997.
THE
LAW OPERATING IN THE FIELD:
The
Delhi School Education Act, 1973 (for short 'the Act') was enacted inter alia
to provide for better organisation and development of school education. By
reason of the provisions of the Act, school education, whether imparted in a
government institution, a minority institution, an aided or unaided private
institutions is sought to be regulated. The power of Administrator to regulate
education in all the schools in Delhi, however, is to be made in accordance with the provisions of the Act.
Section 4 of the Act provides for recognition of the institution. A scheme of
management for managing the affairs of the school is required to be framed in
terms of Section 5 thereof conforming to the provisions of the rules made thereunder.
However,
in relation to the recognised private school which does not receive any aid,
the scheme of management may apply with such variations and modifications in
the rules as may be prescribed. It has not been brought to our notice as to
whether any separate rules have been framed as regard scheme of management of recognised
unaided private schools.
The
second proviso appended to Section 5, however, states that the scheme relating
to the previous approval of the appropriate authority shall not apply to a
scheme of management for unaided minority school. Section 6 of the Act provides
for grant of aid to recognised schools. The matter relating to payment to
salary to the employees of the school is controlled by Section 10 of the Act
stating that the scales of pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees of a recognised
private school shall not be less than the amount payable to employees of the
corresponding status in school run by the State.
Chapter
V of the Act applies to unaided minority schools.
Section
15 relates to contract of service in terms whereof a written contract is
required to be entered into by and between the managing committee and every
employee of a school.
Section
17 regulates fees to be charged by aided schools. No such provision has been
made in relation to the recognised unaided schools. Sub-Section (3) of Section
17 merely requires the manager of every recognised school whether aided or
unaided to file with the Director a full statement of the fees to be levied by
such school during the ensuing academic session, and, furthermore, except with
the prior approval of the Director, no school shall charge during that academic
session any fee in excess thereof. The Act, therefore, does not provide for any
regulation as regards charging of any fee or any other amount by the unaided recognised
schools.
Section
18 the Act provides for a School Fund. Sub- sections (1) and (2) of Section 18
relate to aided schools whereas Sub-section (3) thereof provides for Recognized
Unaided School Fund.; and such fund may be credited with income accrued to the
School by way of fees, any charges or payments which may be realized by the
School for other specific purposes or any other contribution, endowment, gift
and the like. Clause (a) of Sub-section 4 of Section 18 specifies that that the
income derived by unaided schools by way of fees shall be utilized only for
such educational purposes as may be prescribed whereas in terms of Sub-Clause
(b) thereof, charges and contributions received by the school are required to
be utilised for the specific purpose wherefor they were received. Any endowment
or gift to a Society/trust for establishment of a new school or establishing
any branch thereof, therefore, is not prohibited.
Section
22 provides for establishment of Delhi Schools Education Advisory Board.
Section 24 provides for inspection of schools which is in the following terms:
"24.
Inspection of schools
(1)
Every recognised school shall be inspected at least once in each financial year
in such manner as may be prescribed.
(2)
The Director may also arrange special inspection of any school on such aspects
of its working as may, from time to time, be considered necessary by him.
(3)
The Director may give directions to the manager to rectify any defect or
deficiency found at the time of inspection or otherwise in the working of the
school.
(4) If
the manager fails to comply with any direction given under sub-section (3) the
Director may, after considering the explanation or report, if any, given or
made by the manager, take such action as he may think fit, including
(a) stoppage
of aid,
(b) withdrawal
of recognition, or
(c) except
in the case of a minority school, taking over of the school under section 20."
The
Administrator in exercise of its power conferred upon it under Section 28 of
the Act framed rules known as the Delhi School Education Rules, 1973 (The
Rules). Rule 44 mandates that every society or trust desiring to establish a
new school (not being a minority school) shall give an intimation therefor in
writing communicating their intention to establish the school. Rule 50 provides
for the conditions for recognition. Rule 51 enumerates the facilities to be
provided by a school seeking recognition. Rule 59 provides for the scheme of
management of recognised schools. Chapter VI of the Rules provide for
grant-in-aid and conditions therefor.
Chapter
VIII provides for recruitment and terms and conditions of service of the
employees of private schools other than unaided minority ones. Chapter XIII of
the Rules specifies the mode and manner in which fees and other charges in
aided schools should be expended. Rule 151 provides for development fees.
The
expression 'Fees' has been defined in Rule 157.
Chapter
XIV provides for establishment of a school fund.
Rules
172 to 177 provide for the manner in which the fees realised by the aided and
unaided institutions are to be utilised.
Rules
176 and 177 of the Rules read thus :
"176.
Collections for specific purposes to be spent for that purpose Income derived
from collections for specific purposes shall be spent only for such purpose.
177.
Fees realized by unaided recognized schools how to be utilized –
(1)
Income derived by an unaided recognized school by way of fees shall be utilised
in the first instance, for meeting the pay, allowances and other benefits
admissible to the employees of the school.
Provided
that savings, if any, from the fees collected by such school may be utilised by
its managing committee for meeting capital or contingent expenditure of the
school, or for one or more of the following purposes, namely :-
a) award
of scholarships to students;
b) establishment
of any other recognised school, or
c) assisting
any other school or educational institution, not being a college, under the
management of the same society or trust by which the first mentioned school is
run.
(2) the
savings referred to in sub-rule (1) shall be arrived at after providing for the
following, namely :-
(a) pension,
gratuity and other specified retirement and other benefits admissible to the
employees of the school;
(b) the
needed expansion of the school or any expenditure of a development nature;
(c) the
expansion of the school building or for the expansion or construction of any
building or establishment of hostel or expansion of hostel accommodation;
(d)
co-curricular activities of the students;
(e) reasonable
reserve fund not being less than ten per cent, of such savings;
(3)
Funds collected for specific purposes, like sports, co-curricular activities,
subscriptions for excursions or subscriptions for magazines, and annual
charges, by whatever name called, shall be spent solely for the exclusive
benefit of the students of the concerned school and shall not be included in
the savings referred to in sub-rule (2).
(4)
The collections referred to in sub- rule (3) shall be administered in the same
manner as the monies standing to the credit of the Pupils Fund as
administered." Rule 180 mandates that the unaided schools shall submit
returns.
ANALYSIS:
The
said Act and the rules framed thereunder provide for a complete code not only
as regard regulation of education but also organisation and development
thereof.
Establishment
of a private educational institutional has been held to be a fundamental right
by this Court in T.M.A. [(2002) 8 SCC 481]. The fundamental right to establish
educational institution as contained in Article 19(1)(g) of the Constitution of
India would, however, be subject only to the reasonable restrictions which may
be imposed by any law in terms of Clause (6) thereof. The Act is a law
regulating education. The Act seeks to regulate education necessary corollary
whereof would be that education imparted in an individual institution may also
be subjected to regulation.
But
any control or regulation over education or educational institution must be
imposed only by a legislative act and not Jindal and Anr., (2004) 2 SCC 510]
This Court analysing the provisions of Articles 19, 26 and 30 of Constitution
of India in T.M.A. Pai Foundation (supra) inter alia stated:
a) The
majority community as well as linguistic and religious minorities would have a
right under Articles 19(1)(g) and 26 to establish educational institutions. In
addition, Article 30(1), in no uncertain terms, gives the right to the
religious and linguistic minorities to establish and administer educational
institutions of their choice.
b) The
Scheme framed by this Court in Unni Krishnan, unconstitutional as thereby
restrictions imposed make it difficult, if not impossible, for the educational
institutions to run efficiently. The restrictions thus imposed cannot be said
to be reasonable ones.
c) The
private unaided educational institutions imparting education cannot be deprived
of their choice in matters, inter alia, of selection of students and fixation
of fees and it is not open to the court to insist that statutory authorities
should impose any condition for the purpose of grant of affiliation or
recognition which would completely destroy the institutional autonomy and the
very objective of establishment of the institution.
d)
Education, particularly, higher education must be perceived in the light of the
idea of an academic degree as a "private good" that benefits the
individual rather than a "public good" for society which is now
widely accepted. The logic of today's economics and an ideology of
privatization have contributed to the resurgence of private higher education
and the establishing of private institutions where none or very few existed
before.
e) The
right to establish and administer broadly comprises of the following rights :-
(a) to
admit students;
(b) to
set up a reasonable fee structure;
(c) to
constitute a governing body;
(d) to
appoint staff (teaching and non-teaching); and
(e) to
take action if there is dereliction of duty on the part of any employees.
f)
While the private educational institutions in the matter of setting up a
reasonable fee structure may not resort to profiteering but they may take into
consideration the need to generate funds to be utilized for the betterment and
growth of the educational institution, the betterment of education in that
institution and to provide facilities necessary for the benefit of the
students. The regulatory measures must, in general, be to ensure the
maintenance of proper academic standards, atmosphere and infrastructure and the
prevention of mal-administration by those in charge of management.
The
fixing of a rigid fee structure would be an unacceptable restriction. The essence
of a private educational institution is the autonomy that the institution must
have in its management and administration.
g)
There, necessarily, has to be a difference in the administration of private
unaided institutions and the government aided institutions. In the latter case,
the Government will have greater say inter alia in fixing of fees but in the
case of private unaided institutions, maximum autonomy in the day- to-day
administration has to be with the private unaided institutions. Bureaucratic or
governmental interference in the administration of such an institution will
undermine its independence.
h)
While running an educational institution is not a business, in order to examine
the degree of independence that can be given to a recognized educational
institution, like any private entity that does not seek aid or assistance from
the Government, and that exists by virtue of the funds generated by it,
including loans or borrowings, it would be important to note that the essential
ingredients of the management of the private institution include the recruiting
students and staff, and the quantum of fee that is to be charged.
i) An
unaided institution can charge fee from the students. One cannot lose sight of
the fact that we live in a competitive world today, where professional
education is in demand. A large number of professional and other institutions
have been started by private parties who do not seek any governmental aid. In a
sense, a prospective student has various options open to him/her where normally
economic forces have a role to play. The decision on the fee to be charged must
necessarily be left to the private educational institution that does not seek
or is not dependent upon any funds from the Government. The object of setting
up an educational institution is by definition "charitable", the
making of profit should not be the object. . There can, however, be a
reasonable revenue surplus, which may be generated by the educational
institution for the purpose of development of education and expansion of the
institution.
The
Judgment of this Court in T.M.A. Pai Foundation (supra) came to be interpreted
by a Constitution Bench of this Karnataka & Ors. [(2003) 6 SCC 697] wherein
inter alia the following question was raised for consideration:
"Whether
the educational institutions are entitled to fix their own fee structure;"
Answering the said question, this Court held:
"7.
So far as the first question is concerned, in our view the majority judgment is
very clear. There can be no fixing of a rigid fee structure by the Government.
Each institute must have the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution and to provide
facilities necessary for the benefits of the students. They must also be able
to generate surplus which must be used for the betterment and growth of that
educational institution.
In
paragraph 56 of the judgment it has been categorically laid down that the
decision on the fees to be charged must necessarily be left to the private
educational institutions that do not seek and which are not dependent upon any
funds from the Government. Each institute will be entitled to have its own fee
structure. The fee structure for each institute must be fixed keeping in mind the
infrastructure and facilities available, the investments made, salaries paid to
the teachers and staff, future plans for expansion and/ or betterment of the
institution etc.
Of
course there can be no profiteering and capitation fees cannot be charged.
It
thus needs to be emphasized that as per the majority judgment imparting of
education is essentially charitable in nature. Thus the surplus/ profit that
can be generated must be only for the benefit/ use of that educational
institution. Profits/ surplus cannot be diverted for any other use or purpose
and cannot be used for personal gain or for any other business or
enterprise..." The Court, having regard to the fact that the validity of
the statutes/ regulations governing the fixation of fees had not been
considered, directed constitution of a committee headed by a retired High Court
Judge for the said purpose.
One of
us while concurring with the said directions stated:
"147.
On a bare reading of the relevant paragraphs of the judgment some of which are
referred to hereinbefore, it is beyond any doubt that in the matter of
determination of the fee structure the unaided institutions exercise a greater
autonomy. They, like any other citizens carrying on an occupation, must be held
to be entitled to a reasonable surplus for development of education and
expansion of the institution.
Reasonable
surplus doctrine can be given effect to only if the institutions make profits
out of their investments. As stated in paragraph 56, economic forces have a
role to play. They, thus, indisputably have to plan their investment and
expenditure in such a manner that they may generate some amount of profit. What
is forbidden is
(a) capitation
fee and
(b) profiteering.
154.The
fee structure, thus, in relation to each and every college must be determined
separately keeping in view several factors including, facilities available,
infrastructure made available, the age of the institution, investment made,
future plan for expansion and betterment of the educational standard etc. The
case of each institution in this behalf is required to be considered by an
appropriate Committee. For the said purpose, even the books of accounts
maintained by the institution may have to be looked into. Whatever is
determined by the Committee by way of a fee structure having regard to relevant
factors some of which are enumerated hereinbefore, the management of the
institution would not be entitled to charge anything more." The principles
for fixing fee structure of particular institutions have, thus, been
illustrated in T.M.A. Pai Foundation (supra) and Islamic Academy of Education
(supra) but it must be borne in mind that those principles were laid down in
absence of any statute operating in the field. Where, however, a statute
operates in the field, regulation of education would be governed thereby. In
this case, as the regulation of education is governed by a Legislative Act, the
court cannot impose any other or further restrictions by travelling beyond the
scope, object and purport thereof.
The High
Court by reason of the impugned judgment travelled beyond the legislative
scheme as regards administration of a private institution as also fixation of
fee while issuing the impugned directions in the light of the decision of this
Court in Unni Krishnan (supra). It is not in dispute that pursuant to or in
furtherance of the directions issued by the High Court a Committee known as Duggal
Committee was constituted. The said Committee has submitted its report.
Pursuant
to the recommendations made by the Committee, a circular dated 15th December,
1999 has been issued purported to be in terms of Sub-Section (3) and (4) of
Section 24 of the Act. The same apparently is beyond the scope and purport of
the Act and the Rules as the directions thereunder can be issued only for the
purpose of rectifying the defect and deficiencies found at the time of
inspection or otherwise in the working of the school and not pursuant to the
recommendations made by a committee constituted in terms of the judgment of the
High Court. 'Defects and deficiencies' within the meaning of the said
provisions would mean defects and deficiencies while applying the provisions of
the Act and the rules framed thereunder only and not the recommendations of a
committee de'hors 'the Act' and 'the rules'. The said directions, therefore, do
not have the force of law within the meaning of Clause (6) of Article 19 of the
Constitution of India. State indisputably can issue directions which would only
meet the criteria of a 'law' within the meaning of Article 13 of the
Constitution of India. (See Naveen Jindal (supra) This Court in T.M.A. Pai
Foundation (supra), thus, not only upheld the right to establish and administer
educational institutions as being guaranteed by Articles 19(1)(g) and 26
subject to the provisions of Articles 19(6) and 26(a) and, particularly,
minorities under Article 30, it emphasised the requirement of grant of greater
autonomy to the private unaided institutions. The Court while holding that the
scheme framed in Unni Krishnan (supra) as unconstitutional made an observation
that thereby 'education' in respect of important features thereof is sought to
be nationalised, viz., right of a private unaided institution to give admission
and to fix fee. By reason of such a scheme, as private institutions became
indistinguishable from the government institutions which would amount to
curtailing of all essential features of the right of administration of a
private unaided educational institution, the same was liable to be struck down
being unfair and unreasonable. The Court in no uncertain terms held that the
fixing of a rigid fee structure, dictating the formation and composition of a
governing body, compulsory nomination of teachers and staff for appointment or
nominating students for admissions would be unacceptable restrictions.
It is
true that a declaration was made to the effect by the Court that since the
object of setting up of educational institution is by definition
"charitable" as fee cannot be charged which would not be required for
the purpose of fulfilling that object. The Object of an educational institution
although may not be to make profiteering but generation of a reasonable revenue
surplus for the purpose of development of education and expansion of the
institution is permissible. In the case of unaided private schools, this Court
held that the maximum autonomy must be with the management as regards
administration, disciplinary powers, admission of students and the fees to be
charged. This Court noticed that the examination results at all levels of
unaided private schools despite stringent regulations of the governmental
authorities were far superior to the results of the government-maintained
schools. The Court held that curtailment of income of such private schools is
impermissible as it disables those schools from affording the best facilities
because of lack of funds. It was suggested that if the lowering of standards
from excellence to a level of mediocrity is to be avoided, the solution lies in
the States not using their scanty resources to prop up institutions that are
able to otherwise maintain themselves out of the fees charged, but in improving
the facilities and infrastructure of state-run schools and in subsidizing the
fees payable by the students there.
We are
bound by the decisions of the larger Benches of this Court.
This
Court, having regard to T.M.A. Pai Foundation(supra) cannot thus issue any
direction or make a scheme which would not be constitutional being violative of
clause (6) of Article 19 of the Constitution.
Indisputably,
the standard of education, the curricular and co-curricular activities
available to the students and various other factors are matters which are
relevant for determining of the fee structure. The courts of law having no
expertise in the manner and/ or having regard to its own limitations keeping in
view the principles of judicial review always refrain from laying down precise
formulae in such matters. Furthermore, while undertaking such exercise the
respective cases of each institution, their plans and programmes for the future
expansion and several other factors are required to be taken into
consideration. The Constitution Bench in Islamic Academy of Education (supra)
which as noticed hereinbefore subject to making of an appropriate legislation
directed setting up of two committees, one of which would be for determining
fee structure. This Court both in T.M.A. Pai Foundation (supra) and Islamic
Academy of Education (supra) had upheld the rights of the minorities and
unaided private institutions to generate a reasonable surplus for future
development of education.
Dawn
Oliver in Constitutional Reform in the UK under the heading 'The Courts and
Theories of Democracy, Citizenship, and Good Governance' at page 105 states:
"However,
this concept of democracy as rights-based with limited governmental power, and
in particular of the role of the courts in a democracy, carries high risks for
the judges - and for the public.
Courts
may interfere inadvisedly in public administration. The case of Bromley London
Borough Council v. Greater London Council ([1983] 1 AC 768, HL) is a classic
example. The House of Lords quashed the GLC cheap fares policy as being based
on a misreading of the statutory provisions, but were accused of themselves
misunderstanding transport policy in so doing. The courts are not experts in
policy and public administration - hence Jowell's point that the courts should
not step beyond their institutional capacity (Jowell,2000). Acceptance of this
approach is reflected in the judgments of Laws LJ in International Transport
Roth Department ([2002] EWCA Civ 158, [2002] 3 WLR 344) and of Lord Nimmo Smith
in Adams v. Lord Advocate (Court of Session, Times, 8 August 2002) in which a
distinction was drawn between areas where the subject matter lies within the
expertise of the courts (for instance, criminal justice, including sentencing
and detention of individuals) and those which were more appropriate for
decision by democratically elected and accountable bodies. If the courts step
outside the area of their institutional competence, government may react by
getting Parliament to legislate to oust the jurisdiction of the courts
altogether. Such a step would undermine the rule of law. Government and public
opinion may come to question the legitimacy of the judges exercising judicial
review against Ministers and thus undermine the authority of the courts and the
rule of law." The aforementioned paragraph has been noticed by this
[(2003) 8 SCC 567].
The
States have a duty to impart education and particularly primary education
having regard to the fact that the same is a fundamental right within the
meaning of Article 21 of the Constitution of India, but as the Government had
neither resources nor the ability to provide for the same, it appears, the
Legislature permitted the Societies/Trusts to establish the educational
institutions from the savings made by them from the Unaided Institutions.
It is
not the case of the respondents that Rule 177 is unconstitutional. The vires or
otherwise of the said rule may be considered in an appropriate proceedings but
without going into the said question in great details, it may not be
appropriate for us to read down the provisions thereof and issue any direction
in derogation thereto. I do not find any conflict in Rules 176 and 177 of the
Rules.
In
view of the fact that the plain language has been employed in Rule 177 of the
Rules, a strict construction thereof may not be justified. The proviso appended
to Rule 177 is not exhaustive. There is no reason as to why the expression
"capital or contingent expenditure" of the school should be given a
narrow meaning, particularly having regard to the fact that Clause (b) thereof
permits the Managing Committee to establish any other recognised school out of
the saving from the fees collected by such school and clause (c) thereof
permits rendition of assistance to any other school or educational institution
under the Management of the same society or trust by which the first mentioned
school is run.
The
provisions of the Act and the rules framed thereunder in my opinion are
absolutely clear and unambiguous. This Court has to interpret the provisions of
the Act and the Rules framed thereunder in the light of the fundamental rights
of the appellants. Any direction, therefore, which would further curtail their
fundamental rights would be wholly unwarranted.
Furthermore,
the impugned judgment of the Delhi High Court was rendered having regard to the
decision of this Court in Unni Krishnan (supra). Unni Krishnan (supra) no longer
holds the field. Its dicta that imparting of education is not a fundamental
right stands overruled. The scheme framed by it has also been held to be
unconstitutional. All orders and directions issued by the High Court pursuant
to or in furtherance of the directions in Unni Krishnan (supra) or any decision
following the same must, therefore, be kept out of consideration.
Thus,
the question posed in these matters needs to be answered differently as
imparting of education is now a fundamental right. Such a right, therefore,
requires a fresh look and not through the glasses of Unni Krishnan (supra).
An
11-Judge Bench as also a Constitution Bench of this Court in T.M.A. Pai
Foundation (supra) and Islamic Academy of Education (supra), as noticed
hereinbefore, have merely forbidden profiteering.
'Profiteering'
has been defined in Black's Law Dictionary, Fifth edition as:
"Taking
advantage of unusual or exceptional circumstances to make excessive
profits" Although decisions are galore the purpose would be better served
by referring to G.P. Singh Principles of Statutory Interpretation, Ninth
Edition, 2004, pages 120-122 which is in the following terms:
"4.
Regard to Consequences:
If the
language used is capable of bearing more than one construction, in selecting
the true meaning regard must be had to the consequences resulting from adopting
the alternative constructions. A construction that results in hardship, serious
inconvenience, injustice, absurdity or anomaly or which leads to inconsistency
or uncertainty and friction in the system which the statute purports to
regulate has to be rejected and preference should be given to that construction
which avoids such results.
This
rule has no application when the words are susceptible to only one meaning and
no alternative construction is reasonably open.
(a)
Hardship, inconvenience, injustice, absurdity and anomaly to be avoided In
selecting out of different interpretations "the court will adopt that
which is just, reasonable and sensible rather than that which is none of those
things" as it may be presumed "that the Legislature should have used
the word in that interpretation which least offends our sense of justice".
If the
grammatical construction leads to some absurdity or some repugnance or
inconsistency with the rest of the instrument, it may be departed from so as to
avoid that absurdity, and inconsistency. Similarly, a construction giving rise
to anomalies should be avoided. As approved by Venkatarama Aiyar, J.,
"Where the language of a statute, in its ordinary meaning and grammatical
construction, leads to a manifest contradiction of the apparent purpose of the
enactment, or to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it which modifies the
meaning of the words, and even the structure of the sentence." It would
not, therefore, be proper to impose any further restrictions in this behalf and
interpret T.M.A. Pai Foundation (supra) in a different way so as to take away
some of the rights of the appellants which are recognised therein.
We
have noticed hereinbefore that T.M.A. Pai Foundation (supra) gave a new look to
the concept of 'education', viz., opening up of economy and concept of globalisation.
We, therefore, cannot look at the question differently. It must further be
borne in mind that by reason of judicial direction this Court cannot override a
statute or statutory rules governing the field and, thus, no direction can be
issued by this Court contrary thereto or inconsistent therewith.
Furthermore,
the expression 'development of education' is a broad term. There does not exist
any reason as to why the said right would be limited, regulated or curtailed in
absence of any provisions contained in the Act or the rules framed thereunder.
When the law permits utilisation of surplus fund of an institution for setting
up another institution, the Court should not come in their way from doing so.
This
Court, when such legislations are operating in the field should be loathe to
impose any further restrictions.
This
Court normally does not pass an order even in exercise of its jurisdiction
under Article 142 of the Constitution of India which would be contrary to the
law. (See Government of Trustees, Port
of Mumbai and Another, (2004) 3 SCC 214) The
need of the day, therefore, is strict implementation and enforcement of the
statute. The administration, in the event, comes to the conclusion that the
rules are required to be amended, they are free to do so; but only because
there are a few cases of mismanagement, the same by itself should not be
considered to be an indicia that all institutions are being run in an
unprofessional or unethical manner.
Once,
the legislature has laid down an educational scheme, the jurisdiction of the
court is merely to interpret the same. It cannot and should not issue any other
or further direction. It would not supplant a statutory provision by issuing
any direction except in some exceptional cases.
The
statutory scheme of the Act must be considered also from the point of view that
a Society running several institutions may have to impart education in
different areas; slum, semi urban or urban. It may not, therefore, be improper
for an institution to generate some surplus fund from an institution which is
situated within a metropolitan area for the purpose of starting a school in a
slum or a semi urban area.
It may
also not be necessary to issue direction as to how and in what manner the
institutions should maintain their accounts. In absence of any statutory
provision governing the field, it is for the administration of the educational
institution to determine the same having regard to the prevailing law like
Income Tax Act, 1961.
I am,
furthermore of the opinion, that as it is permissible in law, the excess income
from an institution may be spent by the Society/Trust to establish another
school keeping in view the fact that more and more educational institutions are
required to be established particularly in rural or semi urban area.
So far
as allotment of land by the Delhi Development Authority is concerned, suffice
it to point out that the same has no bearing with the enforcement of the
provisions of the Act and the rules framed thereunder but indisputably the
institutions are bound by the terms and conditions of allotment. In the event
such terms and conditions of allotment have been violated by the allottees, the
appropriate statutory authorities would be at liberty to take appropriate step
as is permissible in law.
For
the reasons aforementioned, I respectfully dissent with the opinion of Brother Kapadia,J.
I would allow the appeals. No costs.
Back
Pages: 1 2
