Benno Jacob v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **WP(C).No. 16415 of 2016 (B) ----------------------------** **PETITIONER(S): -------------** ## **BENNO JACOB,** **PRESIDENT, CAMPION SCHOOL PARENT ASSOCIATION, H.NO.MRA 153, MANAKKAPPARAMBU ROAD, AIMS-P.O., PONEKKARA, COCHIN - 682 041.** **BY ADVS.SRI.T.S.RAJAN SRI.K.ABDUL HAKEEM** **RESPONDENT(S):** - **--------------** ## **1. UNION OF INDIA** - **REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, SASTRI BHAVAN, NEW DELHI - 110 001.** **2. CENTRAL BOARD OF SECONDARY EDUCTION (CBSC), SIKSHA KENDRA, 2 COMMUNITY CENTRE, PREET VIHAR, DELHI - 110 092 REPRESENTED BY ITS SECRETARY.** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GENERAL EDUCATION DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **4. SECRETARY TO THE GOVERNMENT, DEPARTMENT OF SECONDARY EDUCATION, MINISTRY OF HRD SASTRI BHAVAN, NEW DELHI-110 001.** **5. CENTRE BOARD OF SECONDARY EDUCATION (CBSE), REGIONAL OFFICE, BLOACK B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM - 695 04** **WP(C).No. 16415 of 2016 (B)** ## **6. CAMPION SCHOOL,** **CHANGAPUZHA CROSS ROAD EDAPPALLY, COCHIN - 682 024 REPRESENTED BY ITS PRINCIPAL.** **R1 & R4 BY ADV. SRI.B.RAMACHANDRAN, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R3 BY GOVERNMENT PLEADER SMT.SUITHA VINOD R5 BY SRI.K.M.ANEESH R6 BY SRI.KURIAN GEORGE KANNANTHANAM SENIOR** **ADVOCATE BY ADVS. SRI.MATHAI VARKEY MUTHIRENTHY SMT.ANITHA MATHAI MUTHIRENTHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2016 THE COURT ON 26-07-2016, DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 16415 of 2016 (B)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **P1: TRUE COPY OF THE DETAILS AND FEE STRUCTURE PUBLISHED BIN THE WEBSITE OF THE 6TH RESPONDENT P2: TRUE COPY OF THE LETTER AND FORM OF APPLICATION OF STANDARD I ISSUED BY THE 6TH RESPONDENT P3: TRUE COPY OF THE RECEIPT ISSUED TO YUAN SREEJITH FOR RS.8000/-DATED 22.3.2016 ISSUED BY THE 6TH RESPONDENTS** - **P4: TRUE COPY OF THE LETTER TO THE PARENTS OF STANDARD II ISSUED BY THE 6TH RESPONDENT DATED 22.3.2016** **P5: TRUE COPY OF THE LETTER ISSUED TO THE PARENTS OF STANDARD VI DATED 22.3.2016** **P6: TRUE COPY OF THE LETTER ISSUED TO THE PARENTS OF STANDARD VII DATED 22.3.16** - **P7 SERIES:- TRUE COPY OF THE REVERSE SIDE OF THE BOOK NOS.5.** - **P8: TRUE COPY OF THE RECEIPT ISSUED FROM K K STORES TO ANGEL BENNO DATED 21.3.2016 FOR RS.2460/-** - **P9: TRUE COPY OF THE RECEIPT ISSUED FROM K K STORES TO ANGEL BENNO DATED 21.3.16 FOR RS.2150/-** - **P10: TRUE COPY OF THE BILL ISSUED FROM K K STORES DATED 13.4.2016 TO ANJALINA JOLLY** - **P11: TRUE COPY OF THE PAGE NO.17 OF THE AFFILIATION BYE LAW OF CBSE.** - **P12: NIL. P13: COPY OF THE RECEIPT OF CAPITATION FEE/DONATION COLLECTED FROM THE PARENT DT 19/9/2015.** **P14: COPY OF THE RECEIPT OF ADMISSION FEES DT 6/5/2016. P15: COPY OF THE RECEIPT ISSUED BY THE FEDERAL BANK, ELAMAKKARA BRANCH OF RS.9185/- AGAINST 1ST QUARTER FEE DT 17/5/2016.** ## **WP(C).No. 16415 of 2016 (B)** **RESPONDENT(S)' EXHIBITS :** **-----------------------** - **EXT.R6(A): COPY OF THE CIRCULAR WITH FEE STRUCTURE AS NOTIFIED TO THE PARENTS FROM CLASS I TO XII.** - **EXT.R6(B): COPY OF THE MINUTES OF THE MEETING HELD BY THE SCHOOL MANAGEMENT COMMITTEE ON 7/3/2015.** - **EXT.R6(C): COPY OF THE MINUTES F THE MEETING HELD BY THE SCHOOL MANAGEMENT COMMITTEE ON 19/3/2016.** - **EXT.R6(D): COPY OF THE FEES STRUCTURE OF 2016-2017 ACADEMIC YEAR.** - **EXT.R6(E): COPY OF THE SPECIAL FEE SPLIT UP FOR THE ACADEMIC YEAR 2016/2017.** - **EXT.R6(F): COPY OF THE LETTER ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION DT 15/10/2004.** - **EXT.R6(G): COPY OF THE RELEVANT AGES OF THE RETURNS IN THE DATA BANK OF THE CBSE** - **EXT.R6(H): COPY OF THE CERTIFICATE OF INCORPORATION OF CAMPION CHILD ACCENTURE.** - **EXT.R6(I): COPY OF THE I.T. RETURN ACKNOWLEDGMENT OF THE COMPANY FOR THE ASSESSMENT YEAR 2015-16.** ## **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = = =** ## **WP(C).No.16415 of 2016-B.** ## **= = = = = = = = = = = = = =** Dated this the 26[th] day of July, 2016. ## **J U D G M E N T** The petitioner is an association of the parents of the students in the sixth respondent school ('the school' for short). The school is affiliated to the Central Board of Secondary Education ('the CBSE' for short) on the strength of the no objection certificate (NOC) issued by the State Government, as required by the bye-laws of the CBSE. According to the petitioner, the monthly fee of the students in standards I to XII of the school as published in the website of the school does not exceed Rs.1,350/- per month. It is alleged by the petitioner that, nevertheless, the school is collecting a sum of Rs.8,000/- from every students at the time of admission. Ext.P2 is the communication issued by the school to the parent of a student who sought admission in the first standard. As per Ext.P2, the said parent was directed to pay a sum of Rs.8,000/- towards admission fee. Ext.P3 is the receipt issued by the school to a **WP(C).No.16415/2016-B.** 2 student named Yuan Sreejith, evidencing payment of Rs.8,000/towards admission fee. It is the case of the petitioner that the tuition fee collected from the students is not in accordance with the tuition fee published in the website of the school. According to the petitioner, any amount collected by the school over and above the fee notified in the website of the school would amount to capitation, which is prohibited as per the terms of the bye-laws of the CBSE as also the guidelines issued by the Government for granting NOC to the schools. It is alleged by the petitioner that as per the bye-laws of the CBSE, the school is entitled to collect only fees and charges commensurate with the facilities provided by the school. It is also alleged by the petitioner that the conduct of the school in collecting more fees is contrary to the provisions contained in the Right to Children to Free and compulsory Education Act, 2009 as well. The petitioner, therefore, seeks the following reliefs: - (i) issue a writ of mandamus or appropriate writ, order or direction directing the respondents 1 to 5 to ensure that the 6[th] respondent is not collecting donations, capitation fee or other illegal charges from parents of the students at the time of admission or promotion or during the period of 3 ## **WP(C).No.16415/2016-B.** the study. - (ii) direct the respondents 2 and 4 to ensure that the 6[th] respondent school is functioning by complying the provisions of affiliation bye law of the CBSE and as per the provisions of the Right to Children to Free and Compulsory Education Act 2009. - (iii) direct the 2[nd] respondent to give proper direction to the affiliated School to organise Parent Teachers Association and prescribe norms for its function. 2. On 29.4.2016, this Court passed an interim order in this writ petition directing the sixth respondent school to refrain from collecting any fee other than the fees prescribed in Ext.P1 website notification. 3. A detailed counter affidavit has been filed by the school in this matter. It is contended by the school in the counter affidavit that the petitioner association is neither a recognised association of the parents of the students of the school nor an association registered under any law and that therefore, the writ petition is not maintainable. It is also contended by the school in the counter affidavit that since the association is taking up the cause of the individual members of **WP(C).No.16415/2016-B.** 4 the association, the court fee has to be paid treating the writ petition as a writ petition filed for all its members. Without prejudice to the aforesaid contentions, on merits, it is contended that Ext.P1 is the information furnished by the school in the year 2012-'13 and the same was deleted from the website of the school long before the institution of the writ petition. According to the school, the fees structure for each year is notified to the parents of all students by a circular, in addition to the communication sent to the parents through the school diary retained by the students. It is stated that the fees for the years 2016-'17 was notified to the students as per Ext.R6(a) circular and the fees collected from the students is strictly in accordance with Ext.R6(a) circular. It is further stated that the school is charging only the fees commensurate with the facilities provided to the students. It is admitted in the counter affidavit that a sum of Rs.8,000/- is collected by the school towards admission fee for the students admitted in standard I and the said amount is collected in accordance with the decision taken by the school management committee on 7.3.2015. According to the school, 5 ## **WP(C).No.16415/2016-B.** as per the provisions of the bye-laws of the CBSE, the school shall have the power to fix the tuition fee and annual charges. Ext.R6(b) is the minutes of the meeting of the school management committee held on 7.3.2015. Ext.R6(d) is the fees structure of the school for the year 2016-'17. Ext.R6(e) is the special fee structure split up for the year 2016-'17. 4. A reply affidavit has been filed by the petitioner to the counter affidavit filed by the school. In the reply affidavit, it is stated by the petitioner that the petitioner association has been registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It is also stated that Ext.P1 website information is withdrawn only after the interim order was passed in this writ petition on 29.4.2016. It is reiterated by the petitioner in the reply affidavit that the fees charged by the school do not commensurate with the infrastructure provided to the students. As regards the admission fee, the stand taken in the reply affidavit is that the same can be treated only as a capitation fee in the light of the provisions contained in the bye-laws of the CBSE. 6 ## **WP(C).No.16415/2016-B.** 5. Heard the learned counsel for the petitioner as also the learned Senior Counsel for the school. 6. At the time of hearing, the learned counsel for the petitioner has not pressed the various contentions raised in the writ petition based on the provisions contained in the Right to Children to Free and compulsory Education Act as the school is a minority institution. 7. The fact that the petitioner is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 is not in dispute. Section 9 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act enables a society registered under the said Act to institute legal proceedings on behalf of its members in its name. True, the registration was obtained by the petitioner under the said Act only on 4.5.2016, after the institution of the writ petition. However, in so far as the petitioner is a registered society, I do not propose to dismiss the writ petition accepting the hyper technical contention that the petitioner was not a registered society as on the date of institution of the writ petition. ## **WP(C).No.16415/2016-B.** **==> picture [7 x 9] intentionally omitted <==** 8. The reliefs claimed in the writ petition as extracted above would indicate that the reliefs are claimed on behalf of all parents of the students in the school. The learned Senior Counsel for the school, relying on the decision of this Court in _**Kerala Electric Trades Association v. State of Kerala**_ (2010(1) KHC 248), contended that in so far as court fee has not been paid for all members of the petitioner association treating the writ petition as a collective writ petition on behalf of all the parents, the writ petition must be held to be not maintainable. The decision in _**Kerala Electric Trades Association v. State of Kerala**_ (supra) is a decision dealing with a writ petition preferred by a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act challenging the constitutional validity of sub Section 5A of Section 14 of the Kerala General Sales Tax Act. In the context of the said case, this Court took the view that in so far as all the members of the said association are benefited by the challenge against the legislative competence of the provision, court fee needs to be paid for the individual members of the **WP(C).No.16415/2016-B.** 8 ## association. Paragraph 18 of the said judgment reads thus: “18.Similarly, the petitioners have also not paid the requisite court-fee on behalf of all such members, but for having effected a sum of Rs.300/- in respect of the three petitioners. Schedule II, 11(I)(iii) under the Kerala Court-Fees and Suit Valuation Act clearly stipulates that the court-fee payable in respect of the Writ Petition filed before the High Court is Rs.100/- per petitioner. If any relief is claimed by several persons, the court-fee payable shall be Rs.100/- by each such person. In the instant case, the specific contention of the respondents is that, while challenging the legislative competence behind sub-section (5A) to demand fee for renewal of registration, admittedly since the Writ Petition has been filed on behalf of all the members of the first petitioner Association, who are enlisted in Ext.P2, the proceedings cannot be held as legally maintainable in respect of all such persons, unless requisite court-fee is paid by all the members as aforesaid. The legal position in this regard has already been made clear by this Court in _Mathew v. Edathua Panchayat_ , 1988(2) KLT 329. It becomes more clear from the verdict passed by a Division Bench of this Court in WA 1164 of 2002 and connected cases (reported in CDJ 2008 Ker HC 803), where the matter was entertained only after collecting the requisite court-fee from all the members, who were stated as the beneficiaries and pursuant to the order granting permission to prosecute the Writ Petition in a representative capacity on behalf of all such persons. Since the petitioners have not chosen to produce the requisite materials authorising them to file the Writ Petition in a representative capacity, nor have they filed any proceedings for obtaining permission in this regard and further since no separate court-fee in respect **WP(C).No.16415/2016-B.** 9 of all the members enlisted in Ext.P2 has been paid, the Writ Petition is not at all maintainable in respect of all other members, who are enlisted in Ext.P2 and the matter is being dealt with and confined to the petitioners alone. Merits having already been answered against the petitioners, the Writ Petition fails and it is dismissed accordingly.” In the instant case, court fee is not seen paid for the individual members of the association. As such, in the light of the said decision of this Court, I am constrained to hold that the writ petition is not maintainable. 9. Though I have held that the writ petition is not maintainable, I deem it appropriate to deal with the contentions raised by the petitioner on merits as well. As noted above, the specific case of the petitioner is that only fees commensurate with the facilities provided in the school can be charged by the school from the students and that no capitation fee or voluntary donation can be accepted for granting admission in the schools or for any other purpose. Clause (11) of the Affiliation Bye Laws of the CBSE which is relied on by the petitioner in support of their contentions reads thus: “$ Fees charges should be commensurate with the facilities provided by the institution. Fees should normally be charged **WP(C).No.16415/2016-B.** 10 under the heads prescribed by the Department of Education of the State/U.T. for schools of different categories. No capitation fee or voluntary donations for gaining admission in the school or for any other purpose should be charged/collected in the name of the school and the school should not subject the child or his or her parents or guardians to any screening procedure. In case of such malpractices, the Board may take drastic action leading to disaffiliation of the school. Further, any school or person violates the above provisions is liable for the following:- - (i) Receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charges; - (ii) Subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.” The petitioner also relies on, in support of their contention, the definition of 'capitation fee' as contained in the bye-laws, which reads thus: - “$ “Capitation fee” means any kind of donation or contribution or payment other than the fee notified by the school.” According to the petitioner, the fees charged by the school do not **WP(C).No.16415/2016-B.** 11 commensurate with the facilities provided and that the admission fee collected by the school can only, therefore, be regarded as capitation fee which is prohibited under the bye-laws. The contentions are raised based on the bye-laws of the CBSE. The consequence of violation of the bye-laws of the CBSE is provided in the bye-laws itself. According to me, if the school violates the provisions of the bye-laws, the school is liable to be dis-affiliated. I do not think that the students or the parents, as the case may be, can approach this Court for an adjudication as to whether the fees charged by the school commensurate with the facilities provided or as to whether a particular fee is permissible under the bye-laws. True, the petitioner can place this matter before the CBSE and seek appropriate directions in this regard so long as the petitioner does not want the school to be dis-affiliated. As noted above, in the counter affidavit filed by the school, they have taken the stand that what is charged towards fees in the school is only fees which would commensurate with the facilities provided to the students in the school and it is permissible. It is also their specific case that they are charging Rs.8,000/- towards **WP(C).No.16415/2016-B.** 12 admission fee and the same is also permissible under the byelaws of the school. A combined reading of the definition of 'capitation fee' as also Clause (11) contained in the bye-laws indicates that the only fees collected other than the fees notified by the school can be regarded as capitation fee. In the instant case, the school admits that admission fee collected from the students is a fee notified by the school. In the said circumstances, I do not think that the petitioner is justified in approaching this Court for claiming the reliefs as aforesaid. As regards the tuition fee collected by the school, it is seen that the tuition fee demanded by the school is in accordance with Exts.R6 (d) and R6(e) notifications published by the school. Since the school is collecting only the fees notified and since the fee notified is being paid by all the students, the petitioner cannot be heard to contend that the same is against the provisions of the bye-laws. 10. A copy of the order issued by the Government fixing the norms for grant of no objection certificate has been made available to me at the time of hearing. Clause (vii) of the 13 ## **WP(C).No.16415/2016-B.** ## said Government Order reads thus: “vii. The rate of tuition and other fees charged shall be commensurate with the facilities provided and a yearly return on the fee charged (all fees) shall be filed before the District Educational Officer concerned and in the school website.” The provision extracted above also provides only that the fees charged should commensurate with the facilities provided. The question whether the fees charged would commensurate with the facilities provided is a pure question of fact. So long as the school does not dispute the fees charged, according to me, it is also a matter for the Government to consider. In the said view of the matter, there is no merit also in the writ petition and the same is, accordingly, dismissed. _**Sd/-**_ **P.B.SURESH KUMAR, JUDGE.** ## _**Kvs/-**_ ## _**// true copy //**_