Buxi Jagabandhu English Medium School Parents Association vs State of Odisha and Others

Dr. Durga Prasanna Choudhury, J.—Both these writ appeals arise out of common order dated 2.2.2015 passed by learned Single Judge in W.P.(C) No. 6292 filed by the Buxi Jagabandhu English Medium School Parents Association and W.P.(C) No. 9663 of 2013 filed by some parents of the Buxi Jagabandhu English Medium Schools I & II respectively. Both the writ appeals are heard analogously and common judgment is hereby passed.

FACTS :

Succinctly, the facts of both the appeals being the same, are that the B.J.E.M. School, Bhubaneswsar had got two branches; one at B.J.B. Nagar and another at Satyabhamapur, Bubaneswsar. Both the institutions are affiliated to Central Board of Secondary Education (C.B.S.E.), New Delhi. It is stated that the School-I was established way back in 1974-75 after obtaining no objection from the State Government. The B.J.E.M. School-II, Satyabhamapur was established in 2004 after obtaining no objection from the State Government but no recommendation has been granted by the C.B.S.E. till date. It is further alleged, inter alia, that the Schools are bound to follow the rules prescribed by the C.B.S.E. and accordingly the rules for fees and charges realized from the students should be commensurate with the facilities provided by the institutions. It is stated that as per sub-rule (3) of Rule 11 of the Rule prescribed by the C.B.S.E., the School Management should consult parents'' representatives before taking any steps for revising the fees. But in utter disregard to the rules laid down by the C.B.S.E., the respondent-opposite party-School hiked the fees on 20.3.2013 without any prior consultation with the parents who are also the integral part of the management of the institution. It is further alleged, inter alia, that during the year 2010-11 the fee structure for Standard-I was Rs. 490/- per month whereas in the year 2011-12, the fee for students of Standard-I was hiked to Rs. 810/-. During 2013-14, the fees for Standard-III was hiked to 35% besides collecting capitation fee in the name of development fees for different years from the students of different standard in different rates. The parents alleged price hike annexing the chart vide Annexure-4 to that effect which is depicted below :

It is also the case of the appellants that the management is paying very nominal consolidated amount for teaching and non-teaching staff of the school and they are yet to implement the scale of pay recommended by Sixth Pay Commission. The minimum infrastructure as required to run an English Medium School from Standard I to XII has not been provided for which there is no justification on the part of the School to enhance the fee structure each year, particularly in the year 2013-14, in which year, the cases were filed. The petitioner-appellants made representations before the respondent-opposite party No. 3-School but it was not considered. In spite of representations by the Association to convene meeting of the Managing Committee, no such meeting could be convened.

It is also stated by the parents that the Odisha Education Act is applicable to the B.J.E.M. School in view of the judgment passed in Susama Pattnaik v. State of Orissa by this Court. In spite of instructions by the State Government in the Department of School and Mass Education Department to collect the nominal fees, the opposite parties have utterly disregarded the instructions of the State Government. Under section 7 of the Odisha Education Act and Rules framed thereunder read with Rule 91, the Managing Committee has to be constituted by the State authorities but no such managing committee has been constituted for last three years although respondent-management is managing the school without any managing committee by clear violation of Odisha Education Act and Rules. On 12.12.2012 appellant-petitioners made representations to withdraw the fee structure but such representation was not considered. So the appellant-petitioners preferred writ appeals before this Court to quash the order dated 2.2.2012 passed by learned Single Judge of this Court. This Court after hearing the case, passed the interim order directing the parties to appear before Hon''ble Mr. Justice K.P. Mohapatra Committee who was requested to give the view about fixation of fees after hearing the parties. Hon''ble Mr. Justice K.P. Mohapatra, Retired Judge of this Court, took up the matter and without giving adequate opportunity to the petitioner-appellants of being heard, disposed of the point in issue and submitted the report to the Court. On 2.2.2015 Hon''ble Single Judge of this Court without affording any opportunity to the petitioner-appellants to examine the Committee report, disposed of the writ application directing the petitioner-appellants to follow the finding of the Hon''ble Mr. Justice K.P. Mohapatra Committee so far as the hike of the fee structure is concerned.

Being aggrieved by such order of the learned Single Judge, the present writ appeals have been filed.

During the pendency of appeals, the copy of the report of the Justice K.P. Mohapatra Committee was supplied to the petitioner-appellants with direction to submit objection, if any. The petitioner-appellants also filed objections to such report alleging, inter alia, that the parents of the B.J.E.M. School-II have never approached the Court or the competent authority for reference of the matter to such Committee because this Committee was created by the Education Department to deal with hike of fees of Technical and Engineering colleges. It is further averred that parents of the B.J.E.M. School-II are not consulted in preparing the report of the Committee. On the otherhand the parents have been forced to receive notice to pay Rs. 10,000/- at the instance of such Fee Structure Committee. The petitioner-appellants have reiterated the claim as made in the original writ petitions and appeal memo in objection itself and stated that the Committee has not touched the Odisha Education Act with regard to the constitution of the Managing Committee and its powers, inter alia, the function of the Managing Committee. It is stated that the report is incomplete because the report has purportedly falsified the fact that the last Committee meeting was held on 12.12.2014 duly attended by the parents inasmuch as the parents'' representatives attended but not the parents. It is further averred that one day before the meeting, i.e. on 11.12.2014 the parents'' representatives were informed about the next meeting over telephone by the Dealing Assistant of the Committee and due to short notice, the appellant-Srinibas Mohapatra submitted application seeking adjournment of the meeting as the parents'' representatives were not aware of the same. On 12.12.2014 the meeting was not held and the parents'' representatives complained that the report was prepared in haste without maintaining impartiality. It is further alleged that the parents had given three tables of the fee structure of the School Committee to gather the systematic income of the School but the same has not been taken care. It is stated that the recommendation of the Committee is ambiguous as no list of Managing Committee Members has been presented. Although the Committee has noted that the teachers are highly qualified but the teachers, even if, qualified, have no proper training to teach properly and the process of appointment of teachers'' are not according to the rules as the CTET and OTET passed teachers are not appointed as faculty. The qualification of the teachers is also doubtful because they have not passed out from institutions duly recognized.

It is also mentioned in the objection that the Committee has advised the School to hold regular parent-teacher meeting in a decisive manner but the school authorities have not followed the same to solve the different problems. The Committee in the case of D.A.V. College Managing Committee recommended for abandoning tuition by the teachers of D.A.V. Schools whereas it has left the present matter to be considered by the School Managing Committee which is unrepresented in character. The Committee has recommended for disciplinary action against the teaching and non-teaching staff who are involved with sanitary activities of the School but the parents'' hard-earned money are being swallowed by the teachers. The Committee has suggested for proper sanitation in the schools but that has also been violated by the school authorities. The Committee has not bothered to adopt the process of auction while construction of school building is undertaken. The parents'' do not approve the quotation system. It has not been explained in the report of the committee about the depreciation cost of Rs. 28 lakhs per year. The Committee has allowed the school to function autocratically by approving smart board teaching introduced by the school authorities. The committee has wrongly kept aside the smart fee with regular tuition fee in D.A.V. College report but in B.J.E.M. School report, it has not used the word ''smart'' anywhere perhaps because of complaint by a parent towards introduction of the word ''smart''. The Committee should have adopted the same recommendation as made in the D.A.V. College Managing Committee case report in this regard. The Committee has advised the proper engagement of the transport buses to carry the children and the parents question the Committee as to why it recommended for fee hike without verifying the condition of transport as the security of the students are not in commensurate with their safety. It is further stated that although the Committee is aware that Rs. 60 lakhs of funds has been transferred to B.J.E.M. School-II but the Committee did not refer about diversion of such fund from one School to another School under same B.J.E.M. Educational society which speaks volumes about the mismanagement. It is alleged that the Committee has abolished the fee at the time of admission, but at the same time, enhanced the fee more than that intended by the School which is beyond the jurisdiction of the Committee. Even if the Committee is a fact finding Committee, but it has worked like a school managing committee. Moreover, it is alleged that the Committee has appointed one Sub-Committee but the members of such Sub-Committee are not able to understand the budget of middle class parents. It is alleged that the Hon''ble Apex Court in the judgment of D.A.V. College Managing Committee case have maintained in the manner "before parting with the matter, we would like to caution the concerned authorities that if private educational institution has met all the requirements of obtaining No Objection Certificate and affiliation etc. then its claim for revision of fees should be considered expeditiously on permissible parameters". The objection of the appellants is that such observation of Hon''ble Apex Court have not been conspicuously observed in the report of the Committee. On the otherhand the report of the Committee has compromised with all illegalities, irrationalities of the opposite party-school authorities except advising on hike of fees. The report is bias and is in favour of the school authorities.

SUBMISSION :

Learned counsel for the parents supported the contention made in the appeal and the objection to the report of the Fee Structure Committee headed by Hon''ble Mr. Justice K.P. Mohapatra, retired judge of this Court. He contended that the School has not followed any norm while fixing the fees paid by the students. According to him, the School has enhanced 100% fees without any rhyme or reason. He made several other contentions with regard to the non-constitution of Managing Committee, non-performance of Managing Committee according to the provisions of the Education Act and irregular meeting of the Managing Committee. His main thrust is on the fact that the School has not followed the rules prescribed by the CBSE to the effect that the fees and the charges should be commensurate with the facility provided by the institution and the School has not provided any facility while enhancing the fee structure. He further submitted that the report of the Fee Structure Committee is baseless and it has not given any opinion according to the provision of the Odishsa Education Act and Rules. Similarly, he assailed the order of the learned Single Judge of this Court by submitting that the Court did not give opportunity to the parents to raise objection to the report of the Fee Structure Committee and simply directed to follow the recommendation of the Committee. On the other hand, he submitted that the learned Single Judge has not given reasonable opportunity to the parents on the report of the Fee Structure Committee of being heard. According to him, the decision of the Hon''ble Apex Court in D.A.V. School case (supra) is not applicable to the present case but the learned Single Judge of this Court without giving any opportunity to the appellants of being heard on the said judgment, disposed of the matter in terms of the decision in D.A.V. School Case (supra). He further submitted that as the principle of natural justice has been violated in this case by the learned Single Judge of this Court by not giving reasonable opportunity to the parents of being heard, the impugned order is required to be set aside and the writ appeals filed by the appellants be allowed.

The Respondent-School did not file counter-affidavit, but the learned counsel appearing for the School submitted that the Respondent-School I & II fully support the report of the Fee Structure Committee duly appointed by the School and Mass Education Department and the School authorities are committed to follow the recommendations of the said Fee Structure Committee.

Learned counsel for the Respondent-State denied the allegations made in the writ petition filed by the parents and in the memo of writ appeal. Learned counsel for the Respondent-School contended that the School has formed the Managing Committee where the parents are also members. Regular meeting has been held and the allegations made in the writ appeal filed by the parents are false and frivolous. It is submitted that the School has appointed highly qualified trained and untrained teachers. They are being paid salary according to the Sixth Pay Commission with 100% D.A. increased from time to time by the Government for which they are unable to meet the funds. But there is no other way than to collect the enhanced fees from the students to maintain the School. Therefore, he submitted to dismiss the appeals filed by the appellants and to confirm the order passed by the leaned Single Judge.

Points for determination :

Several contentions are raised on behalf of the appellants, but, their main contention is whether the fees enhanced by the School is justifiable and the students or their parents are to pay the same? Rest of the questions as raised by the learned counsel for the appellants are left open.

DISCUSSION :

We have heard the respective counsel and perused the documents. It is not disputed that the B.J.E.M. School-I was established in the year 1974 and the B.J.E.M. School-II was established in the year 2012. It is also not disputed that the highly qualified teachers are working there. Since the issue is only roving around the Fee Structure, we are concerned with such issue. On going through the record, it appears that the learned Single Judge has directed both the parties to appear before the Hon''ble Mr. Justice K.P. Mohapatra Committee to decide the fixation of fees in conformity with the order passed by the Hon''ble apex Court in D.A.V. College Managing Committee v. Laxminarayan Mishra and others in S.L.P. No. 31659 of 2011 and the Committee was requested to submit the report within a month. In the impugned order dated 2.2.2015 passed by the Hon''ble Single Judge in W.P.(C) Nos. 6292 & 9663 of 2013, the learned Single Judge was pleased to pass the following order (relevant portion) :

"All the parties were directed vide order dated 15.5.2014 to appear before Hon''ble Justice K.P. Mohapatra Committee by 30.5.2014, so that his Lordship would fix a date of hearing and after affording opportunity, submit a report regarding fixation of fees of the School in conformity with the order passed by the Apex Court in D.A.V. College, Management Committee v. Laxmi Narayan Mishra and others in Special Leave to Appeal (Civil) No. 31659 of 2011. In compliance to the order, Hon''ble Justice K.P. Mohapatra by giving opportunity to all the parties submitted a report which is hereby accepted and parties are directed to act according to the report so submitted.

The common order, impugned herein, does not speak about the content of the report of the Committee but the same has been accepted. The main contention of the learned counsel for the appellants is that they were not given opportunity to submit any objection to the report of the Committee. Obviously, an opportunity was required to be given to the appellants for raising objection to the report of the Committee. Since the appeal is continuation of the original proceeding, in the appeal, the appellants were given opportunity to file objection to the report of the Committee and such objection has been detailed in the above paragraphs.

We have perused the report of the Committee submitted by the Hon''ble Mr. Justice K.P. Mohapatra. In the report, the following relevant recommendations on the issue, have been made :

"1. The school collects development fee for all the students taking admission including admission at the time of Class-XI (even though they have passed out from the same school). The Fee Structure Committee is of the view that the school should not collect re-admission fee at the time of admission into Class-XI for students who have passed out from Class-X from the same school.

The Development Fee which is presently Rs. 20,000/- is proposed to be increased to Rs. 25,000/-. The Schools should not charge admission fee every year on promotion of students from the lower to the upper classes. In case of students who have passed 10th class examination they should be automatically admitted to class-XI without charging admission fee. But if a student who has passed the 10th Class examination from any other school and is admitted in BJEM-I and BJEM-II schools, as a new case, due admission fee can be collected.

Majority of the expenses is on account of salary. Increase of salary by full DA would amount to salary going up by more than 100%. Such a high dose of increase will be a big burden on the parents at one time and therefore, the Fee Structure Committee is of the view that 60% of the salary may be paid as DA for the year 2014-15 for BJEM-I and 40% of the salary may be paid as DA for the year 2014-15 for BJEM-II and the balance DA may be proposed in the next 2 to 4 years."

The Fee Structure Committee is not able to recommend reasonable surplus in the year 2014-15 as this year is the first year for increase of the fee. However, for subsequent years, the schools may propose reasonable surplus starting with 6% and to keep a band of 6 to 10% for the next years.

A new Managing Committee has been constituted for the tenure 2014-17 which has been approved by the CBSE vide letter dtd. 25.7.2014. So far as BJEM-II is concerned no list of Managing Committee members has been presented. If there is already an existing Managing Committee term of which has not expired, the said Committee shall continue till the expiry of its tenure. But in case the tenure of the Managing Committee is already over, steps should be taken immediately for constitution of a Managing Committee. After approval of the Managing Committee by the CBSE, interference in this regard is not possible.

If money is transferred from one school to other it is to be assured that the same be retransferred to the original school within a time frame. The income of one school should not be appropriated for the other school.

The educational and annual fees should be minimized and spent purposefully. Purchases made from the open market should be on quotation basis and supported by bills and cash memos. The educational and annual fees for each year should be such that they should not pinch the pockets of the parents. Any profiteering motive in this regard should be strictly prohibited.

The Fee Structure Committee has recommended the fee structure for both the schools for the year 2014-15. For earlier years it decided not to recommend any fee structure, because collection of arrear fees should be a heavy burden on the parents. This has been decided following the judgment of the Hon''ble Supreme Court in Civil Appeal No. 31659 of 2011 in respect of D.A.V Public Schools.

The fee structure of BJEM-I is as follows:--

The fee structure of BJEM-II is as follows:--

From the report it appears that the Committee has given sufficient opportunity to the parents and their association to raise their objection. They have also submitted their objections and after hearing at length, aforesaid recommendations have been made by the Committee. The sole criteria of recommendation is to contain the fee structure only from the year 2014-2015 not before that because of the over burden on the parents. Apart from this, various other contentions have been made as to transfer of money from one school to another, maintaining the hygienic condition of the school, for using a good transport keeping in mind the security and safety of the students and several other recommendations. It is also found that as the school is obliged to pay 100% D.A., all the trained and untrained teachers who are highly qualified, the Committee has also made arrangement to pay the said D.A. at first 60% and the rest of the 40% in two to four years. So the report of the Committee has met all objections and has given its justifiable recommendations.

It is worthwhile to discuss the judgment of the Hon''ble apex Court passed in D.A.V. College Managing Committee case (supra). The copy of the judgment is also available on record. On going through the judgment, it appears that there the same question was raised by the parents and the parents'' association as to the feasibility of enhancement of the fees by the D.A.V. College Managing Committee. On the other hand similar issue as of this case was also raised before the Hon''ble Apex Court. In that case also, the Hon''ble apex Court had directed on 6.9.2011 the Fee Structure Committee headed by Hon''ble Mr. Justice K.P. Mohapatra, who submitted report in this case, to submit the report in that case. Before the Hon''ble Apex Court many contentions were raised but amongst them, the main contention was whether the fees can be raised by the school authorities basing on the report of the Committee. Hon''ble apex Court in the said case have been pleased to observe at paragraphs 9 to 13 in the following manner :

"9. On a careful perusal of the various objections highlighted before the Fee Structure Committee, we find that the objections were not at all substantial and they have been dealt with appropriately by the Committee. We also find no merit in the objection with regard to competence or expertise of the Fee Structure Committee, Odisha. This Court entrusted the task in question to the Committee out of necessity in the presence of learned counsel for the parties and no one raised any objection. The only objection which required some thought was that in 2009 the proposed fee hike was of 50-57% based upon requirement for payment of salaries as per recommendations of 6th Central Pay Commission whereas on the basis of income and expenditure figures and relevant information for the year 2012-2013, the Committee has recommended revised fees which for some schools are alleged to be in the vicinity of increase of about 200%.

In the aforesaid context it was successfully explained on behalf of the appellant that in 2009 the fee increase was calculated on the basis of 22% D.A. prevalent at that time but the average D.A. in 2012-13 had increased to 72.25%. Further, due to lapse of three years, the annual increments of 3% would add to a total of 9%. The combined effect would be an increase of more than 200% of the original 2009 fees. It was also pointed out that increase in fees, as recommended by the Committee, ranges only from 46% to 119% for different schools over and above the present unrevised fee structure.

On carefully going through the facts and figures available on record and those considered by the Committee, we find no good reason to take exception to the fee structure recommended by the Fee Structure Committee, Odisha through its Report dated 2.5.2013.

Since the larger issue of law has been given up by the appellant and the same has been left open, we are not required to go into the same. In the facts of the case, we are re-assured by the Committee''s Report that the appellant and institutions represented by it have been allowed only reasonable profit to which they are entitled under law. Hence, it is directed that the appellant and the concerned educational institutions represented by it shall be entitled to revise their fee structure with immediate effect as per recommendations of the Fee Structure Committee, Odisha dated 2.5.2013. We further clarify that the existing Managing Committee as constituted under the CBSE bye-laws shall continue to manage the concerned schools. If the competent authority feels the necessity, it may proceed to make changes in the Managing Committee as per law and requirements of CBSE, after giving due notice and opportunity of hearing to the affected persons/Committee.

Before parting with the matter, we would like to caution the concerned authorities that if a private educational institution has met all the requirements of obtaining No Objection Certificate and affiliation etc. then its claim for revision of fees should be considered expeditiously on permissible parameters. Objections, if any, should be entertained only from the parents'' representatives and not from individual parents. An individual may at times be reckless and may harm the educational prospects of all the students of the school. If a claim for revision of fees is stalled for long due to meritless objections it can affect academic standards on account of disgruntled staff and teachers who may even quit the institution for want of appropriate salary and perks. Such state of affairs with regard to the concerned schools has been highlighted on behalf of the appellant. The selected parents'' representatives, on the other hand, are expected to be more responsible as a body. In the present case, only some individual parents have prevented the schools from realizing revised fees since 2009. It is not possible to assess the injury caused to the schools nor is it possible to award any compensation by allowing revised fees to be realized from any earlier date such as 1.6.2012 as prayed on behalf of the appellant. However, it is satisfying to note that the State of Odisha has not raised any objection to the recommendations of the Fee Structure Committee, Odisha and, therefore, there is no legal impediment of any substance in allowing this appeal. Contempt petitions and other pending petitions shall stand disposed of. The appeal is allowed as indicated above. No costs."

With due respect to the said authority, we find in the present case also the similar objections have been raised. While considering the report of the Committee with regard to the fee structure and other allied matters, left the other objections open to be raised in appropriate manner at appropriate time. But with regard to the raising of fees, no doubt the D.A. has been enhanced 100% and such matter has been well dealt by the Committee in its report. So relying upon the aforesaid authority of the Hon''ble apex Court and finding no lapse in the report of the Committee, we accept the report of the Committee and accordingly the contentions of the appellants with regard to the raising of fees and other allied matters being devoid of merit, are hereby jettisoned.

CONCLUSION :

In view of the aforesaid analysis, we are of the considered view that the Respondent-Schools can raise the fees from the year 2014-2015 but not before hand as observed by the Committee. We approve the whole recommendation of the Committee on the issue in question including the sanitary condition and other improvement in the schools. We also direct the Respondent-Schools to do well by implementing other conditions with regard to the increase of development cost and collection of enhanced fees at the appropriate stage of admission of students. We would like to caution the Respondent-Schools authorities for actual payment of salary to the teachers so that the meritorious teachers will not run away and they would impart teaching to the students with their excellence. Their D.A. should be paid as per the manner at para-3 of the recommendation of the Committee. We hereby direct the fee structure in B.J.E.M. Schools-I & II as per paras 19 & 20 of the recommendations of the Committee, be effective from the beginning of the financial year 2014-15. On the whole, we modify the impugned order dated 2.2.2015 passed by the learned Single Judge in W.P.(C) Nos. 6292 & 9663 of 2013 to the extent as discussed above.

The writ appeals are disposed of accordingly.

I. Mahanty, J.

I agree.