AI Structured Summary
Not yet generated for this judgment
Judgment
B. P. Dharmadhikari, J
These three writ petitions by Education Institutions duly recognised by State Government receiving grantÂinÂaid challenge discontinuation of
payment of nonÂsalary grants and pray for arrears thereof from 2004Â2005 onwards.
It is not in dispute that during pendency of these writ petitions, on 19.1.2013 the State Government has issued a policy decision which has the effect
of partially restoring nonÂsalary grants. According to petitioners the said resolution dated 19.1.2013 is an eyewash because it wipes out entitlement to
arrears and also pegs down entitlement to arbitrary figure on the basis of salary grant paid on 1.04.2008 that too as per 5th Wage Revision.
Learned counsel Shri.Kulkarni and learned counsel Shri.Naik appearing for respective petitioners have submitted that some what similar issue was
looked into in Public Interest Litigation No. 26 of 2011 decided on 3.4.2013 at Bombay. There question was only in relation to the compulsory
admissions under the Right of Children to Free and Compulsory Education Act 2009. (hereinafter referred to as ''the act of 2009''). However, they
state that logic therein must also apply to grievance of petitioners. They have relied upon Rule 88.1. of Secondary Schools Code to urge that
entitlement of petitioners to nonÂsalary grant springs from said provision.
Though our attention has been invited to documents contained in all petitions, we find it sufficient to note that as per petitioners fact that, they are
entitled to nonÂsalary grants was never in dispute and department accordingly had worked it out during relevant years. Â Such documents are at
annexure PÂ19 to PÂ22 with Writ Petition No. 4876 of 2009.
They submit that the school management are restrained from charging any tuition fees from students taking education as they are receiving grantÂ‐
inÂaid. Management therefore, are required to incur expenditure for various other purposes like holding of test, library books, laboratories and dead
stock. The electricity and water bill is also to be paid. Â NonÂsalary grants are prescribed in Secondary School Code only for that purpose, as the
same are not being paid, petitioners are finding it difficult to maintain and provide all these facilities.
Contention is, if these facilities are not provided, standard of education and teaching is adversely affected. Prayer therefore, is to direct the State of
Maharashtra and other respondents to take immediate decision on payment of appropriate amount towards nonÂsalary grant from the year 2004Â‐
2005 onwards. After 19.1.2013 resolution, by amendment prayer is made to quash and set aside said resolution.
Learned AGP Mr.Tembhare is strongly opposing the petitions. He is relying upon language in GR dated 28th July 2009 to urge that necessary steps
in that respect are already initiated. The State Government has taken a note of the Act of 2009 and amendment to constitution by adding Article 21Â‐
A. In the light of these developments, by that G.R schools which were permitted on permanent nonÂgrant basis were brought on grantÂinÂaid basis.
He is also relying upon judgment reported in the matter of Keraleeya Samajam Vs. State of Maharashtra reported in 2004(2) Mh.L.J.171, paragraph
No.18.
The main contention of learned AGP is obligation is to be discharged by State Government as per its financial position. He points out that due to
financial contingency with great difficulty from 19.1.2013 non salary grants have been made available. He is also relying upon the affidavit inÂ‐
reply filed by respondents.
Perusal of judgment reported at Keraleeya Samajam Vs. State of Maharashtra (supra) shows that it looks into provisions of Article 21ÂA and
Secondary School Code. The petitioners in that matter were allowed to open school on permanent nongrant basis and question looked into is whether
such schools can claim grantÂinÂaid could holds that it cannot be claimed as of right and there is no legal/constitutional right to the same. These
grants are subject to availability of funds with State Government.
In the replyÂaffidavit filed before this Court on 21.1.2010by respondent nos.1 to 3 (State Government) pointed out that its financial position is not
sound. It has then submitted that on 24.11.2001 a cabinet meeting was held on the subject of release of non salary grants and decision to stop the
same from the month of April 2004 was then taken. Â Efforts made to resolve the issue are also briefly pointed out. Â In paragraph No. 5 it is
submitted that State Government decided that till such nonsalary grants are released, miscellaneous expenditure is to be borne by private management.
In latter affidavit filed on 10th March 2010, joint Secretary in School and Education department of Government has reiterated same stand. He has
submitted that proposal was placed before the Cabinet on 22.6.2008 and report thereafter is being considered by State Government. Only development
thereafter, on record is the G.R. dated 19.1.2013.
Said G.R shows brief history and then Cabinet meet inthe year 2008. It mentions that on 31.10.2012 decision to start non salary grants was
taken. This resolution also takes note of obligation cast upon the State Government under the year 2009 G.R mentioned supra.
The resolution dated 19.1.2013 shows that, entitlement tonon salary grants at 5% released to eligible schools is to be counted with reference to
salary grants paid to such schools on 1.4.2008. The further rider added by this resolution is such salary grants should have been as per wages payable
under 5th Wage Revision.
The Wage Revision as per report of 6th Wage Committee became applicable to all employees from 1.1.2006. However, this has been done on
12.5.2008. Therefore, though salary grants are released on the basis of 6th Wage Commissions Report, non salary grants are scaled down to 5th
Wage Revision and quantum as released on 1.4.2008. Not only this, 4% is towards nonÂsalary grants, 1% is towards building rent/maintenance etc.
After mentioning all these factors, State Government has restricted its total liability to amount of Rs. 266.82 crores. Thus, even if total of non salary
grants as per this formula may exceed this amount, government has reserved to it a right to bring it down.
NonÂsalary grants are made available from financial yearcommencing from 1.4.2013. Vide clause 5, this GR declarers that no arrears for nonÂ‐
salary grants from the year 2004Â2005 till 2012Â2013 shall be admissible.
The perusal of Rule 87 of Secondary School Code showsthat apart from salary grants schools are entitled to nonÂsalary grants, building grants
and such other grants as may be sanctioned by Government from time to time. GR dated 19.1.2013 therefore, sanctions 4% as nonÂsalary grants and
1% as building grants. Â Rule 88.1. begins with words which limits responsibility of State Government to the availability of funds. The language
employed in Rule 88.1 shows that subject to availability of funds, petitioners schools are eligible for grants during the year as per formula specified
therein. We are not required to delve into niceties of this formula.
In writ petition No.4195 of 2010, the petitioner has givenin para no.19 heads of expenses for which non salary grants are admissible and
necessary.
   PartÂI â€" Expenses Related to students.
(a) Laboratory apparatus, chemicals, instruments etc.
(b) N.C.C., Scout Guide, R.S.P.etc.
(c) School Library.
(d) Furniture, education material, teaching material.
(e) Scholarships, Prizes.
(f) Computer material.
(g) Continuing Education.
(h) Unit test expenses.
( I) Travelling expenses for participation in competitions.
 (j) Miscellaneous Expenses.
 PARTÂII Expenses Related to Administration.
(a) Printing and Stationary.
(b) Postage and advertisement.
(c) Travelling expenses.
(d) Telephone and electricity bills.
(e) Auditors Fee.
(f) Repairs of office furniture and equipments.
(g) Repairs of building.
(h) Water bills, Garden expenses, washing allowance.
(i) Subscription of teacher's Association.
(j) S.S.C. Board Registration Fee.
(k) Sales tax and General Tax.
(l) Miscellaneous expenses.
 Part III Building Expenses.
(a) Building Rent.
(b) Corporation Tax.
In these writ petitions, on 5th December 2011, we have passed the following order:Â
''Heard the learned counsel for the parties.
In  these  writ  petitions,  the  management  of three Secondary Schools have challenged the decision of the  Director  of  Secondary
 and  Higher  Secondary Education,  rejecting  the  petitioners  applicatios  for permission  to  charge  fees  to  compensate
 School managements  for  non  salary  grants  which  were being released by the State Government.
In  order  dated  29.06.2011,  this  Court had already recorded the submission made on behalf of the petitioners  â€"  School
 Management  that  on account  of payment of non salary grants to aided Schools having been discontinued by the State Government as a
matter of policy decision, the School Managements are finding it  difficult  to  maintain themselves  to  run  the  Schools. This  Court
 also recorded  that  the  petitioner â€" managements were praying for interim relief to permit the  petitioners  to charge  reasonable
 fees  from  the students and ultimately as and when nonsalary grants are released, the additional fees can be refunded to the students. While
 granting  time  to  the  respondents  till 25th July 2011, this Court also observed that in case the State Government does not release non
salary grants, the Court may permit the petitioners to charge reasonable fees  from  its  students  subject  to  the condition  that  in case
 the  non  salary  grants  are sanctioned,  the Government may order refund of the additional fees to the  students  directly.  In
 spite of  aforesaid  order,  the State  Government  has  not come  out  with  clear  policy decision whether it proposes to release
non salary grants to the School managements, who were being paid non salary grants till the year 2004.
In  view  of  the  above,  we  direct  by  way of interim order that in case the State Government does not take a decision for release of
non salary grants to the petitioner â€" Schools by 31 st January 2012, it will be open to  the  petitioner  School  managements  to make
 fresh applications  to  the  Director  of Secondary  and  Higher Secondary Education for permitting them to charge fees so as to
compensate them for loss of nonsalary grants by 15th February 2012. Â If such applications are made, the Director of Secondary and Higher
Secondary Education, is directed to take a decision as expeditiously as possible and in any case by 15 th March 2012, on the basis that the Director
has powers to grant such permission.
List the matters on 6 th February 2012''.
The heads of expenditure mentioned supra therefore, reveal genuineness in demand of petitioners and bonafides of their claim. Â The heads
 show  its  essential character. If funds are not spent on said heads, there will be no effective learning and object behind extending the salary
grants itself will be frustrated. We need not observe anything more in this respect because the accounts of petitioners are duly audited and they are
entitled to nonÂsalary grants which are worked out by Education Department only. In that situation, question is whether after coming into force of
2009 Act the respondents/State can still advance the ground of financial stringency.
The Act of 2009 r/w Article 21ÂA obligates State Government to see that every child up to age of 14 years gets free primary education
compulsory. Not only this, but schools receiving grantÂinÂaid are also obliged to educate the students admitted with them without charging anything.
The State Government through grantÂinÂaid is paying salary of teaching and non teaching staff. NonÂsalary grants were meant to assist and
advance the educational activity undertaken in the school . Heads of expenses noted supra clearly show that if nonÂsalary grants are not paid, it
would be difficult for the school to facilitate the education.
Though, at one stage of arguments respective counselattacked the government policy by urging that because of financial constraints schools were
permitted to be established on permanent nonÂgrant basis, on the other hand, they have been now brought under the scheme where they are entitled
to salary grants. Contention is thus those management, with open eyes have accepted to manage their schools without any assistance from
government, hence providing them salary grants was not necessary. That amount could have been used to pay non salary grants to schools like
petitioners who are dependent on it since they are prohibited from charging any fees from students.
Learned AGP however, pointed out that schools which have started receiving that benefit are not before this Court. He has further submitted that
those schools are also required to admit students under the Act of 2009 and hence, government has taken a conscious decision. We, in this matter are
not inclined to consider this challenge. However, we keep it open for appropriate deliberation in future, if occasion therefor arises.
We find substance in contention of petitioners that after advent of the Act of 2009 and of Article 21ÂA, what was prior being seen as only directive
principles, has now became a duty which must be discharged by State Government. We find that petitioners therefore, have to provide education to
students free of cost and if, that education has to be real and effective, nonÂsalary grants must also be paid to them.
The perusal of GR dated 19.1.2013 shows that Government also has found it essential to release nonÂsalary grants. However, it has pegged it
down to 5th Wage Revision and a date i.e. 1.4.2008. This appears to be done only on the count of lack of funds. When government in paragraph no.5
of that resolution is wiping out demand for arrears from 2004Â2005 till 2012Â2013, we see no justification for relating it with old date and, Â to wage
revision which was not in existence on that date.
The controversy however, cannot be solved by quashing that GR. We, in this situation direct respondents to consider the changed scene in the field
of education and to evolve the proper formula, at least for compensating justly those schools which are established as aided schools and which were
receiving grantsin aid as also nonÂsalary grants till stoppage of non salary grants.
Observations of Hon. Apex Court in Mahatama Gandhi Mission v. Bhartiya Kamgar Sena, (2017) 4 SCC 449 are important. Hon. Supreme Court
observes:Â
 “37. This Court in Unni Krishnan, J.P. v. State of A.P., took note of the fact that “education is the second highest sector of budgeted
expenditure after the defence†and also that it constitutes “3 per cent of the Gross National Product is spent in educationâ€. 38. This Court in
Unni Krishnan (SCC p. 737, para 181) took note of the mandate of Article 41 “to illustrate the content of the right to education flowing from
Article 21†and the fact that: (SCC p. 737, para 182)
 “182. … The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to
provide education is subject to the limits of its economic capacity and development.â€
Finally, this Court held that: (SCC p. 738, para 183)
“183. … the right to education is implicit in the right to life because of its inherent fundamental importance.â€
and therefore an aspect of Article 21 of the Constitution. Parliament endorsed the conclusion of this Court and amended the Constitution to make an
express declaration of the fundamental right to education by inserting Article 21ÂA.
Education is an important factor for maintaining democracy and the economic wellÂbeing of the society. Therefore, the Constitution of India
bestows considerable attention to the field of education. It recognises the need for regulating the various facets of activity of education and also the
need for not only establishing and administering educational institutions but also providing financial support for the educational institutions run by
private/nonÂState actors.â€
Observations of Hon. Apex Court in Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1 also need to be noted. In paragraphs
66 & 67, it statesÂÂÂ
“66. Article 21ÂA was already a part of the directive principles under Article 45 which imposed an obligation on the State to endeavour to provide
within a period of 10 years from the commencement of the Constitution for free and compulsory education for all children until they complete the age
of 14 years. The said article has now been made a fundamental right in Article 21ÂA.
Article 45 has been considered elaborately both in Mohini Jain, (1992) 3 SCC 666 and Unni Krishnan, (1993) 1 SCC 645. In Mohini Jain case this
Hon’ble Court has categorically held that the right to education is concomitant to the fundamental rights enshrined under Part III of the
Constitution. The Court also correctly noticed that the fundamental rights guaranteed under Part III of the Constitution of India cannot be appreciated
and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity inter alia the various freedoms mentioned in Article 19 and
went on to hold that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to
enable the citizens to enjoy the said right. The State may discharge its obligation through State owned or State recognised educational institutions.
When the State Government grants recognition to the private educational institutions which would naturally include unaided institutions (emphasis
averse), it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institutions whether
State owned or State recognised in recognition of the right to education under the Constitution. Therefore, in Mohini Jain, the Court itself virtually
elevated by a process of judicial innovation the directive principles contained in the unamended Article 45 virtually as a fundamental right and a
corresponding duty on the State to provide education to make other fundamental rights meaningful.â€
It is therefore clear that State Government cannot restrainthe Petitioners from charging the proportionate expenditure from the students if it is not
reimbursing the same fully to the Schools. The State is releasing only the salary to the teaching & nonteaching staff. It cannot expect the private
managements to arrange for other essential expenditure by hook or crook ie by deducting it from wages of employees. State is forcing the of
Petitioners to surrender part of their salary or to shoulder part of that expenditure by arranging to pay only meager sum as nonsalary grants to the
Petitioners. Its quantum makes it only illusory & also arbitrary in nature. Formula adopted for its computation is artificial. We cannot accept that the
State Government is effectively releasing the nonÂsalary grants. State Government has to arrange for free education and as such, it has to fully
shoulder expenditure on other heads which are vital or sineÂquaÂnon for their education. When the State Government is not in position to reimburse
the whole expenditure on admissible heads as nonsalary grants, it cannot restrain the Petitioners from charging the students towards it. GR dated
19.01.2013 issued by the State Government is only an eye wash & abuse or high handed use of its power by the State Government. But then We have
found it improper to quash it.
We direct the respondents to take suitable decision in thisrespect within next four months and in any case by 31st January 2019. Â If the decision
is not taken, we direct respondent to audit the account of petitioners school within one month thereafter to find out the expenditure for which nonÂ‐
salary grants can be claimed by them. After that amount crystalises, we permit petitioners to charge proportionately from every student above 14
years the amount on that account from next academic year i.e. 2019Â2020.
The prevalent system as per GR dated 19.1.2013 shall continue till State Government takes suitable decision in terms of above directions, however,
while taking such decision, State Government shall also look into the prayer of petitioners to release to them arrears from 2004Â2005 on wards.
Accordingly, writ petitions are partly allowed and disposed of no costs.