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Judgment
Are the respondents instrumentalities really ""pirates on the high sea of education"". The above is the main thrust of the argument of the petitioners.
Education is enlightens. It is this factor which lends dignity to a man. To quota P.B. Gajendragadhar J (as His Lordship then was) ""education
seek to built up the personality of the people by assisting his physical"". University of Delhi Vs. Ram Nath AIR 1963 SC 1873. Article 26 (1) of the
Universal Declaration of Human Rights States ""everyone has the right to education. Technical and Professional Education shall be made generally
available and higher education shall be equally assessable to all on the basis on the merit."" If educational institutions are not business houses then
the question would arise as to whether they can fix the norms of fee with profit motive.
In Kerala State Electricity Board V S.N Govinda prabhu AIR 1986 SC 1999. it was held that a public utility monopoly undertaking should not
be driven by pure profit motive but service should inform its actions. It was observed that the functions of the Board is not to manage its affairs in a
manner as to earn maximum profits. This was a case which dealt with tariffs which were to be charged by the Electricity Board. At page 2209 it
was observed:
The Board may not allow its character as a public utility undertaking to change into that of profit motivated private trading...when that happens the
Court may strike down the revision of tariffs as plainly arbitrary.
Similar concent was shown by the Supreme Court in the case of Oil and Natural Gas Commission V. Association of Natural Gas Consumer
Industries of Gujarat 1991 AIRSCW 1900. To the same extent would be found observations made in die case of Hindustan Zinc Ltd. V A.P.
Electricity Board 1991 AIR SCW 1329. In St. Steefan College V University of Delhi 1992 AIR SCW 1972 the Supreme Court observed:
The educational institutions are not business houses, they do not generate wealth. They can not survive without public funds or private aid.
What was sought to be stressed was that limited as the sources the educational institutional cannot be forced to run their schools without State
Aid.
Right to education is not a fundamental right. However, one cannot overlook that in welfare State it is obligation of the Stale to ensure the
creation and the sustaining of the conditions congenial to good health. Provision for education may be one of these. Providing public schools was
considered to be an apex function of the State in Wisconsin V. Yorder 1972 (32) law Ed 2 Ed 15 873. Earl Warran. CJ Speaking for the US
Supreme Court emphasised the importance of education in the following words:
Today education is perhaps the most important function of the State and local government...It is required in the performance of our most basic
responsibilities even service in the armed forces It is very foundation of good citizenship. Today it is the principal instrument in awakening the child
to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. In these days it is doubtful
any child may reasonably be expected to succeed in life if he is denied the opportunity of education.
In the interest of maintaining standard and for several other valid reasons the commercialisation of technical and professional education shall have
to be curbed. An alternate system shall have to be devised to involve private and voluntary effort in this sector of education in conformity with
accepted norms and goals. Such was the Central Government's policy on education formulated in the year 1986. This was modified in 1992. The
above is extract from paragraph 6.20. Again in paragraph 10.9 it was said non government and non voluntary efforts including social activities
groups will be encouraged subject to provision for proper management and financial assistance. At the same time steps shall have to be taken to
prevent the establishment of institutions set up to commercialise education. Thus the policy is to see that private sector does take part in imparting
education but those who venture only with a motive of financial adventurism without morals and scruples are not to be encouraged. The institutions
whose only aim is to make money driving a hard bargain exploiting the eagerness to acquire knowledge, were termed as 'pirates in the high sea of
education Unikrishnana J.P V. State of Andhra Pradesh AIR 1993 SC 2178. It was in this judgment the Supreme Court emphasised the need to
take regulatory measures so that these ensure that private educational institutions adhere to some norms. The commercialisation of education must
be prevented and it is for the State to see that steps are taken in this regard.
While dealing with the right of the private educational institutions getting State aid the Supreme Court in Unikrishnan's Case (supra) observed as
under:
Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent per cent or partial. So far as aided
institutions are concerned, it is evident they have to abide by all the rules ana regulations as may be framed by the Government and/or recognised
affiliating authorities in the matter of recruitment of teacher and staff, their conditions of service, syllabus standard of teaching and so on. In
particular in the matter admission of students, they have to follow the rule of merit and merit alonesubject to any reservations made under Article
They shall not be entitled to charge any fee higher than what is charged in Governmental institutions for similar courses. These are and shall be
understood to be the conditions of grant of aid.
While dealing with unaided institutions it was observed:
So far as unaided institutions are concerned, it is obvious that they cannot be compelled to charge die same fee as is charged in Governmental
institutions. If they do so voluntarilyit is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the
cost of imparting education from their own donations, charities if any can only be the fees collected from the students. It is here that the concepts of
serffinancing educational institutions and cost based educational institutions come in. This situation presents several difficult problems.. How does
one determine the cost of education and how and by whom can it be regulated? The cost of education may vary even within the same faculty, from
institution to institution. The facilities provided, equipment infrastructura standard and quality of education obtaining may vary from institution to
institution. The court cannot certainly do this. It must be done by Government of University or such other authority as may be designated in that
behalf. Even so, some questions do arise..."" It was further observed:""The question is how to encourage private educational institutions without
allowing them to commercialise the education. This is the troublesome question facing the society, the Government and the courts today.
In Appejay School and another versus N.K Singal 1(1993), Consumer Protection judgments 9, a clause in the prospectus that in case a student
leaves the school within a month his or her admission fee will be refunded to the extent of 1/2 of the annual dues was found to be unreasonable.
The observations made by the District Forum that the practice of forfeiting huge dues without rendering any service is grossly unfair and against the
interest of the public was expunged by the Delhi State Commission on the ground that sufficient foundation was not laid in the complaint for
recording finding in the manner it was done. The Commission, however, took note of the fact that imparting of education is a service and in case
the service is deficient then interference can be made under the Consumer Protection Act.
In the case of P.R Abilash versus Dr. P.J Alexander. Ill (1993) Consumer Protection Judgments, 1297, the complainant had paid Rs
30.000/as capitation fee. The tuition fee was fixed at Rs 6400/. The college in question was not affiliated to the University, the School Management
was directed to pay compensation to the extent of Rs 2 lacs. In case reported as Central Inland Water Transport Corpn Ltd. V Brojo Nath, AIR
1986 SC 1571 the Court took note of the fact that law is not to be permitted to go stagnant, it must be kept fresh by enthusing new concepts. In
para 28. it was observed as under:
The law exists to serve the needs of the Society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it
must reflect the ideas and ideologies of that society. It must keep time with the heard beats of the society and with the needs and aspirations of the
people. As the society changes the law cannot remain immutable, the early nineteenth century easiest and wit, Sydney Smit said, ""When I hear any
man talk of an unalterable law. I am convinced that he is unalterable fool. The law must, therefore, in a changing society march in tune with the
changed ideas and ideologies. Legislature are. however, not best fitted for the rule of adopting the law to the necessities of the time for the
legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad
other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of
necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and consuming to meet the
immediate needs. This task must, therefore, of necessity fall upon the courts because the Courts can by the process of judicial interpretation adopt
the law to suit the needs of the society.
This aspect of the matter has to be taken note of while deciding disputes of the nature raised in the present petition.
It would again be useful to revert back to what was said by the Supreme Court in Unikrishnan 's case (supra). In para 180 while dealing with
the concept of fee two guidelines were indicated it would be useful to notice them. ""The citizen of this country have a fundamental right to
education. The said right flows from Article 21. This right is. however, not an absolute right. Its content and parameters have to be determined in
the light of Articles 45 aha 41. In other words every child/citizen of this country has a right to free education until he completes of age of fourteen
years. Thereafter his right to education is subject to the limits of economic capacity and development of the State
The obligations created by Articles 41. 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own
or by aiding, recognising and/or granting affiliation to private educational institutions. Where aid is not granted to private educational institutions and
merely recognition or affiliation is granted it may not be insisted that the private education institution shall charge only that fee as is charged for
similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee not exceeding the
ceiling fixed in that behalf.
The facts in these two petitions be now noticed. The facts in OWP No: 857 of 1996:
The petitioners submits that in terms of Section 20 of the Jammu and Kashmir Constitution, the State is bound to provide free education to the
citizens of India and more particularly the residents of State of Jammu and Kashmir. It is stated that the University of Jammu and Kashmir has been
created under a statute enacted by the State Legislature. This University is funded by the State as per the petitioner it should not indulge in offering
admission on payment basis. Reliance has been placed on the decision given by the Supreme Court in the case reported as J.P. Unikrishnana Vs.
State of Andhra Pradesh AIR 1993 SC 2178. The grievances which have been made out by the petitioner are:
(i) that only private institutions have been permitted to fill 50% seats which have been termed as payment seats and this concession granted by the
Supreme Court of India cannot be availed of by the University of Jammu and Kashmir:
(ii ) that the govt. institutions cannot indulge in trading in the matter of imparting education.
(iii) that the University authorities have collected moo. than a crore of rupees and this amount is liable to be misused. According to the petitioner,
this requires to be investigated by the Central Bureau of Investigation. The University has filed the return.
A plea has been taken that the question which is sought to be raised in this petition by way of public interest litigation falls outside the concept
of that litigation which can be labelled as public interest litigation. It is. however, stated that the University in question has been incorporated under
Section 4 of the Jaminu and Kashmir University's Act of 1969. It is stated that the university is an autonomous body and is primarily entrusted with
the task of ensuring and upgrading the standard of education in the affiliated colleges and institutions. It is submitted that the University is imparting
education in about 25 disciplines. It is the further case of the University that some grants are made by the University Grants Commission but these
grants have been proved to be insufficient and are barely sufficient to take care of the salaries of the staff and to meet skeletal infract met u re. It is
further submitted that the huge amount is required for raising buildings etc. It is stated that unless and until there is a proper premises available, it is
not possible to impart education, the necessity to upgrade the existing system and to make available the latest technology advancement and also
latest methodology in the matter of imparting education is also being highlighted. It is submitted that all these activities require funds and these are to
be raised mainly by the University itself. It is stated that unless and until funds are available and unless and until requisite equipment is made
available, the students cannot be taught and they would ultimately lack in competition. Details have been given in the written statement with regard
to the separate discipline which are being run by the University and the need to have the requisite resources for running them. It is in these
circumstances, the payment seats were created. According to the University, this was done without interfering with the existing seats, which were
to be filled up from the open merit category.
The very decision on which the petitioner places reliance is being relied upon by the respondentUniversity. It is stated that the basic concept
which is discernible from Unikrishnan's case is to accept payment from the rich and to see that it is used for the benefit of those who are not in a
position to pay but are otherwise meritorious. Thus, the resource crunch is the basic reason given for resorting to the method of imparting
education by creating some seats which are to be filled on payment basis.
The facts of OWP No: 857 of 1996. The writ petitioner in writ petition OWP No: 857 of 1996 was seeking admission to the Course of
L.L.B. (Professional). This course commenced in the year 199697. According to him. an advertisement was issued in 'Daily Excelsior' in August
1996 whereby applications were invited from the candidates desirous of seeking admission to the various disciplines including in the course for
which the petitioner was seeking admission. According to the petitioner, his name was not mentioned in the list of candidates who were granted
admission to L.L.B. (Professional) course under open merit category. He further submits that he was deprived of the admission because 15% of
the seats were reserved for those candidates who were willing to pay and were keen to seek admission against the payment seats. The petitioner
challenges the course adopted by the University interalia on the grounds that the University is bound by the Regulations framed by it and if any
charge is to be brought about by the University, then this can be done only with the previous approval of the Government. For this,, reliance is
places on Sections 5 and 6 of the Jamntu and Kashmir University's Act 1963. According to the petitioner, if the method and the manner in which
the admission was to be given to various candidates was to be altered then there should have been the previous approval of the State Government
as indicated above. In a nutshell, the argument advanced is that the payment seats could be created after receiving requisite approval from the
State Government. Reliance has again been placed on the decision given in Unikrishnan's case and it is urged that the payment seats cannot be
created by the University. The petitioner submits that had the payment seats not been created, then he would have figured in the list of eligible
candidates under normal circumstances.
The respondentUniversity in its objections has submitted that 150 seats were meant for faculty of law. It is further stated that the number of
payment seats in the faculty of law was fixed at 10. This was done on 20th of September 1996. It is further stated that these 10 payment seats are
over and above the statutory intake capacity of 150 candidates in the Faculty of Law. Thus, the stand taken by the University is that 150 seats
which were initially mentioned in the advertisement were filled up strictly and only in accordance with merit criteria governing admission to the Post
Graduate Course in the University of Jainniu. Thus. 150 seats have been filled on merit and not on payment basis. It is only 10 additional seats
which have been filled on payment basis. It is further submitted that the petitioner was unable to come high up in the merit list. He having accepted
seat in payment quota cannot turn around and challenge the system under which he sought admission. It is specifically stated that the last candidate
who was given admission secured 1054 marks out of 1500 marks, whereas, the petitioner obtained only 1027 marks. It is accordingly submitted
that the petitioner was not found eligible and did not come in the merit list.
The stand taken by the University is thus clear. This stand is to the effect that the additional seats were created. These were filled on payment
basis. This was done with a view to meet the financial crunch being faced by the various institutions.
After having carefully considered various catenations put across by the petitioner. I am of the opinion that no fault can be found with the course
adopted by the University. In the case of J.P. Unikrishanan Vs. State of Andhra Pradesh AIR 1993 SC 2178, decided by the Supreme Court of
India, on which case both sides have placed reliance, it has been categorically held that the payment seats can be created and filled up. The
requisite guidelines in the form of scheme are mentioned at page 2247 of the report. Even though the Supreme Court of India mentioned that the
scheme formulated would not be applicable to institutions run by the Government or Universities but at the same time it was observed that payment
seats can be created. In the present case. University authorities are facing financial crunch. They have created additional seats above the normal
quota. What as has been done by the University is within parameters fixed by the Supreme Court of India.
It was further observed that the Government institutions would be at liberty to formulate their own policies in this regard. The Supreme Court
of India has thus approved of payment seats. This has been basically done to see that these institutions are in a position to generate sufficient funds
so that they may provide better educational facilities to not only the candidates who are making payment but also to those candidates who are
coining on merit basis. If the University has also resorted to same method which was found to be valid for private institutions, then no exception
can be given to this. The respondent authorities are not making any profit. Whatever amount is being received by it is going to be spent for the
welfare of the institution, teachers and students. As a matter of fact, it is clear stand of the University that payment seats have been created over
and above the seats which were available on merit basis. This is nothing on the record to show that the respondents University is indulging in any
commercial adventure or is running the is going to come into the coffers of the University is going to be spent for the welfare of the institution i.e. its
building, teachers and the students.
In view of the above I am of the opinion that:
(i) the policy adopted by the University of Jammu does not come in conflict that ideas and thought behind the judgment in Unikrishnan's case.
(ii) the University of Jammu is not making any profit. It is not running institution as a commercial venture,
(iii) whatever amount is going to be received from the students against payment seats is going to be utilized for the welfare of the institution.
(iv) that the payment seats have been created over and above the normal seats. The merit quota thus remain undisturbed. The writ petitioner in writ
petition No: 857 of 1996 was allowed admission subject to certain riders placed by this court. Because of the dismissal of the petition, the
petitioner would naturally have to comply with the terms and conditions which were laid down in the interim order passed by this court.
Accordingly both the petitioners are found to be without merit and are dismissed. There would be no order as to costs.