Petitioner Shri Shertha Kelavani Mandal is an educational trust registered under the Bombay Public Trusts Act, 1950 and is running Smt. J.M.G. High School having a primary section with two classes each of Standard Vth, VIth and VIIth. The petitioner by way of this petition under Article 226 of the Constitution, challenged Government Resolution dated 02.06.1999, whereby the aided private primary schools were required and directed to charge Rs.30/ as fees per student where the school is situated in rural area, and Rs.45/ per student where the school is in urban area. The school run by the petitioner, being in rural area, was required to deposit the fees at the enhanced rate of Rs.30/.
1.1 It was the case of the petitioner that before the impugned resolution hiking the amount of fees, the fees charged was between Rs.6/ to Rs.8/ for Vth to VIIth standards, and that as per Government Resolution dated 29.06.1977, the aided primary schools were prohibited from charging fees more than Rs.15/ per month per student. It was stated that as the petitioner could not collect the fees at the enhanced rate and consequentially could not deposit the amount, the District Education Officer withheld the salary of primary teachers of the school from March 2000 on the ground of non compliance of the conditions of the G.R.
1.2 The impugned resolution dated 02.06.1999 was assailed raising various grounds in the petitioner interalia that village Shertha, where the school was situated, was mostly populated by economically backward class and the enhanced rates of fees were too high to be borne and paid by the rural poor students. Petitioner also relied on Article 45 of the Constitution and submitted that the state is obliged to provide free and compulsory education to all the children below the age of 14 years. It was submitted that the resolution in question was passed without affording any opportunity of hearing and most of the schools including the petitioner school did not know about it.
2. The below quoted adinterim relief which was granted by this Court by order dated 08.08.2000 while admitting the petition, has continued till date.
“Pending this petition, the respondents are directed not to withhold any amount of grant against either salary grant or maintenance grant due and payable to the petitioner on account of its failure to charge fees of Rs.30/ p.m. from its pupils. If any amount of grant is withhold, on the above referred ground, the same shall be released within a period of 30 days from the date of receipt of copy of this order. The registry is directed to send the writ forthwith.”
3. Today when the present petition was posted for final hearing, learned advocate Mr. N. V. Gandhi appeared for the petitioner. Learned Assistant Government Pleader was present on behalf of the State. Mr.Gandhi submitted that the very resolution dated 2nd June 1999 impugned in the petition was challenged before this Court in Special Civil Application No.6445 of 1999 and cognate petitions [Baroda City Grantable Pvt. Primary Schools Management Asso. vs. State of Gujarat], and invited attention of the Court to the order dated 06.03.2003 passed therein. By that order this Court required those petitioners to make a representation to the State Government in the subject matter of the grievance, and directed the State Government to consider and decide it on or before 30th June 2003 by a speaking order. It was however pointed out that the State did not decide representation within the time prescribed, therefore, Miscellaneous Civil Application No. 1313 of 2003 for extension of interim relief was filed by the original petitioners, which was allowed by order dated 14.08.2003 and the Court extended interim relief and further directed that it would operate for further 15 days from the date of the decision.
3.1 Learned advocate drew attention of the Court to another oral order dated 16.09.2005 in the Special Civil Application No.17604 of 2003 and cognate petitions wherein also the challenge was on the same issue. However, as the order impugned in that petition was withdrawn by authorities, the petition was withdrawn. While permitting the withdrawal, this Court directed again that decision on the pending representation pursuant to the judgment and order dated 06.03.2003 in Special Civil Application No.6445 of 1999 and others be decided expeditiously and preferably within four weeks.
3.2 Learned advocate for the petitioner submitted that despite repeated directions of the Court in two matters as above, the State Government has not taken any decision on the representation made as above so far. He, however, fairly submitted that since this petition also involves an identical challenge, the petitioner would prefer to make a representation to the authority. He submitted that since the earlier representation has remained undecided since long, the Court may require the respondents to scrupulously adhere to the time limit which now may be set down for deciding the petitioner's representation.
4. It may be pertinently noted that in the common oral judgment in Special Civil Application No.6445 of 1999, while directing the respondents to decide the representation, the Court had made following observations.
“3. The gravamen of the challenge is that the education for children under the age of 14 should be free. Instead, under the impugned Resolution the minimum fees determined by the State has been raised. There has been fivefold increase in the minimum fees to be charged from such students. The action of the State Government is violative of the directive principles enshrined in Article 45 of the Constitution of India and is contrary, to the observation made by the Hon'ble Supreme Court in the matter of State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees & Ors. [1995 (4) S.C.C. 507] and in the matter of Mohini Jain v. State of Karnataka & Ors. [1992 (3) S.C.C. 666]. It is also submitted that the students who have been admitted to the schools run by the petitioners are from the lower strata of the Society. Their parents are unable to bear even the meagre fees of Rs.6/ every month. Most of the petitioner schools are situated in the rural areas where they do not charge any fees from the students. It is, therefore, not possible for the petitioners management to deposit a sum of Rs.30/ per student by way of fees received from the students. The standard of fees determined by the State Government is impracticable. The State Government has failed to take into consideration the relevant facts such as the capacity of the parents to pay fees even for primary education of their wards.
4. On the facts and in the circumstances of the case, I am of the view that the issue can be resolved by the State Government alone. No details of the expenditure incurred by the State Government in respect of the number of primary schools run by the State, number of primary schools run by the private management with the aid of the State and the extent of such aid given by the State to the number of primary school students in the State, are before this Court. In absence of any such relevant materials before the Court, the Court could not be in a position to decide the matter at issue.”
4.1 The representation made pursuant to above order of this court has not been still decided even after passing of more than nine years. It represents a sorry state of affairs. As the present petitioner involves/has raised same challenge and when in the previous petition this Court has relegated those similarly situated petitioners to make a representation, and the matter is already at large for appropriate decision before the authority, it will be proper and expedient that the present petitioner also makes a necessary representation to the State Government.
5. Accordingly, the petitioner is allowed to make a representation to the State Government within 15 days from the date of receipt of certified copy of this order. It is further observed that while making a representation, it would be permissible for the petitioner to refer to and rely on the previous orders of this Court and the observations therein, as well as such other additional facts and the law as may have bearing on the subject matter. The competent authority of the State Government is directed to consider and decide the representation of the petitioner expeditiously and in any case within six weeks from the date of receipt of the representation, and shall communicate the decision to the petitioner by Registered Post Acknowledgment.
6. It is further observed that the interim relief granted by this Court in the instant petition by order dated 8th August 2000 shall continue to operate till the State Government takes a decision on the petitioner's representation. It is further clarified that in event the decision is adverse to the petitioner, the petitioner shall be at liberty to challenge such decision before appropriate Court / forum in accordance with law by filing appropriate proceedings. It is further directed that in case of an adverse decision, the interim relief shall continue for further period of 15 days from the date of communication of such decision.
7. This Court has not gone into or expressed any opinion on the merits, and the competent authority of the State Government shall take its own decision on petitioner’s representation in accordance with merits.
Subject to the above observations and directions, the petition is disposed of. Rule is made absolute to the aforesaid extent. No costs.
Amit [N. V. ANJARIA, J.]