RASHMI EDUCATION TRUST Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) "Education 's purpose is to replace an empty mind with an open one. The function of education is to teach one to think intensively and to think critically. "

(2.) Petitioners in Writ petition No.6313 of 2017 are educational institutions, of which, some of the educational institutions receive grant-in-aid by the respondent-Government; and petitioner No.4 is an unaided educational institution. In this writ petition, petitioners have challenged Sec. 48 of the Karnataka Education Act, 1983 (for brevity hereinafter referred to as 'the Act '), so also, seeking declaration that Rule 10 of the Karnataka Educational Institutions (Classification, Regulation, Prescription of Curricula etc.) Rules, 1995 (for brevity hereinafter referred to as 'Rules 1995 '); and Rule 4 of the Karnataka Educational Institutions (Regulation of Certain Fees and Donations) Rules, 1999 (for brevity hereinafter referred to as 'Rules 1999 '), as unconstitutional and sought for holding that they are ultra vires the Constitution of India. It is the case of petitioners that these institutions are run by private management and some of them are unaided educational institutions, and have availed loan from Banks to run the institution. It is the case of petitioner-Institutions that these institutions depend upon the revenue generated from the fees collected. It is further stated that Rules 1995 and Rules 1999 were challenged before the Division Bench of this Court in Writ Appeal No.3530 of 2001 and connected appeals and this Court, by order dtd. 12/7/2004, disposed of the Appeals with a direction to govern the decision of the Hon'ble Supreme Court in the case of KARNATAKA (R) UNADIDED SCHOOL MANAGEMENT ASSOCIATION AND ANOTHER v. STATE OF KARNATAKA in Civil Appeals No.334-335 of 2004 decided on 11/2/2010, which is pursuant to the law declared by the Hon'ble Supreme Court in the case of T.M.A. PAI FOUNDATION AND OHTERS v. STATE OF KARNATAKA AND OTHERS reported in (2002)8 SCC 481 (for short, hereinafter referred to as "T.M.A. PAI FOUNDATION case "). It is also the case of petitioner-institutions that they are admitting students under the provisions of Right of Children to Free and Compulsory Education Act, 2009 (for brevity hereinafter referred to as 'RTE Act '). It is the categorical assertion of petitioner-institutions that the private unaided educational institutions are different from the aided educational institutions insofar as financial aspects and therefore, the fee structure of these private unaided educational institutions should be distinct and cannot be controlled by the Fee structure imposed by the respondent-State. Despite, these institutions are also extending admissions to the students under RTE Act. Relying upon the judgment in the case of T.M.A. PAI FOUNDATION, petitioner-Institutions urged that these private educational institutions have a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, particularly in respect of admissions to the Institutions, and therefore, these institutions have an autonomy and independence to have their own fee structure. It is the contention of the petitionerInstitutions that as these institutions are not aided or funded by the State-Government and the fee structure of the StateGovernment is lesser than what has been prescribed by the institutions coming under the purview of RTE Act and therefore, Rule 10 of the Rules 1995, which provides for collection of fees, cannot be made applicable to the unaided private educational institutions and accordingly, sought for invalidating Rule 10 of Rules 1995 and Rule 4 of Rules 1999, as ultra vires the Constitution of India, so also, contrary to the law declared in T.M.A. PAI FOUNDATION case. It is the grievance of petitionerInstitutions that frequent interference by the respondentDepartment in relation to charging of fees, matters of admissions of students and other related issues, in terms of the aforementioned Rules, are contrary to the spirit of judgment of T.M.A. PAI FOUNDATION case and such interference is arbitrary and contrary to Article 14 of the Constitution of India and therefore, contended that it is the prerogative of private unaided educational institutions to have their own fee structure and as such, Karnataka Education (Amendment Act), 2017 - Karnataka Act 25 of 2017 incorporating constitution of Committee under Ss. 2(11-A) and 124-A of the Act, providing penalty for contravention of Sec. 48 of the Act, are ultra vires and are liable to be held unconstitutional. It is further stated that there is no independence for these institutions to charge fee reasonably, and as such, Sec. 124-A of the Act, which extends unfettered power to the respondent-authorities, is arbitrary and therefore, it is contended that the Rules framed thereunder is contrary to Article 14 of the Constitution of India. Referring to Rule 10 of the Rules 1995, petitioners have stated that the said Rule provides for only certain kind of fees that can be charged by educational institutions, however, Rule 10(2)(b)(ii) provides that quality of education being the criteria in arriving at the fee structure and as the quality of education being an objective, Rule 10 of the Rules 1995 would come in the way of fees to be charged by the unaided educational institutions and therefore, it is stated that any such interference made by the State-Government with the functioning and managing of the private unaided educational Institutions, would violate Articles 14 and 19(1)(g) of the Constitution of India.

(3.) In response to these writ petitions, respondentGovernment entered appearance and filed detailed statement of objection. While justifying the Notification dtd. 18/5/2018, it is stated that the said Notification has been issued in terms of Sec. 145 of the Act taking into account the interest of Children and to control the educational institutions from charging capitation fee and becoming profit motive. It is further stated that the impugned Notification/Amendment/Rules have been made under regulatory measures of the State Government to forbid charging of capitation fee and profiteering and as such, sought for dismissal of the writ petitions as the impugned provisions are in accordance with the dictum in T.M.A. PAI FOUNDATION case.