ASSOCIATION OF INTERNATIONAL SCHOOLS AND PRINCIPALS FOUNDATION AND ANOTHER Vs. STATE OF MAHARASHTRA AND ANOTHER

JUDGEMENT

(1.) Rule. Rule made returnable forthwith.

(2.) Petitioner No. 1 is an association of private unaided minority and private unaided school who run International Curriculum Schools. The petitioners have filed this petition challenging the Constitutional validity of sections 2 and 4 of the Maharashtra Educational Institutes (Prohibition of Capitation Fees) Act, 1987 as also challenging the validity of Government Resolution dated 15-7-2010 and 22-7-1999. The subject-matter of the Government Resolution dated 15-7-2010 is regulation of fees that are charged in unaided secondary schools. The subject-matter of Government Resolution dated 22-7-1999 is also the same. It is the case of the State Government that these Government Resolutions have been issued in exercise of its power under the Maharashtra Education Institutes (Prevention of Capitation Fees) Act, 1987, hereinafter referred to as "Act" for the sake of brevity) including section 13. Perusal of the G.R. dated 15-7-2010 shows that it refers to the provisions of section 4(3) and section 2 of the Act and states that the Government Resolution contains instructions about fees that can be charged by the unaided secondary schools affiliated to State Education Board as also other Educational Boards. The Petitioners challenge the validity of these Government Resolutions on various grounds including the ground that such instructions and/or directions could not have been issued by the State Government. Perusal of the Government Resolution dated 15-7-2010 shows that it refers to Government resolution dated 22-7-1999. Perusal of Government Resolution dated 22-7-1999 shows that it has been issued by the State Government to regulate fees that are charged in the unaided and aided education institutions. The Government resolution dated 15-7-2010 sets out two committees one under the chairmanship of Divisional Deputy Director of Education and another under the Chairmanship of Director of Education for the purpose of approving the fees that are to be charged by the schools. If the appeal is to be preferred against the decision of the committee headed by the Divisional Deputy Director of Education, then the concerned institution may prefer such appeal before the State Level Committee headed by the Director of Education.

(3.) So far as challenge to the provisions of the Act is concerned the Petitioner relied on the judgment of the Supreme Court in the case of T. M. A. Pai Foundation and others vs. State of Karnataka and others, 2002 8 SCC 481. It is submitted that the eleven Judges Bench of the Supreme Court in its Judgment in T.M.A. Pai Foundation (supra) has held that establishing secondary school is a fundamental right guaranteed by Article 19(l)(g) of the Constitution of India. Therefore, first challenge to the Government Resolution is that these schools have been set up by the Management in exercise of their fundamental right guaranteed by Article 19(l)(g) of the Constitution. Reasonable restrictions on their right can be placed by law. Relying on the observations of the Supreme Court in its judgment in the case of State of Bihar and others vs. Project Uchcha Vidya, Sikshak Sangh and others, 2006 2 SCC 545 it is submitted that reasonable restrictions on the fundamental right guaranteed under Article 19(l)(g) can be placed only by law enacted by Legislature and not by executive instructions issued under Article 162 of the Constitution of India. The learned counsel also took us through the judgment of the Supreme Court firstly in the case of Islamic Academy of Education and another vs. State of Karnataka and others, 2003 6 SCC 697 and then judgment of the Supreme Court in the case of P. A. Inamdar and others vs. State of Maharashtra and others,2005 5 SCC 537 to contend that these two judgments considered the judgment of the Supreme Court in T.M.A. Pai Foundation case only insofar as it relates to professional colleges are concerned and that it did not consider that part of the judgment of the Supreme Court in T.M.A. Pai Foundation case which deals with secondary schools. The learned counsel appearing for the Petitioner, insofar as validity of the provisions of the Act challenged in the petition, submitted that the provisions are violative of fundamental right guaranteed by Article 19(l)(g) of the Constitution. He submits that the Supreme Court in its judgment in the case of T.M.A. Pai Foundation has in terms held that insofar as secondary schools are concerned, the decision on the fee to be charged has to be left to the private educational institution which do not depend on any aid from the State Government. It is submitted that the provisions in the Act in relation to the approval of fees by the State Government which are to be charged by the unaided institutions is contrary to the judgment of the Supreme Court in T.M.A. Pai Foundation case. He relied on the observations of the Supreme Court in Paragraph 56 of that judgment. The learned counsel also invited our attention to the order passed by the Supreme Court in W. P. No. 2460 of 1982 dated 11-3-2003 in the case of Andheri Education Society and anr. vs. State of Maharashtra to contend that the Supreme Court has directed that all statutory enactments should be suitably amended to bring them in line with law laid down by the Supreme Court in T.M.A. Pai Foundation case.