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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF JANUARY 2016

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

WRIT PETITION No.35134/2014 (EDN-RES) BETWEEN: KENDRIYA VIDYALAYA PARENTS ASSOCIATION BEML NAGAR, KGF REP. BY ITS PRESIDENT AT ANUSHREE COMPLEX GANESH TEMPLE STREET M V NAGAR, BEML NAGAR, KGF DISTRICT, KOLAR-563115

... PETITIONER

(BY SRI. N S BHAT, ADV.) AND:

1. KENDRIYA VIDYALAYA BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ITS PRINCIPAL

2. VIDYALAYA MANAGING COMMITTEE

KENDRIYA VIDYALAYA BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ITS CHAIRMAN

3. BHARAT EARTH MOVERS LIMITED

BEML NAGAR KOLAR GOLD FIELDS-563115 REP. BY ASST. GENERAL MANAGER (HR)

4. THE DEPUTY COMMISSIONER

KENDRIYA VIDYALAYA REGIONAL OFFICE KAMARAJ ROAD BANGALORE

®

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5. THE MEMBER HUMAN RESOURCES DEPARTMENT GOVT. OF INDIA K V M C BEML NAGAR, P. O. KGF-563115

... RESPONDENTS

(BY SRI. K G RAGHAVAN, Sr. COUNSEL FOR SRI ANIRUDH KRISHNAN & SRI NISCHAL DEV, ADVs. FOR R2 & 3 SRI VISHNU BHAT, ADV. FOR R1 & R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DECLARE THE IMPUGNED CIRCULAR DATED 26.3.2014 VIDE ANN-F ENHANCING THE TUITION FEE W.E.F. APRIL 2014 FROM NON-BEML WARDS ISSUED BY THE R-1 CITING THE LETTER DATED 17.3.2014 OF R-2 AS ILLEGAL, UNILATERAL, UNCONSTITUTIONAL, UNENFORCEABLE AND TO QUASH THE SAME AND ETC.

THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :

ORDER

The petitioner Association is before this Court

assailing the Circular dated 26.03.2014 (Annexure-F)

whereby the Tuition fee for Non-BEML Wards has been

enhanced. A declaration is also sought to the effect that

the same amounts to discrimination.

2. The petitioner association is formed to protect

the welfare of the students studying in Kendriya

Vidyalaya, BEML Nagar, KGF (‘The KV’ for short). The

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present grievance being put forth by the Association is

on behalf of the Wards of Non-BEML employees who are

studying in the KV. The KV has provided admission to

both the Wards of BEML (‘Bharath Earth Movers Ltd’ for

short) employees as also to the other residents of the

area. Since the KV is being sponsored by BEML and the

expenses towards running the School is met by them,

the fee for imparting education to the children is to be

fixed by them. The Tuition fee had been fixed at an

earlier instance in the year 1982. While enhancing the

fee through the impugned Circular dated 26.03.2014,

the enhancement made is only in respect of Non-BEML

Wards. The existing fee inclusive of the Tuition and

computer fee is at Rs.600/- per month. The Tuition fee

has been enhanced by Rs.1,500/- per month which

would make the present enhanced fee payable at

Rs.2,100/- per month for standards I to VIII. The fee

fixed for standards IX and X is Rs.2,300/- for boys and

Rs.2,100/- for girls. The grievance of the petitioners is

that such enhancement for only Non-BEML wards

amounts to discrimination, even otherwise the fee as

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enhanced from Rs.600/- per month to Rs.2,100/- per

month is excessive and without basis.

3. The gist of the objections filed by the third

respondent is that the first and third respondent have

reached certain understanding amongst themselves for

establishment of the school and with regard to the

obligations of the third respondent to establish and

maintain the school facilities. In that view, the third

respondent is required to provide all the infrastructure,

meet the salary of the staff and also the facilities to the

staff. The expenses therefore are to be wholly met by

the third respondent and as such the first respondent

has left it to the discretion of the third respondent

relating to the fee structure etc. It is their contention

that the fee structure had not been revised admittedly

for nearly three decades and if in that light the

enhancement is taken into consideration, the same is

not excessive. Further the third respondent being

public sector will also have to keep in view the outgoing

expenses without affecting the resources of the

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company and the enhancement is made as a part of the

expenditure management.

4. Insofar as the decision taken to enhance the

fees only in respect of Non-BEML Wards, it is contended

that the benefit of providing the school for the children

of the BEML employees is as a welfare measure. Hence

if the enhancement of the Tuition fee in respect of such

Wards was also taken, it would have altered one of the

service benefits which was being given to the employees

of the third respondent. However, insofar as the

Non-BEML Wards, the very admission given to them in

the School is a concession as there is no obligation to do

so. Therefore, in such circumstance, when the third

respondent is incurring huge expenses to run the

School and in that light, when admission is provided to

them, they should make the contribution to the limited

extent at least by paying the reasonable fee which has

been fixed which is similar to the fee fixed by other

projects. It is therefore contended that the writ petition

is without merit as the two sets of students are not

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similarly placed and as such the petitioner cannot plead

discrimination.

5. In the light of the rival contentions, I have

heard Sri N.S.Bhat, learned counsel for the petitioner,

Sri K.G.Raghavan, learned senior counsel appearing for

Sri Anirudh Krishnan, learned counsel for respondents

No.2 and 3 and Sri Vishnu Bhat, learned Central

Government counsel for respondents No.1 and 4 and

perused the petition papers.

6. At the outset, it is to be noticed that though

the petitioner is Parents’ Association of KV and the

issue relates to the fee structure of the students

admitted to KV, the fact that the KV in the instant case

is sponsored and is being run by BEML which is a

public sector undertaking is evident. The establishment

of the School is based on the understanding reached

between the KV and BEML. To aid the establishment of

the School, the Board of Directors of BEML in their

meeting held on 27.05.1981 resolved that the KV

Sanghatan may open the KV at BEML Nagar Township

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and further resolved that the third respondent will bear

the entire costs that is recurring and non-recurring

expenditure including proportionate overhead charges

and future developmental expenditure and also to

provide suitable land, building, furniture, equipment as

also the residential accommodation for the staff of KV.

In that view, a meeting was held between the

representatives of the third respondent and the

representatives of the first respondent-KV on

26.08.1981 relating to the proposed opening of the KV

at BEML Campus at KGF. In the said meeting the

conditions with regard to the admission, recruitment of

staff and the issues relating to the infrastructure were

agreed. Insofar as admission in the case of KV in public

sector undertaking where all recurring and non-

recurring costs are met by sponsoring authority, the

priority of admission to the different categories were

also agreed upon. The children of the public sector

undertaking was considered as the first category and

thereafter the category of children of Government

employees holding transferable posts. As a last category

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the children of other floating population which includes

civilian population desirous of joining the pattern of

studies adopted in KV are to be given admission. The

BEML Wards therefore fall under the first category while

the Non-BEML Wards fall under the other categories.

7. The Education Code for KV contains the

stipulations which provides for the manner in which the

KVs are to be conducted and the guidelines for the

same. Chapter XV of the Code relates to the fees and

funds etc. Article-118(d) therein is relied upon by the

second and third respondents to justify their present

action. In Article 118 relating to Tuition fee, the clauses

(a) to (c) relates to Tuition fee to be charged in KV run

by the Sanghatan while in clause (d), it refers to the KV

run by public sector undertakings, as in the case on

hand. It would be appropriate to extract that portion for

better understanding:

“Article 118. Tuition fee:

a) XXXX

b) XXXX

c) XXXX

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d) Public Sector undertakings may prescribe

such scale of fee to be charged from students

of various classes as they may consider

appropriate in Kendriya Vidyalayas under

their sponsorship. This has been done in

order to help the projects to meet their

commitments to Kendriya Vidyalayas.”

8. In the light of the above, the second and third

respondents have further relied upon the order dated

12.11.1999 issued by the KV Sanghatan

(Annexure-R5). The said order is passed relating to

introduction/adoption of differential fee structure for

KVs in project sector. The relevant portions of the order

read as hereunder:

“It has now been decided to permit the

sponsoring authorities of the project sector

Kendriya Vidyalayas to adopt a fee structure

and charge/prescribe such scale of fee to be

charged from such classes of students as

they may consider appropriate in the

Kendriya Vidyalayas under their

sponsorship.

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3(i) The project authorities who have

sponsored Kendriya Vidyalaya would

prescribe such scale of fees to be charged

from the students as they may consider

appropriate. This they would decide, keeping

in view the money that is required for running

the school and the amount they would like to

contribute for the same. In case it is felt that

the entire amount of expenditure should be

realised by way of fees and the School should

be self-financing, the project authorities would

have the option to do so. “

9. If the above aspects are taken note, the very

manner in which the KV has been set up in the campus

of the third respondent public sector undertaking will

establish that the same has been done primarily with

the object of providing school facilities to the Wards of

the employees who are working in BEML. No doubt,

when such School is established, the other legal and

statutory obligations with regard to providing right to

free education etc are to be followed. The admission to

the Non-BEML Wards is provided as an additional

facility to the persons residing in the area and such

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admissions would be made if seats are available after

providing admission to the priority categories in the

order provided in the minutes of discussion dated

26.08.1981 (Annexure-R2).

10. When the primary object of establishing KV in

the campus of the third respondent is to provide school

facilities to the Wards of BEML employees and in that

light when the third respondent considers the same to

be a benefit provided as a welfare measure and in that

sense when they have priority in seeking admission,

such of the Wards cannot be considered to be similarly

placed as that of the Wards of Non-BEML

employees/civilians. This is more so insofar as the

fixation of fee is concerned since the Sanghatan which

has permitted the establishment of the School has itself

taken into consideration the recurring and non-

recurring expenses incurred by a public sector

undertaking which is considered as the sponsoring

authority and has allowed the discretion of adoption of

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differential fee structure. Such order permitting the

same is not under challenge.

11. In the said circumstance, when the third

respondent incurs all the expenses for running the

school and when such expenses are incurred in order to

provide an additional facility to its employees by

ensuring educational avenues to their Wards at a

concessional fee, a person who is not of the same

category cannot seek for such concession when a

different fee is fixed. The two sets of students not being

similar in all respects cannot therefore be considered as

having been discriminated upon.

12. The learned counsel for the petitioner has

however relied on the order dated 18.12.2004 passed by

a learned Single Judge of this Court in

W.P.No.17355/2004 - Sri P.Raveendran -vs- Union of

India and Others. Having perused the order, it is seen

that though similar contentions urged herein also were

taken note, it cannot be considered as being done in

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similar context. Further, the learned Judge had arrived

at the conclusion mainly being guided by the mandate

contained in Article 21A of the Constitution of India in

the background of the relief claimed by a single student.

However at this point, in order to further such mandate

the Right of Children to Free and Compulsory Education

Act, 2009 ('RTE Act' for short) has been enacted. In that

view, the right to free education has been qualified and

specified under that Act and the consideration herein is

about the students who are not covered under the RTE

Act.

13. If the above noticed aspect is kept in view, the

decision of the Division Bench of the High Court of

Delhi in the case of Social Jurist, A Civil Rights

Group -vs- Kendriya Vidyalaya Sanghatan and

Another [(2013) 205 DLT 659 (DB)] relied on by the

learned senior counsel for the respondents will be

relevant. In the said decision the Division Bench after

referring to the relevant provisions of the RTE Act in the

backdrop of the mandate in Article 21A of the

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Constitution of India has taken note of the extent of

school's responsibility for free and compulsory

education as contained in Section 12 of RTE Act. In that

view, it is held therein that the KV school being run by

the project authority and not being financed by the

Government of India was entitled to a differential fee

structure. While saying so, it was also noticed that in

KV no fee was being charged from children admitted

under twenty five per cent viz., RTE admissions. To the

same effect is also the decision of a Division Bench of

the High Court of Kerala in the case of Kendriya

Vidyalaya Parents Association -vs- Union of India(

ILR2014(3)Kerala 861). In the instant case also,

Annexure-A to the impugned circular dated 26.03.2014

(Annexure-F) indicates that children admitted under

RTE Act are exempted from payment of fee. As such the

obligation as enjoined in law is not offended by the

impugned circular.

14. Therefore, the other question is as to whether

there could differential fee fixation between two sets of

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students in the facts and circumstances of the case or

as to whether it is in violation of Article 14 of the

Constitution of India? The said issue had also arisen

for consideration before the Division Bench of the Delhi

High Court in the case of N.R.Choudhary -vs- Ministry

of Human Resource Development & Ors. [(2003) 103

DLT 389 (DB)] wherein the differential fee structure

between Wards of NTPC employees and Wards of non-

NTPC employees was considered and was held as

hereunder;

“7. From the fact that the Kendriya Vidyalaya

established by the public sector undertakings,

respondent No.1 neither bears the capital cost

incurred for establishing the school nor meets

the annual expenditure for running and

maintaining the school, the decision taken to

allow these schools to charge fee from their

students, to meet the cost of running the

school, cannot be said to be arbitrary or

unreasonable. There is no legal obligation

upon any public sector to impart free

education. As part of its larger social

obligation, if a public sector undertaking

establishes a school, it would be fully entitled

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to charge fee from the students of the school.

Further, a decision clubbing the students of

the school into two categories i.e., wards of

the NTPC employees and wards of Non-NTPC

employees cannot be said to be arbitrary.

The classification is fair and reasonable and

is based on a valid criteria.”

15. If in the above backdrop, the manner and the

object with which the KV school in the BEML township

was set up, the entire funding being by the third

respondent and there being no absolute right of

admission for non-BEML wards is taken note, the

classification of the two sets of students for fixing the

fee structure will have to be accepted as intelligible

differentia as they are not similarly placed. If that be so,

the different rate of fee fixed for them cannot amount to

discrimination and will not offend Article 14 of the

Constitution of India. Hence, the decision of the Hon'ble

Supreme Court in the case of Subramanian Swamy -

vs- Director, Central Bureau of Investigation and

another [(2014) 8 SCC 682] relied on by the learned

counsel for the petitioner to contend violation of

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Article 14 of the Constitution of India will not be of any

assistance as it was rendered in a totally different

context. In fact, in the very case the Hon'ble Supreme

Court has observed, whether an enactment providing

certain procedure is discriminatory and violative of

Article 14 of Constitution must be determined in its own

context.

16. Therefore, if all the above aspects are taken

into consideration, the impugned circular dated

26.03.2014 (Annexure-F) does not qualify as being

discriminatory and hence does not offend Article 14 of

the Constitution of India. The second and third

respondents would therefore be entitled to collect

different set of fees from the parents of BEML Wards

and Non-BEML Wards.

17. Despite the same, the next issue that would

arise for consideration is as whether the quantum of

enhancement made from Rs.600/- per month to

Rs.2100/- month is excessive or exorbitant? The

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learned senior counsel for the respondents would

contend that the Courts will not go into the economics

of the decisions in financial matters. Though such

contention is put forth, in the instant case, the question

arising for consideration is not a business proposition in

that sense in a commercial litigation but is about the

educational avenue of young citizens and as such the

reasonableness of the decision can be considered by

this Court to the extent of ensuring that it is not

arbitrary, unreasonable or whimsical.

18. In that regard, to justify the decision, it is

contended that in order to ensure that the public sector

undertaking does not suffer financial setback it has

been undertaking expenditure management through

economy measures and rationalisation of expenditure.

In that view, it is contended that since huge expenditure

is incurred for the salaries and recurring expenses, the

tuition fee which had not been increased from the year

1982 is revised and the fee fixed is similar to the fee

being charged in other project schools. Even that be the

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position, on the face of it, the increase if noticed is

about 300%. No doubt, if it is spread over for the entire

period from the date the fee had been fixed for the last

time to the present revision, it may not look to be

unreasonable.

19. However, in my considered view, such

consideration may not be appropriate in a matter of the

present nature, because it is not the same student who

would be enjoying the facilities for the entire duration

when the fee was not revised. Several students of Non-

BEML category would have studied and left but the

students who are presently studying should not bear

the brunt all of a sudden. If the increase is gradual, the

fee as on joining the course and increase thereafter will

be acceptable. The explanation offered that such

amount is required to be collected as the teacher's

salary etc should be met and as such the increase is

imminent will lead to a situation as if the fee collected

from the non-BEML Wards is used for subsidising the

fees of the BEML Wards, thereby it will have to be

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inferred that the quantum of increase is not reasonable.

In the instant case, whether the students of the other

categories are there or not, the third respondent in any

event is required to run the school for BEML wards and

incur the expenses. When such obligation exists and

they cannot shutdown the school in view of

rationalisation in the company’s expenses, before taking

a decision to indicate the quantum of increase and that

too to one set of students, there were several other

factors which required consideration namely the total

number of students, among them, the ratio between the

BEML and Non-BEML Wards. From out of those

students, who are the ones who have been given the

exemption of fees including under RTE and if all such

categories are accounted for, what would be the final

number of Non-BEML Wards on whom the company is

incurring the expenses and in that light, if the fee is

enhanced, to what extent will it cover the expenses.

20. In that light, an assessment was also required

to find out the financial status of the students who have

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been admitted under Non-BEML Wards category

because when such steep increase is made, it may even

force some students to leave the school being unable to

afford. On all these aspects, the respondents have not

indicated about such consideration having been made

either before the decision was taken nor has it been

explained in the objection statement except indicating

the rationalisation of the company’s finances. Being a

public sector undertaking and when the increase is

sought to be justified on the ground of expenditure

management of the Company as a whole, the benefit

that the Company will derive by such increase in fee

structure to few students is also an aspect which

required consideration at the hands of the third

respondent.

21. Therefore, on an overall consideration, though

the differential fee structure is not discriminatory and

the circular dated 26.03.2014 (Annexure-F) does not

call for interference on that ground, the quantum of the

increase made in the fee does not justify the reason for

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which it was done due to lack of application of mind to

the aspects as pointed out above. Hence, in this regard,

it will call for reconsideration by the second and third

respondents. To enable the same, the circular dated

26.03.2014 (Annexure-F) is quashed with liberty to the

second and third respondents to redo the same in

accordance with law.

The petition is disposed of in the above terms with

no order as to costs.

Sd/- JUDGE akc/bms