Y.K. Sabharwal, ACJ.

1. There has to be an element of public benefit or philantrophy in the running of the schools. The schools are to be run for public good and not for private gain. The object has to be service to the Society and not to earn profit. The public benefit and not private or benefit to a favoured section of the Society has to be the aim. Keeping these aims and objects in view the schools are required to also follow and comply the provisions of the Delhi School Education Act (for short the Act') and the 'Rules framed thereunder (for short the Rules') as also the affiliation Bye-laws framed by Central Board of Secondary Education ('the Board' for short). The schools are also required to comply the conditions upon which the land may be allotted to it by a public authority on concessional rates for setting up of a school building and its playground etc.

2. The bone of contentions in these petitions is the order issued by the Director of Education. The Director of Education: Delhi, has issued an order dated 10th September, 1997 requiring Management's/Managers of all recognised unaided schools in National Capital Territory of Delhi to observe directions as under:

1. No Registration Fee of more than Rs. 25 (Rupees twenty five) per student prior to admission shall be realised.

2. No Admission Fee of more than Rs. 200 (Rupees two hundred) per student at the time of initial admission shall be realised. Admission /Fee shall not be realised again from any student who is once given admission. The Admission Fee realised from any student exceeding Rs.200 (Rupees two hundred) in the academic year 1997-98 shall be refunded to the parents / students within 15 days of the date of the issue of the direction.

3. No caution money/security of more than Rs. 500 (Rupees five hundred) per student shall be realised. The caution money thus collected shall be kept deposited in a scheduled Bank in the name of the concerned schools and shall be refunded to the school at the time of his/her leaving the school along with Bank interest thereon. The caution money collected in the session 1997-98 exceeding Rs.500 shall be refunded to the parents/ students within 15 days of the issue of the directions.

4. No separate science fee or computer fee shall be realised from any student upto the secondary stage.

5. The fee structure of the school (excluding admission fee, caution money, science fee and computer fee) shall be reviewed in a meeting having the proper representatives of parents and the nominee of the Director of Education, to consider the feasibility of reducing the fees and funds keeping in view the actual financial requirement of the school.

3. This order also sought to clarify that the rates of tuition fee shall remain the same as on 31st March, 1997 for the remaining part of the current academic session. It shall not be increased, unless, it is found that the accumulated funds are not sufficient to meet with the liabilities, if any, for implementing the recommendations of the Central Fifth Pay Commission and unless the representatives of the parents / teachers associations and the nominee of the Director of Education are associated with such decisions. The order further stipulates that the fees and funds collected from the parents shall be utilised strictly in accordance with the Rule 177 of the Rules. No amount whatsoever shall be transferred from the recognised unaided school fund of a school to the society or the trust as the case may be running that school nor shall any expenditure be incurred, which is not beneficial to the students or the employees of that school.

4. The writ petitioner (C.W. 3723/97) claims that it is a federation to whom various parents' associations all over the country are affiliated. Amongst others 10 such parents' associations, namely, Larcers Convent Parents' Association, MSMS Parents' Association, Parents' Association in the Meera Model School, Parents' Association DAV School Dayanand Vihar,Parents' Association Happy Model School, Janak Puri, Parents' Association Apee Jay School, Parents' Association Summer Field School, Kailash Colony, Parents' Association Blue Bells School, Parents' Association of Delhi Public School and Parents' Association (Dorings) have stated to have made a request to the petitioner Mahasangh' (For short to be referred to hereinafter as 'Mahasangh') to take up the matter of the fee hike etc. on their behalf. These parents' associations, it is claimed, have more than 10,000 parents as members whose children are studying in various unaided private schools in Delhi. The 'Mahasangh' is deeply interested to see that those who run schools do not run them commercially and exploit the students and their hapless parents by adopting various devices to extract huge amounts taking undue advantage of circumstances.

5. This public interest writ petition was filed on 8th September, 1997 impleading about 30 unaided recognised public schools as respondents besides Union of India, Government of National Capital Territory of Delhi and some other Government Departments. The 'Mahasangh' seeks issue of appropriate writ against the Government to take necessary steps to regulate admissions in the recognised unaided private schools in Delhi in order to avoid and to check demand of illegal money in the name of donations by the schools at the time of admissions; to frame policy or make necessary amendments in law regulating recognition and conditions there of including admission and payment of fee etc. of the recognised unaided private schools.

6. The main thrust of the grievance of the 'Mahasangh' is that recognised private unaided schools in Delhi are indulging in large scale commercialisation of education which is against public interest. The commercialisation has reached to its present alarming situation, it is claimed, by 'Mahasangh' on account of failure of the Government to preform its statutory functions under the Act and the Rules besides failure to insist on schools to follow the affiliation bye-laws the bye-laws framed by the Board.

7. On the other hand, the legality of aforesaid order dated 10th September, 1997 Gas been challenged in CW 4021 / 97 which has been filed by Action Committee of unaided private schools besides five recognised unaided private schools. The Action Committee claims that 157 recognised private unaided schools are its members and, therefore, the said Committee represents large number of recognised unaided private schools. The list of the said 157 schools has been placed on record. Some other schools have also filed separate writ petitions challenging the order dated 10th September, 1997.

8. Apart from petition filed by Mahasangh, other petitions have also been filed highlighting the aspect of commercialisation in the recognised unaided private schools and seeking issue of directions on similar lines as sought in the writ petition filed by Mahasangh'.

9. This judgment will dispose of all petitions whether filed by the schools challenging the legality and validity of the order dated 10th September, 1997 or filed by the parents or associations supporting the said order and seeking issue of appropriate writ to authorities to check exploitation and commercialisation in these schools.

10. Considering the facts and circumstances of the case, as an interim measure, a Division Bench of this Court on 11th December, 1997 had passed the following order:

"Rule D.B.

Let the pleadings be completed within four weeks from today.

In view of the impact of the Fifth Pay Commission Report, which has to be implemented by the schools, as an interim measure, till disposal of these writ petitions, it is ordered:

(a) that the concerned schools are permitted to enhance the fee which they were charging from the students as on 31.3.1997, by maximum of 40 per cent w.e.f. 1.4.1997,

(b) the schools which have increased the fee in implementation of the Fifth Pay Commission Report, beyond 40 per cent will not be entitled to any further increase.

(c) The schools whose fee-hike is beyond 40 per cent, will bring it down to 40 percent as in (a) above from the next billing cycle.

(d) So far as the payments regarding security deposit, admission fees, and registration fee are concerned, the rates prevailing in each school as on 31.3.1997, will continue to apply and no hike for the time beingis permitted.

(e) In view of the above order, the operation of the order dated 10th September, 1997 is stayed.

Looking to the urgency of these matters, we direct that they be listed for final disposal in the category of regular matters, within first-five cases on 14th January, 1998."

11. Learned Counsel for the parties have made elaborate submissions for and against the validity of action of the Director of Education in the matter of regulation of fee and other charges payable by the students in schools which receive no aid from the Government. On behalf of 'Mahasangh' and Parents' Associations, various facets of how the school management are violating Act, Rules and Bye-laws and indulging in large scale commercialisation, nepotism and favouritism have been highlighted. On behalf of the school management, while seriously disputing these submissions it has been contended that though the schools do not receive any financial aid from the Government, the impugned order dated 10th September, 1997 has been issued without any authority of law and it not only adversely affects their autonomy but is without jurisdiction, illegal, unsustainable and is based on non-existent material The impugned order also violates the constitutional protection afforded to the minority schools is also one of the contention put forth. It has been submitted that insofar as the minority schools are concerned, the order deserves to be quashed solely on the ground of breach of the constitutional rights of the minority institutions.

12. The main questions to be examined are whether unaided recognised schools are indulging in commercialisation of education. Are the students and their parents being exploited If it is so, has the Government power to issue the impugned order to control and check menance of commercialisation and exploitation. The further question is whether the Government has performed its statutory functions as envisaged by the Act and the Rules. If not, what directions are required to be issued.

13. It cannot be disputed and in fact has not been disputed by learned Counsel appearing for the schools that the commercialisation and exploitation is not permissible. The schools have, however, seriously disputed the allegation of indulging in commercialisation and / or exploitation. According to them the schools are being run on "No Profit No Loss Basis."

14. One of the serious charge against the schools is transfer of huge amounts by the schools to the Society and / or to other schools being run bythe same society. It is said to be in violation of the Act and the Rules. Another serious charge is that there is excess of income over expenditure under the head tuition fee, transportation etc. It has also been stressed 'that huge amount is charged from students as caution money which is a source of generating capital fund. The impugned order has placed a restriction on the maximum amount to be charged under various heads including caution money. It has also been stressed that lakhs of rupees have been found accumulated under the Scholarship Fund. Further, it has been pointed out that huge amounts have been taken from parents as non-interest bearing loans as a condition of giving admission to the children. The allegation is also that huge amounts have been collected and remained unspent under the head 'Building Fund'. The main thrust of the Parents' organisation, however, has been on the exhorbitant and unjustified increase on account of tuition fee, annual charges, admission fee and security deposit etc. According to the schools however, these increases were justified on account of increase in the expenses and in particular the obligation of the schools to increase the salaries of the employees in compliance with the Fifth Pay Commission which has resulted in huge liabilities to be incurred by the schools for payment of salary to its teachers and other employees.

15. It appears that the authorities had conducted inspection of about 16 schools and on consideration of the inspection reports, the impugned order was issued. One of the aspects to be considered would be whether on inspections of 16 schools out of hundreds in Delhi, a general order, namely, the one which has been impugned by the schools can be issued or the authorities can make an order only against a particular school which may be found to be violating the provisions of the Act and Rules and indulging in commercialisation or exploitation with a view to put an end to it. Another aspect to be considered is whether the authorities have power in law to regulate the amount of fee and other charges payable by the students or their parents to the unaided school. According to the schools, there is no such power.

16. Let us first examine certain provisions' of the Act, the Rules and Bye-laws

17. Section 18 of the Act deals with school fund. Sub-section(3) of Section 18 stipulates that in every recognised unaided school there shall be a fund called "Recognised Unaided School Fund". The income accruing to the school by way of fees, any charges and payments which may be realised by the school for other specific purposes and any other contributions, endowments, gifts and the like are credited to this Fund. Sub-section(4) inter alia, provides that the income derived by unaided schools by way of fees shall be utilised only for such educational purposes as may be prescribed and the charges and payments realised and all other contributions etc. received by the schools shall be utilised only for the specific purpose for which they were realised or received. Sub-section(5) requires the, Managing Committee to file every year with the Director of Education such duly audited financial and other returns as may be prescribed and every such return shall be audited by such authority as may be prescribed. Rule 170, inter alia, provides that accounts of the school shall be liable to be inspected by the Director of Education or any person authorised by him in this be' half and also by an officer from the office of Accountant General, Central Revenue. Rule 180, inter alia, provides for filing by unaided recognised schools returns and documents in accordance with Appendix II by 31st day of July of each year. It also provides that accounts and other records maintained by school shall be subject to examination by the Auditors and Inspecting officers authorised by the Director in this behalf and also by any officer authorised by the Controller and Auditor General of India. Under the bye-laws the Board is also authorised to conduct the audit to ensure that there is no diversion of founds or any other financial irregulariry.

18. Unfortunately, the examination of the counts, returns and documents has never been conducted though permissible. It deserves to be noticed that the Director of Education and the Board has to be ever vigilant so that any act which may show commercialisation exploitation may at once be checked and requisite remedial action taken. There are various provisions in the Act and the Rules to enable the authorities to keep a proper check on the working and running of the schools and to take remedial steps. Section 20 provides for the taking over of the management of the schools. Section 22 provides for the constitution of the Delhi School Education Advisory Board for the purpose of advising the Administrator on the matters of policy relating to education in Delhi. Section 24 provides for the inspection of the schools. It also empowers the Director to issue any directions requiring the school to rectify any defect or deficiency found at the time of inspection or otherwise in the working of the school and on failure to comply with such direction to take such action as he may think fit including withdrawal of recognition or taking over of the management. Section 28 is rule making power of the Administrator. The rules can be made in respect of various aspects in corporated in the said section. Detailed provisions have been made in the Rules for regulation of education including the constitution of various Committees so that there is a check on the working of the school and the compliance of the provisions of the Act and the Rules. There are detailed provisions for granting recognition and for framing 'of scheme of management which has been dealt with in Chapter V of the Rules. Rules regarding grant of admissions to the recognised schools can also be made. The Director of Education has power to regulate admissions. Chapter XIV of the Rules makes detailed provisions about the maintenance and operation of the school fund and also for utilisation of the funds realised by unaided schools. Rules also provide that income derived from collections for specific purposes shall be spent only for such purpose. Chapter XVII deals with inspection of the schools.

19. It can thus seen that adequate provisions have been made in the Act and the Rules to keep a proper check even on unaided schools. Surprisingly, however, many of the aforesaid provisions in the Act and the Rules have not been put to use by the authorities at appropriate time and stage. We have no doubt that on the authorities ensuring strict compliance and adherence by the schools of the provisions of the Act, the Rules and the Bye-laws,. can result, to a great extent, in elimination of various problems highlighted by the petitioner organisation.

20. The background under which the impugned orders were issued as discernable from Government files may now be noticed. It seems that the Government received complaints that number of public schools had arbitrarily increased fees and other charges without any justification. A Special Committee was constituted to conduct special inspections mainly to examine the justification of increasing the fees. The inspection was restricted to few prominent schools. To carry out the inspection 5 different teams comprising of officers of Directorate of Education were constituted to look into the matter of accounts and to also examine whether fees charged is commensurate with the facilities provided to the students and teachers. The inspection teams were required to Examine 5 years' accounts and examine amounts received from students as fees / other charges under each head including donations, security, building fund, activity fees, laboratory fees, games fees, horse riding fees etc. besides transportation/bus charges and the amounts actually spent under the specified heads. The Committee was also required to examine if there was any surplus under any head and how the surplus money was used. The financial transactions between the school management and the society were also required to be checked. The inspection of 16 schools was conducted. From a perusal of the inspection reports, the Government found gross financial mismanagement and violation of various provisions of the Act and the Rules and observed that almost all the schools were charging exhorbitant admission fee, caution money, tuition fee and other charges under various heads in violation of Section 18(4)(b) of the Act “read with Rules 176. The” Government also observed that by charging the exhorbitant amounts schools had generated large amount of surplus funds and in some of the cases it was found that surplus money had been transferred to the parent Society in violation of Rule 177. Some of the Managing Committees of the Schools had transferred the school fund for establishing the schools even outside Delhi. The utilisation of the funds was not found to be in the manner prescribed under Rule 177. It was found that the schools were spending money in purchasing and maintaining luxury cars etc. which were not useful and necessary for the benefit of the students. It was observed that the financial irregularities had been noticed in all the schools which were inspected under Section 24(2) of the Act and the possibility of such irregularities by other unaided recognised schools could not be ruled out. Noticing that the Directorate of Education does not have sufficient infrastructure to carry out special inspections of about 800 such schools, the general directions in public interest were decided to be issued. This is the background under which the impugned order dated 10th September, 1997was issued.

21. Before issue of the impugned order, the Government had issued a circular dated 9th April, 1997 to all the schools brining to their notice various aspects of admission of students, fees and other charges, service conditions and management of affairs of the schools to be conducted strictly in accordance with the Act and the Rules. Two public notices were also issued, inter alia, requiring the schools to review /revise the fee structure for 1997-98 by convening a meeting of the Managing Committee having PTA representatives and Director of Education's nominee and not to charge various amounts under several heads mentioned In the public notice. Another public notice brought to the notice of all concerned that the Government had set up a Private School Fee Structure Study Committee headed by Mr. J. Veera Raghvan, former Secretary in the Ministry of Human Resource Development to study the fee structure of private recognised unaided schools alongwith other charges, to study how the amounts so realised are utilised, to provide facilities to the students and teachers, to indicate, if any, legal provisions are being violated in charging higher fees etc. to study the adequacy or otherwise of the existing legal provisions and administrative measures to deal with the problem of uncontrolled increase in the fee of schools and to regulate the same and to suggest legislative and administrative measures to regulate the fee and other charges in such schools. School management, Parents and general public were requested to send their views/suggestions by 23rd May, 1997so that it would be considered by the said Committee V. Raghvan Committee on consideration of the entire matter has submitted its report containing important recommendations.

22. The report notices that extremely wide variations in the tuition fees marged by various schools in Delhi was quite surprising because the salary and emoluments of teachers which constitute the main revenue expenditure on education is more or less same across the schools. The report states that the real reason for the wide variations in the tuition fee has thus to be sought elsewhere. Regarding the difference in facilities provided the report states that there is much (academic window dressing) in the name of providing better facilities. It states that the latest fashion in the world academic market is used as justification for charging excessively high fee buton deeper analysis it appears that much of this justification is spurious and the rich schools charge high fees to enforce a form of segregation and also in order to make profits or surpluses as high fee attracts rich students and families and becomes a status symbol that could be highly divisive. The Committee was, however, conscious of the fact that there should be ample scope for genuine educational innovations in schools to improve the quality of education and make it world class and suitable for the coming decades and thus it is not possible to lay down any uniform set of fees to be marged by the schools. The Committee arrived at the following principles governing the fixation of fees:

1. Tuition fees must cover the basic salary expenses, retirement benefits and all other basic academic and administrative expenses.

2. Expenses on maintenance of buildings must also be covered by the tuition fees .

3. Reasonable depreciation for building and equipment should be provided for in the costing. Depreciation should not be provided for the cost of the land. All depreciation provided for should be earmarked in a specific fund for replacement of assets.

4. Other fees such as admission fees, laboratory fees, sports fees etc. should be charged on a reasonable basis i.e. just sufficient to cover the cost. These fees should be charged only from beneficiary students and not from all students where the beneficiaries are limited. For instance, swimming pool fees, tennis fees and Computer Fees should be charged from those who avail of the services.

5. If there are surpluses from any of the fees collected, they should be carried over to the next year for the benefit of the schoo1 and used for the purpose for which the original fee collection was intended.

6. In no case should the surpluses be siphoned off to the owner's Society or any of its members or utilised for other schools managed by the same society. All surpluses should be utilised for the same school.

7. The fees charged should generally be acceptable both to the management and to the parents concerned. This is essentially a matter between the school and the parent group itself. Different schools serve different strata of society. In theory there is no limit to the quality of education or innovation and, therefore, to the cost. However, School management should minimise the cost by reducing non-academic expenses to essentials and avoiding the approaches and attitudes of five star culture in schools.

8. Five star facilities in educational institutions are violative of the spirit of the National System of Education as envisaged in NPE-1986 as modified in 1992. Instead of narrowing education gaps such facilities widen them and lead to eliticism and alienation. As such this should not be allowed particularly when the Government has decided to make free and compulsory elementary education a fundamental right for all children up to the age of 14. This policy also emphasises the concept of a National System of Education up to a given level when all students should have access to education of a comparable quality. The police states that effective measures will be taken in the direction of a common school system recommended in 1968 policy. It also lays special emphasis on equalisation of educational opportunities by addressing the specific needs of those who have been neglected so far. We have not reached the stage where we can have a common school system. However, this remains the ultimate goal. The private schools should, therefore, contribute towards this goal by minimising disparities instead of widening them further without, however, affecting the quality of education.

23. Regarding donations the Committee was categorical that its linkage to admissions should be strictly avoided as by the very nature donations have to be voluntary and if schools used direct or indirect pressures to collect donations it would be extortion and not donation: According to the report all donations either to the school or to the Society or any other link organisation or person which have a bearing on the admission of children to school should be banned and severely dealt with wherever such collections are found to exist. Bearing in mind that the schools should be able to finance its capital expenditure the guidelines suggested by the Committee were these :

(a) Donations unconnected with admission may be collected by the schools from parents, well-wishers, philanthropists and ex-students provided these are not linked to admissions and these are clearly accounted for under the relevant fund.

(b) The schools may also levy building and equipment fees which should be moderate and have a relationship to the proposed capital projects. For instance, building fees may be collected over a period of 30-40 years, spread over a large number of students either by monthly or annual collections would be reasonable but not exceeding three months tuition fees (This should be in addition to cost of maintaining the building for minor and major repairs which should be included under revenue expenditure).

(c) Government should assist the schools through provision of loan at an interest lower than the market rate. Such schemes should be worked out with H.D.F.C., HUDCO, LIC and other financial institutions including banks. The possibility of having a fund for refinancing of loans by such financial institutions could be considered.

(d) The schools may without making it compulsory invite interest-free loans or deposits from parents which should be refunded to the parents when the wards leave the school or even earlier. Such deposits of loans should be linked to specify capital projects and have the attraction of involving the parents in the capital projects of the school. There should, however, be no direct or indirect pressure or compulsion of such deposits and should not certainly be linked to admission. The interest earned on such deposits and loans should be shown as income of the concerned capital projects and should not be credited into society's account. It was added that these deposits are quite different from security / caution deposits collected, compulsorily from the students. These caution money and security deposits should be refunded to the students when the student leaves the school.

24. Regarding the procedure for fixation of fees in the unaided recognised schools the Committee noticed that the provisions of the Act and the Rules were not effectively implemented and thus there was a need for effective implementation of the same and also for closer and harmonious working and better understanding between schoo1 management, parents and the Delhi Government. For fixation of fee following procedure was suggested:

Fee Committee

(i) Under the existing rules, prior approval of the Government is not required for fixing the school fee by unaided schools. The Committee is of the opinion that the school management's should continue to have the right and responsibility for fixing the fees keeping in view the guidelines set forth above. The Committee does not favour any system under which prior approval of Government is required in the matter of fixing of fees. The initiative and freedom of the schools in regard to educational management should be adequately recognised. Government, will, however, have the right to intervene effectively wherever there is exploitation and unfair practice or serious violation of guidelines. Such intervention should be exceptional but when it occurs the Government's decision will have to be binding and mandatory. To avoid such interventions and to develop harmonious system of working, it is suggested that there should be a Committee on fees which should meet every year in early December to provide specific guidelines to the schools for fee fixation of fees for the next, academic year.

(ii) Such a Committee should have nominees of Government, the Private Schools Management, Parents and Educationists who are the different stake-holders in the process. There are 900 Private Un-aided Schools. The more important one among these are the members of the organisations like the Forum of Public Schools, the National Progressive Schools Conference and the Council of Public Schools etc. We suggest that there should be five nominees from these organsiations and two others from representing the schools who are not members of any of these organisations.

We suggest that the composition of the above Committee may be as follows:

(1)Principal Secretary, Department ofEducation, Government of N.C. T. of Delhi-Ex-OfficioChairman

(2)Up to three officials not belowthe rank of Deputy Director (Education)-Ex-Officio-Members.

(3)Up to five members of the ParentsAssociations to be nominated by

the Director of Education-Member

(4)Up to three Educationists to benominated by the Government.-Member

(5)Up to seven persons representingschool managements (2 from public

Schools Forum. 1 from Council of

Public Schools, 2 from National

Progressive Schools Conference

and two others)-Members





(iii) We have used the word 'Nominee' instead of Representatives' of the organisations and the Government concerned to emphasise the fact that once nominated the members will be acting in their personal capacity and will not represent any group interest. Their sole purpose will be to assist the Government in laying down proper guidelines of fixation of fees in the best interest of education of all students and of all institutions.

(iv) Binding Directive: Such a Committee meeting in the month of December should be able to examine all likely developments in the coming year and provide clear guidelines to the school managements by early January. The school management should, in turn, be able to finalise the fee structure by the end of January and intimate the same to the Directorate of Education. In most cases these fee structure thus finalised should be acceptable to the Government. Where, however, the Government feel that there is a serious departure from the guidelines or if there is any unfair practice or exploitation they would have the power to issue a binding directive to revise the fees. Such a directive should be issued by the end of March i.e. well before admissions begin.

(v) The 900 private schools referred to in this report are unaided schools. There are numerous non-recognised schools which do not come under the ambit of the Delhi Education Act. It is suggested that the Act should be extended to all these schools from Nursery owners. The power to issue a binding instruction should extend to all the non-recognised institution as well.

(vi) The Delhi School Education Act, 1973 should be amended to provide for the directives to be binding on the management of schools. Where such a binding directive is issued by the Government, the school should have the right to appeal to a Tribunal set up for this purpose. The Tribunal should comprise three members, one with judicial background, an educationist and one member with administrative backgrounds. The decision of the Tribunal should be treated as final and binding on all parties. In the event of the school not complying with the binding directive even after the decision of the Tribunal (where there is an appeal to such a Tribunal) such non-compliance should lead to legal consequences which should include heavy penalties."

25. The Committee felt that extreme steps such as withdrawal of recognition and take over of the schools by the Government cannot be easily resorted to and the same may also harm the interest of the students and teachers, there should be other simpler and effective methods of ensuring the observance of law and the rules in letter and spirit. That is the reason for recommending the empowerment of the Directorate of Education for issue of binding instructions with suitable safeguards for appeal and decision making in non-bureaucratic manner.

26. The recommendations of the Raghvan Committee for the year 1997-98 are pertinent and thus the same may be reproduced in verbatim as under:

RECOMMENDATIONS FOR THE YEAR 1997-98

(i) The genesis of setting up the present Committee can be traced to the unease and resentment caused among the parents by the steep hike in fees for the academic year 1997-98. Undoubtedly this increase has caused hardship to the parents, who are now looking for some relief. There is also the nagging feeling that many schools are indulging in profiteering and siphoning off surplus cash for personal benefit or benefits of the parent society or of other schools. A case by case review in respect of all schools which have hiked their fees steeply would be in order. Such a scrutiny of Balance-Sheet and income and expenditure account of the last two or three years of each such school will create an understanding of the real situation and will, on the one hand, allay the misgivings and exaggerated complaints against some schools and on the other hand enable Government to deal with cases where there is profiteering and excessive fee collection. But this process of due examination and consequential action will take time even if the Directorate of Education's finance wing is effectively strengthened. While the Committee recommends such a case by case examination as an on going process, there is also the need for immediate action in regard to steep increase in fees during 1997-98.

(ii) The Committee understands that the main reason for increase in fees in 1997-98 is the anticipated increase in expenditure due to the likely adoption of the recommendations of the Vth Pay Commission. Under the Delhi Education Act, it is mandatory for all the schools to adopt the scales of pay and allowances as may be recommended by the Pay Commission and are accepted by Government. The School Managements were, therefore, right in anticipating the financial needs of implementing the Vth Pay Commission Report. The decisions on these recommendations have just been announced by the Government of India and it will take some more time before the financial implications are fully worked out. Hence, we recommend that the amount realised through increase of tuition fees during 1997-98 be credited by each school to a separate fund (beyond a limit of 15% which may at best be attributed to the normal increase due to price rise and innovations). This fund should be used exclusively for meeting the additional expenditure due to revision of pay scales and its consequential effect including the payment of arrears. It should be possible for the schools to work out their precise financial obligations well before the fees of the 3rd quarter of the academic year, 1997-98 are due. If any excess amount has been collected this should be adjusted in the bills of the 3rd and the 4th quarters of the current year.

(iii) It has been brought to the notice of the Committee that some schools have accumulated surpluses over the years in terms of reserves or otherwise. These are often intended for renovation and other capital expenditure. The management's of schools may be requested to examine the possibility of utilising some of these accumulated, surplus funds for meeting the additional requirements consequent to the adoption of the Vth Pay Commission's recommendations. In particular there is a good case for meeting the liability towards arrears payments relating to the period up to 31.3.1997 from the past accumulated surplus.

(iv) There have been increases not only in tuition fees but in several other fees such as Admission fee, Computer fee, Sports fee etc. In particular, the Committee feels that "Admission fee" levied in certain schools' are considerably exceeding the ceiling of Rs. 200 suggested in a Public Notice issued by the Government of N.C.T. of Delhi. The Committee also doubts if the amount of Caution Money deposits that are being collected have any actual relationship to the risk of breakage or damage, repairs or replacements etc. The Committee recommends that the Managing Committees of schools should be required to review the increases of all the fees that are being levied in addition to the tuition fee, this review should be undertaken with a view to bringing down proposed increases to the minimum possible level. This is necessary especially because of the ultimate goal of keeping the disparities among the schools as low as possible.

(v) The Government of N.C.T. of Delhi has already issued a Public Notice requesting the Management of Schools to review the fees for " 1997-98. They may now require that the Managing Committees of schools be convened with adequate notice enabling the P.T.As.' nominees and nominee's of Directorate of Education to attend this meeting. This special meeting may be requested to review the increases in respect of tuition as well as other fees for 1997-98 keeping in view the guidelines set forth above. The Managements should be able to take a final decision in this matter well before the payment of the 3rd quarter of the fees becomes due in October, 1997.

27. In its concluding observations the Committee has rightly observed that donation is not a sector where the "commercial instinct" should operate and, therefore, it was suggested that strict vigilance should be kept to conduct transactions that do not enter the records and exemplary punishment meted out whenever such instances are detected. It has also noticed that malpractices and exploitation arise from the acute scarcity of places in good secondary schools and there is burgeoning demand for admission in good English medium schools which the existing ply is not able to meet. Considering the demand from various sections of Society which cannot be ignored and has to be satisfactorily addressed to, the Committee felt that all its proposals for regulation of fees, in private schools would be effective only when the Government and aided schools are strengthened and provide genuine alternatives to private schools.

28. Considering the aforesaid recommendations contained in V. Raghvan Committee Report and in the facts and circumstances as noticed here in before the impugned circular was issued.

29. According to the Government the impugned order does not place any restriction on the schools to increase the tuition fee. The stand of the Government is that by the impugned order the schools have only been told to hold meetings as postulated by the Act and the Rules which should also have participation of the parents and the nominee of the Director of Education and in the said meeting take a decision on enhancement of the tuition fee. The Government has supported the stipulation in the impugned order that the schools shall first exhaust accumulated funds with them for payment of the arrears of salary and the other restrictions such as limitation on admission fee, caution fee etc. The main bone of contention between, the parties is whether the Act and the Rules vest any power to place the restriction as contained in the impugned order and if the answer to this question is in affirmative was there any justification for issue of the impugned order.

30. It was vehemently contended on behalf of the schools that Section 17 of the Act makes it clear that the Government has power to regulate the fees and charges payable by students of the aided schools and not by students of unaided schools. It may be useful to reproduce Section 17 as under :

"Section 17 : Fees and other charges

(1) No aided school shall levy any fee or collect any other charge or receive any other payment except those specified by the Director.

(2) Every aided school having different rates of fees or other charges or different funds shall obtain prior approval of the prescribed authority before levying such fees or collecting such charges or creating such funds.

(3) The manager of every recognised school shall, before the commencement of each academic session, file with the Director a full statement of the fees to be levied by such school during the ensuring academic session, and except with the prior approval of the Director, no such school shall, charge, during that academic session, any fee in excess of the fee specified by its manager in the said statement.

31. It cannot be disputed that Sub-sections(1) and (2) of Section 17 applies only to the aided schools and only Sub-section(3) is applicable to the unaided schools. The main obligation under Sub-section(3) on the recognised schools is to file with the Director a full statement of fees to be levied by such school during the ensuing academic session. It also provides that except with the prior approval of the Director no such school shall charge during that academic session any fee in excess of the fee specified in the said statement. The contention is that exclusion of unaided schools with in the scope and ambit of Section 17 and in absence of any other specific provision it is clear that the intendment of Legislature was not to place any restriction in the matter of levy of fee and other charges by unaided schools. The Government has not disputed that subject to the provisions of Sub-section(3) of Section 17 there is no requirement that the unaided schools shall seek prior or subsequent approval of Director of Education for enhancement of tuition fee and other charges. It was, however, streneously contended on behalf of the Government and Mahasangh that the interpretation sought to be placed on Section 17 does not show that in case the schools start levying exhorbitant fee and thus indulge in commercialisation and profiteering from running the schools, the Government would be helpless. In this respect it may be noticed that Section 3 of the Act empowers the Administrator to regulate education in all the schools in Delhi in accordance with the Act and the Rules made thereunder. It is also not in serious dispute that commercialisation of education is impermissible. At this stage it may be useful to notice that the bye-laws under which the schools are affiliated with CBSE and referred to above, inter alia, stipulate that the fee charges should be commensurate with the facilities provided by the institution; fee should normally be charged under the heads prescribed by the Department of Education of the State/Union Territories of Schools of different categories; no capitation fee or voluntary conditions for gaining admission in the school or for any other purpose should be charged / collected in the name of the schoo1 and that the unaided schools should consult parents through parents' representatives before revising the fees there cannot be any doubt that the schools are bound and obliged to observe and follow the affiliation Bye-laws. One of the objects of the Society setting up the schools as provided in the bye-laws is that it shall ensure that school is run as a community service and not as business and that commercialisation does not take place in the school in any shape whatsoever. On the aspect of the nature of duties and obligations in running the educational institutions, we may notice here as to what the Supreme Court said in its celebrated decision in Unnikrishnan's case 1993(1) SCC page 645.

32. The Apex Court has held that the right to free education up to the age of 14 years is a fundamental right. However, there is absolutely no right to get recognition of educational institutions. The right to establishment and run the educational institution with State recognition arises only on the State permitting, pursuant to a policy decision or on the fulfilment of conditions of the Statute. Therefore, though it is dependent on the permission under the Statute or the exercise of an executive power, it cannot qualify to be a fundamental right. Thus, there is no fundamental right under Article 19(1)(g) to establish an educational institution, if recognition or affiliation is sought for such an educational institution. The educational institutions discharge a public duty and have, therefore, a duty to act fairly and will be subject to Article 14 of the Constitution. The absence of receipt by educational institution of any aid from the Government would not detract such institutions from the nature of public duty. After reproducing some of the relevant extracts from the National Policy of Education the Supreme Court observed that the Private Sector should be involved and need encouragement to augment the much needed resources in the field of education thereby making as much progress as possible in achieving the constitutional goals in this respect but that does not mean that one should tolerate private institutions which are run as financial adventure without morals or scruples with the only aim to make money. A word of caution, however, was added by the Supreme Court which is equally applicable while dealing with the case of private schools as well and that is that all the private institutions do not belong to the aforesaid category. There are institutions which have attained great reputation. They surpass the institutions run by the Government in many respects. They, of course, require encouragement. But from this point of view controls have to be continued and strengthened if the commercialisation of education and racketeering has to be prevented. The State should strive its utmost in this direction. The regulatory measures should ensure that the private institutions maintain minimum standards and facilities; admissions should be based only on merit; that norms of admission should be predetermined and should be transparent. An unaided institution cannot be compelled to charge the same fee as charged in the Government institution as they have to meet the cost of imparting education from their own resources and the main source can only be the funds collected from the students and that is the concept of 'self financing educational institutions' and 'cost based educational institutions' come in, The cost of education, however, may vary from institution to institution and in this respect many variable factors may have to be taken into account. But one thing is clear that commercialisation of education cannot and should be permitted which intention has been clearly expressed by the Parliament as well as the State Legislatures in unmistakable terms. Further, both in the light of our tradition and from the stand-point of interest of general public commercialisation is positively harmful; it is opposed to public policy. This is one of the reasons for the conclusion that imparting education cannot be trade, business or profession. The education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this Nation. Imparting education has always been treated as a religious duty. It is treated as a charitable activity and never a trade or business. In its true aspect it is more a mission and a vocation. The grant of recognition and / or affiliation to an educational institution is not a matter of course nor is it a formality. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the Appropriate Authority and/or is affiliated to one or the other Board. The affiliated private educational institutions supplement the function performed by the institutions of the State. It is not an independent activity but one closely allied to and supplementary to the activity of the State. Thus, it is obligatory––in the interest of general pubic––upon the authority granting affiliation or recognition to insist upon such condition as are appropriate to ensure not only education of requisite standard but also fairness in other spheres since the recognising / affiliating authority is the State which is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly .It follows from the above that if the Government finds any educational Institution indulging commercialisation and /or exploitation the Government would be abdicating its obligations to keep quite and not to take appropriate remedial measures. The said measures can even fall short of withdrawal of recognition / affiliation which has to be only a last resort in case the Government is unable to curb the menance by other steps.

33. The details of the fee structure of 21 schools for last 5 years have been placed on record to substantiate the argument that there have been manifold increase in the fees and other charges such as admission fee, development charges etc. Our attention was drawn to increase of admission fee in Bluebell School, Kailash branch, New Delhi, from Rs.400 in 1991 to Rs.1,000 in 1995-96 and Rs. 2,500 in 1997-98 and the monthly tuition fee from about Rs.275 in 1991-92 to Rs.430-450 in 1996-97 and Rs.620-650 in 1997-98; in Ahon Public School, Mayur Vihar the increase of admission fee from Rs.2,000 to Rs.5,000 in 1997-98 and manifold increases in other charges including Caution fee etc. in the span of 5 years. It was submitted that these increases were not commensurate with the normal increase in the cost of living, it had nothing, to do with any pay hike and it demonstrated that the schools were indulging in exploitation of students and are treating the education as any other business or trade. It has further been urged that besides these hikes there are other hidden expenses for the parents to bear - some of it being the compulsory purchase of dress for the students from the school shop and also the compulsory purchase of books and stationary from the schoo1 shop itself at a price much more than the market price.

34. Chapter IV of the rules deals with school funds. Rule 172, inter alia, prohibits Trust or Society running any recognised school to collect fee contribution or other charges from any student. Amounts have to be collected only by the school and kept in school fund as provided in Rule 173. Rule 176 provides that income derived from the collection for specific purposes shall be spent only for such purpose. Rule 177 states as to how the fee collected by unaided schools is to be utilised. It, inter alia, stipulates that funds collected for specific purpose shall be spent solely for the exclusive benefit of the students. Since considerable emphasis was laid by the parties on Rule 177 it will be useful to reproduce the same as under:

"177. Fees realised by unaided recognised schools how to be utilised-

(1) Income derived by an unaided recognised schools by way of fees shall be utilised in the first instance for meeting the pay, allowances and other benefits admissible to the employees of the school.

Provided, that savings, if any from the fees collected by such school may be utilised by its Managing Committee for meeting capital or contingent expenditure of the school, or for one of more or the following educational purposes, namely:

(a) award of scholarships to students:

(b) establishment of any other recognised school; or

(c) assisting any other school or educational institution, nor being a college, under management of the same society or trust by which the first mentioned school is run.

(2) The savings to in Sub-rule(1) shall be arrived at after providing for the following, namely:

(a) pension, gratuity and other specified retirement and other benefits admissible to the employees of the school;

(b) the needed expansion of the school or any expenditure of a development nature;

(c) the expansion of the school building or for the expansion or construction of any building or establishment of hostel or expansion of hostel accommodation;

(d) co-curricular activities of the students;

(e) reasonable reserve fund, not being less than ten percent of such savings.

(3) Funds collected for specific purposes, like sports, co-curricular activities, subscriptions for excursions or subscription for magazine, and annu1 charges, by whatever name called, shall be spent solely for the exclusive benefit of the students of the concerned school and shall not be included in the savings referred to in Sub-rule(2).

(4) The collections referred to in Sub-rule(3) shall be administered in the same manner as the mines standing to the credit of the Pupils Fund are administered."

35.We were taken though the inspection reports in respect of some of the schools to show the transfer of huge amounts by some of the schools to the Societies running the said schools. One of the schools which has transferred surplus from the schoo1 fund and the transport fund to 'the Society is Bal Bharti Public School, Ganga Ram Hospital Road. In respect of this school the inspection report also states that Rs. 2,000 as caution money is being collected from the students at the time of admission and as on 31st March, 1997 the balance of caution money account in the school was Rs.64, 98,738 and this amount should be entirely deposited in a separate Bank account and returned to the students alongwith interest at the time of their leaving the school. The inspection team further observed that against the caution money of aforesaid over Rs. 64lakh, the school had fixed deposit of nominal amount of about Rs.l,02,000 and about Rs. 1,82,0001 were kept in the saving account and the school was unable to satisfactorily explain as to how the balance sum of about Rs, 60 lakh was deployed. In respect of Ryan International School it was observed that the balance-sheet reveals a surplus of Rs.5.76 lakh in the year 1992-93 and Rs. 22.741akh in 1995-96 and on this account the total surplus till past 5 years was Rs. 52.35lakh and the caution money collected from the students stood at Rs.l02.551akh. In respect of Delhi Public School, R.K.Puram, the inspection team observed that the school had taken large amount of loan from public sector undertakings and from the parents. The loan from Steel Authority of India Was stated to have been taken for purchase of buses. The loan from parents is taken from development projects of the school and 6% interest is payable as loan from parents. Huge amounts were outstanding as loans from the schools. In respect of Rukmani Devi Public School, Pitampura, it was, inter alia, observed that an amount of Rs.3,25,647 was due to the ,school from the Rukmani Devi Public School, Rohini to whom this school had given the loan. It was observed that it was not in order to give loan to other schools when this school is taking loan from society and paying interest at the rate of 21%. The suggestion is that school is taking loan from its Society and paying higher rate of interest whereas it is giving interest free loan to another school. In respect of Francis De Sales. School, Janakpuri, the report, inter alia, states that on scrutinising the accounts it was revealed that funds are diverted to the Convent in the name of maintenance grant in violation of the rules and the amount so diverted, according to the school authorities, are used for payment of honorarium and other expenditure in respect of religious staff. We may, however, note that according to the school this religious staff was teaching and was not charging any salary and, therefore, according to the school there would be no irregularity in payment of honorarium to the religious staff from this fund. In respect of New Era Public School, Mayapuri, the inspection report states that the scrutiny of the balance-sheet for the year ending 31st March, 1996 has shown that a sum of more than Rs. 2 crore had been collected as fee etc. and only a sum of Rs.64 lakh had been shown towards payment of salary. The balance sheet, as per inspection report, also showed that about Rs. 26lakh were in excess of income over expenditure and this amount had been transferred to Capital fund and a sum of Rs.1.4 crore had been accumulated in Capital fund from past years and that is only from excess of income over the expenditure. The school was also stated to have been running 5 unapproved branches. Transport fee is being charged by the school and receipt issued in the name of the Society which was in violation of Rule 172. The school had 78 staff members on roll. However, .as per Employers' Provident Fund Account there were 313 employees working and the names included some of the employees who had left the school in previous year and also those staff members who were working in various unapproved branches of the school. Regarding the admission procedure it was observed that in the year 1996-97 and 1997-98 no new admissions were done in Classes I and II and all students who were admitted in Class I were from unapproved branches and this practice was being followed for admission upto 5th Class and the school was admitting students in the Vth class, on the basis of the affidavits that the students had not pursued studies in any regular schools. In respect of Apeejay School, Pitampura, inspection team observed that the School has been diverting funds to Apeejay School, Seikh Sarai and has shown liabilities of over Rs. 1.35 crore in 1992-93 and over Rs. 2.35 crore in 1993-94. It further observed that a comparison of bus fee charged ansi the amount paid to the Bus Contractor showed that the amount collected from the students on this account was much higher than what in fact was paid to the Bus Contractor. In respect of Springdales School, Pusa Road, the inspection team observed that heavy amount is being transferred to Building Fund out of the surplus of the school. In respect of Ahlcon Public School, Mayur Vihar the inspection team also notices that the Society accepts loans from the parents at the time of admission though the loans are returned with interest. The inspection team has noticed that payment of donations/ loan. was a pre-condition for admission Nursery classes which was in violation of the rules. It has further noticed that the school authorities have mortgaged the entire DDA land and building to Nanital Bank for Rs. 60 lakh without taking any Permission from the Department. It was submitted that aforesaid were some of acts which reflect the extent of element of commercialisation in private unaided schools in Delhi.

36. In M.C.D. v. Children Book Trust, 1992 (3) SCC 390 [LQ/SC/1992/330] =47 (1992) DLT 424 (SC), the Apex Court has held that Rule 177 requires the utilisation of the income only for the purpose mentioned in that Rule: The Rules do not contemplate transfer of fund from School to Society. Such transfer of funds are in disregard of the rules. Such transfers cannot, by any process of reasoning, be held as voluntary contributions received by the Society. The school being a separate entity premises occupied by the school will belong to it and not to the Society. The Supreme Court has noticed with approval the observations made by this Court in Safdarjung Enclave Educational Society vs Delhi Municipal Corporation, 'AIR 1989 Delhi 266, to the effect that the Society was being run purely on commercial lines for purposes of profit and it is the receipt of income generated from the Society in the form of building fund and donations etc. which are forced on students and their guardians and the same were not voluntary contributions. In our view, these observations would not be diluted merely because the same were made in the context of exemption for payment of house tax under Section 115(4) of the Delhi Municipal Corporation Act, 1957. The Safdarjung Enclave Educational Society was running Green Field School recognised under the Act.

37. In Union of lndia' & Anr. v. Jain Sabha, New Del!i & Anr., 1997 (1) SCC 164 , [LQ/SC/1996/1998] the observations made by the Supreme Court are very pertinent. The Supreme Court said that where the public property is given to Such institutions practically free, stringent conditions have to be attached with respect to the user of the land and the manner in which schools or other institutions established thereon shall function. The condition imposed should be consistent with public interest and should always stipulate that in case of violation of any of those conditions the land shall be resumed by the Government. Not only such conditions should be stipulated but constant monitoring should be done to ensure that those conditions are being observed in practice. Without commenting on the particular school being run by the respondent before the Supreme Court it was observed that it is common knowledge that some of the schools are being run totally on commercial lines. Huge amounts are being charged by way of donations and fees. The allotment of land belonging to the people on practically no price is meant for serving the public interest i.e. spread of education or other charitable purposes; it is not meant to enable the allottees to make money or profiteering with the aid of public property. It deserves to be noticed that most of the schools the lands have been allotted at almost throw away prices, Unfortunately, one of the reasons for the present state of affairs is lack of proper monitoring and supervision by the Directorate of Education to ensure whether the Act and the Rules have been properly implemented or not. Practically there has been no audit of the accounts despite Rule 180 which permits audit by Auditors and Inspecting Officers authorised by Directorate of Education and also by an officer authorised by Comptroller and Auditor General of India. In this respect reference can also be made to Articles 149 to 151 of the Constitution of India prescribing the duties and powers of comptroller and Auditor General of India. It seems that the directorate of Education never thought of getting the accounts audited either from his own officers or from the officers of the Comptroller and Auditor General of India. It may be noticed here that Section 22 of the Act provides for conditions of Advisory Board for School Education for purpose of advising the Administrator on matters of policy regarding education in Delhi. The National Policy on Education also stipulates the Constitution of Central Advisory Board and State Advisory Board. Clause 10.2 of the National Policy stipulates that Central- Advisory Board of Education win play a pivotal role in reviewing educational development, determining the changes required to improve the system and monitoring implementation. Clause 10.4 stipulates the State Governments may- establish State Advisory Board of Education on the lines of CABE. We have not been told as to what steps have been taken in this regard. However, these Boards can render true and meaningful advice and suggestions for development of education and to make it within the reasonable reach of a citizen with average means and steps necessary to curb exploitation and commercialisation. It seems that in the past no such steps were taken and the authorities work up on pouring in of consistent complaints from the parents. We may also note that Clause 10.9 of the National Policy stipulates that non-Government and voluntary efforts including title social activist groups will be encouraged subject to proper management and financial assistance provided and steps will be taken to prevent the establishment of institutions set up to commercialise education.

38. It is thus evident that though private institutions play a vital and pivotal role to spread education but unfortunately, there are many blacksheeps whose main aim is not to spread education but to make money. Therefore, it is necessary to sift blacksheeps from the other institutions spreading education who are indeed doing a laudable work.

39.The government has an obligation and duty to properly exercise control and check the acts and deeds of the institutions which are indulging in profiteering and exploitation. The Government has ample power to control blacksheeps and regulate the activities of such institutions. It cannot remain a silent spectator on the activities of such institutions coming to its notice. It is a different matter that had the Government been vigilant such a situation may not have arisen but that does not mean that if the Government has not take action earlier it is precluded from so doing now. It seems clear and even conceded by learned Counsel for the Government that no permission for increase of fees is necessary to be obtained from the Government either before the increase or later. The stand of the Government however, is that on complaint or otherwise if it comes to its notice that fee and other charges are excessive it can issue directions to the schools to reduce the same and if such a direction is not complied other steps like withdrawal of recognition or take-over of the school can be taken. In respect of impugned order dated 10th September, 1997 it is contended for the Government that it only requires the schools to hold meetings of all concerned including representatives of Parents Teachers Association and the nominee of Government and to decide in the said meetings if any increase is necessary particularly where no accumulated funds are available with the school. The Government has also supported the other restrictions contained in the circular regarding maximum charges towards security, admission fee etc. The contention was that since earlier directive dated 2nd May, 1997 was not complied with, the Government was left with no option but to issue the circular in question. With reference to Rule 177 the submission on behalf of the Government was that the saving envisaged by this Rule does not mean planned saving. It only means incidental saving. The contention was that deliberately higher amount of fee and charges cannot be levied to create saving. It was further submitted that such all interpretation is clear from the provisions of the Act and the Rules but assuming there is any ambiguity, such interpretation deserves to be adopted in public interest considering the unequal bargaining power of the parents and students. The higher fee and charges to create fund for establishment of other schools, it was explained, would be in the nature of forced donations from the students / parents which is not permissible as only voluntary donations can be taken without linkage With admissions. If linked with admissions donations would no more remain voluntary. It would become involuntary.

40. The explanation offered on behalf of schools is that the amounts spent by the convents on the Principal/Nuns which have been objected to by the petitioner and also referred to in the V. Raghvan Committee as an amount spent for religious purposes, is without any merits. It cannot be said that there should be no objection to the payments to them since these teachers i.e. Principal, Nuns etc. do not charge any salary and if salary is paid to them, it would be much more than the amount spent on them under the head objected to. Such an explanation cannot be accepted. If one is not charging any salary, other payments cannot be justified on the ground that if the salary had been charged, the amount on that account would have been more than the amount paid under the religious head. The argument that the amount of fee and other charges cannot be regulated since it is not a condition of recognition is also difficult to be accepted.

41. Besides Section 4 of the Act which deals with grant of recognition it has to be kept in view that the Administrator under Section 3 is empowered to regulate education in all schools in Delhi in accordance with the provisions of the Act and Rules made there under. It has to be read in the Act and the Rules that power of the Administrator to regulate education includes the power to curb commercialisation. Thus, if it is found that the fee and other "charges are wholly unreasonable and exhorbitant and amount to commercialisation, it would be the duty of the Administrator to step in and check such an activity before taking the extreme step of withdrawal of recognition and other harsh steps. The Director of Education is the delegatee of the Administrator. In this view the interpretation sought to be place upon Section 17 of the Act, by Mr. Jaitley and Mr. Subramaniam to show lack of power to regulate fee looses much of its significance. With reference to Section 10 of the Act which deals with the salaries of the employees, it was contended on behalf of the Schools that the said provision only envisages that private schools shall, not pay less salary etc. to their employees as compared to the employees of the corresponding status in the schools run by the Government anti thus the private recognised schools could pay higher salaries and, therefore, they could generate higher revenue. There cannot be any quarrel with this proposition. We have no hesitation in accepting that higher salary etc. can be paid to the employees of the private recognised schools and contention to the contrary urged on behalf of Mahasangh has no merit. Therefore, the private schools can generate higher revenue. We are not suggesting that the private recognised schools cannot charge higher fee. However, what cannot be done is that the private recognised schools in the garb of power to generate higher revenue to pay higher salaries to the employees, cannot levy unreasonably exhorbitant amounts towards fees and charges, The right to pay higher salary does not mean right to pay unreasonably exhorbitant amount. What is such an amount would depend upon facts of each case,

42. Mr. Jaitley had relied upon decision of the Supreme Court in A.B.C. Laminart Pvt. Ltd. & Anr. v. A.P.Agencies, Salem, 1989 (2) S.C.C. 163 in support of the interpretation placed by learned Counsel on Section 17 of the Act to the effect that this provision excludes the power of regulation of fee and other charges levied by unaided schools, The contention was that Section 17 provides for regulation of fee and other charges in the aided schools and there was no such provision in respect of unaided schools and, there fore, it is reasonable to deduce that the Legislature did not want to place any such regulatory power with the authorities, In the cited decision the Supreme Court has held that as regards construction of the ouster, clause when words like 'alone', 'only', 'exclusive' and the alike have been used there may be no difficulty, Even without such words in appropriate cases tile maxim 'expressio unius est exclusio altius-expression of one is the exclusion of another may be applied. There can be no quarrel with this proposition. But it has to be borne in mind that the Supreme Court has further said that what is an appropriate cast shall depend on the facts of the case. The rule of interpretation relied upon is not of such a general application to which there may be no exception,

43. We may notice another aspect in regard to the applicability of law of interpretation to deal with the rival submissions of both sides. One submission was that there is no power to regulate the quantum of fee in view of the provisions of Act and the Rules as they stood. The other was that it was permissible to regulate fee etc. in view of the power of the Government to regulate education in accordance with the Act and tile Rules, Once the object of the Act and the Rules is clearly; understood that it is to spread education. And ensure that there is no commercialization and exploitation, then two different Interpretations sought to be placed by the parties present no difficulty in resolving tile issue. In Keshavji & Co. & Ors. v. Commissioner of income Tax, (1990) 2 SCC 231 , [LQ/SC/1990/60 ;] ">(1990) 2 SCC 231 , [LQ/SC/1990/60 ;] [LQ/SC/1990/60 ;] Justice Venkatchaliah (as his Lordship then was) speaking for tile Supreme Court after noticing the case law on the subject, observed that the rules of interpretation are not rules of. law; they are more aids to, construction and constitute some broad pointers. The Interpretative criteria apposite in a given situation may, by themselves, be mutually irreconcilable. It is task of the Court to decide which one, in the light of all relevant circumstances, ought to prevail. The rules of interpretation are useful servants but quite often tend to become difficult masters. When these basic principles are kept in view as also the object of the Act there is no difficulty in concluding that despite the fact that Sections 17(1) and (2) of the Act is not applicable to the private recognised unaided schools the Government under the Act and the Rules has ample power to regulate fee and other charges to prevent commercialisation and 'exploitation before considering to take the extreme step of withdrawal of recognition and other harsh steps.

44. The cardinal principle of law is that every law is designated to further the ends of justice. The said purpose cannot be frustrated on mere technalities while interpreting a Statute. Its purpose and spirit as gathered from the intendment has to be borne in mind. These aspects are to be kept in mind for the correct interpretation of the Statute and the adjudication of rival submissions. The Supreme Court in Directorate of Enforcement. v Deepak Mahajan & Anr., (1994)3 Supreme Court Cases 440 [LQ/SC/1970/222] =53 (1994) DLT 527 (SC), has observed that though the function of the courts in only to expound the law and not to legislate, nevertheless the Legislature cannot be asked to sit to resolve the differences in the implementation of its intention and spirit of the law. In such circumstances it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the Statute. Reference has been made in the cited decision to some of the leading cases and to the opinion of the experts on interpretation of statutes. It would be useful to quote some of the passages from Deepak Mahajan' s case as under:

25. In Maxwell on Interpretation of Statutes, Tenth Edn. at page 229, the . following passage is found:

"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used."

26. In Seaford Court Estates Ltd. v. Asher Denning, L.J. said:

"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written word so as to give force and life' to the intention of the Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

27. Though the above observations of Lord Denning were disapproved in appeal by the House of Lords in Magor and St. Mellons v. New Port corpn. Sarkar, J. speaking for the Constitution Bench in M. Pentiah v. Muddala Veeramallappa adopted that reasoning of Lord Denning. Subsequently also Beg, C.J. in Bangalore Water Supply and Sewerage Board v. A. Rajappa approved the observations of Lord Denning stating thus: (SCC p. 286, para 148)

"Perhaps, with the passage of time, what may be described as the extension of a method resembling the 'arm-chair rule' in the construction of Wills, Judges can more frankly step into the shoes of the Legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state."

28. It will be befitting, in this context, to recall the view expressed by Judge Frank in Guiseppi v. Walling which read thus:

"The necessary generality in the wordings of many statutes, and ineptness of drafting in others frequently compels the Court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators perform the task of supplementing statutes. In the case of courts, we call it 'interpretation' or 'filling in the gaps'; in the case of administrators we call it 'delegation' or authority to supply the details."

29. Subba Rao,C.J. speaking for the Bench in Chandra Mohan vs. State of U.P. has pointed out that the fundamental rule of interpretation is that in construing the provisions of the Constitution or the Act of Parliament, the court "will have to find out the express intention from the words of the Constitution or the Act, as the case may be..." and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provisions of the existing law nugatory.

A.P. Sen, J. in Organo Chemical Industries v. Union of India has stated thus: (SCR p. 89: SCC p. 586, para 23):

" A bare mechanical interpretation of the words' devoid of concept or purpose' will reduce most of legislation to futility. it is a salutary rule, well established, that the intention of the Legislature must be found by reading the statute as a whole."

30. Krishna Iyer, J. has-pointed out in his inimitable style in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee : "To be literal in meaning is to see the skin and miss the soul of the Regulation."

31. Thus, normally courts should be slow to pronounce the Legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its Will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the Legislature inane. In cases of this kind, the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the Legislature intended to exclude jurisdiction of the courts from authorising the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence punishable under the provisions of FERA or the Customs Act which kind of offences seriously create a dent on the economy of the nation and lead to hazardous consequences. Authorities, a few of which we have referred to above, show that in given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile.

45. In view of the aforesaid legal position, we have no difficulty in rejecting the extreme proposition that Directorate of Education has no power to regulate the fee and other charges levied by private recognised unaided schools.

46. In the present case on the interpretation sought to be placed on Section 17 it cannot be inferred that despite the authorities finding that the levy of the fee and other charges was exhorbitant, unreasonable and amounted to exploitation and profiteering in the name of education, still it cannot ask the school management to rectify it and in such an eventuality the only course open to authorities is the straightaway proceed to withdraw recognition or takeover the school management. Further, even the fact that various provisions of the Act and the Rules make distinction between aided and unaided school by itself does not mean that under no circumstances the schools can be asked to regulate the fee and other charges. Referring to a stipulation in the impugned order that first the accumulated amount shall be exhausted, it was contended for the school management's that under rules the schools cannot be told that funds collected for one purpose should be used for another purpose. We do not think that the stipulation in impugned circular violates any rule. In fact, in the present case it is not a question of a fund collected for one purpose being asked to be used for another. It may have to be examined by a Committee as to how the surplus amount which has been directed to be used by the schools to pay the arrears of salary etc. instead of increasing fee and other charges at the first instance got accumulated. It is not open to the schools to contend that they are being asked to use funds for purpose other than the one for which it was collected. How surplus were accumulated is the question of fact which may have to be gone into each individual case. We are also unable to accept the contention that diversion of funds as being objected by petitioners and the administration, would adversely affect the expansion of the education or that the opening of the new schools would be jeopardised. In our view, higher amount of fee and charges cannot be levied on the ground of so called expansion requiring creation of funds. If any amount is to be generated for such a purpose it has to be under a separate head and not compulsive and involuntary payment under the garb of increase in the fee and other charges. Further, nobody stops the Society or the Trust which may have set up the school to generate its own funds needed for expansion for opening of new schools.

47. The contention on behalf of the schools that the real question is end. use of the money received as fee and charges from the students cannot be accepted entirely. It has to be borne in mind that in the Act and Rules there is prohibition from use of an amount for purpose other than the one for which it is charged. Further allowing such diversion of use of amount can result in abuse of the power to fix fee and other charges. The amount collected as tuition fee has ordinarily to be utilised for payment of salary and allowances of employees and if there is some incidental surplus amount under the said head, it may be used for other educational purposes but not that higher tuition fee can be levied knowing as to what would be the funds required for salary and allowances but in fact keeping in mind the other expenses which may have to be incurred by the school. For the same reason we find it difficult to accept the contention urged on behalf of the .schools that assuming higher admission fee is charged, it results in increase of revenue of the school resulting in levy of lesser tuition fee. Ordinarily the admission fee amount is to be used for expenses in regard to the admission and it is only incidental surplus which can be utilised for other educational purposes. This would be applicable to levy of charges under different heads. We are unable to accept that if revenue of the schools as a hole matches with the entire expenditure of the school, then there should be no objection from any quarters. There is also no substance in the plea that the impugned circular suffers from non-application of mind. The facts noticed here in before show to the contrary.

48. The forceful submission put forth on behalf of the schools by Mr.Jaitley and by Mr. Gopal Subramaniam that what can be regulated and interfered with is the use of the amounts collected by the schools from the students and not the quantum also deserve to be rejected. It is same argument that only end use of the amount collected is the relevant consideration and not whether the amount collected for one head is spent on another. The scheme of the Act and the Rules is that there should be no diversion of funds and what is collected shall be spent for same purpose barring accidental savings. The incidental use of sums collected for some anciliary purpose may be different but not the deliberate levy for one purpose knowing that for the said purpose the amount required may be much less and knowing that the excess amount is levied and collected and later used for another purpose. We do not think that the object of the Act would stand satisfied on simply showing that the amounts collected were spent for educational purposes. There may be some stray cases of such diversion of funds taking place. The approach relating to such stray cases may be different. The approach would, however, be different when one finds a continuous pattern of such diversion which is not permissible under the Act and the Rules and cannot be permitted under the garb of spreading education. But these are some of the aspects to be examined on facts in each case.

49. We have also no difficulty in accepting the proposition that the expenses may have to differ from school to school depending upon the nature of activities in the schools. It is not being suggested that if for legitimate and reasonable activities to be provided to the students, higher expenses are to be incurred the burden of it cannot be placed on the students. Our approach in no manner adversely affects the autonomy of unaided schools. We agree that autonomy of such schools has to be respected. But under the garb of autonomy the commercialisation of education cannot be permitted. It cannot be said that because of the autonomy no limit on charging any sum from students can be fixed under any head despite the expenditure , under that head.

50. Another submission put forth by Mr. Subramanim that an independent Committee can be appointed to go into the question whether the amounts transferred by the schools to the societies were used or not for educational purposes and if such a Committee comes to the conclusion that the amounts transferred from the schools to Societies were not spent by Societies for educational purposes, the Societies / Trusts can be directed to use such amount for educational purposes cannot be accepted in view of prohibition for transfer of amounts from the schools to the societies. In view of the provisions of the Rules we are unable to accept the contention that transfer of funds from school to society is permissible. Further, as contended it may be that in the field of education one has to pay not only for the present but also for the future as well, but that has to be in the nature of voluntary donation. For the expansion of education for future generation unreasonable demand can not be made from the present students and their parents.

51. There can be no doubt that the substantial increase in the fee and charges leads to considerable amount of discontentment amongst a substantial number of parents as it affects their pockets in these days of high inflation. The argument of high inflation is also applicable to schools who have to incur expenses. It cannot be ignored that to meet the increase in the expenses, the schools have necessarily to generate funds by increasing the amount of fee and charges. The present problem has arisen on account of payments to be made as a result of acceptance of the Vth Pay commission. The increased salaries to the school staff had to be paid. According to schools the fee and charges were increased to meet this additiona1 burden. According to the Parents Association, however, the schools had huge accumulated amounts wherefrom the additional burden on the schools could easily be met and the schools were only using the recommendations of Vth Pay commission as an excuse and under that garb the fee has been increased manifold.

52. For the examination of the rival contentions a close examination of the facts, figures and accounts of each school was necessary. Neither this Court is fully equipped nor it is possible for this Court on the facts of the present case, to even otherwise undertake this exercise in respect of each individual school. Such an exercise has to be undertaken by authorities or by an independent Committee which this Court may appoint. With the large number of private unaided recognised schools in Delhi, such an exercise by itself may be a time consuming process. If a particular school, on examination of facts and figures is found to be indulging in the malpractice of increasing the fees and charges in the garb of the implementation of the Vth Pay Commission or otherwise is found to be indulging in commercialisation the Government is not without power to take appropriate action under the Act and the Rules against such erring school. Presently the question has also been raised as to the validity of exercise of power by issue of impugned general order directing all schools not to charge higher fee and charges in terms thereof and-not restricting to schools which were inspected.

53. The power to regulate fee etc. is also sought to be derived by Director of Education from Section 24 of the Act, which reads as under:

Section 24-Inspection of Schools

(1) Every recognised school shall be inspected at least once in each financial year in such manner as may be prescribed.

(2) The Director may also arrange special inspection of any school on such aspects of its working as may, from time to time, be considered necessary by him.

(3) The Director may give directions to the manager requiring the manager to rectify any defect or deficiency found at the time of inspection or "otherwise in the working of the school.

(4) If the manager fails to comply with any direction given under Sub- section(3), the director may, after considering the explanation or report, if any, given or made by the manager, take such action as he may think fit, including––

(a) stoppage of aid,

(b) withdrawal of recognition, or

(c) except in the case of a minority school, taking over of the school under Section 20.

54. Assuming power to regulate fee etc. can be inferred from Section 24, a bare perusal of section shows that it does not confer any general power on Director of Education. Reading of Sub-sections(3) and (4) of Section 24 shows––that only specific directions in respect of a particular school in which a defect or deficiency may be found at the time of inspection or otherwise, can alone be issued. On failure to comply with any directions given under Sub-section(3), the Director of Education, as contemplated by Sub-section (4), can take suitable action including withdrawal of recognition etc. It was contended that assuming Section 24 could be applied, the 16 schools on inspection of which alleged defects and deficiencies were found, then action against only those schools, after following the procedure laid down in the Act and the Rules, could alone be taken. We may also note another Rule which shows that if any school indulges in commercialisation of education, the Director of Education is not powerless to take appropriate action. Rule 50 in Chapter IV provides for condition for recognition of private schools. Under the said rule a recognised school has to continue to follow the conditions specified in the rules. Sub-rule (iv) of Rule 50 provides that the school is not run for profit to, any individual, group or association of individuals or any other person. If the Director of Education finds that the school is being run for profit, such a school would be violating a condition of recognition and thus it can be asked to rectify it failing which to face the consequences which may be withdrawal of recognition as a result of not continuing to fulfill the condition of recognition. The Director of Education would be justified in asking the school to explain facts which according to Director of Education may show that the school is being run for profit. The school is obliged to explain facts to the satisfaction of Director of Education. If it is unable to do so, the Director of Education can ask the school to reduce the fee and other charges which according to the Director show that the school is indulging in the profit motives. In our view, it would not be open to the school to say that the Director of Education has no power to direct the school to reduce the fee and other charges as no such power vests in respect of unaided schools because Section 17(1) and (2) of the Act applies only to aided schools. The direction to reduce the fee and charges is to avoid straightaway taking the extreme step of withdrawal of recognition or taking over of the school. It is an opportunity given to the school so that the Director of Education may not resort to withdrawal of recognition or steps for taking over of the management are not taken. It only amounts to granting an additional opportunity to the school so that on compliance the extreme action of withdrawal of recognition or taking over of management etc. may be avoided. But for the findings and recommendations of Raghvan report which makes the present case as quite peculiar and to which we will advert a little later, we find force in the submission that Section 24 and Rule 50 are applicable to specific schools which may be found to be violating these provisions. Despite this conclusion, we feel that the problem here is peculiar which necessitated issue of general order which per se cannot be held to be illegal in facts and circumstances of these cases.

55. Regarding the contention that the defaulter schools may be asked to explain individually and action as permissible in law against particular school may be taken instead of treating unequals as equals, it has to be borne in mind that when the problem is so deep rooted and the sample inspection of few schools shows a pattern, it would be difficult to accept the submission that in such circumstances the impugned circular covering all schools would per se be bad. The Raghvan report has found wide variations in tuition fee charged by various schools though emoluments of teachers which is main revenue expenditure is more or less same in all schools. It has also been found that reasons for these variations have to be sought elsewhere. As noticed earlier, the impugned order has not placed a complete ban on increase of fee. The matter can be discussed in a proper meeting to be attended by all concerned and fee increased even as per impugned order. If any particular schoo1 can show that for reasons special to it, it has to levy higher charges on account of other heads like admission fee, security and caution money etc, it could have brought those special facts to the notice of the administration which would have considered it.

56. Learned Counsel for the Parents Association took us through voluminous record to show the fee structures in various private unaided schools to support their arguments that there was a trend in various schools to increase fee and other charges without any rhyme or reason and contended that the said increase examined in the light of the chart of expenses prepared by them show how commercialisation and profit motive exists in the schools. Attention was also drawn to other charges like dress, took charges, building fund, caution money, loans, donations etc. being charged by the schools. Likewise, learned Counsel for the schools also took us through the record and charts etc. got prepared by them and were at pains to justify the levy of fee and collection of charges and streneously submitted that the schools were not indulging in any profit motive. They submitted that the schools were doing a real service to the Society. It was also contended that a perusal of the results of these private schools as compared to Government schools by itself is an indication of the extent of the interest in development of education these private schools take. The further contention was that providing other facilities like swimming pool and sports complex etc. were part of development of the child and helps in furthering education. Large amounts are spent or such facilities which were not available is most of the Government schools.

57. The schools with which we are concerned are in the nature of self financing private educational institutions. White observing that these schools are not profit making ventures, it deserves to be clearly understood that these private schools are the need of the day ,they are doing laudable work and augment the affairs of the Government in the filed of education. The limited control of the Government can only be with a view to safeguard against commecialisation and exploitation.

58. Before we come to the concluding part and consider the directions required to be issued in these matters appointing an independent Committee to examine various factual aspects, it would be appropriate to briefly deal with the contention regarding the impact of impugned order on minority educational institutions. It was urged that the impugned order violates the rights of the minorities protected under Article 30 of the Constitution of India. All minorities, whether based on religon or language, under Article 30(1) of the Constitution have the right to establish and administer educational institutions of their choice. The Government under the garb of adopting regulatory measures cannot be permitted to destroy the administrative autonomy of the educational institutions run by the minorities as such interference would make the constitutional provisions nugatory and illusory. There can not be any interference with the administrative autonomy of the institutions managed by the minorities. Their right under Article 30(1) is absolute. There can be no limitation on the rights of the minorities to administer educational institutions. This constitutional right has been specifically recognised in the Act and the Rules. Section 5 of the Act which, inter alia, provides the framing of a scheme of management of schools by the Managing Committee of every recognised school, specifically stipulates in the second proviso that so much of the section as relates to the previous approval of the Appropriate Authority, shall not apply to a scheme of management for an unaided minority school. Likewise Rule 59 which, inter alia, provides the constitution of the Managing Committees of the recognised schools with the nominees also of Director of Education again recognises the right of the minority institutions to administer the schools without any interference from the Director of Education of the Government. The right of the minority institutions to administer the schools without any interference from the Government have been reiterated by the Supreme Court in various pronouncements.

59. The leading decision on this issue is of The Kerala Education Bill's case, 1959 SCR 995. [LQ/SC/1958/83] According to this decision, in judging the validity of any law, regard , must be had to its real intendment and effect on the rights of the aggrieved parties rather than on its form. The right protected under Article30(1) cannot be taken away or abridged even indirectly by making a law because the legislative power is subject to fundamental rights. In this decision a clause in the-proposed law requiring that no fee should be charged for tuition in the primary classes was held to infringe the fundamental rights of the minority communities in respect of recognised schools to be established after the commencement of the Education Bill validity of which was being examined by the Supreme Court. The Supreme Court also took note of Directive Principles contained in Article 45 requiring the State to endeavour to provide within a period of 10 years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of 14 years. On this aspect, reference can also be made to Unni Krishnan's decision.

60. In Frank Anthony Public School Employees' Association v. Union of India & Ors., AIR 1987SC311,itwas held that "the extent of the right under Article 30(1) is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting the education cannot be considered to impinge upon the rights guaranteed by Article 30(1) of the Constitution: The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, "without of course nullifying any part of the right of the management is substantial measure. .

61. The right to administer cannot obviously include the right to mal-administer. The question in the present case however, would be whether the impugned circular in fact amounts to setting at naught any mal-administration or its liklihood or in the garb of regulation or of setting at naught the mal-administration, the impugned circular tends to interfere in the administration of the educational institutions run by the minorities.

62. In Mrs. Y. Theclamma v. Union of India & Ors, (1987) 2 SCC 516 , [LQ/SC/1987/384] the question that came up for consideration before the Supreme Court was whether Section 8(4) of the Delhi School Education Act which, inter alia, provided that no employee shall be suspended without the approval of the Director of Education would be applicable to the minority institutions or not. The case of the minority institutions was that in encroached upon their right under Article 30(1) of the Constitution. Relying upon the decision in the case of Frank Anthony Public School the Supreme Court held that the endeavour of the Court in all cases has been to strike a balance between the Constitutional obligation to protect what is secured to the employees under Article 30(1) and the social necessity to protect the members of the; staff against arbitrariness and victimisation. It was accordingly held that Section 8(4) cannot be said to have encroached upon the rights of the minorities under Article 30(1).

63. The right to freely administer educational institutions by minorities as provided for under Article 30(1) does not permit the minorities to indulge in commercialisation of education in the garb of this constitutional protection. It is no doubt true that unlike Article 19, the fundamental freedom to establish and administer educational institutions of minorities guaranteed under Clause (1) of 1 Article 30 is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enshrined in Article 19 may be subject to (Sidhrajbhai Sabbai & Ors. v. State of Gujarat & Anr., AIR 1963 SC 540 [LQ/SC/1962/290] ), but there is no right to mal-administration and the regulations made in the true interest of education cannot be held to be violative of Article 30(1).

64. The impugned order has to satisfy a dual test-the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institutions an effective vehicle of education for the minority community or other persons who resort to it. The same position would emerge from the decisions in The Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat & Anr., AIR 1974SC 1389, Lilly Kurian v. Sr. Lewina & Ors.,AIR 1979 SC 52 [LQ/SC/1978/262 ;] ">AIR 1979 SC 52 [LQ/SC/1978/262 ;] [LQ/SC/1978/262 ;] , and St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 [LQ/SC/1991/679] .

65. The net effect of the aforesaid discussion is that on the aspect of commercialisation and exploitation, minority institutions would be similarly placed as other institutions. If the Government on the facts of each minority institutions is able to show that these institutions are indulging in commercialisation of the education and mal-administering the educational institutions, to regulate this evil if any order is issued which places a restriction on amount of fee to be charged, it would not be unconstitutional.

66. In view of the aforesaid discussion our conclusions may be summarised' asunder:

(i) It is the obligation of the Administrator and / or Director of Education to prevent commercialisationand exploitation in private unaided schools including schools run by minorities.

(ii) The tuition fee and other charges are required to be fixed in a validly constituted meeting giving opportunity to the representatives of Parent Teachers Association and Nominee of Director of Education to place their view-points.

(iii) No permission from Director of Education is necessary before or after fixing tuition fee. In case, however, such fixation is found to be irrational and arbitrary there are ample powers under the Act and the Rules to issue directions to school to rectify it before resorting to harsh measures. The question of commercialisation of education and exploitation of parents by individual schools can be authoritatively determined on thorough examination of accounts and other records of each schools.

(iv) The Act and the Rules prohibit transfer of funds from the school to the Society or from one school to another.

(v) The tuition fee cannot be fixed to recover capital expenditure to be incurred on the properties of the society.

(vi) The inspection of the schools, audit of the accounts and compliance of the provisions of the Act and the Rules by private recognised unaided schools could have prevented the present state of affairs.

(vii) The Authorities/Director of Education has failed in its obligation to get the accounts of private recognised un-aided schools audited from time to time.

(viii) The schools/Societies can 'take voluntary donations not connected with the admission of the ward.

(ix) On the peculiar facts of these petitions there is no per se illegality in issue of the impugned circular dated 10th September, 1997.

(x) An independent statutory Committee, by amendment of law, if necessary, deserves to be constituted to go "into factual matters and adjudicate disputes which may arise in future in the matter of fixation of tuition fee and other charges.

(xi) The Government should consider extending Act and Rules with or without modifications to all schools from Nursery onward.

67. Having bestowed our thoughtful consideration to the submission of Counsel for the parties and aforenoticed detail facts and circumstances, we are of the view that an independent Committee deserves to be appointed for the period covered by impugned order dated 10th September, 1997 up to start of academic session in the year 1999, to look into the cases of the individual schools and determine, on examination of record and accounts etc., whether increase of tuition fee and other charges, on facts would be justified or not. Eliminating the element of commercialisation and in light of this decision the Committee would determine fee and other charges payable by students of individual schools. We do not think that it would be desirable at present to permit any further increase than what has already been permitted by order dated 11th December, 1997. We would, therefore, extend the afore-quoted order dated 11th December; 1997 till decision of cases of individual schools by Committee appointed by this judgment.

68. We, accordingly, appoint a Committee comprising of Ms. Justice Santosh Duggal, a retired Judge of this Court as Chairperson with power to nominate two persons––one with the knowledge of Accounts and second from field of education in consultation with Chief Secretary of NCT of Delhi to decide matters of fee and other charges leviable by individual Schools in terms of this decision. We request the Committee to decide the claims of individual schools as expeditiously as possible after granting an opportunity to the schools, Director of Education and a representative of the Parent Teachers Association and such other person as the Chairperson may deem fit. The terms and conditions including fees/honorarium payable and other facilities be provides by the State Government to the Chairperson and other Members of the Committee would be discussed by the Chief Secretary with the Chairperson and finalised within 10 days.

All the petitions are disposed of in the above terms leaving the parties to bear their own costs.