# Diocese Of Varanasi Education Society And Others v. State of U.P. And Others

- **Citation:** (2019) 1 ILRA 19
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-02
- **Case number:** Writ-C No. 709 of 2019
- **Bench:** Govind Mathur, C.J. Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/diocese-of-varanasi-education-society-and-others-v-state-of-u-p-and-others-44436
- **Pages:** 11

## Headnote

C.S.C.

A.
U.P.
Self-Financed
Independent
Schools (Fee Regulation) Act, 2018. Is a
legislation to ensure easy accessibility to
each and every citizen and further to
expand fairness and reasonability in
administration
of
the
institutions,
including minority institutions, without
interference therein for broader interest
of the ultimate consumer, as such we do
not find any violation of Article 30(1) of
the
Constitution
of
India
while
introducing
U.P.
Self-Financed
Independent Schools (Fee Regulation)
Act, 2018.

Writ Petition dismissed in limine.

CHRONOLOGICAL LIST OF CASES CITED:
20 INDIAN LAW REPORTS ALLAHABAD SERIES
1: - 2002 (8) SCC 481, TMA Pai Foundation Vs.
State of Karnataka

2: - AIR 1958 SC 956,

3: - (2007 (1) SCC 386, Malankara Syrian
Catholic College Vs. T. Jose

4: - 2010 (8) SCC 49, Sindhi Education Society
Vs. Chief Secretary, Government of NCT of
Delhi. (E-7)

## Text

1 All. Diocese of Varanasi Education Society And Others Vs. State of U.P. And Others
19

(iii) WRIT C No.39403 of 1999
(I.E.L.Supervisors Association vs. State
Of U.P And Others) - This writ petition
has been filed with the prayer for
publication of award dated 23.4.1999
which was subsequently published on
7.1.2002 and has been challenged in Writ
Petition No.12468 of 2002. Therefore,
this writ petition is dismissed as rendered
infructuous.

(iv) WRIT C No.32788 of 2000
(I.E.L.Supervisior Association vs. State
Of U.P. And Others) - This writ petition
has been filed for restraining the State
Government from publishing the fresh
award dated 16.6.2000. This petition is
rendered infructuous as subsequently,
award passed earlier was published on
7.1.2002 and has been challenged in Writ
Petition No.12468 of 2002. Therefore,
this writ petition is dismissed as rendered
infructuous.

(v) WRIT C No.44848 of 2000
(Duncans Industries Ltd. vs. State Of
U.P.And Others) - This writ petition has
been filed against the order dated
30.9.2000 whereby the State Government
has referred the Adjudication No.11 of
1988 again for adjudication. This writ
petition is rendered infructuous as award
has been passed and published on
7.1.2002 which is under challenge in Writ
Petition No.12468 of 2002. Therefore,
this writ petition is dismissed as rendered
infructuous.

(vi) WRIT C No.53016 of 2000
(I.E.L. Supervisors Association and
Others vs. Industrial Tribunal And
Others) - This writ petition has been filed
challenging the reference order dated
30.9.2000. This writ petition is also
dismissed as infructuous, as subsequently,
the award has been passed and published
on 7.1.2002 which is under challenge in
Writ Petition No.12468 of 2002.

(vii) WRIT C No. - 16447 of
2006 (Duncans Industries Limited vs.
State Of U.P. And Others) - This writ
petition has been filed challenging the
award
dated
21.5.2005
whereby
Supervisors were held to be Workmen.
The award dated 21.5.2005 is hereby set
aside and the writ petition is allowed
accordingly.
------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 709 of 2019

Diocese Of Varanasi Education Society
And Others ...Petitioners
Versus
State of U.P. And Others ...Respondents

Counsel for the Petitioners:
Sri Pankaj Srivastava

Counsel for the Respondents:
C.S.C.

A.
U.P.
Self-Financed
Independent
Schools (Fee Regulation) Act, 2018. Is a
legislation to ensure easy accessibility to
each and every citizen and further to
expand fairness and reasonability in
administration
of
the
institutions,
including minority institutions, without
interference therein for broader interest
of the ultimate consumer, as such we do
not find any violation of Article 30(1) of
the
Constitution
of
India
while
introducing
U.P.
Self-Financed
Independent Schools (Fee Regulation)
Act, 2018.

Writ Petition dismissed in limine.

CHRONOLOGICAL LIST OF CASES CITED:
20 INDIAN LAW REPORTS ALLAHABAD SERIES
1: - 2002 (8) SCC 481, TMA Pai Foundation Vs.
State of Karnataka

2: - AIR 1958 SC 956,

3: - (2007 (1) SCC 386, Malankara Syrian
Catholic College Vs. T. Jose

4: - 2010 (8) SCC 49, Sindhi Education Society
Vs. Chief Secretary, Government of NCT of
Delhi. (E-7)

(Delivered by Hon'ble Govind Mathur,C.J.
Hon'ble Saurabh Shyam Shamshery, J.)

1. To regulate fees in self financed
independent schools in the State of Uttar
Pradesh
and
the
matter
connected
therewith or incidental thereto, the Uttar
Pradesh State Legislature enacted an act
in the name of "U.P. Self-Financed
Independent Schools (Fee Regulation)
Act, 2018". The enactment aforesaid
received the assent of the Governor on
12th September, 2018 and came to be
published
in
the
U.P.
Gazette,
Extraordinary, Part I, Section (Ka) dated
12th September, 2018.

2. The act aforesaid is having
application
to
all
Self-Financed
Independent Schools of Pre-Primary,
Primary, Upper Primary, High School and
Intermediate
Colleges
granted
recognition/affiliation by boards defined
under clause (c) of Section 2 by Uttar
Pradesh Basic Shiksha Parishad, Board of
High School and Intermediate Education
Uttar
Pradesh,
Central
Board
of
Secondary Education, Indian Council of
Secondary
Education,
International
Baccalaureate and International General
Certificate of Secondary Education or any
other Board notified by the Government
from time to time. The act is also having
application
on
minority
institutions
recognized/affiliated by any of the boards
referred above.

3. Section 2 of the Act provides
definitions to different important terms
referred in the act including District Fee
Regulatory
Committee,
Educational
purposes, Minority educational institution
and Self-Financed Independent School.
For ready reference, the definitions of the
terms mentioned above, as prescribed
under Section 2 of the Act is quoted
below:-

"Definitions.- In this Act, unless
the context otherwise requires.-

(a) "Affiliation" means enrolment
of a recognized school among the list of
approved schools of a Board for the
prescribed/approved courses of studies upto
Classes V, VII, X and/or XII as well as those
preparing students according to prescribed
courses for the Boards' examinations;

(b)
"Academic
Year"
means
commencement and end of academic session
specified by the respective boards;

(c) "Appropriate authority" means
the District Fee Regulatory Committee
constituted under Section 8;

(d) "Board" means the Uttar
Pradesh Basic Shiksha Parishad, Board of
High School and Intermediate Education
Uttar Pradesh, Central Board of Secondary
Education (CBSE), Indian Council of
Secondary Education (ICSE), International
Baccalaureate (IB), International General
Certificate of Secondary Education (IGCSE)
or any other Board notified by the
Government from time to time.

(e)
"District
Inspector
of
Schools" means an officer appointed in
each district of the State in such manner
as may be prescribed or any other officer
authorized by the Government to exercise
1 All. Diocese of Varanasi Education Society And Others Vs. State of U.P. And Others
21
the powers and perform the functions of
District Inspector of Schools of Secondary
Education;

(f) "District Fee Regulatory
Committee" means the District Fee
Regulatory Committee constituted under
Section 8;

(g)
"Educational
purposes"
means
any
educational
activity
undertaken by a recognized school, inter
alia,
including,
creation
of
courses/curriculum, patents, research and
development activities, teacher training
programmes,
staff
development
programmes,up-gradation of technology,
vocational
training,
co-curricular
activities and sports related infrastructure
and equipment and establishment of a
new branch or a new school;

(h) "Eligible educational entity"
means of society registered under the
Societies Registration Act, 1860 or public
trusts or trusts created under the Indian
Trusts Act, 1882, or companies registered
under the Companies Act, 2013 or any
other entity permitted by any of the
Boards which operates, manages and
maintains recognized schools in the State;

(i)
"Government"
means
the
Government of the State of Uttar Pradesh;

(j) "Guardian" means a parent or a
person whose name is registered in school as
guardian by the parent of a student;

(k) "Head of the school" means the
principal or as may be called by any other
name of a recognized school designated by
the eligible educational entity to manage the
administration and academic affairs of the
recognized school, as the case may be;

(l)"Joint Director of Education"
means divisional level officer of Education
Department of the Government;

(m) "Local authority" means a
local area notified by a Nagar Panchayat,
Nagar Palika, Nagar Nigam or a Zila
Panchayat having jurisdiction over that
local area;

(n) "Management Committee"
means the body of persons of a
recognized
school
authorized
by
competent body/authority to manage the
functioning of that school;

(o)
"Minority
educational
institution"
means
an
institution
established
and
administered
by
a
minority, whether based on religion or
language, having the right to do so under
clause (1) of Article 30 of the Constitution
of India;

(p) "Parent Association" means
an Association of Parents of a recognized
school to be constituted in such manner
as may be prescribed;

(q)
"Parent-Teachers
Association"
means
Parent-Teachers
Association
framed
under
ParentTeachers Association Regulations, 1986
for the schools recognized by Board of
Secondary Education, Uttar Pradesh and
for the other boards Parent-Teachers
Association as constituted by the school
with parent and teachers of the school;

(r) "Permitted fee increase"
means the increase in fee permitted under
Section 4;

(s) "P.W.D." means Public
Works Department of the Government;

(t) "Recognized school" means a
school recognized by a Board for
operation in the State.

(u) "Recognition" means formal
certification granted by a Board for
operation in the State to a school that it
conforms to the standards and conditions
laid down by the Government to operate a
school;

(v) "Self-Financed Independent
School" means an institution imparting
education wherein major expenses of the
institution, for any purpose whatsoever,
22 INDIAN LAW REPORTS ALLAHABAD SERIES
are to be met by the management of such
institution itself and/or out of the school
funds/revenue or through contributions,
loan borrowings including loans obtained
by creation of any emcumbrances on
School property;

(w) "School" includes;

(i)
Pre-primary
school
imparting education below the primary
stage such as nursery and kindergarten;
or

(ii) Primary school imparting
education from Classes I to V (both
inclusive); or

(iii) Upper primary imparting
education from Classes VI to VIII (both
inclusive); or

(iv)
High
school
imparting
education to Classes IX to X; or

(v) Intermediate college imparting
education to Classes XI to XII;

managed
by
an
eligible
educational entity and affiliated to a Board as
a self-financed independent school;

Provided that where such school
operates on a standalone basis as a preprimary school imparting education below the
primary stage, it shall not come under the
purview of this Act;

(x) "School property" means all
movable and immovable property, tangible or
intangible, owned by, or in the possession of,
the recognized school or the eligible
educational entity within the school campus
and/or related to the concerned recognized
school and all other rights and interests in, or
arising out of, such property, and includes
land, building and its appurtenances, play
grounds, hostels, furniture, books, apparatus,
maps,
intellectual
property,
equipment,
utensils, cash, reserve funds, investments and
bank balances;

(y) "State" means the State of Uttar
Pradesh;

(z) "State Appellate Authority of
Self-Financed
Independent
Schools"
means State Self-Financed Independent
Schools
Authority
constituted
under
Section 9."

4. Chapter II of the act relates to
admission to schools and fees and as per
Section 3 a recognized school shall
determine its fee structure under subsections (1) and (2) of Section 4 for
different
classes/grades/school
levels
commensurate to, inter alia, meeting its
operational
expenses,
providing
for
augmentation of facilities and expansion
of
infrastructure
and
for
providing
facilities to the students, to generate
reasonable surplus to be utilized for
development of educational purposes
including establishment of a new branch
of a new school under the management of
the same eligible educational entity.

5. The provision aforesaid further
provides Possible Fee Components and
certain checks in settling the fee including
that no school shall except with the prior
approval of the appropriate authority,
charge, during the academic year any fee
in excess of the fee intimated to the
appropriate authority under sub-section
(4) and further that every recognized
school shall ensure that no capitation fee
is charges. It is also provided that no
student shall be compelled to purchase
books, shoes, socks and uniform, etc.
from a particular shop and the school
uniform shall not be changed within live
consecutive academic years. If change is
required, it can be changed with proper
justification with prior approval of
District Fee Regulatory Committee.

6. Section 4 relates to fixation of fee
and that reads as follows:-
1 All. Diocese of Varanasi Education Society And Others Vs. State of U.P. And Others
23

"Fixation
of
fee.
-
(1)
Permitted
fee
increase
for
existing
students - A recognized school may revise
its fee annually for its existing students by
itself for each grade/class/level of school
equivalent to average per centage per
capita increase of monthly salary of
teaching staff of previous year, but the fee
increase shall not exceed latest available
yearly per centage increase in consumer
price index + fiver per cent of the fee
realised from the student;

Explanation. - At the time of
admission, irrespective of the grade/class
in which a student is entering the school,
the school shall provide to the guardian,
the complete fee structure for all
grade/class
upto
grade/Class
XII
applicable to new students for that
particular year. This fee structure shall
become
the
base
for
calculating
subsequent annual permitted fee increase
on
compounding
basis
for
each
grade/class
to
determine
the
fee
applicable to the students for future
grade/class:

Provided
that,
in
case
of
implementation of the pay commission
recommendation in any School, in that
year the term "but the fee increase shall
not exceed latest available yearly per
centage increase in consumer price
index+five per cent of the fee realized
from the student" shall not apply. When
pay commission recommendation has
been implemented in the school, that year,
school may revise its fee annually for its
existing students by itself for each
grade/class/level of school equivalent to
average per centage per capita increase
monthly salary of teaching staff of
previous year. This shall be applied from
year 2018-2019;

In case of the implementation of
levy of any new cess, it may be charged
with proper justification with prior
approval of District Fee Regulatory
Committee upto the level of impact of that
cess;

For
the
previously
admitted
students, computation of Permitted Fee
increase for the first Year 2018-2019 in
accordance with sub-section (1) The fee to be
fixed for Year 2018-19 shall be the lower of
the fee computed taking base Year 2015-16
and computations of fee based on taking
2017-18 as base year and calculated as per
provision of sub-section (1);

(2) Permitted fee fixation for new
student- The school shall be free to determine
its fee for the new students for any
class/grade/level seeking fresh admissions, in
a particular academic year subject to
guidelines, if any, notified by the Government.
Increase in fee for subsequent years for these
students shall be in accordance with subsection (1)."

7. Section 6 of the act provides for
Development Fund and according to that
not more than 15% of total income of
school
during
the
financial
year
transferred to Eligible Educational Entity
as development fund.

8. As per Section 7, a school shall 60
days
prior
to
commencement
of
admissions in each academic year, publish
on its notice board or on its website the
details relating to issues mentioned
below:-

"... (a) general information
about
the
recognized
school,
accreditation, and affiliation;

(b) admission policy;

(c) details of the fee and fund
structure for the previous year, current
year and the ensuing year;
24 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) details of facilities including
hostel, sports, co-curricular activities and
extracurricular activities;

(e) details of student to space
ratio and student to teacher ratio;

(f) details of the salaries of
teachers in Academic Year 2015-2016,
2016-2017, 2017-2018;

(g) calendar of major events
being organized by the recognized school
throughout
the
academic
year
for
students; and

(h) calendar of major events
being organized by the recognized school
throughout the academic year for teacher
training
and
staff
development
programmes;

(2) Unless otherwise specified
under this Act or the rules made
thereunder and the information disclosed
in sub-section(1) shall remain in the
public domain for the entire academic
year;"

9. Section 8 of the Act provides for
District Fee Regulatory Committee, its
constitution, functions and power. As per
this provision, a District Fee Regulatory
Committee is required to be constituted in
every district of the State consisting of
District Magistrate (Ex-officio Chairman),
a Chartered Accountant to be nominated
by the District Magistrate, an Engineer,
not below the rank of Executive Engineer
of PWD nominated by the District
Magistrate, a senior officer of State
Finance and Accounts Service nominated
by the District Magistrate, a parent of
Parent Teachers Association of a school
situated in the district nominated by the
District
Magistrate,
an
eminent
principal/manager/administrator of a selffinanced school nominated by the District
Magistrate and the District Inspector of
Schools. The District Fee Regulatory
Committee is having powers as prescribed
under sub-section (4) of Section 8 and
those are as under:-

"8(4).-
The
District
Fee
Regulatory Committee shall have power
to:-

(a) take decisions on proposals
received from the management committee
regarding the proposed fee increase
beyond the permitted fee increase under
sub-section (1) of Section 4;

(b) hear complaint of a student
or guardian or parent teacher association
of such School whose complaint remains
unheard by the Head of the School within
fifteen working days under this Act:-

(i) made for fee being charged
in excess of the fee intimated to the
appropriate authority under Section 4;

(ii) made for capitation fee
being charged;

(iii) made for revision of fee
during ensuing academic year; and

(iv) made for increase in fee
more than the permitted fee increase
without
obtaining
approval
of
the
appropriate authority;

(v) made for compulsion to
purchase
books,
shoes,
socks
and
uniform, etc., from a particular shop;

(vi) change of school dress
within five years, without prior approval
of District Fee Regulatory Committee;

(vii) made for not making
disclosure as provided under Section 7;

(viii) made for non-refunding of
security
money/caution
money
after
violation of provision made in clause (c)
of sub-section 3 of Section 3;

(ix) made for violation of
Section 6."

10. Sub-section (8) of Section 8
provides that every recognized school
1 All. Diocese of Varanasi Education Society And Others Vs. State of U.P. And Others
25
which proposes to increase its fee beyond
the permitted fee increase shall, at least
three months before the commencement
of the academic session, submit a
proposal containing the details of the
proposed fee with appropriate documents
justifying the need for such increase to the
District Fee Regulatory Committee. An
Appellate authority is also prescribed
under the act in the name of State Self
Finance Independent School Appellate
Authority to adjudicate grievance of the
recognized institutions, if any, arising out
of any order under the act.

11. The constitutional validity of the
act is challenged by the petitioner, a
minority institution on the count that as
per article 30(1) of the Constitution of
India no interference in administration of
minority institutions can be made by the
State authorities statutorily or otherwise.

12. Reliance is placed by learned
counsel appearing on behalf of the petitioner
upon the judgment of Hon'ble Supreme
Court in TMA Pai Foundation Vs. State of
Karnataka, 2002 (8) SCC 481.

13. It is stated that minority
institutions are having right to adopt their
own procedure to admit the students, to
set up reasonable fee structure, to
constitute governing body, to appoint staff
and to take action, if there is dereliction of
duty on the part of any employee. The act
in question as per learned counsel
appearing on behalf of the petitioner is
violating a valuable constitutional right of
the minority institutions.

14. It would be appropriate to state
that the petitioner-institution is not
receiving any aid of the Government of
Uttar Pradesh but recognition of the
courses undertaken by it.

15. Heard learned counsel at length.

16. Article 30 of the Constitution of
India
prescribes
fundamental
right
of
minorities
to
establish
and
administer
educational institutions. According to clause
(1) of Article 30 all minorities whether based
on religion or language shall have the right to
establish
and
administer
educational
institutions of their choice. The right aforesaid
has been crystallized by the Supreme Court of
India in several cases and at the first instance
the matter came up before it in Reference The
Kerala Education Bill, 1957, AIR 1958 SC
956. On the basis of the legal foundation laid
down in the case aforesaid the rights of the
minorities as prescribed under Article 30 of
the Constitution of India were examined in
detail by the Apex Court in TMA Pai
Foundation (supra) holding therein that the
right to establish an educational institution can
be regulated; but such regulatory measures
must, in general, ensure the maintenance of
proper academic standards, atmosphere and
infrastructure including qualified staff and
prevention of maladministration by those in
charge of management. The fixing of a rigid
fee structure, dictating the formation and
composition of a governing body, compulsory
nomination of teachers and staff for
appointment or nominating students for
admissions
would
be
unacceptable
restrictions. The Court while strengthening the
rights protected under Article 30 of the
Constitution of India shown its concern about
interference of the government may that by
way of statute in day today administration of
the minority educational institutions. It would
be appropriate to state that the court in the
case of TMA Pai (supra) make a fine
distinction in right to "administer" and
"maladminister" the minority institution.
26 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The issue was again considered
by
the
Apex
Court
in
Secretary,
Malankara Syrian Catholic College Vs.
T. Jose, (2007 (1) SCC 386. The Apex
Court summarized the general principles
relating
to
establishment
and
administration of educational institutions
by minorities as under:-

"... (i) The right of minorities to
establish and administer educational
institutions of their choice comprises the
following rights:

(a) to choose its governing body
in whom the founders of the institution
have faith and confidence to conduct and
manage the affairs of the institution;

(b) to appoint teaching staff
(teachers/lecturers
and
Headmasters/Principals) as also nonteaching staff, and to take action if there
is dereliction of duty on the part of any of
its employees;

(c) to admit eligible students of
their choice and to set up a reasonable fee
structure;

(d) to use its properties and
assets for the benefit of the institution.

(ii) The right conferred on
minorities under Article 30 is only to ensure
equality with the majority and not intended
to place the minorities in a more
advantageous
position
vis-à-vis
the
majority. There is no reverse discrimination
in favour of minorities. The general laws of
the land relating to national interest,
national security, social welfare, public
order, morality, health, sanitation, taxation,
etc. applicable to all, will equally apply to
minority institutions also.

(iii) The right to establish and
administer educational institutions is not
absolute. Nor does it include the right to
maladminister. There can be regulatory
measures
for
ensuring
educational
character and standards and maintaining
academic excellence. There can be checks
on administration as are necessary to
ensure that the administration is efficient
and sound, so as to serve the academic
needs of the institution. Regulations made
by the State concerning generally the
welfare
of
students
and
teachers,
regulations
laying
down
eligibility
criteria
and
qualifications
for
appointment, as also conditions of service
of employees (both teaching and nonteaching),
regulations
to
prevent
exploitation or oppression of employees,
and regulations prescribing syllabus and
curriculum of study fall under this
category. Such regulations do not in any
manner interfere with the right under
Article 30(1).

(iv) Subject to the eligibility
conditions/qualifications prescribed by
the State being met, the unaided minority
educational institutions will have the
freedom to appoint teachers/lecturers by
adopting any rational procedure of
selection.

(v) Extension of aid by the State
does not alter the nature and character of
the
minority
educational
institution.
Conditions can be imposed by the State to
ensure proper utilisation of the aid,
without however diluting or abridging the
right under Article 30(1)."
"Aided
institutions give instruction either in
secular
education
or
professional
education. Religious education is barred
in educational institutions maintained out
of
the
State
funds.
These
aided
educational
minority
institutions
providing
secular
education
or
professional education should necessarily
have standards comparable with nonminority educational institutions. Such
standards can be attained and maintained
only by having well-qualified professional
1 All. Diocese of Varanasi Education Society And Others Vs. State of U.P. And Others
27
teachers. An institution can have the
services of good qualified professional
teachers only if the conditions of service
ensure security, contentment and decent
living standards. That is why the State can
regulate the service conditions of the
employees of the minority educational
institutions to ensure quality of education.
Consequently,
any
law
intended
to
regulate
the
service
conditions
of
employees of educational institutions will
apply
to
minority
institutions
also,
provided that such law does not interfere
with the overall administrative control of
the management over the staff."

"We may also recapitulate the
extent
of
regulation
by
the
State,
permissible inrespect of employees of
minority
educational
institutions
receiving aid from the State, as clarified
and crystallized in T.M.A. Pai. The State
can prescribe:

(i) the minimum qualifications,
experience and other criteria bearing on
merit, for making appointments,

(ii) the service conditions of
employees without interfering with the
overall administrative control by the
management over the staff,

(iii) a mechanism for redressal
of the grievances of the employees,

(iv) the conditions for the
proper utilization of the aid by the
educational
institutions,
without
abridging or diluting the right to establish
and administer educational institutions."

18. The summary quoted above in
quite unambiguous terms convey that
all laws made by the State to regulate
the
administration
of
educational
institutions and grant of aid will apply
to minority educational institutions
also. But if any such regulations
interfere
with
the
overall
administrative
control
of
the
management
over
the
staff
or
abridges/duties, in any other manner,
the right to establish and administer
educational
institutions,
such
regulations, to that extent, will be
inapplicable to minority institutions.

19. The Apex Court further examined
the rights enshrined under Article 29 and 30
of the Constitution of India in Sindhi
Education Society Vs. Chief Secretary,
Government of NCT of Delhi, 2010 (8)
SCC 49, the Apex Court examined the
question relating to the extent the State can
regulate the right of the minorities to
administer their educational institutions
when such educational institutions are
receiving aid from the State/not receiving the
aid from the State. The Court after
recapitulating the law crystallized in TMA
Pai Foundation (supra) held that all laws
made by the State to regulate the
administration of educational institutions
and grant of aid will apply to minority
institutions also but if any such regulation,
if interfere with the overall administrative
control by the management then that
would
be
inapplicable
to
minority
institutions.

20. On going through the law thrashed
by the Apex Court in all the judgments
referred above, we are having no doubt in
arriving at the conclusion that article 30
protects the minority institutions from
interference of the Government in their
establishment,
management
and
administration but that in no manner prevents
the State to ensure good administration by
putting checks on the eventualities giving
rise to "maladministration". The right to
administer
educational
institutions
by
minorities does not permit to indulge in
malpractices including, commercialization of
28 INDIAN LAW REPORTS ALLAHABAD SERIES
education. The State if satisfies the test of
reasonableness and the test that the provision
applied is regulative of educational character
and is conducive to make the minority
educational institutions more effective for
education to the minorities then such
provision is not at all hit by the right
protected
under
Article
30
of
the
Constitution of India. In other words such
provision is in furtherance to the right given
to ensure better and brighter educational
status to such institutions.

21.

Under
the
act
under
consideration, there is no provision that
may cause interference with overall
administrative control by the management
with right of a minority educational
institutions in settling the fee. On the
contrary, as per Section 3 a recognized
school shall determine its fee structure
and while doing so it is required to meet
certain guidelines given under Section 4
of the act. Section 3 also provides
possible fee components and optional fee
components those may be charged by the
schools. The restrictions prescribed are
that no school shall, except with the prior
approval from the appropriate authority,
charge during the academic year any fee
in excess of the fee intimated to the
appropriate authority earlier and, further
that no capitation fee shall be charged by
such institutions. The restrictions are quite
reasonable. The institution, if has settled a
fee after taking into consideration all the
relevant factors then the same in normal
course must not be changed without a
justifiable reason. If for any reason
change in fee structure is warranted then
the recognized institutions must seek
approval from the appropriate authority.
The restriction as a matter of fact checks
maladministration
and
ensures
fair
administration of the institutions by the
management itself. So far as capitation
fee is concerned that is nothing but a mark
of commercialization of education and
therefore, in light of the judgments of
Hon'ble Apex Court that has rightly being
checked under the Act.

22. Section 4 of the Act gives a broad
idea and factors to be kept in mind for
fixation of fee. The provisions of Section 4
of the Act no where restricts a recognized
institution in settling fee, but prescribes a
reasonable mode as a guiding factor while
fixing the fee structure.

23. The provision on its face is a
reasonable and is a statutory effort to stop
commercialization
of
education
and
exploitation of the students joining
educational
institutions
including
minority institutions. While assessing
constitutional validity of a provision at the
scale of right given under Part-III of the
Constitution of India, it must be kept in
vision that ultimately the rights given
protects the persons/citizens/legal entities,
as the case may be, from arbitrariness,
unreasonability, unjustifiability and fancy.
If a provision is just and reasonable and
otherwise satisfies the four corners of
Article 13 of the Constitution of India, it
must be held constitutionally acceptable
to extend the protection of any right given
under Part-III.

24. On fair analysis of the Act of 2018,
we find it a legislation to ensure easy
accessibility to each and every citizen and
further to expand fairness and reasonability
in
administration
of
the
institutions,
including minority institutions, without
interference therein for broader interest of the
ultimate consumer, as such we do not find
any violation of Article 30(1) of the
Constitution of India while introducing U.P.
1 All. Smt. Chamela Vs. Maharajdin & Ors.
29
Self-Financed Independent Schools (Fee
Regulation) Act, 2018.

25. The writ petition for the reasons
given above, lacks merit and hence is
dismissed in limine at threshold.
------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2019

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Second Appeal No. 447 of 1981

Smt. Chamela ...Appellant
Versus
Maharajdin & Ors. ...Respondents

Counsel for the Appellant:
Sri
Arif
Khan,
Sri
Anurag
Narain
Srivastava, Mohiuddin Khan

Counsel for the Respondents:
Anurag Narain, Anurag Narain Srivastava,
D.C. Mukerjee, Gauri Shanker Maurya,
Mukesh Sharma, S.P. Maurya

A. Second appeal - Scope of Section100
C.P.C.- Suit for cancellation of power of
attorney and sale deed - on ground of
impersonation - Trial court applied principle
of 'Pardanashin'- plaintiff being villager,
rustic and uneducated lady. First appellate
Court held - principle of 'Pardanashin' not
applicable as plaintiff pleaded impersonate.
No substantial question of law.

B. Second Appeal - Scope of Section 100
C.P.C. - Burden of proof - Once execution
of registered power of attorney admitted
in examination-in-chief - No doubt as to
veracity of such power of attorney -
Burden of proof did not shift upon
defendants - Finding being a question of
fact recorded by lower appellate court on
the basis of evidence - Need not to be
interfered.
C. Second Appeal - Scope of Section100
C.P.C.- Sale deed executed by attorney.
Plea
of
insufficient
consideration
-
would not affect rights of vendee under
the sale deed.

D. Second Appeal - Scope of Section 100
C.P.C. - Section 168-A U.P. Seminary
Abolition and Land Reforms Act. Lack of
permission under Section 5-c(ii) of U.P.
Consolidation of Holdings Act -Held:
finding of lower appeal court - Plots were
neither
fragmented
nor
consolidation
operations were going on. Village was denotified before sale deed executed. No
requirement of prior permission being
necessary
for
any
consolidation
proceedings being in progress at the
relevant point of time - No interference
warranted. (E-1)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Mohd. Arif Khan,
learned Senior Counsel, assisted by Sri
Mohd. Aslam Khan, learned counsel for
the appellant and Sri Anurag Narain who
has put in appearance on behalf of the
respondents.

2. This second appeal has arisen
against the judgement and decree dated
10.4.1981 rendered in Civil Appeal No.
167/79 reversing the judgement and decree
rendered by the trial court on 7.5.1979 in
Regular Suit No. 173/78. The appeal was
admitted
by
order
dated
29.5.1981,
however, substantial questions of law came
to be framed when the appeal was heard on
9.5.2019. The substantial questions of law
framed by this Court read as under:

"1. Whether the lower appellate
court has rightly construed the principle
of Pardaneshin lady while setting aside
the trial court judgment?