2018 (2) TMI 1846 - HC - Indian Laws

Validity of Circular dated 19th April, 2017 as also the order dated 4th July, 2017 - prohibition on affiliated Schools from selling books, both NCERT and non-NCERT, stationery items, as also uniform from shops within the School premises - validity of Circular dated 24th/25th August, 2017 - commercial activities of selling books and stationery through vendors within the School premises. Commercialization‟ used in the context of school affiliation bye-laws of CBSE as well as the various circulars issued by the C.B.S.E. - what can be termed as commercialization‟ in the context of schools as it is the common case of the parties that commercialization is prohibited by the Affiliation Bye-laws of CBSE, the provision of the RTE as well as the provisions of DSEAR? - whether, there is any justifiable basis, for the classification sought to be done by the CBSE by placing uniforms and non NCERT books in a category different than NCERT books and stationery items? - Whether, there is any justifiable basis, for the classification sought to be done by the CBSE by placing uniforms and non NCERT books in a category different than NCERT books and stationery items? Herld that - The use of the school buildings for purposes of education, would put a corresponding duty on the school management to ensure that the students are provided with all necessary facilities so as to help them pursue education in the school. The availability of books, both NCERT and non NCERT, stationery items and uniform in the School premises would only add to the convenience of the parents and the students. The admitted case of the parties is that the aforesaid items in the school shops would be available only to the students of the school and not to outsiders and, therefore, there is no element of commercialization in sale of these essential items in the school shops. If the sale of books and uniform in the school shops without any coercion on the students/parents to buy the same from these shops, is treated as commercialization‟, there is no reason as to why even the sale of food items in canteen facilities would also not be treated as commercialization‟. Such an interpretation would lead to a wholly absurd situation where on the analogy sought to be propounded by the Respondents, a request for prohibition of sale of food items may also be raised. This, in my opinion, cannot be the intent of the provisions in the bye-laws or the Rules, relied on by Respondents, while prohibiting commercialization in schools. The term commercialization‟ in schools, would thus mean only carrying out of activities wholly unconnected with education. The availability of uniform, non-NCERT reference books or even food items for sale only to the students of the school, in my opinion, does not fall in the category of and cannot at all be considered as commercialization‟. Once it is found that the sale of these items in the school shops without coercing the students/parents to buy them only from those shops, cannot be termed as commercialization‟, the connected issue would be as to whether the CBSE, upon receipt of complaints that the students/parents were being coerced by the school to buy the said items from these shops, could have outrightly prohibited their sale in these school shops or whether it ought to have only regulated the same by ensuring that stringent action is taken against those erring schools, which coerce the student/parents to buy these items from the school shops only. The prohibition imposed vide the impugned Circulars, does not satisfy the test of reasonable restrictions‟ under Article 19(6) of the Constitution of India. Justifiable basis for classification by CBSE by placing uniforms & non-NCERT books in a category different than NCERT books and stationery items - Held that - Once the Respondent has itself permitted the sale of NCERT books and stationery items in the School, there is no justification or reason as to why sale of only non NCERT books and uniform should be prohibited in the School. There is no reason for placing the NCERT books and stationery items in the permissible category while placing the non NCERT books and uniform in the non-permissible category. There is no valid reason for this classification which is discriminatory on the face of it as it cannot be denied that all these items including uniform, are essential requirements of the students. Whether the impugned Circulars dated 24th/25th August, 2017 and 18th December, 2017 issued by the CBSE could override the provisions of the statutory bye-laws and rules? - Held that - Once I have come to a conclusion that the sale of these items in the School, does not amount to any kind of commercialization, the issuance of the said circulars permitting the said sale in the school shops in any manner, cannot be said to be contrary to the statutory bye-laws and rules which prohibit commercialization. The circular dated 19th April, 2017 issued by CBSE is quashed and set aside - It is further directed that the Petitioners shall not be prohibited from selling of non NCERT books and uniforms also in the tuck shops which have been allowed to be set up in the CBSE affiliated schools for selling NCERT books and stationery items vide circular dated 24th/25th August, 2017 - petition allowed.

Summary

Issues Involved:
1. Commercialization in school premises.
2. Reasonable restrictions under Article 19(6) of the Constitution.
3. Classification of NCERT books and stationery items versus non-NCERT books and uniforms.
4. Whether CBSE circulars can override statutory bye-laws and rules.
5. Locus standi of the petitioners.

Issue-wise Detailed Analysis:

1. Commercialization in School Premises:
The Court examined whether the sale of books, stationery, and uniforms in school premises constitutes "commercialization." It concluded that such sales, when not coerced, do not amount to commercialization. The Court noted that the term "commercialization" should be interpreted contextually, meaning activities unrelated to education. The sale of essential items like books and uniforms within school premises for the convenience of students and parents does not fall under commercialization.

2. Reasonable Restrictions under Article 19(6):
The Court evaluated if the CBSE's prohibition on selling non-NCERT books and uniforms in school shops was a "reasonable restriction" under Article 19(6). It found the prohibition arbitrary and irrational, noting that regulation rather than outright prohibition would be more appropriate. The Court emphasized that restrictions should be reasonable and not amount to a total prohibition unless absolutely necessary.

3. Classification of NCERT Books and Stationery Items versus Non-NCERT Books and Uniforms:
The Court found no justifiable basis for the CBSE's classification that allowed the sale of NCERT books and stationery but prohibited non-NCERT books and uniforms. It held that such classification was discriminatory and lacked a rational nexus with the objective of preventing commercialization. All these items are essential for students, and there was no valid reason to treat them differently.

4. Whether CBSE Circulars Can Override Statutory Bye-laws and Rules:
The Court addressed whether the CBSE circulars permitting the sale of NCERT books and stationery in school premises violated statutory provisions. It concluded that since the sale of these items does not amount to commercialization, the circulars do not contravene any statutory bye-laws or rules. Thus, the circulars were deemed consistent with the statutory framework.

5. Locus Standi of the Petitioners:
The Court rejected the CBSE's challenge to the petitioners' locus standi. It held that the Association of School Vendors and the parents of school-going children were directly impacted by the circulars, thus having the standing to challenge them. The Court referenced the Supreme Court's decision in Indian Express Newspaper (Bombay) Pvt. Ltd. Vs. Union of India, emphasizing that the impact of the impugned actions on the petitioners' rights was sufficient to establish locus standi.

Conclusion:
The Court allowed the writ petition filed by the Association of School Vendors, quashing the CBSE circular dated 19th April 2017. It directed that non-NCERT books and uniforms could also be sold in school tuck shops. The writ petition filed by the Parents-Students Welfare Association was dismissed. The Court emphasized that regulatory measures should be taken to prevent coercion of students and parents to buy items from school shops.