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TMI Blog2018 (2) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... ? - 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‟. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rride 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. - WP(C) No.7414/2017 & C.M.Nos.30616/2017 & 30617/2017, WP(C) No.10052/2017 & C.M.No.41018/2017 - - - Dated:- 21-2-2018 - MS. JUSTICE REKHA PALLI For the Appellant : Mr.Tanmaya Mehta with Mr.S.Anand, Advs. For the Respondent : Mr.Amit Bansal, Adv. with Ms.Manisha Singh, Adv. for R-1/CBSE. Ms.Isha Khanna, Adv. with Ms.Anam Ahmed, Adv. for GNCTD., Mr.Gautam Narayan, Adv.for R-1. Mr.Amit Bansal, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese Acts. The Managing Committees of these Schools are bound to comply with the provisions of DSEAR, 1973 and the RTE Act, 2009, for managing the affairs of the School. The DOE is the regulatory authority over the said private unaided recognised Schools within the provisions of DSEAR, 1973 and the RTE Act, 2009, and the said Schools are bound to follow the guidelines, orders, notification etc. issued by the DOE from time to time. 6. The Respondent no.1 issued a Circular dated 19th April, 2017, which was in the nature of an advisory to the Schools not to indulge in any commercial activity by way of selling of books, stationery, uniforms and School bags etc. within the School premises and to adhere to the provisions of Affiliation Bye-laws of the Board. The Schools were further directed to desist from the unhealthy practice of coercing the parents to purchase books/uniform etc. from within the School premises or from selected vendors only. 7. Aggrieved by the issuance of circular dated 19.04.2017, the Petitioners challenged the same before this Court by way of writ petition being WP (C) No.4322/2017 titled as Association of School Vendors Vs. Central Board of Secondary Educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent No.1 to clarify that the effect of the circular dated 19.4.2017 is not to prohibit sale per se of the above stated items within the school premises, but that the prohibition only applies to the extent that schools force parents to purchase products only from the said vendors within the school, and that as long as an option is available, the operation of such shops would be valid; d. Read down Clause 19 of the CBSE Affiliation Bye Laws to clarify that running of uniform, stationery and text book shops etc. in schools does not amount to commercialization. 11. Soon after the present petition was filed, the CBSE/Respondent no.1, with an aim to augment the availability of NCERT books for the students of CBSE affiliated Schools, issued a circular dated 9th August, 2017 addressed to all the Heads of the affiliated Schools, calling upon them to place their online indent for purchase of the NCERT books as per the requirements assessed by the Schools for the Academic year 2018-19 and place their demand for the same through the online site www.ncertbooks.ncert.gov.in. 12. The aforesaid circular was followed by another circular dated 24th/25th August, 2017 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1973 contended that no commercialization can be allowed in the Schools. Respondent No.2 has also emphasized that all private unaided recognized Schools are bound to follow the provisions of the Delhi School Education Act Rules, 1973 as also the Right to Education Act, 2009 Right to Education Rules, 2010. 16. In its counter affidavit, the CBSE has, besides challenging the locus of the petitioners to challenge the circular issued to the schools, defended the impugned circulars by contending that the same have been issued only with an intention to prohibit commercialization of education, for which there is a specific bar in its Affiliation Bye-laws. It is averred that Rule 14(B) of Affiliation Bye-Laws of the Board clearly mandates that the School shall not use its building and infrastructure for any commercial activity. Reliance has also been placed on Rule 19.1 (ii) of Affiliation Bye- Laws mandating that the School should run as a community service and not as a business and no kind of commercialization should take place in the school. Reliance has also been placed on Rule 15 (b) of Right to Education Rules, 2010 which stipulates that the School is not run for profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shops. Vide this circular, the schools were also directed not to charge any price higher than the maximum retail price of these items. The issuance of these two circulars dated 24/25.08.2017 and 18.12.2017 is sought to be justified by the CBSE on the ground that permitting the sale of small and petty stationery items in school premises, was done only with an intent to fulfill the urgent/contingent requirement of the students during school hours. Thus, the CBSE while defending its action of permitting the sale of stationery items in the schools, has claimed that it was found that these items were fulfilling the everyday needs of the students and were of low value and, therefore, would not lead to commercialization of education, unlike sale of books of other publishers, which had high probability of being used as tools to economically exploit the students and their parents by coercing them to purchase the same from school specified vendor. 21. Arguing for the Petitioners, Mr.Tanmay Mehta submits that since para 5 of the impugned circular dated 19.04.2017 suggests that it does not per se prohibit the sale of books, uniforms, stationery etc. in Schools and only prohibits the schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onery items and uniform exclusively to the students studying in the school, cannot be treated as commercialization. He submits that the context in which the term commercialization‟ is used in the Byelaws and Right to Education Act and Rules, cannot include an activity intrinsically connected with educational activities. 25. The learned counsel for the Petitioner further submits that while issuing the impugned circular, Respondent no.1 has also ignored the fact that the presence of these small shops in the school, actually benefits the entire student community as it not only provides convenience but also promotes equality by ensuring that there is uniformity in the products being sold and used by the children. He further submits that the impugned circular completely ignores the need of students who are hostellers/boarders, who generally have time restrictions and ought not to be compelled to travel long distances to buy books, uniform and stationery items and therefore contends that the decision of the CBSE is ex facie discriminatory and violative of Article 14 of the Constitution. 26. In response to the objection raised by the Respondents that the Petitioners had no lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a complete prohibition, merely on account of the possibility of misuse, was violative of the fundamental rights of the Petitioners under Article 19(1)(g) of the Constitution. Mr. Mehta also contends that Article 19(6) of the Constitution of India permits only imposition of reasonable restrictions by the State on the right of a citizen to practice any profession/business/trade and does not permit a complete prohibition. In support of his submissions, he places reliance on the decisions of the Supreme Court in the case of State of Bombay vs. F.N.Balsara reported as AIR 1951 SC 318, Ajit Kumar Nag vs. General Manager reported as (2005) 7 SCC 764 and Ramlila Maidan in RE reported as (2012) 5 SCC 1. 28. The last submission of Mr.Mehta is that, even otherwise once the CBSE itself, has, after realizing the daily needs of the students, issued the circular dated 25.08.2017 in partial amendment of its circular dated 19.04.2017 thereby permitting the sale of NCERT textbooks and stationery items in the school shops, there was no justification to prohibit the sale of only non-NCERT books and uniforms in those shops. He submits that uniform is an equally essential item for the students in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBSE, Mr.Amit Bansal, while seeking dismissal of both the writ petitions, submits that the impugned circulars have been issued in consonance with and to effectively implement Rule 14(B) of Affiliation Bye Laws of the Board which provides that, the school shall not use its building and infrastructure for any commercial activity. He submits that Rule 19.1(ii) of Affiliation Bye Laws, clearly mandates that the school should run as a community service and not as a business and contends that no kind of commercialization can be permitted in the schools. While reiterating the stand taken in the CBSE‟s counter affidavit, Mr.Bansal submits that the CBSE had received complaints against schools from parents, students, social activists and other stakeholders, from all over India, alleging that commercial activities were being undertaken by schools in their premises by way of coercion to buy books, essentially of private publishers, uniforms, etc from the shops located in the school premises. He submits that parents and students were especially aggrieved by prescription of costly books of private publishers and uniform by the school and their sale from the shops located in school premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... schools could not be treated as a right to property. He thus contends that the petition is liable to be rejected outrightly for want of locus. 34. Having heard the learned counsel for the parties, before I deal with the rival contentions raised by the parties, it would be appropriate to refer to Section 19(1) of DSEAR,1973, Rules No.14(B)(1) 19.1(ii) (iii) of CBSE Affiliation Bye-laws as also the circulars dated 01.04.2017, 19.04.2017, 24/25.08.2017 and 18.12.2017 issued by CBSE which are reproduced hereinbelow:- 19. Affiliations.-(1) For the purpose of any public examination every recognised higher secondary school shall be affiliated to one or more of the Boards or Council conducting such examination and shall fulfill the conditions specified by the Board or Council in this behalf. xxxxx 14(B) The school shall not use its building and infrastructure for any commercial activity but multiple use of school building is allowed for the limited purposes of :- 1. Promotion of Education and Skill Development including Vocational Education; xxxxx 19. ROLE/AIMS OF SOCIETY/TRUST/# COMPANY REGISTERED UNDER SECTION 25 OF THE COMPANIES ACT, 1956. 1. The Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line INDENT was raised for procuring the requirement of NCERT books by the affiliated schools. I am sure, your school must have submitted the requirement of NCERT Books through the Online Indent and most of the school must have received/procured the NCERT books from the vendor as per their requirement. The schools who have still not implemented the usage of NCERT text books in their schools are once again requested to follow the guideline issued by the Board and ensure to use only genuine NCERT textbooks in their schools from the Session 2017-18 onwards up to the maximum possible extent (for the middle classes ie., I to VIII). It may be noted that the NCERT books are being published after due research by team of experts. Despite of the initiatives taken by the CBSE to implement the usage of NCERT Books in its affiliated schools, it has been often brought to the knowledge of the Board, by means of Print Media, complaints/grievances of parents, RTI by General Public or Social Activist, Telecommunications and other sources that schools are not following to the guidelines/directions issued by the CBSE and several schools are exerting pressure on children and their parents to buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hool is run as a community service and not as a business and that commercialization does not take place in school in any shape whatsoever. 3. Further, all the schools affiliated to CBSE are required to follow directions given in circular No.Acad/13/2016 dated 12.04.2016 regarding use of NCERT/CBSE textbooks but often the Board receives reports and complaints regarding the pressure exercised by schools on children and their parents to buy textbooks other than NCERT/CBSE. 4. The Board has taken serious view of the above violations. Hence, once again your attention is drawn that Educational Institutions are not commercial establishments and their sole purpose is to provide quality education. 5. Therefore, the schools are directed to desist from the unhealthy practice of coercing parents to buy textbooks, notebooks, stationery, uniforms, shoes, school bags etc. from within the premise or from selected vendors only. 6. The school management shall ensure strict compliance of the above. -Sd- (K.SRINIVASAN) DEPUTY SECRETARY (AFFILIATION) xxxxx No.CBSE/AFF/CIRCULAR/16/2017/1293271 DATED:24/25.08.2017 To All the Heads of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.Acad/13/2016 dated 12.04.2016 has directed the schools not to force children and their parents to buy textbooks other than NCERT/CBSE textbooks. The Board has also issued circular No.CBSE/AFF/CIRCULAR/10/2017 dated 19.04.2017 directing the schools affiliated with Board to desist from the unhealthy practice of coercing parents to buy text books and stationery items from within the premises or from selected vendors only. 3. The NCERT, in order to augment the availability of NCERT books for the students of CBSE affiliated schools, has called for indent through their website for purchase of books as per the requirement assessed by the schools. The Academic unit of CBSE vide circular NoT.Acad-29/2017 dated 09.08.2017 advised the schools to register and place their demand for NCER books required for academic year 2018-19 through the online link www.ncertbooks.ncert.gov.in . 4. The Board is in receipt of various communications from stakeholders seeking clarification on the scope of the circular. Accordingly, it is clarified that vide circular dated 25.08.2017, the schools can open small outlets for supply of only NCERT books and shall not sell books of any other publishers. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd issue which arises for consideration is, as to 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. The admitted case of the parties being that vide circulars dated 25.08.2017 and 18.12.2017, the CBSE has not only permitted opening of Tuck shops‟ in the affiliated schools, but has also permitted the sale of NCERT books and all stationery items therein while prohibiting the sale of non-NCERT books and uniform in these shops. 37. The third issue, which is the only issue, raised by the learned counsel for Parents-Students Welfare Association is, as to whether a circular issued by the CBSE can override the provisions of the Affiliation Bye-laws of Board and other statutory rules. 38. The first issue, as to whether the sale of the aforementioned items in the school shops, would amount to commercialization‟ or not, cannot in my view, be decided in isolation or as an abstract proposition, as is sought to be contended by the learned counsel for the Respondents. The question will necessarily have to be decided with referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems 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 question, thus, would be as to whether the mischief sought to be curbed by the petitioners, warranted a complete prohibition or a reasonable restriction by CBSE. It may be appropriate to refer to the decision of the Supreme Court in the case Ramlila Maidan Incident, IN RE reported as (2012) 5 SCC 1, on which reliance has been placed by the learned counsel for the Petitioner. In the aforesaid decision, the Supreme Court observed as under:- 32. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory provisions or arbitrary or irrational or in abuse of power. The impugned Policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices. Reference may also be placed on the decision of the Supreme Court in UGAR Sugar Works Ltd. Vs. Delhi Administration Ors. reported as (2001) 3 SCC 635, wherein the Supreme Court while reiterating the well settled position that Courts in exercise of their powers of judicial review, do not ordinarily interfere in the policy decision unless the policy is found to be vitiated on the grounds of mala fide, unreasonableness, arbitrariness or unfairness etc., has in Para 24 held as under:- 24. The argument that since MSF laid down for the year 1994-1995 were not changed till 1998-99, there was no need to increase MSF requirements in 1999-2000 or to further increase the same in the year 2000-2001 for the lowest price tag brand of liquor from 60,000 cases (7.2 lakh bottles) to 75,000 cases (9 lakh bottles) for the current year, suffers from the basic infirmity that it invites the court to enter into an area of testing the executive policy, not on grounds whether it is just, fair and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns‟ under Article 19(6) of the Constitution of India. 44. In relation to second issue regarding the justifiable basis for classification by CBSE by placing uniforms non-NCERT books in a category different than NCERT books and stationery items, I find merit in the submissions made by learned counsel for the Petitioner 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. 45. Reference may also be made to the decision of the Supreme Court in case of S. Seshachalam Ors. Vs. Chairman, Bar Council of Tamil Nadu Ors. reported as (2014) 16 SCC 72, wherein the Supreme Court held, that Article 14 forbids class legislation but it does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. 46. In so far as the third issue as to 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, I find that though there can be no doubt about the legal position, as enunciated by various decisions of the Supreme Court as also of this Court, that a circular or an Office Memorandum cannot override the statutory provisions, but the issue which arises in the present case is as to whether the impugned circulars actually violates any statutory provision as is sought to be contended by learned counsel for the Parents-Students Welfare Association. The learned counsel for the Parents-Students Welfare Association submits that the CBSE by permitting opening of tuck shops‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent cases is whether the tax has been shown to be so burdensome as to warrant its being struck down? The petitioners have succeeded in showing a fall in circulation but whether it is a direct consequence of the customs levy and the increase in price has not been duly established. It may be due to various circumstances. The fall in circulation may be due to the general rise in cost of living and the reluctance of people to buy as many newspapers as they used to buy before. It may be due to bad management. It may be due to change of editorial policy. It may be due to the absence of certain feature writers. It may be due to other circumstances which it is not possible to enumerate. Except the synchronising of time, there is nothing to indicate that the slight fall in circulation is directly due to the levy of customs duty. One curious feature of the case is that the petitioners have made no efforts to produce their balance sheets or profit and loss statements to give us a true idea of how burdensome the customs levy really is. On the other hand, the Government also has made no efforts to show the effect of the impact of the levy on the newspaper industry as a whole. All these years, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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