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TMI Blog1993 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... 524, Edn. (Rules) Department dated 20-12-1988. The effect of the representation made by the learned Advocate General pursuant to which the earlier batch of writ petitions was dis posed of as infructuous, also falls for our consideration. 2. The petitioners in the C. R. P. as well as in the writ petition are the Managements of unaided recognised private schools imparting education in English medium. In both the cases, the question of validity and enforce-ability of G. O. Ms. 379 (Education-SSE) Dept. dated 9-8-1985 has been raised. The petitioner in C. R. P. earlier filed W. P. No. 9164/86 questioning the validity of the provisions of the A. P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983), (hereinafter referred to as Act 5/83 ) and the notification issued in G. O. Ms. 379 dated 9-8-1985 issued under S. 7 of that Act. After the arguments were heard in that writ petition and a batch of connected writ petitions, a Division Bench of this Court disposed of those cases by a judgment dated 27-1-1989 in W. P. No. 11161/86 etc. batch. The Division Bench, having regard to the representation made by the then Advocate Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition and C. R. P. came up for hearing before a Division Bench consisting of Sivaraman Nair and Maruthi, JJ., the learned Judges noticed an obvious conflict between two Bench decisions and therefore expressed the opinion that the mutter has to be decided by a Full Bench. Accordingly the cases have been referred to the Full Bench. The two Division Bench judgments adverted to by the learned Judges are the Judgment in the batch of writ petitions W. P. 11161/86 etc. (which we have referred to earlier) and the judgment in Contempt Case No. 570/91) (to which Sivaraman Nair, J. was a party). The Contempt case which was an off-shoot of the judgment in W. P. 11161/86 and batch was filed complaining against the enforcement of the scales of fee prescribed in G. O. Ms. 379 in violation of the Bench judgment in W. P. 11161/86 etc. batch. 6. This in brief, is the genesis of the Full Bench reference with which we are concerned. 7. We shall now consider the relevant provisions including the G. Os. adverted to above. The Andhra Pradesh Education Act, 1982 (Act'1/82) was enacted by the State Legislature to consolidate and amend the laws relating to the educational system in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the fee notified under sub-section (1). Section 6 regulates the manner of giving donations to the educational institutions and the method of accounts of such donations. The contravention of the provisions of the Act or the Rules made thereunder is punishable with imprisonment for a term ranging between three years and seven years and with a fine which may extend up to ₹ 5,000/-. Section 12 gives an overriding effect to the Act. Section 15 confers power on the Government to make rules by means of notification for carrying out all or any of the purposes of the Act. 9. The two enactments aforementioned can be said to be allied Acts or cognate enactments on the subject of education and educational and educational institutions. While the former Act viz.. Education Act 1982 deals with various matters concerning education especially primary and secondary education, the object of Act 5/83 is mainly to regulate admissions to educational institutions including professional and technical colleges and to prohibit the collection of capitation fee. The avowed object of the Act is reflected in its preamble which reads as follows : Whereas the undesirable practice of collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 18, 20 and 21 read with S. 99 of the Andhra Pradesh Education Act 1982 (Act No. 1 of 1982) and in supersession of the rules issued in G. O. Ms. 60, Education dated 28-1- 1986 and published as rules supplement to Part-I of the Andhra Pradesh Gazette dated the 5th February 1986 and all such other rules in force on the subject, the Government of Andhra Pradesh hereby makes the following rules relating to establishment, registration, administration and control of all categories of schools functioning under all categories of managements, namely, Government, local bodies and private managements. We shall also refer to the relevant Rules in G. O. Ms. 524. Rule 2 says : Unless otherwise specifically mentioned, these rules shall apply to all categories of schools functioning under the Government, Local Bodies and private managements (including those under minority communities) imparting the following classes of education in the State of Andhra Pradesh : (a) Pre-Primary Schools; (b) Primary Schools; (c) Upper-primary schools; (d) Secondary schools (High Schools); (e) Oriental Schools; (f) Hindi Patasalas; (g) Hindi Vidyalayas. Rule 18 which is the. crucial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections and upgradation of the institution, providing construction of additional accommodation, acquiring costly equipment and furniture, purchase of land for the use of the institution and the like). (d) 45% to 50% of the fee collected shall be earmarked towards payment of salaries to the staff. (e) 15% to 20% of the fee collected shall be earmarked as managements contribution towards staff benefits like gratuity, Teacher's P.F. (f) It is open for the Governing Body to make marginal modifications to the percentages of collection mentioned above, if necessary, with the prior permission to the Recognition Authority. (g) (i) The educational agency shall maintain separate accounts in one or more banks; for the amounts allocated for various purposes mentioned above so that the amount allocated for a specific purpose shall not be diverted for another purpose. However, with the prior permission of the Recognition Authority, the Governing Body may divert the amounts for other than the purpose for which it is meant provided the amount is subsequently made good. (ii) The accounts opened as specified. above shall be operated through joint accounts in the name of Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We will assume for the time being that there was some basis for fixation of tuition fee at the rates ranging between ₹ 25/- and ₹ 35/- at the lime it was issued. Be that as it may, three years later, the Government thought it fit to issue comprehensive rules relating to establishment, registration, administration of all categories of schools including privately managed schools. One of these rules relates to fee structure to be adopted by the unaided schools functioning under private managements. Various factors have been set out in Clauses (a) to (h) of sub-rule (2) of R. 18. Rule 18 enables the management of the said institutions themselves (o fix the fee in conformity with the criteria laid down in sub-rule (2), subject to an important stipulation that the fee so fixed shall not exceed the maximum fee fixed by the Government from time to time. Rule 18 goes further and lays down as to. how the fee collected from the students shall be earmarked towards various items of expenditure and how the accounts have to be maintained for this purpose. The methodology evolved for fixing the fees-structure is evidently meant to keep the institutions at a level of self-sufficiency a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the rule-maker. Having regard to the new fees structure envisaged by the State Government in relation to private unaided schools in accordance with the definite criteria laid down by the rules, it cannot be postulated that the fee prescribed by the Government under S. 7 of A. P. Act 5/83 long back, should still be treated as the maximum fee for the purpose of R. 18(1). Obviously the rules contemplate the Government itself working out a reasonable figure of fee keeping in view the very criteria laid down by R. 18(2) for the guidance of the Management. The rule-making authority could have hardly intended that the rates of tuition fee prescribed in G. O. 379 shall hold good for years together without regard to the scheme evolved by the new rules. In our view, therefore, the maximum of fee 'prescribed by Government' from time to time does not take in the fee prescribed by G. 0. Ms. 379 under the provisions of Act 5/83. The term 'maximum fee prescribed' occurring in R. 18 should mean the fee that is to be hereafter notified by the Government after arriving at the same on the basis of the formula/criteria laid down in R. 18(2) and other relevant considerations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied simultaneously. It was held in that case that Section 80 of the Railways Act was a complete and self-contained Code in regard to place of suing for compensation against railways and it constitutes a special law for such suits and therefore by necessary implication, the operation of the provisions of Sec. 20 of C.P.C. is excluded. The judgment of the Supreme Court in Yogindrapal Singh v. Union of India, which applied the principle of implied repeal to subordinate legislation as well, was also cited by the learned Counsel. The learned Counsel for the petitioners then pointed out that the principle -- generalia specialibus non-derogant -- has no application here in view of the clear intention discernible from the framing of comprehensive rules relating to fee-fixation under a cognate Act. In this connection, Mr. M.R.K. Choudary relied upon the following observations of the Supreme Court in Municipal Council, Palal v. T.J. Joseph AIR 1959 SC 1561 : Of course there is no rule of law to prevent repeal of a special by a later general statute and, therefore, where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is takes us to the next question whether G.O.Ms. 379 has, in express terms, superseded G.O. Ms. 524. While the learned. Counsel for the petitioners contended, without prejudice to their argument of implied repeal, that G.O.Ms. 379 has in fact been rescinded by G.O.Ms. 524, the learned Government Pleader submits that G:O.Ms. 524 has no such effect. 17. To resolve this question, the Court has to construe the language employed in G.O.Ms. 524 and ascertain its true meaning. 18. A careful reading of the preamble to G.O.Ms. 524 shows that it can be divided into three parts. The first is the recitation of the source of power for framing the Rules. The relevant provisions of the Andhra Pradesh Education Act including Section 99 which confers rule-making power have been referred to. Then follows the crucial clause which says in supersession of the rules issued in G.O.Ms. 60 dated 28-1-1986 ..... and all such other rules in force on the subject. Then follows the description of the Rules which were framed under G.O.Ms. 524. The Rules are described as those relating to establishment, registration, recognition, administration and control of all categories of schools functioning under al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to administration and control of various categories of schools. There is nothing in the language of the preamble to the Rules framed in G.O.Ms. 524 which excludes the Rules emanating from a different but cognate enactment from the clutches of the supersession clause. G.O.Ms. 379 though issued under S. 7 of Act 5/83, cannot be said to have been left untouched by the new Rules framed under the Education Act. The State Government is the common authority under both the enactments and it has competence to amend, modify or supersede the Rules or notifica- tions issued under one or the other enactment. G.O.Ms. 379 which is in the nature of statutory notification issued by the State Government under Section 7 of Act 5/83 could also be brought within the ambit of the expression 'rules on the subject' and it is not outside the purview of supersession. It is no doubt true that there is to specific reference to G,O. Ms. 379 but that is immaterial. The rule-making authority perhaps wanted to avoid a copious reference to aii the relevant G.Os., notifications and rules issued from time to time and therefore chose to employ a comprehensive expression 'such other rules on the subject.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall back upon G.O. Ms. 379 of the years 1985. The State Government would like to say now that the Managements of private unaided schools should still adhere to the fee-scales prescribed by G.O. 379 nearly 7 or 8 years back. Apart from the fact that the State Government and its agencies are estopped and precluded from raising such a plea as we shall hereafter explain, such a plea smacks of an unreasonable attitude. To insist upon the continuance of the same fees structure for an unduly long time by now it is eight years, would give rise to a presumption of unreasonableness. The Court can take judicial notice of the fact that the expenditure on staff, class room maintenance and other infrastruc-tural facilities have been on steady increase from year to year, giving rise to the need to revise the maximum scales of fee prescribed at reasonable intervals. No material has been placed before us by the Government to show that the scales of fees prescribed by G.O.Ms. 379 dated 9-8-1985 could still be regarded as reasonable despite long passage of time and that they adequately cater to the overall needs of the educational institutions. 23. Thus, three noticeable facts emerge. Firstly, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have been suneiseded in the eye of law or not, we are of the view that the stand taken by the Government in the previous writ petitions through its counsel the Advocate General and the resultant judgment of this Court which remained unchallenged precludes the respondent-authorities from taking a contrary stand or ignoring the effect oi the said judgment at this point of time. It is true that the concession made by the Counsel on a point of law does not bind the client and the client is not estopped from contending otherwise. But this proposition cannot be invoked in the instant case for more than one reason. First of all, it has to be noted that the statement made by the learned Advocate General was not with reference to a pure question of law. Whether or not G.O.Ms. 379 has been superseded by G.O.Ms. 524 is at least a mixed question of law and fact. While interpreting the effect of supersession clause contained in the second portion of the preamble to G.O. Ms. 524, the intention of the Government in framing Rule 18 is, undoubtedly, one of the relevant factors. We have already noticed that with regard to the scope and amplitude of the supersession clause, two views ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11171/86 and batch was allowed to become final. For nearly two years, nothing was said against the judgment. Not a little finger was raised against the judgment till a Contempt Case was filed in this Court in the year 1991. The authorities of the Education Department evidently acted in accordance with the judgment for at least two years after it was rendered. At this stage, in the course of subsequent litigation, it is not open to the respondents to take a somersault arid contend that the concession of the learned Advocate General is of no consequence and can be simply ignored. Such a collateral attack is not permissible. What is more, as a result of the representation made by the learned Advocate General, the various other contentions raised in the writ petitions were not gone into and the writ petitions were summarily disposed of. Thus, the respondents pre-empted a decision on contentions issues and ensured the termination of proceedings at that stage. The petitioners, thereafter proceeding on the footing that G.O.Ms. 379 was no longer there, fixed up the fees in purported compliance with the prescribed criteria and submitted a report to the Education Department. Thus, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncil in Hoystead v. Taxation Commissioner (1926) AC 155: In the opmion of their Lordships, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view to obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to bring fresh litigations because of new views they May entertain of the Jaw of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. That apart, if we accept the contention of the learned Government Pleader, it means that as far as a vast majority of English Medium Schools are concerned, the G.O. cannot be enforced, but in the case of a few Managements which did not file writ petitions earlier, the G.O. can still be enforced. Thus, two sets of fee will be operative one for schools which were parties to the earlier batch of writ petitions and the other for the schools like that of the petitioner in W.P. No. 8142/92. This would obviously sound discrimintory and anomalous. Broadly speaking, uniform scales of fee ought to be enforced in all the unaided English Medium Schools unless, ofcourse, there is any individual issue between the School Management and the Education Department precluding such application. We cannot therefore deny relief to the petitioner in W.P. No. 8142/92 on the ground that the said petitioner was not a party in the earlier batch of writ petitions. 29. In the view we have taken, it is not necessary for us to go into the question whether the rule-making power under a particular enactment can be availed of to supersede a notification issued under a, different enactment and whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner-institution in the matter of enforcement of G.O. Ms. 379. 31. In view of the foregoing discussion, G.O. Ms. No. 379 (Edn. SSE) dated 9-8-1985 cannot be enforced against the Managements of unaided English Medium Schools. The scales of fees arrived at by the petitioner-Managements in purpoted compliance with the criteria laid dosn in Rule 18(2) of the Rules in G.O. Ms. 524 under the Education Act is however subject to the maximum that may be prescribed by the Government under sub-rule (1) of Rule 18. As and when the maximum fee scales are notified by the Government, the petitioner-institution will have to give effect to them. The writ petition is allowed with these directions. No costs. 32. As far as the C.R.P. is concerned, the order of the appellate Court granting injunction against the school management is based solely on the premise that G.O. Ms. 379 is still in force. Having regard to the view we have taken, the injunction is to be dissolved. Accordingly we allow the C.R.P. No costs. Of course, the petitioners in the C.R.P. will abide by the maximum fee that may be prescribed by the Government under Rule 18(1), till the disposal of the suit. 33. Before clos ..... 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