INDEPENDENT SCHOOLS’ ASSOCIATION CHANDIGARH (REGD.) & ORS. versus UNION OF INDIA & ORS on 11 May 2022

O R D E R

1. Leave granted.

2. These appeals take exception to the judgment and order dated28.05.2021 passed by the High Court of Punjab & Haryana at Chandigarh H

INDEPENDENT SCHOOLS’ ASSOCIATIONCHANDIGARH (REGD.) & ORS. v. UNION OF INDIA & ORS.

in Civil Writ Petition Nos.7706/2020 (O&M) and 7761/2020(O&M)respectively.

3. The appellants had assailed the Notification dated 13.04.2018issued by the appropriate authority in exercise of powers under Section87 of Punjab Re-organisation Act, 1966, (for short, ‘the 1966 Act’), byway of writ petition(s) under Article 226 of the Constitution of India.

4. The High Court has dismissed the said writ petition(s) opiningthat the appropriate authority was competent to issue such GovernmentOrder/Notification.

5. Before this Court, the limited challenge is to Clauses (a) and(b) of the proviso, which have been inserted in terms of the impugnedOrder/Notification by way of paragraph 6 thereof. Paragraph 6 of theimpugned Order/Notification reads thus:

“6. In section 5, after this proviso shall be inserted, namely:- “Provided further that every Unaided Educational Institution shall- (a) upload income, expenditure account and balance sheet onits website; (b) not charge any kind of cost from the parents;

(c) disclose complete free structure at the beginning of theacademic year in the Booklet issued, alongwith the admissionform, by the schools and also be posted in its website; (d) not raise the fee any time during the academic session.”

(emphasis supplied)

6. In addition, the appellants have questioned the validity ofparagraph 8 of the impugned Order/Notification, which reads thus:

“8. In section 14:-

(a) in sub-section(1) for the words, “thirty thousand rupees”,“rupees fifty thousand” and “rupees one lac”, the words “sixtythousand rupees”, “one lakh rupees” and “two lakh rupees”shall respectively be substituted; (b) in sub-section(2) for the words, “sixty thousand rupees”,“rupees one lac”, the words “one lakh twenty thousand A

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Arupees”, “two lakh rupees” and “four lakh rupees” shallrespectively be substituted.”

7. We have heard learned counsel for the parties.

8. The entire issue needs to be answered, keeping in mind theexposition of this Court in ‘Lachmi Narain vs. Union of India’ reportedBin 1976 (2) SCC 953.

9. The three-Judge Bench of this Court has had an occasion todeal with the provision similar to Section 87 of the 1966 Act. Theexpression ‘restrictions or modifications’ occurring in Section 87[1] hasbeen interpreted by this Court in following words:

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“61. ……….. Such a wide construction must be eschewed lestthe very validity of the section becomes vulnerable on account ofthe vice of excessive delegation. Moreover, such a constructionwould be repugnant to the context and the content of the section,read as a whole, and the statutory limits and conditions attachingDto the exercise of the power. We must, therefore, confine thescope of the words “restrictions and modifications” to alterationsof such a character which keep the inbuilt policy, essence andsubstance of the enactment sought to be extended, intact, andintroduce only such peripheral or insubstantial changes which areEappropriate and necessary to adapt and adjust it to the local”conditions of the Union Territory.

(emphasis supplied)

10. The challenge in the present appeals is required to be decidedon the basis of the principles stated in this judgment.

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11. The question is: whether clause (a) of the third proviso insertedin terms of paragraph 6 of the impugned Government Order/Notificationdated 13.04.2018 can be regarded as peripheral or insubstantial changeto the provisions of the Punjab (Regulations of Fees of UnaidedEducational Institutions) Act, 2016 (for short, ‘the 2016 Act’), which G

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1 Section 87 in the Punjab Reorganisation Act, 1966:

87. Power to extend enactments to Chandigarh. The Central Government may,by notification in the Official Gazette, extend with such restrictions or modificationsas it thinks fit, to the Union territory of Chandigarh any enactment which is in force ina State at the date of the notification.

have been extended vide impugned notification issued in exercise ofpowers under Section 87 of the 1966 Act?

12. Reverting to the stipulation specified in clause (a), we have nomanner of doubt that the same cannot be considered as peripheral andinsubstantial change. For, it is a substantive matter. We say so becausethe Principal Act (2016 Act), which is extended in terms of the impugnedGovernment Order/Notification, makes no provision regarding disclosureof income, expenditure, account and balance sheet on website of theunaided schools, including as applicable in the State of Punjab. It wouldbe a different matter if the Parliament or the State Legislature, as thecase may be, were to incorporate such condition in the enactment suchas the 2016 Act. Had it been so incorporated, it would then be open tothe unaided institutions to question the validity of such a provision, whichcould be tested by the Constitutional Court on the basis of doctrine offairness, arbitrariness and other grounds available under Part III of theConstitution of India or otherwise.

13. Suffice it to observe that the change introduced vide theimpugned Government Order/Notification in terms of clause (a) in thethird proviso inserted by way of paragraph 6 thereof, is not a peripheralor insubstantial change. Hence, it is clearly outside the scope of theauthority bestowed on the competent authority in terms of Section 87 ofthe 1966 Act. That stipulation, therefore, needs to be struck down beingultra vires.

14. Reverting to clause (b), we find that the challenge to clause(b), is tenuous. In that, this stipulation merely prohibits the unaidedinstitutions from charging any kind of cost from the parents. In ouropinion, this is consistent with the legislative intent and mandate of the2016 Act. In fact, it restates the inbuilt policy, essence and substance ofthe 2016 Act. Thus, it is in no way a substantial change as in the case ofclause (a), referred to above. Be it noted that as per clause (c) ofparagraph 6 of the impugned Government Order/Notification — validitywhereof has not been challenged — the unaided institutions are obligedto disclose complete fee structure at the beginning of the academic year.The obligation of the unaided institutions in terms of clause (b) of the same paragraph is in reference to the disclosure of fee structure as perclause (c). In other words, the unaided institutions can charge only thedisclosed fee structure amount from its students and no further. Thisprovision, therefore, is appropriate and necessary for better administration A

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Aof the unaided institutions to which the 2016 Act gets extended in termsof the impugned Government Order/Notification.

15. Accordingly, challenge to clause (b) of the third proviso insertedby virtue of Government Order/Notification by way of paragraph 6,cannot be countenanced and is rejected.

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B16. That takes us to the challenge to paragraph 8 of the impugnedGovernment Order/Notification, whereby the penalty amount is enhancedin respect of unaided institutions governed by the 2016 Act within theUnion Territory in terms of impugned Government Order/Notification.Again, this is not a peripheral or insubstantial alteration or modificationof Section 14. Inasmuch as, what should be the quantum of penaltyCamount or punishment, is a legislative policy. It must be left to theconcerned legislature. It cannot be provided by way of an executiveorder, including in exercise of powers under Section 87 of the 1966 Act— being a substantial change to the regime predicated in Section 14 ofthe 2016 Act.D

17. Accordingly, paragraph 8 of the impugned Government Order/Notification also cannot stand the test of judicial scrutiny. Hence, thesame needs to be struck down being unconstitutional and ultra vires.

18. No other issue has been raised before us, including about thevalidity of the provisions of the 2016 Act. Concededly, it has alreadyEbeen recorded in the order passed on the earlier occasion that theappellants would be confining their argument to the limited aspects dealtwith in this order.

19. We make it clear that we may not be understood to haveexpressed any opinion either way on the issues that may have to beFdealt with by the High Court in the pending proceedings relating to thechallenge to the provisions of the 2016 Act.

20. Lastly, we expunge the observations made against the writpetitioner in Writ Petition No.7761/2020 (filed before the High Court), inparagraph 34 of the impugned judgment.

G21. Accordingly, the appeals are partly allowed in the above terms.

22. No orders as to the costs.

23. Pending application(s), if any, shall stand disposed of.

Divya PandeyH(Assisted by : Deepak Panwar, LCRA)