TaxTMI 
TaxTMI 
2018 (2) TMI 1846
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....s the Circular dated 19th April, 2017 as also the order dated 4th July, 2017 rejecting the Petitioner‟s representation dated 26.5.2017, both passed by Respondent no.1/CBSE, whereby the affiliated Schools have been prohibited from selling books, both NCERT and non-NCERT, stationery items, as also uniform from shops within the School premises. 2. The second writ petition has been filed by Parent-Students Welfare Association, claiming to be an association of parents of school-going children, challenging Circular dated 24th/25th August, 2017, issued by CBSE, primarily on the ground that the said circular permits commercial activities of selling books and stationery through vendors within the School premises and is therefore not only in contravention of its earlier Circular dated 19th April, 2017, but is also violative of various CBSE Affiliation Bye-Laws and more particularly of Affiliation Bye-laws No.14(B) & 19.1 (ii) & (iii), which prohibits commercialization or carrying out business activities in the School. 3. For the sake of convenience, parties in the first petition are being referred to as the Petitioners/Respondents hereinafter and the Petitioner in the second peti....
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....suant to the aforesaid directions of this Court, the Petitioner no.1 made a representation dated 26th May, 2017 to the CBSE/Respondent no.1, seeking a clarification, or in the alternative, a modification of the Circular dated 19th April, 2017, with a request to clarify that the effect of the Circular dated 19th April, 2017 was not to prohibit the sale „per se‟ of the items mentioned therein within the School premises, but only to prohibit the Schools from forcing parents to purchase those products only from the said vendors within the School, and to further clarify that as long as an option was available to the students and/or parents and there was no coercion of any kind, the operation of such shops in the schools would be valid. 9. The CBSE rejected the Petitioner‟s representation vide its order dated 4th July, 2017, by holding that the clarification sought therein was untenable in view of Rule 15(b) of Right to Education Rules 2010 (hereinafter referred to as "RTE Rules, 2010") read with Rules 14(B) and 19.1(II) of the Affiliation Bye-laws of the Board which prohibits any commercial activity in School premises. The CBSE also opined therein that the Petitione....
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....to it, at great length:- "3. In view of the above, the schools are allowed to place indent for purchase of NCERT books directly through NCERT website for distribution among their students and for this purpose, a `Tuck Shop‟ may be opened inside the premises of the schools. The stationery and other materials required by the students are also allowed to be sold from the `Tuck Shop‟. To this extent, the circular No.CBSE/AFF/CIRCULAR/10/2017 dated 19.04.2017 stands amended." 13. It is the issuance of this Circular dated 24th/25th August, 2017 that has led to the filing of the present writ petition by the Parents-Students Welfare Association, who has while challenging the circular, contended that under the garb of the same, commercial activities have been allowed in the Schools by virtually superseding Respondent no.1‟s own Circular dated 19th April, 2017 and by ignoring the mandate of the Affiliation Bye-laws of the CBSE, which specifically prohibit commercial activities in the School. It is also claimed that as a result of the shops in the schools being permitted to sell books, stationery and other items, the students were now being forced to buy books an....
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....as the base for preparing question papers in the Board Examinations. 18. It is further claimed in the counter affidavit that despite issuance of various communications to all the affiliated schools to refrain from indulging in commercial activities by way of selling text books of publishers other than those of NCERT/CBSE and other stationery items, uniform etc., the CBSE continued to receive complaints from parents and other stakeholders that the schools were still indulging in the aforesaid commercial activities. The CBSE contends that in these circumstances, the impugned circular dated 19.04.2017 had been issued by it reiterating its directions to the affiliated Schools to desist from the unhealthy practice of coercing students/parents to buy text books, uniforms, note-books, stationery, shoes, school bags etc., from the shops within the school premises or from selected vendors only. 19. It is further averred that with an aim to encourage availability of NCERT books and to prevent commercialization of education, circular dated 9th August, 2017 was issued by the CBSE, advising the schools to register and place their demand for NCERT books through the online link-www.ncertboo....
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....es but only prohibits the schools from forcing the parents/students to purchase these products only from the vendors within the school, meaning thereby that the running of these shops in the schools should be permitted subject to an option being available to the parents/students to buy these items from vendors outside the school premises. 22. While drawing my attention to the language used in Para 1 of the impugned circular dated 19.04.2017, Mr.Mehta submits that the Petitioners are aggrieved because immediately upon issuance of the aforesaid circular, schools all across Delhi had taken a view that the circular absolutely prohibits the operation of shops in the schools, irrespective of whether or not, there was any coercion and accordingly all the vendors running shops in the schools were instructed to cease operations and vacate the premises, compelling the Petitioners to challenge the circular dated 19.04.2017. 23. Before elaborating his submissions in support of his challenge to the impugned circular, the learned counsel for the Petitioners submits that while issuing the impugned circular and treating the sale of these essential items in the schools premises as „comm....
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....the Respondents have virtually banned the vendors who are members of Petitioner no.1/Association of School Vendors, from carrying out their trade and business. He submits that even though the impugned circulars are not addressed to the vendors or members of Petitioner No.1- Association, but the direct effect thereof is imposition of wholly unjustified restrictions on the right of the vendors to carry out their trade and business. In support of his submission that since the impugned circular is directly impacting the trade activities of the members of Petitioner No.1, they would have the locus to challenge the same, Mr.Mehta relies on the decision of Supreme Court in the case of Benett.Coleman and Co. And Ors. Vs.Union of India & Ors. reported as (1972) 2 SCC 788. He also places reliance on an order dated 19.05.2017 passed by this Court in the writ petition earlier filed by the Petitioners i.e. W.P.(C) 4322/2017, to contend that this Court has already upheld the Petitioner‟s locus by opining that even if it was not directly addressed to them, they did have a valid grievance qua the impugned circular. Mr.Mehta further contends that in any event, the two other Petitioners i.e., ....
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....n the school, had no nexus with the purported object of preventing commercialization in the schools and was thus clearly violative of Article 14 of the Constitution of India. 29. On the other hand, Mr.Dahiya learned counsel for the Parents-Students Welfare Association, in support of his challenge to the circular dated 24/25.08.2017, permitting the sale of NCERT textbooks and stationery items in the school shops, contends that this subsequent circular virtually supersedes the earlier circular dated 19.04.2017, the legality whereof had already been tested, before this Court in the case of Sunil Pokhriyal Vs. The Directorate of Education & Ors. i.e. W.P(C) 1954/2017. Mr.Dahiya submits that the circular dated 24/25.08.2017, by permitting sale of textbooks and stationery items, through the school shops, is promoting commercialization which is specifically prohibited not only by the affiliation bye-laws of CBSE but also by Rules under the RTE Act. Placing reliance on decision of Supreme Court in the case of Ex Capt K.Balasubramanium & Ors. titled as (1991) 2 SCC 708 and in the case of Subhash vs. State of Mahrashtra titled as 1995 Supp(3) SCC 332, Mr.Dahiya submits that it is a well s....
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....d further requested them to procure NCERT books for its students from various sale counters of NCERT. He submits that despite the issuance of circular dated 12.04.2016, the CBSE continued to receive complaints from parents and other stakeholders about the schools indulging in commercial activities by way of selling books of private publishers, uniforms, etc., the Respondent no.1/CBSE had no other option but to issue the impugned circular dated 19.04.2017, thereby directing the schools not to sell books, stationery and uniform etc. in the shops in the schools. 32. Mr.Bansal further submits that the CBSE has acted in a most reasonable and fair manner which is evident from the fact that upon realising the difficulties likely to be faced by the students and parents upon directing complete prohibition of the sale of essential items in the shops in the schools, the CBSE had issued circulars dated 24/25-08-2017 & 18.12.2017 permitting the sale of NCERT books and stationary items in school. He, thus, contends that the prohibition on the sale of non-NCERT books and uniform in the school shops, was essential and fully justified and was taken after due consideration of all the relevant fac....
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....5 of the Companies Act, 1956 are defined as under: (i) xxxxx (ii) It shall ensure that the school is run as a community service and not as a business and that commercialization does not take place in the school in any shape whatsoever. (iii) It shall ensure that the funds accruing from the school are spent for the benefit of the school and for its expansion. xxxxx No.CBSE/RO/DDN/PA/NCERT/2017 DATED:01.04.2017 To, The Principles/Heads of the Institutions All the CBSE Affiliated Schools Under jurisdiction of CBSE, RO-Dehradun SUB: Use of NCERT textbooks by the Schools affiliated with the Board - Reg. Madam/Sir, The CBSE has always been emphasizing on the usage of NCERT Books in its affiliated schools, since NCERT textual materials are the base for preparing test items in the Board Examination and the Question Paper of the CBSE is set in accordance to the prescribed syllabus of the subject. NCERT books are reasonably priced, scientifically designed and are in conformity with National Curriculum Framework 2005. They also keep in view the integrated nature of learning from Class I onwards.....
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.... It may be marked that this office may make surprise visits in the schools to ensure, if the NCERT textbooks are used or not. Also, in the event of receipt of any complaint regarding non-implementation of NCERT Books through any source, this office will be bound to initiate action against the defaulters as per rules of the Board. Also, the parents should not be coerced to nuy the textbooks of private publisher/additional textbooks by the school authorities and the schools must mandatorily use the NCETT textbooks in their schools. Principals/Head of Instt. Are also requested to widely disseminate this information on the Notice Board at the prominent places in the school premises for awareness of the students/parents and stake holders about the worth of the NCERT Books. The above instruction must be strictly complied with please. Yours faithfully -Sd- (Ranber Singh) Regional Officer xxxxx No.CBSE/AFF/CIRCULAR/10/2017 DATED:19.04.2017 To The Managers and Heads of all CBSE affiliated schools Subject: Advisory to schools not to indulge in commercial activities....
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....n in circular No.ACAd/13/2016 dated 12.04.2016 along with the advice to schools to desist from forcing the parents to buy the books and stationery items from the commercial shops located inside the school premises. 2. 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 branch of CBSE vide circular no. Acad-29/2017 dated 09.08.2017 advised the schools to register and place their demand for NCERT books required for academic year 2018-19 through the online link www.ncertbooks.ncert.gov.in. 3. In view of the above, the schools are allowed to place indent for purchase of NCERT books directly through NCERT website for distribution among their students and for this purpose, a „tuck Shop‟ may be opened inside the premises of the schools. The stationery and other materials required by the students are also allowed to be sold from this „Tuck Shop‟. To this extent, the circular No.CBSE/AFF/CIRCULAR/10/2017 dated 19.04.2017 stands amended. -Sd- (K.S....
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.... price charged for all these items should not be more than maximum retail price (m.r.p). Parents are free to buy textbooks and stationery items from within the premises or from any other vendor of their choice. Further, it may be noted that selling books other than NCERT books in these shops, will be considered a violation of this circular, and will attract action against the school. -Sd- (ANURAG TRIPATHI) SECRETARY, CBSE" 35. Upon consideration of the rival submissions made by the parties, I find that besides the issue of locus of the Petitioners to challenge the impugned circulars issued by Respondent No.1/CBSE, three inter-related issues arise for consideration in the present case. The first issue relates to the term „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. It is necessary to first decide as to 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. While the....
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....ules as also that of the Right to Education Act and Rules, prohibit „commercialization‟, it obviously would mean that the school premises ought not to be permitted to be used for any purpose other than for education. The question, thus would be, as to whether the term „education‟ would mean only „classroom teaching‟ or as to whether it would encompass all the ancillary activities necessary to provide „education‟ in the schools. 39. In my considered opinion, 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, I see no element of commercialization in sale of these essential items in the school shops. If the sale of....
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.... purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: Chintamanrao v. State of M.P. 33. The courts must bear a clear distinction in mind with regard to `restriction' and `prohibition'. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a `prohibition' is imposed, besides satisfying all the tests of a reasonable `restriction', it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case." 41. Thus, if the prohibition of the sale of the non NCERT books and uniform etc. within the School premises by the CBSE is considered in the light of the observations of the Supreme Court in the aforesaid decision, I find no justification on the part of the Respondent no.1/CBSE to altogether prohibit the sale....
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....rement. In other words the court is being invited to prescribe MSF requirements in exercise of its power of judicial review. That is not permissible and we must decline the invitation to enter that area. It is not within the province of this Court to lay down that the executive policy must always remain static, even if its revision is "just, fair and reasonable". What is relevant is to find out whether the executive action is mala fide, unreasonable or irrational as a criterion. As already observed the court in exercise of its power of judicial review cannot sit in judgment over the policy of administration except on the limited grounds already noted. Each State is empowered to formulate its own liquor policy keeping in view the interest of its citizens. Determination of wide-scale acceptability of a particular brand of liquor, on the basis of National Sales Figures, does not strike us as being unreasonable, much less irrational. The basis for determination is not only relevant but also fair. No direction can be given or expected from the court regarding the "correctness" of an executive policy unless while implementing such policies, there is infringement or violation of any const....
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....e for purpose of achieving specific ends. The classification must however not be arbitrary, artificial or evasive and there must be a nexus between the basis of classification and object of the act and if it is found that there is no reasonable basis for classification, then such classification may be declared discriminatory. Paras 21 & 22 of the aforesaid decision of the Supreme Court reads as under:- "21. Article 14 of the Constitution of India states that: "14.Equality before law.-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 14 forbids class legislation but it does not forbid reasonable classification. The classification, however, must not be "arbitrary, artificial or evasive" but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring ....
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...., is promoting commercialization in the schools and thereby violating the statutory provisions of CBSE Affiliation Byelaws, RTE Act and Rules as also the DSEAR. This issue is interlinked with the first and foremost issue that whether permitting sale of items required/used by the students in the school shops can be termed as „commercialization‟. However, 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. No other ground has been urged by the learned counsel for Parents and Students Welfare Association. 47. Before I conclude, I must also deal with the submission of learned counsel for the Respondent wherein he has sought to challenge the locus standi of the Petitioners to impugn the circulars issued by CBSE. I find, that, even though the impugned circulars may not be issued directly to the Members of the Petitioner no.1/Association of School Vendors, there can be no doubt about the fact that the said ci....
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....tion that the levy was likely to have a serious impact on the newspaper industry. Even now the exemption given to the small and medium newspapers shows that there is bound to be an impact. No effort has been made on the part of the Government to show the precise nature of the impact. On the other hand, the case of the Government appears to be that such considerations are entirely irrelevant, though the outstanding fact remains that for several years, the Government itself thought that the newsprint deserved total exemption. On the material now available to us, while it is not possible to come to the conclusion that the effect of the levy is indeed so burdensome as to affect the freedom of the press, we are also not able to come to the conclusion that it will not be burdensome. This is a matter which touches the freedom of the press which is, as we said, the very soul of democracy. This is certainly not a question which should be decided on the mere question of burden of proof. There are factors indicating that the present levy is heavy is perhaps heavy enough to affect circulation. On such a vital issue, we cannot merely say that the petitioners have not placed sufficient material ....