School tc fees case full copy

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.P. No. of 2021

All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education,
Shastri Bhawan, Dr.Rajendra Prasad Rd,
Rajpath Area, Central Secretariat, New Delhi-110001.

2.The State of Tamil Nadu,
Rep by its Secretary,
Department of School Education,
Fort St.George,
Chennai – 600 009.

3. The Director of School Education,
DPI Compound, College Road,
Chennai – 600 006.

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4. The Director of Matriculation Schools,
College Road,
Chennai – 600 006.
5. The Director,
Office of the Directorate of Elementary Education,
DPI Complex, College Road,
Chennai – 600006. …Respondents
AFFIDAVIT OF THE PETITIONER

I, K.Palaniyappan, S/o. Kalyanasundaram, Hindu, aged about 49 years, having office at No.5, M.P.Avenue, Majestic Colony, Saligramam, Chennai – 600 093, do hereby solemnly affirm and sincerely state as follows:-

1. I am the State General Secretary of the All India Private Educational Institutions Association as such I am well acquainted with the facts of the case and I am competent to file this affidavit.

2. The petitioner states that, the Petitioner’s association is a composite unit of a registered association having registration No.3822 of 2003, consisting of Private schools which serve the need of education to all parts of Tamil Nadu state. The Petitioner’s association wants to ventilate their grievance in the matter of compulsory issuance of transfer certificate to the students irrespective of the pendency of fees to be paid by such students.

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3. I submit that there code of regulations for matriculation schools in Tamil Nadu in regulation 12 and 13 in chapter III is relating to admissions and withdrawals provide as follows:

“12. ADMISSION. (ii). A Pupil with a valid transfer certificate shall be admitted to the standard to which the transfer certificate declare him/ her fit.

¬¬13. WITHDRAWAL. – Transfer certificates may be issued only on application by parents or guardians in writing. Transfer certificate should not be issued in the case of pupils debarred till the period is over. A form for transfer certificate is given in annexure V.”

4. I submit that the right of children to free and compulsory Education Act 2009 is a act applicable to children aged between 6 to 14 years who are being referred in class D and class E of section 2 of the act. section 2 (D) and (E) of the act categorizes the above children as “children belonging to disadvantaged group” and “children belonging to weaker section’’.

5. I submit that similarly section 5 of the act excludes certain types of schools namely a school belonging to specific category and an aided School not receiving any kind of aid or grants to meet its expenses from the appropriate government or the local authority and the extract of the provision above is as follows:

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“Section 5. Right of transfer to other School-

(1) Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(2) Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(3) For seeking admission in such other school, the Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate: Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school: Provided further that the Head-teacher or in-charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her”

6. I submit that section 12 of the above act classifies the responsibility of school for free and compulsory education distinctly in respect of four category of schools defined in section 2, namely i) a School established and controlled by government or local authority,

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ii) a School receiving grant, iii) School belonging to specific category and iv) an unaided school not receiving any aid.

7. I submit that section 12 (1) (C) and section 12 (2) is very much relevant as there is a reservation provided under the act to extent of 25% of the total strength of each class shall be from the children
belonging to disadvantaged group and children belonging to weaker section and the fee payable by child and admitted under this category will be reimbursed by the government the balance 75% shall be filled in by the management of self financing schools on their own and fee shall be collected as per the fee fixed by the fee fixation committee, which is a statutory body.

8. I submit that the right of the children admitted under the act to an extent of 25 percentage to transfer to any other school is guaranteed and however the right of other children’s admitted on their own by the management in relation to issuance of transfer certificate is not explained or covered under the act and therefore the provisions of the matriculation Code will only apply to such of those students.

9. I submit that section 5 was conscious and careful to exclude certain category of schools namely minority and private unaided schools and therefore the object of the act is to protect the interest of such of those schools where the fee is not reimbursed in respect of the students and therefore the student is obligated to pay the fees remaining if in case the student wants to change the school by obtaining a transfer certificate from the current School.
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10. I submit that the respondent issue a government order in G.O.Ms.No 189 dated 12.07.2010 without differentiating the category of school issued a General direction in clause 5 of the government order directing the headmaster of the school where the student was last
admitted to issue transfer certificate immediately without any clarification in case of pendency of fee to be paid by the student in such case.

11.I submit that after the issuance of the above government order it was rampant and prevalent throughout the state for the parents to insist the school to issue transfer certificate despite the fact that the fees being remaining as a due, leading to number of litigation before this court where in on a misinterpretation, this Court directed the schools to issue the transfer certificates immediately holding that the right of the schools to collect the remaining fees due shall be independently workout in the manner known to law meaning the private school shall only have an option to move the appropriate Civil Court by filing a civil suit against the student for collection of the remaining due of fees.

12. I submit that government order issuing a blanket directions to all the schools to issue transfer certificate immediately irrespective of the fact that the student concerned has a remaining fees to be paid to the school is totally against Section 5 of the right of children to free and compulsory Education Act 2009, which specifically protects the class of schools like the petitioner namely private unaided schools not receiving any grant from the government or local authority.
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13.I submit that the respondent fails to consider the object of Section 5 which protects only the children benefited under the above act, as the interest of such school is being taken care, since the fees being reimbursed and paid by the government whereas private unaided school are specifically excluded only for the purpose that the fees aspect is not covered or guaranteed by the government and therefore the condition and stipulations relating to transfer certificate is not applicable to the private unaided schools. The petitioner having no other opportunity approaches this Hon’ble court under article 226 of the Constitution of India among the following other

G R O U N D S

A) The government order issuing omnibus direction to all categories of schools irrespective of the excluded category of schools under section 5 is without application of mind and proper interpretation of the provision.

B) The object of the government order is only to enforce and implement the right of children to free and compulsory education Act 2009 failed to consider that that it applies only to the children of the age of 6 to 14 years studying elementary education and the provision to compulsory transfer certificate would not apply to students other than in elementary education.

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C) The government order failed to consider the object of Section 5 of the act mandating compulsory issuance of transfer certificate is only to the students of the category benefited under section 2 (D) and (E), as the interest of school with regard to fees is taken care by the government itself as being reimbursed by the government and never paid by the student concerned.

D) The code of matriculation of the state of Tamil Nadu is a complete code enabling the provision for transfer certificate and the same cannot be overruled by an executive order giving a wrong interpretation to the provisions of Section 5 of the central Act 2009.

E) The total prohibition to hold back for expel any student under section 16 of the act is only with respect to students in the Elementary classes upto 8th standard and the act itself is silent and enables the schools to with hold the transfer certificate for legal reasons including non payment of fees by the students beyond elementary classes.

F) The fees in respect of a private school is fixed under the statute by a fees fixation committee which is an entitlement of the management of the school, cannot be taken away forcing the school to recover the fees by a civil action outside the purview of the law under which the school is governed, namely the matriculation code or even the right to Education Act 2009.

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It is therefore prayed before this Hon’ble Court may be pleased to issue an order, direction or writs especially in the nature of a Writ of DECLARTION declaring the clause (5) of the government Order of the 1st Respondent in GO.(MS).No.189 dated 12.07.2010 is illegal, ultravires and against the provisions of Section 5 of the Right of Children to Free and Compulsory Education Act 2009 and pass such other orders as this Hon’ble court as may deem fit and proper in the circumstances of the case and thus render Justice.

It is also prayed that this Hon’ble Court may be pleased to grant an order of INTERIM STAY of the operation of the clause (5) impugned GO.(MS).No.189 dated 12.07.2010 passed by the first respondent pending disposal of the above writ petition and thus render justice.

Solemnly affirmed at Chennai on Before Me,
this day of November, 2021 and
signed his name in my presence.
Advocate- Chennai

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MEMORANDUM OF WRIT PETITION
(Under Article 226 of Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021

All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education,
Shastri Bhawan, Dr.Rajendra Prasad Rd,
Rajpath Area, Central Secretariat, New Delhi-110001.

2.The State of Tamil Nadu,
Rep by its Secretary,
Department of School Education,
Fort St.George,
Chennai – 600 009.

3. The Director of School Education,
DPI Compound, College Road,
Chennai – 600 006.

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4. The Director of Matriculation Schools,
College Road,
Chennai – 600 006.
5. The Director,
Office of the Directorate of Elementary Education,
DPI Complex, College Road,
Chennai – 600006. …Respondents

WRIT PETITION
The address for service of all notices and process on the petitioner is that of his counsel M/s. K.M.VIJAYAN ASSOCIATES at No. 42, Law Chambers, High Court Buildings, Chennai – 600 104.
The address for service of all notices and process on the respondents is as stated above.
For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble Court may be pleased to issue an order, direction or writs especially in the nature of a Writ of DECLARTION declaring the clause (5) of the government Order of the 1st Respondent in GO.(MS).No.189 dated 12.07.2010 is illegal, ultravires and against the provisions of Section 5 of the Right of Children to Free and Compulsory Education Act 2009 and pass such other orders as this Hon’ble court as may deem fit and proper in the circumstances of the case and thus render Justice.
Dated at Chennai on this day of November, 2021

Counsel for Petitioner
MEMORANDUM OF WRIT MISCELLANEOUS PETITION
(Under Article 226 of the Constitution of India0
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.M.P. No. of 2021
In
W.P. No. of 2021

All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner/Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education,
Shastri Bhawan, Dr.Rajendra Prasad Rd,
Rajpath Area, Central Secretariat, New Delhi-110001.

2.The State of Tamil Nadu,
Rep by its Secretary,
Department of School Education,
Fort St.George,
Chennai – 600 009.

3. The Director of School Education,
DPI Compound, College Road,
Chennai – 600 006.
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4. The Director of Matriculation Schools,
College Road,
Chennai – 600 006.
5. The Director,
Office of the Directorate of Elementary Education,
DPI Complex, College Road,
Chennai – 600006. …Respondents/Respondents

STAY PETITION

For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble Court may be pleased to grant an order of INTERIM STAY of the operation of the clause (5) impugned GO.(MS).No.189 dated 12.07.2010 passed by the first respondent pending disposal of the above writ petition and thus render justice.

Dated at Chennai on this day of November, 2021

Counsel for Petitioner

IN THE HIGH COURT OF JUDICTURE AT MADRAS
(Special Original Jurisdiction)
W.P. NO. of 2021
All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education, Shastri Bhawan,
Dr.Rajendra Prasad Rd, Rajpath Area,
Central Secretariat, New Delhi-110001 and 4 others. …Respondents

INDEX

————————————————————————————————
S.No. Date Particulars Page No.
————————————————————————————————
1. 12.07.2010 G.O.Ms.No.189
2. 24.04.2018 Proceedings by the respondent
3. 09.05.2021 Proceedings by the respondent
4. 06.08.2021 Order in W.P.No.16376 of 2021
5. 16.08.2021 Representation given by the petitioner
————————————————————————————————
Certified that the above copies are true copies
Dated at Chennai on this day of November, 2021. Counsel for Petitioner
IN THE HIGH COURT OF JUDICTURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021

All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education, Shastri Bhawan,
Dr.Rajendra Prasad Rd, Rajpath Area,
Central Secretariat, New Delhi-110001 and 4 others. …Respondents

SYNOPSIS

The Writ Petition is challenging the legality of G.O.Ms.No.189 of School education which said to impose condition of immediate issuance of Transfer Certificate against section 5 of Right to Education Act. Hence this writ petition.

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DATES AND EVENTS

1. 12.07.2010 G.O.Ms.No.189 of School Education
2. 24.04.2018 Proceedings by the respondent
3. 22.06.2021 Proceedings by the respondent
4. 06.08.2021 Order in W.P.No.16376 of 2021
5. 16.08.2021 Representation given by the petitioner

Dated at Chennai on this day of November, 2021

Counsel for Petitioner

IN THE HIGH COURT OF JUDICTURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021

All India Private Educational Institutions Association,
Represented by its. State General Secretary K.Palaniyappan,
No.5, M.P.Avenue,
Majestic Colony,
Saligramam, Chennai. …Petitioner
-Vs-
1. The Union of India,
Represented by its secretary,
Department of School Education & Literacy,
Ministry of Education, Shastri Bhawan,
Dr.Rajendra Prasad Rd, Rajpath Area,
Central Secretariat, New Delhi-110001 and 4 others. …Respondents
INDEX
¬¬¬¬¬Sr.No Date Particulars Page No.
1. Dates, Events & Synopsis
2. Coding Sheet
3. Court Fee
4. Writ Petition
5. Stay Petition
6. Common Affidavit
7. Typed set

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8. 05.06.2003 Certificate of registration of the Petitioners
Association
9. 12.07.2010 G.O.Ms.No.189
10. 24.04.2018 Proceedings by the respondent
11. 22.06.2021 Proceedings by the respondent
12. 06.08.2021 Order in W.P.No.16376 of 2021
13. 16.08.2021 Representation given by the petitioner
14. Members list of the petitioners Association
15. Vakalat &
16. Batta

Certified that the above copies are true copies
Dated at Chennai on this day of November, 2021.

Counsel for Petitioner

IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P. No. of 2021

WRIT PETITION

M/s. K.M. VIJAYAN ASSOCIATES
R.O.C. No.7367/2015
Counsel for Petitioner
Cell No.: 94441 94861

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