TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 988
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellants (Management(s) of private unaided schools in the State of Rajasthan) had assailed the validity of the Rajasthan Schools (Regulation of Fee) Act, 2016, for short, "the Act of 2016", in particular Sections 3, 4, 6 to 11, 15 and 16 and the Rules framed thereunder titled Rajasthan Schools (Regulation of Fee) Rules, 2017, for short, "the Rules of 2017", in particular Rules 3, 4, 6 to 8 and 11 thereof being ultra vires the Constitution and abridge the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. 3. In the second set of appeals, four appeals, arising out of SLP (C) No ............. of 2021 @ Diary No(s). 44 of 2021; SLP (C) No. 431 of 2021; SLP (C) Nos. 577579 of 2021; and SLP (C) No. 2494 of 2021, also filed by the Management(s) of private unaided schools in the State of Rajasthan, emanate from the common judgment and order dated 18.12.2020 of the same High Court. In these appeals, the challenge is to the orders passed by the State Authorities on 09.04.2020, 07.07.2020 and 28.10.2020 regarding deferment of collection of school fees including reduction of fees limited to 70 per cent of tuition fees by schools affiliated with the Central Board....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minimum school fee is finalised. The nominated teachers may constantly seek favour of the Management by exploiting their position as member of the SLFC. In the process, an environment of constant difference of opinion would prevail between the school Management on one side and the parents of the wards and teachers, who would form part of the SLFC. Pertinently, the provisions of the impugned Act of 2016 give authority to the SLFC to override the proposal of the school Management in the matter of school fees to be collected from the wards during the relevant period. Effectively, the parents who are members of the SLFC, would control the decision­making process impacting the autonomy of the school Management in regard to determination of school fees, guaranteed under Article 19(1)(g) of the Constitution. The parents­teachers duo who are part of the SLFC would have no intention or motivation to create new facilities or commitment to develop the school towards excellence. Moreover, they would not be accountable for anything that finally impacts the quality of education in the school concerned. It is only the school Management who would be held accountable in that regard, whilst ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ave maximum autonomy with regard to administration including the right of appointment, disciplinary powers, admission of students and the "fees to be charged" as expounded by this Court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors (2002) 8 SCC 481 (paras 60 and 61). The Court noted that it is in the interests of the general public that more good quality schools are established. Autonomy and non­regulation of the school administration in matters referred to above will ensure that more such institutions are established. This view has been restated in Society for Unaided Private Schools of Rajasthan vs. Union of India & Anr. (2012) 6 SCC 1 (paras 50 to 53). 8. According to the appellants, the activities of school level education are qualitatively different from that of professional level education. The determination of school fees, therefore, stands on a totally different footing than determination of fees for professional colleges for medicine etc. The impugned Act of 2016 falls foul of doctrine of proportionality - as restrictions imposed on the school Management in respect of determination of school fees have no cogent nexus/object sought to be achieved. 9. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....consistent with the jurisprudential exposition of this Court and held not to be violative of Article 19(1)(g) or Article 30 of the Constitution of India. According to the State, there is no ambiguity in the provisions of the Act of 2016. In that, the principles enunciated in the statutory provisions under consideration are not irrelevant or irrational as suggested by the appellants. 11. The respondent­State has also refuted the challenge to the impugned Act of 2016 merely on the basis of its nomenclature. According to the State, non­mentioning of the words prevention of profiteering and charging of capitation fee in the impugned Act of 2016, does not ipso facto make the same constitutionally suspect. It is urged that a Constitution Bench of this Court in Modern Dental College and Research Centre (supra) has upheld the validity of identical provisions enacted by the State of Madhya Pradesh in relation to fixation of fee by external committees and, therefore, the challenge set up by the appellants cannot be countenanced. 12. The respondent­State would urge that the High Court in the impugned judgment after adverting to the exposition of different Constitution Benches of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....easonable restrictions on their autonomy within the mischief of unacceptable constraints envisaged under clause (6) of Article 19 of the Constitution. 20. Switching on to the coercive measures and penal provisions provided under the Statute and enforcement methodology prescribed under the Rules, it would be just and appropriate to observe that all these provisions are essential and necessary concomitant of regulatory mechanism for achieving desired objectives, and therefore cannot be categorized as unreasonable restrictions. In the overall scenario, we are also convinced that Sections 13 to 18 of the impugned Act and Rule 11 of the Rules are not intended to be invoked on sundry occasions for interfering with day to day functioning of the unaided recognized schools. Thus, complaint of the petitioners about fanciful and capricious supplication of these provisions per se appears to be a far cry without any substance. Indisputably, the Rules are in the nature of subordinate legislation and framed by the Government in exercise of power under Section 19 of the Act for carrying out all or any of the purposes of the Act. Thus, the Rules as such are neither assailable on the ground of l....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we would have relegated the parties before the High Court for reconsideration of the entire matter afresh. However, considering the nature of issues raised and the concerns expressed by the parties, we proceed to address the challenge to the relevant provisions of the Act of 2016 in this judgment itself. 16. Indeed, a Constitution Bench of this Court in T.M.A. Pai Foundation (supra) has expounded that the private unaided school management must have absolute autonomy to determine the school fees. But at the same time the consistent view of this Court has been restated and enunciated by the Constitution Bench in Modern Dental College and Research Centre (supra) in paragraph 75 of the reported decision. In that, though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institutions, commercialisation is not permissible; and in order to ensure that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that the private unaided schools keep playing vit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....harged by a private unaided professional educational institution. Thus, all the cost components of the particular private unaided professional educational institution as well as the reasonable surplus required for growth and development of the institution and all other factors relevant for imparting professional education have to be considered by the Committee while determining the fee. Section 4(8) of the 2007 Act further provides that the Committee may require a private aided or unaided professional educational institution to furnish information that may be necessary for enabling the Committee to determine the fees that may be charged by the institution in respect of each professional course. Each professional educational institution, therefore, can furnish information with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in Section 9(1) of the 2007 Act and the function of the Committee is only to find out, after giving due opportunity of being heard to the institution as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided. 91. Thus, when there can be regulators which can fix the charges for telecom companies in respect of various services that such companies provide to the consumers; when regulators can fix the premium and other charges which the insurance companies are supposed to receive from the persons who are insured; when regulators can fix the rates at which the producer of electricity is to supply the electricity to the distributors; we fail to understand as to why there cannot be a regulatory mechanism when it comes to education which is not treated as purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them. In the field of education, therefore, this constitutional goal remains pivotal which makes it distinct and special in contradistinction with other economic activities as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions." 19. After this jurisprudential exposition, it is not open to argue that the Government cannot provide for external regulatory mechanism for determination of school fees or so to say fixation of "just" and "permissible" school fees at the initial stage itself. 20. The question is: whether the impugned enactment stands the test of reasonableness and rationality and balances the right of the educational institutions (private unaided schools) guaranteed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tate Government or any local authority;" It is, thus, clear that the Act of 2016 applies to all the schools within the State of Rajasthan referred to in Section 2(t) including private schools as defined in Section 2(p). 22. Section 3 of the Act of 2016 predicates that no school itself or on its behalf shall collect any fee in excess of the fee fixed or approved under the Act of 2016. The expression "fee" has been defined in Section 2(h), which reads thus: "2. Definitions.­ In this Act, unless the context otherwise requires,­ xxx xxx xxx (h) "fee" means any amount, by whatever name called, collected, directly or indirectly, by a school for admission of a pupil to any Standard or course of study;" 23. Besides the definition of expression "fee", it would be apposite to advert to the factors for determination of fee under the Act of 2016 as delineated in Section 8 of the Act of 2016. The same reads thus: "8. Factors for determination of fee. ­ The following factors shall be considered while deciding the fee leviable by a school, namely: ­ (a) the location of the school; (b) the infrastructure made available to the students for the qualitative education, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....location of the school is certainly relevant for determination of fee as are the other factors referred to in Section 8 and Rule 10. The totality of the effect of all the specified factors is to be reckoned for determining the school fees of the concerned school for the relevant period. The location of the school is not the only factor that is to be taken into account. 26. At the end, what is relevant is that the institution is entitled to fix its own fee structure, which may include reasonable revenue surplus for the purpose of development of education and expansion of the institution, as long as it does not entail in profiteering and commercialisation. Whether fee structure evolved by the concerned school results in profiteering or otherwise is a matter which eventually would become final with the determination/adjudication by the Statutory Regulatory Committees constituted under Sections 7 and 10 of the Act of 2016, namely, Divisional Fee Regulatory Committee (DFRC) and Revision Committee respectively, as the case may be. That adjudication, however, becomes necessary only if the SLFC were to disapprove the proposal of the school Management regarding fee structure determined by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h be forwarded to the District Education Officer concerned. (c) The term of the School Level Fee Committee shall be for one academic year and no parent member shall be eligible for drawing a lot by lottery within the period of next three years since the expiry of his/her last term as the member of the School Level Fee Committee. (d) The School Level Fee Committee shall meet at least once in three months. The procedure to be followed for conducting the meeting of the School Level Fee Committee shall be such as may be prescribed. (e) The Parent­Teachers Association shall have a general meeting at least once before the 15th August of every year. The procedure to be followed for conducting the meeting of the Parent­Teachers Association shall be such as may be prescribed. The Parent­Teachers Association shall discharge such duties and perform such functions as may be assigned to it under this Act and as may be prescribed." Section 4 predicates that every private school shall constitute the Parent­Teachers Association, which is to be formed by the head of the school within thirty days from the beginning of each academic year. Section 4(1)(b) envisages that every te....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l right of the appellants as such. 30. The composition of the SLFC has been specified in Section 4(2) (a) of the Act of 2016. It consists of a Chairperson being representative of management of the private school nominated by such management; Secretary - Principal of the private school (Ex officio); three teachers nominated by the management of private school as to be the members of the SLFC; and five parents from Parent­Teachers Association chosen by a lottery conducted by drawing a lot of willing parents. The SLFC consists of ten members - five are, in a way, representatives or nominees of the Management and five parents from the Parent­Teachers Association. The SLFC so constituted would continue to function for one academic year and the member chosen from Parent­Teachers Association is not eligible to participate again for a period of three years thereafter from the date of expiry of his/her term as the member of the SLFC. By this process, the parents representing different wards get opportunity to be part of the SLFC. Suffice it to observe that the constitution of the SLFC and for the nature of its function, no fault can be found with Section 4 of the Act of 2016 mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s from the date of its filing after giving the opposite party an opportunity of being heard. (7) The management or the School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal before the Revision Committee in such manner as may be prescribed." 33. On bare perusal of this provision, it is noticed that the Management has the prerogative to submit its proposal regarding the fee structure in the given school. That proposal is submitted to the SLFC set up under Section 4 of the Act of 2016. The mechanism provided in Section 6 onwards would primarily apply to private unaided schools. Indeed, the expression "propose" used in Section 6(1) would mean that the proposal of the school Management is its in­principle decision regarding the fee structure for the relevant period. The usage of expression "propose" in no way undermines the autonomy of the school Management, in particular to determine its own fee structure for the relevant period. The consequence of proposal not being accepted by the SLFC is a different issue. Notably, the SLFC's decision under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hile deciding the school fees, the school Management/SLFC including the Statutory Regulatory Authorities, all concerned are guided by the factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017. Suffice it to note that the process envisaged in Section 6 is democratic and consensual resolution of the issue of fee structure for the relevant period between the school Management and the parents' representative being part of the SLFC. It is not to give final authority to the SLFC to determine the fee structure itself which, as aforesaid, is the prerogative of the school Management as per Section 6(1) of the Act of 2016. In that sense, the autonomy of the school Management to determine the fee structure itself in the first place is untrammelled and not undermined in any way. 37. Section 7 of the Act of 2016 is about the constitution of the DFRC. The same reads thus: "7. Constitution of Divisional Fee Regulatory Committee. ­ (1) The Government shall, by notification in the Official Gazette, constitute a Divisional Fee Regulatory Committee for each Revenue Division, which shall consist of the following members, namely: ­ (a) Divisional ­ Chairpe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the private schools and, in particular parents has been earmarked as two years from the date of their nomination. This would mean, necessarily, that the concerned parent would be eligible until his/her ward continues in the school during the tenure and is not a member of the SLFC of any school within the divisional area. Any member not fulfilling this criterion would be deemed to have vacated his office forthwith and, in his place, a new member can be nominated by the competent authority from amongst the parents of the wards pursuing studies in the school in the concerned divisional area. Moreover, while nominating representative of parents, the Divisional Commissioner must keep in mind that the person so nominated must possess basic qualification of accounting, development of a school and dynamics of quality education; and whose ward has not secured admission against 25 per cent quota of free education under the RTE Act. Thus understood, even Section 7 of the Act of 2016 does not violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution in respect of establishment of educational institution. 38. Needless to underscore that the Divisional Commissioner, wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. The provisions of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to searches and seizures shall apply, so far as may be, to searches and seizures under this section. (3) The Divisional Fee Regulatory Committee shall regulate its own procedure, for the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all powers of a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit, in respect of the following matters, namely: (i) the summoning and enforcing the attendance of any witness and examining him on oath; (ii) the discovery and production of any document; (iii) the reception of evidence on affidavits; (iv) the issue of commission for the examination of the witness; (4) No order shall be passed by the Divisional Fee Regulatory Committee in the absence of the Chairperson. The order of the Divisional Fee Regulatory Committee shall be binding on the parties to the proceedings before it for three acade....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d school. What is significant to note is that Section 9(5) makes it amply clear that the DFRC has no power to grant any interim stay to the fee determined by the Management. However, in light of Section 6(5) during the pendency of the appeal or reference before the DFRC, school Management is at liberty to collect fee of the previous academic year plus ten per cent increase in such fee till the final decision of the DFRC, as predicated in Section 6(5) of the Act of 2016. The decision of the DFRC is amenable to appeal before the Revision Committee constituted under Section 10 of the Act of 2016. None of these violate the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution to determine its own fee structure in any manner. 42. Section 10 deals with constitution of Revision Committee. This Committee discharges the function of an appellate authority where the aggrieved party, namely, school Management or the Parent­Teachers Association can assail the decision of the DFRC. This is a final adjudicatory body created under Section 10 consisting of official members including two representatives of private schools nominated by the State Governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent of educational institution and administration thereof, including determination of fee structure on its own. 47. Rule 4 deals with duties and functions of Parent­Teachers Association, which reads thus: "4. Duties and functions of Parent­Teachers Association. ­ The Association shall discharge the following duties and perform the following functions, namely:- (i) to get information about Tuition fees, Term fees and fees for co­curricular activities as decided by the School Level Fee Committee; (ii) to observe completion of syllabus as per the planning; (iii) to assist school for planning of other co­curricular activities; and (iv) to assess the needs of co­curricular activities." The above Rule enables the Parent­Teachers Association to get information about tuition fees, term fees and fees for co­curricular activities as decided by the SLFC; to also observe completion of syllabus as per the planning; to assist school for planning of other co­curricular activities; and to assess the needs of co­curricular activities. This is an enabling provision bestowing power coupled with duty in the Parent­Teachers Association. This in no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pliances of the provisions of the Act of 2016 and the Rules made thereunder including regarding determination of school fees. 49. Rules 7 and 8 of the Rules of 2017 deal with meeting of the SLFC and procedure to refer proposal to DFRC and to file appeal and revision before the Statutory Regulatory Committees respectively. The same reads thus: "7. Meeting of the School Level Fee Committee. ­ (1) The Chairperson of the School Level Fee Committee shall call the meetings of the School Level Fee Committee. The Secretary of the committee shall issue notice of meeting to the members of the School Level Fee Committee in Form­II. The notice shall be issued fifteen days before the date of meeting. (2) The notice shall be sent to each member of the School Level Fee Committee by registered post or delivered through any other mode. The acknowledgement of notice shall be preserved for a period of one year. (3) No business shall be transacted in the meeting of the School Level Fee Committee unless four members are present out of which at least two shall be the parent members of the School Level Fee Committee. If there is no quorum, the Chairperson of the School Level Fee Committee ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons in no way affect the fundamental right guaranteed under Article 19(1)(g) of the Constitution much less autonomy of the school Management to determine the fee structure itself in the first place including the administration of the school as such. 50. The next challenge is to Rule 11 which obligates the private schools to maintain accounts and other records in the manner prescribed thereunder. The same reads thus: "11. Maintenance of accounts and other records.­ (1) Every private school shall,­ (a) maintain separate accounts for different kinds of transactions, such as, fees collected, grants received, financial assistance received, payments of salary to staff, purchase of machinery and equipment, laboratory apparatus and consumables, library books, stationery, computers, software and other expenditure incurred; (b) keep the registers, accounts and records within the premises of their school as they shall be made available at all reasonable time for inspection; and (c) preserve the accounts maintained, together with all vouchers relating to various items or receipts and expenditure, until the audit of accounts is over and objections, if any, raised are settled. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en to the State to enact law on the same subject such as the impugned Act of 2016. This argument is completely misplaced and tenuous. For, the purpose for which the RTE Act has been enacted by the Parliament is qualitatively different. It is to provide for free and compulsory education to all children of the age of 6 to 14 years, which is markedly different from the purpose for which the Act of 2016 has been enacted by the State legislature. Merely because the Central Act refers to the expression "capitation fee" as defined in Section 2(b) and also in Section 13 of the RTE Act - mandating that no school or person shall, while admitting a child, collect any capitation fee, does not mean that the Central Act deals with the mechanism needed for regulating fee structure to ensure that the schools do not collect fees resulting in profiteering and commercialisation. By its very definition, the capitation fee under the Central Act means any kind of donation or contribution or payment other than the fee notified by the school. On the other hand, fee to be notified by the school is to be done under the impugned Act of 2016 after it is so determined by the school Management and approved by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the school. 2. In case of continuation of the studies in the non­government schools, the deferred fees for the present session 2020­21 will be chargeable after deferment period is over. 3. After completion of the Lock down period, if any student of non­government school wants his Transfer Certificate for continuing studies in another school then the same can be obtained after depositing fees of the previous session 2019­20 and obtaining the no­dues certificate. (Saurabh Swami) I.A.S., Director, Secondary Education, Rajasthan, Bikaner. No.­Shivra­Ma/PSP/Sikayat/Vetan/2019­20 dated 09.04.2020" 55. Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on 07.07.2020. The same reads thus: "OFFICE OF DIRECTOR, SECONDARY EDUCATION, RAJASTHAN, BIKANER ORDER In continuation of the Government letter No.P.8(3) Shiksha5/COVID­19 Fees Staghan/2020 dated 01.07.2020, for collection of fees by Elementary and Secondary Education Department recognized non­government schools, the following order is issued:­ 1. The fee chargeable by non­government schools from the students/gu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....P (C) No.2977/2020 decided on 20.4.2020, this Court is of the view that prima facie, members of the petitioner association cannot be deprived of receiving the tuition fees for the students, who continued to remain on their rolls. 16. However, this Court notices that total infrastructure cost, which the school may incur for the regular studies during normal days, has been definitely reduced day to day schools are not opening. It is noticed that the tuition fees is assessed on the basis of the infrastructure expenditure including staff salary and operation cost incurred by the schools in terms of the provisions of the Rajasthan Schools (Regulation of Fee) Act, 2016, after following the procedures laid down therein. 17. This Court agrees prima facie with the counsel for intervenors that while the institutes had to incur certain additional expenditure for developing online classes process, the same would be less than individual expenditure being incurred by the parents for providing infrastructure to their each ward, who is undergoing online classes at home. There may be also cases where the parents may have two or three children. To each one separate laptop or computer will be req....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment subject to final adjudication of the case. 20. The stay applications are accordingly disposed of." 57. Against this decision, intra­court cross appeals came to be filed. In those appeals, the Division Bench vide order dated 01.10.2020 stayed the operation of the interim order passed by the learned Single Judge. The appeals were then heard on 12.10.2020 and reserved for orders. However, as representations were received from several counsel that they were unable to interact with the court through video conferencing, the matters were notified for further hearing on 14.10.2020. The Court then directed listing of appeals on 20.10.2020. However, before next date of hearing, the State Government vide order dated 16.10.2020 constituted a four member Committee to give suggestions to the State Government in relation to recovery of fees from parents/students by Private/Non Government Educational Institutions during the academic session 2020­21. The High Court was apprised about this development when the matters were taken up on 23.10.2020 as is noticed from the said order, which reads thus: "Order 23/10/2020 Mr. Rajesh Maharshi, AAG, submits that a committee has been cons....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... session will be 70% of the tuition fees of last academic session. Similarly, Rajasthan Board of Secondary Education for class 9th to 12th has reduced 40% of the syllabus and has prescribed 60% of the syllabus, hence, the fees to be charged for this session will be 60% of the tuition fees of last academic session. 3. Looking to the circumstance arising out of COVID­19 pandemic, the decision to call the students of Class 1st to 8th to school has not been taken, hence whenever the decision is taken and as per the reduction of syllabus, in the same proportion the fees will be charged. 4. The fees decided as per above payable to the school for which guardians/student will be given option of payment of fees monthly/quarterly. 5. The schools will not change the uniform prescribed in the previous academic session. 6. The facilities not being utilized by students like laboratory, sports, library, curricular activities, development fees, boarding fees etc. no fees under this head will be charged by schools. 7. For presence of the students in the school, written consent of the guardians will be required. 8. In case the student is using conveyance provided by the school like B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....guardian will be provided of receipt of tuition fees/capacity building fees. The said receipt will contain the details of the prescribed fees and the reduced fees necessarily. 4. The students who are undergoing online classes and want to continue with online classes but their guardians are unable to pay the fees, in such cases a committee will be formed at school level which will examine such cases and will take a decision in regard to the relaxation of fees to be granted looking to the circumstances from case to case. 5. The remaining fees for the academic session 2019­20 (remaining till the schools remained open) will be charged in equal monthly installments. The guardians of such students will not compelled to pay the fees in single installment. 6. No student will be prevented from registration for Board Examination even if he has not attended the online classes and has not paid the fees, even the transfer certificate of such students will not be issued. 7. If any student wants to take transfer certificate and has attended online classes than capacity building fees as per aforesaid provision can be charged. 8. For charging fees as per aforesaid the non­governme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of no consequence. For, the direction was given by the Chief Minister being the administrative and political head of the State Government. It was the bounden duty of the State Government to reckon the ground realities and strike a balance between the interests of private schools as well as of the parents and students and to mitigate the plight of the citizens due to unprecedented crisis post COVID­19 pandemic. The Court did advert to the fact that the school Management was obliged to honour its commitment, rather obligation to pay salary to its staff on account of governing statutory provisions despite the pandemic situation. Further, the State of Rajasthan had adopted a different pattern of substantially reducing the school fees in comparison to other States. Nevertheless, it noted that it is always open to the school Management as well as the parents to approach the statutory forum for determination of just fee under the Act of 2016. The Division Bench finally proceeded to conclude as follows: "In view of the above discussion, the rest of the petitions are disposed of as under:­ I. All the private schools recognized by the Primary and Secondary Education Department sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is backdrop, the management of private unaided schools in the State of Rajasthan have approached this Court to assail the impugned judgment of the Division Bench of the High Court and also the order dated 28.10.2020 issued by the Director, Secondary Education. As a matter of fact, challenge to the orders issued by the Director, Secondary Education on 09.04.2020 and 07.07.2020 had worked out due to efflux of time. For, by these orders the school Management was merely directed to defer collection of school fees for specified period as noted therein; and that period had already expired. Thus, our focus in this judgment will be and ought to be only on the legality and rationality of the order issued by the Director, Secondary Education on 28.10.2020 and applicable to academic year 2020­21 only, including the basis on which the same has been upheld by the High Court vide impugned judgment. 62. According to the appellants (private unaided schools), the school fee charged from their students was fixed by the SLFC in its meeting held on 28.10.2017, by following procedure prescribed under the Act of 2016 and the Rules framed thereunder. The same was to remain in force for the academic ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with the express statutory provisions governing the subject of school fees. 64. It is urged that there was no express provision in the Act of 2016 permitting such intervention by the State Authorities in respect of school fees already fixed under the Act of 2016. Reliance placed on Section 18 of the Act of 2016 was completely inapposite as that merely confers power upon the State Government to issue directions consistent with the provisions of the Act of 2016 and for carrying out the purposes of that Act or for giving effect to any of the provisions of that Act. Thus, recourse cannot be taken by the State Authorities to the provisions of the Act of 2016 much less Section 18 to justify the impugned order dated 28.10.2020. In any case that order, on the face of it, is unreasonable, arbitrary and irrational. For, Section 8 provides for the parameters for determination of school fee and admittedly the school fee had already been fixed by the SLFC on 28.10.2017 which was still in force and applicable for the academic year 2020­21 as well. Therefore, it was not open to reduce the same much less limit it to only one parameter of tuition fee amongst other parameters referred to in Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red to be mitigated and not indirect hardship caused to individuals much less in respect of contractual matters. The plan must advert to the measures to be taken for the integration of mitigation measures in the development plans and the measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster including the roles and responsibilities of different Ministries or Departments of the Government of India. In any case, the action is to be initiated by the State Authorities, established under the Act of 2005, namely, the Disaster Management Authority at the concerned level. In the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships - such as inability of parents to pay school fees due to pandemic situation. The Director, Secondary Education, in no way, is concerned with the preparation of a disaster plan or its enforcement and implementation under the Act of 2005. As a result, the order dated 28.10.2020 cannot be sustained with reference to the provisions of the Act of 2005. The provision in the form of Section 72 of the Act of 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 17 (supra). He would submit that in the case of minorities, the State regulation on minority right has to satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to make the institution an effective vehicle of education for the minority community and for other persons to resort to it. Learned counsel has also relied upon the decision dated 20.05.2020 of the Delhi High Court in the case of Ramjas School vs. Directorate of Education, Writ Petition (C) No.9688 of 2018 (paras 66, 78, 88 and 91) wherein the High Court noted that in the case of unaided educational institutions, availability of surplus is no ground to disapprove the fee hike. Absent any charging of capitation fee/profiteering, the State Authorities cannot reject the fee proposal of the school Management and that the quantum of fee to be charged is an element of administrative functioning of the school, over which the autonomy of the unaided educational institution cannot be compromised. He has also placed reliance on the decision of the Delhi High Court in Naresh Kumar vs. Director of Education, Delhi, Writ Petition (C) No.2993....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 72 of the Act of 2005 gives an overriding effect over all other laws and, therefore, the power of the State Government exercised in terms of Sections 38 and 39 in respect of measures articulated therein, need not be constricted keeping in mind the language of the said provisions. In other words, all that is required to be done by the State to assuage the concerns of the society and citizenry related to the situation arisen from the lockdown due to pandemic, is permissible within the meaning of the said provisions. 73. It is urged that mere omission to mention the source of power will not invalidate the exercise of power itself as long as there is a valid source to that exercise of power as noted by this Court in High Court of Gujarat & Anr. vs. Gujarat Kishan Mazdoor Panchayat & Ors. (2003) 4 SCC 712 (para 53), M.T. Khan & Ors. v. Govt. of A.P. & Ors. (2004) 2 SCC 267 (para 16) and N. Mani vs. Sangeetha Theatre & Ors. (2004) 12 SCC 278 (para 9). 74. It is then urged that the order dated 28.10.2020 was necessitated and was in furtherance of the observations made by the Division Bench vide order dated 23.10.2020. That was, obviously, to fulfil the parens patriae obligations ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....determination of fees. (b) The management shall take into account the special circumstances of the COVID and curtailment of expenses during COVID along with the factors mentioned in Section 8 of the Act of 2016. The management shall be reasonable and explain expenditure under each head as enjoined by the statute. Section 6(4) read in conjunction with Section 8 of the Act. (c) The school­level fee committee will approve the fee within a period of 30 days. (d) There shall be compulsory fixation of fee for COVID year 2020­21 separately (alone) for each school in accordance with the provisions of the Act of 2016. (e) The fixation of fee for 2021­22 can, thereafter, take place normally in accordance with the provisions of the Act of 2016. * Thus, the final school fee shall come into existence for the COVID year 2020­21 within a period of 45 days from the date of judgment of this Hon'ble Court and the order of 28.10.2020 interim order passed by this Hon'ble Court shall subsume in the same." 78. According to Ms. Pragya Baghel, learned counsel representing the parents, the State Government had not followed proper procedure for determination of 70 per cent of the tu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ters concerning the schools in the State of Punjab which are sub judice. In our opinion, it is not necessary to dilate on this written submission as the present appeals pertain to the issues concerning the private unaided schools in the State of Rajasthan governed by the Act of 2016 and the Rules framed thereunder. It will be open to the intervener to pursue all the points raised in the written submission in the proceedings pending in the High Court or this Court concerning the private schools in the State of Punjab. We may not be understood to have expressed any opinion in that regard. 81. We also have the benefit of written submission filed by Mr. Sunil Samdaria, appearing in­person who has essentially commended us to uphold the impugned judgment and order dated 18.12.2020 of the High Court of Rajasthan and seeking directions to further reduce the school fees below the percentage specified in the order dated 28.10.2020 and as upheld by the High Court. In fact, he has gone to the extent of suggesting that no fee should be charged for the period the schools have remained closed in the academic session 2020­21 as that would result in profiteering by the school Management. A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h would be payable by the students as and when it becomes due and payable, and as notified by the management/school. (e) In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non­payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student. (f) The above arrangements would be subject to the outcome of these matters including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings. (g) We also direct the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st March, 2021. Ordered accordingly. Heard in part. Hearing of the aforesaid cases, shall continue on 15th February, 2021." 83. Learned counsel appearing for the appellants had stated that if the Court were to make this interim arrangement absolute, the appellants would be satisfied with such a direction. However, as aforesaid, the respon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est its argument to defend the impugned order dated 28.10.2020 as having been issued in light of benign hope expressed by the High Court. It could do so only if the law permitted the State Government to intervene on the subject of school fees of private unaided schools (minority or non­minority, as the case may be). Resultantly, what we need to examine in these appeals is whether order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law. 89. Although the stated order makes no reference to the source of power under which it had been issued, four different perspectives have been invoked by the State to justify the exercise of that power. First, it is competent to do so under Section 18 of the Act of 2016 itself. Second, being a policy decision, it could issue an executive direction to mitigate the concerns of the parents in exercise of power under Article 162 of the Constitution. Third, such power can be exercised by the State Government for mitigating the concerns of the parents and for capacity building of the stakeholders as one of the measures under the Act of 2005. Lastly, such direction could be issued also in exercise of power under the Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed authority under the Act. By its very nature, the direction given by the State Government is in conflict with the scheme of finalisation of fee structure under the Act of 2016 and also the binding effect thereof for the specified period of three academic years on all concerned. Thus understood, the direction issued by the State Government in the form of order dated 28.10.2020 does not satisfy the twin tests of being consistent with the provisions of the Act; and also being necessary or expedient for carrying out the purposes of the Act, as the case may be. 93. Suffice it to observe that the order dated 28.10.2020 being in the nature of direction, has been issued in breach of the preconditions specified in Section 18 of the Act of 2016. As a matter of law, the State Government had no power, whatsoever, to interdict the fee structure much less which has been finalised and fixed by the concerned functionaries/authorities under the Act of 2016 itself before expiry of the statutory period as specified. As a result, Section 18 of the Act of 2016 will be of no avail to the respondents, in particular the State Government to justify the order dated 28.10.2020. 94. A fortiori, even the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f determination of school fees and its binding effect on all concerned for a period of three academic years, without any exception. The fact that in the proceedings before the High Court the State Government had ratified the impugned order, does not take the matter any further. In that, there can be no ex post facto ratification by the State Government in respect of subject, on which, it itself could not issue such direction in law. 97. Even the exposition in Rai Sahib Ram Jawaya Kapur & Ors. vs. State of Punjab AIR 1955 SC 549 and Secretary, A.P.D. Jain Pathshala & Ors. vs. Shivaji Bhagwat More & Ors. (2011) 13 SCC 99 will not come to the aid of the respondents for the same reasons. Notably, not only the subject of finalisation of fee structure and the matters incidental thereto have been codified in the form of the Act of 2016, but also a law has been enacted to deal with the matters during the pandemic situation in the form of Central Act, namely, the Act of 2005 including the State legislation i.e., the Act of 2020. In fact, the State legislation deals with the subject of epidemic diseases and its management. Even those enactments do not vest any power in the State Government ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der, as the case may be. The State cannot exercise executive power under Article 162 of the Constitution to denude the person offering service(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence the State has no direct causal relationship therewith. 99. It is one thing to say that the State may regulate the fee structure of private unaided schools to ensure that the school Management does not indulge in profiteering and commercialisation, but in the guise of exercise of that power, it cannot transcend the line of regulation and impinge upon the autonomy of the school to fix and collect "just" and "permissible" school fees from its students. It is certainly not an essential commodity governed by the legislation such as Essential Commodities Act, 1955 empowering the State to fix tariff or price thereof. In light of consistent enunciation by this Court including the Constitution Bench, that determination of school fee structure (which includes reduction of fixed school fee for the relevant period) is the exclusive prerogative of the school Management running a private unaided school, it is not open to the Legislature to m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Disaster Management Plan. Section 23 reads thus: "23. State Plan.- (1) There shall be a plan for disaster management for every State to be called the State Disaster Management Plan. (2) The State Plan shall be prepared by the State Executive-Committee having regard to the guidelines laid down by the National Authority and after such consultation with local authorities, district authorities and the people's representatives as the State Executive Committee may deem fit. (3) The State Plan prepared by the State Executive-Committee under sub­section (2) shall be approved by the State Authority. (4) The State Plan shall include,- (a) the vulnerability of different parts of the State to different forms of disasters; (b) the measures to be adopted for prevention and mitigation of disasters; (c) the manner in which the mitigation measures shall be integrated with the development plans and projects; (d) the capacity­building and preparedness measures to be taken; (e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above; (f) the roles and responsibilities of dif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rials and provisions; to wit, manpower, services, materials and provisions as noted in Section 2(p), and preparedness, Section 2(m) "preparedness" means the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof; measures referred to in Section 2(m). It is not possible to countenance the persuasive argument of the respondents that expansive meaning be assigned to the provisions of the Act of 2005 so as to include power to reduce school fees of private unaided school albeit fixed under the Act of 2016 and which by law is to remain in force until academic year 2020­21. 104. As is noticed from the preamble of the Act of 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto. It extends to the whole of India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. The expression "disaster" has been defined in Section 2(d) of the Act of 2005, which reads thus: "2. Definitions.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....poses of integration of measures for prevention of disasters and mitigation in their development plans and projects and provide necessary technical assistance therefor; (e) coordinate the implementation of the State Plan; (f) recommend provision of funds for mitigation and preparedness measures; (g) review the development plans of the different departments of the State and ensure that prevention and mitigation measures are integrated therein; (h) review the measures being taken for mitigation, capacity building and preparedness by the departments of the Government of the State and issue such guidelines as may be necessary. (3) The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority." 107. The obligation of the State Government for the purpose of disaster management can be culled out from Section 38, which reads thus: "38. State Government to take measures.- (1) Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the purpose of securing effective implementation of provisions of this Act." 108. The corresponding responsibilities of departments of the State Government have been delineated in Section 39, which reads thus: "39. Responsibilities of departments of the State Government.- It shall be the responsibility of every department of the Government of a State to- (a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority and the State Authority; (b) integrate into its development plans and projects, the measures for prevention of disaster and mitigation; (c) allocate funds for prevention of disaster, mitigation, capacity­building and preparedness; (d) respond effectively and promptly to any threatening disaster situation or disaster in accordance with the State Plan, and in accordance with the guidelines or directions of the National Executive Committee and the State Executive Committee; (e) review the enactments administered by it, its policies, rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters, miti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the District Authorities; (d) monitor the implementation of disaster management plans prepared by the departments of the Government of the State and District Authorities; (e) monitor the implementation of the guidelines laid down by the State Authority for integrating of measures for prevention of disasters and mitigation by the departments in their development plans and projects; (f) evaluate preparedness at all governmental or nongovernmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness; (g) coordinate response in the event of any threatening disaster situation or disaster; (h) give directions to any Department of the Government of the State or any other authority or body in the State regarding actions to be taken in response to any threatening disaster situation or disaster; (i) promote general education, awareness and community training in regard to the forms of disasters to which different parts of the State are vulnerable and the measures that may be taken by such community to prevent the disaster, mitigate and respond to such disaster; (j) advise, assist and coordin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." The Act of 2005 is not a panacea for all difficulties much less not concerning disaster management [Section 2(e)] as such. As noted earlier, there is no express provision in the Act of 2005 which empowers the Director, Secondary Education (or the State Government) to issue order and directions in respect of school fee structure because of the pandemic situation. 112. For the same reasons, reliance placed on the provisions of the State legislation, namely, the Act of 2020 dealing with epidemic diseases will be of no avail to justify the impugned order dated 28.10.2020 issued by the Director, Secondary Education. The power to take special measures and specify regulation as to epidemic disease can be exercised by the State Government under Section 4 of the Act of 2020. Section 4 reads thus: "4. Power to take special measures and specify regulations as to epidemic disease.- (1) When at any time the Government is satisfied that the State or any part thereof is visited by or th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... activities which the Government considers sufficient to spread or transmit epidemic diseases and for that purpose to inspect various places suspected of being infected with such diseases. Indeed, it can regulate or restrict the functioning of offices, Government and private and educational institutions in the State. That, however, would be only in respect of manner of its use and its timings including to observe standard operating procedures to ensure that epidemic diseases do not transmit or spread on account of activities carried out therein. That power to regulate cannot be invoked to control the tariffs, fees or cost of goods and services and in particular economic aspects of contractual matters between two private parties or so to say school fees of private unaided schools. Accordingly, even the last point urged by the State to justify the impugned order dated 28.10.2020 falls to the ground. 113. A priori, it must follow that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Act of 2016 including to reduce the same for the academic year 2020­21 in respect of private unaided schools. Having fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of overheads on such activities would be nothing short of indulging in profiteering and commercialisation. It is a well­known fact and judicial notice can also be taken that, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020­21. Resultantly, the school Management must have saved overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc. Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period. Being fee, the principle of quid pro quo must come into play. However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management. Without insisting for mathematical exactitude approach, we would assume that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the releva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hy;21. (ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021 as noted in our order dated 08.02.2021. (iii) Regardless of the above, it will be open to the appellants (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above. (iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non­payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020­21 in the above terms, the school Management to consider such representation on case­to­case basis sympathetically. (vi) The above arrangement will not affect collection of fees for the academic year 2021­22, as is payable by the students of the concerned school as and when it becomes due and payable. (vii) The school Management sha....