AI Drafter 
TaxTMI 
TaxTMI 
2021 (5) TMI 988
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....ferred to above. In these matters, the appellants (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 b....
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....erest. They would be interested in ensuring that 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 ....
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....tablished that the private unaided schools ought to have 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 ha....
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....e, the setting up of External Fee Regulatory Authority is 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 ad....
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....peal, which sufficiently repudiate the contention of the petitioners about unreasonable 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 o....
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....nalysed the challenge to the respective provisions and also the overall scheme of the Act of 2016. Ordinarily, 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 w....
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....on and any other relevant factor, have to be taken into consideration by the Committee while determining the fees to be charged 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....
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.... framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation 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 activit....
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....erely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation 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 enac....
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....ns Act, 1989 (Act No. 19 of 1992), but does not include ­ (i) an aided school; and (ii) a school established and administered or maintained by the Central Government or the State 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. ­....
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....ticulated and are based on objective parameters. It was urged that clause (a) of Section 8 is vague. We find force in the argument of the respondent­State that the factors referred to in Section 8 and Rule 10 for determination of fee are founded on the dictum of this Court in successive reported precedents, as relevant factors. The factor of 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 Stat....
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.... of the private school; (iii) Member ­ three teachers nominated by the management of private school; (iv) Member ­ five parents from Parent­Teachers Association. (b) The list of members of the School Level Fee Committee shall be displayed on the notice board within a period of fifteen days from formation of the School Level Fee Committee and copy thereof shall forthwith 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....
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....by nomination including his/her eligibility conditions, is a legislative policy. They may serve the same purpose for constituting the SLFC to give representation to the parents of the wards who are already admitted in the school and are pursuing education thereat. In any case, this argument of the appellants will not take the matter any further much less to declare the relevant provision ultra vires as being violative of fundamental 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 membe....
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.... Committee for its decision under intimation to the School Level Fee Committee in such manner as may be prescribed. During the pendency of the reference, the management shall be at liberty to collect the fee of the previous academic year plus ten percent increase in such fee till the final decision of the Divisional Fee Regulatory Committee. (6) The Divisional Fee Regulatory Committee shall decide the appeal or reference as far as possible within the period of sixty days 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 un....
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....e at a different fee structure. If that counter proposal is acceptable to the school Management, nothing further is required to be done and the decision so taken by the school Management would become binding for three academic years on all concerned. However, in case the school Management disagrees with the recommendations of the SLFC, it is open to both sides, namely, the school Management as well as the parents of wards to take the matter to the DFRC for adjudication on that aspect. 36. While 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 Managemen....
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....dependent Committee which includes two representatives of private schools in the divisional area "nominated by the Divisional Commissioner" and similarly two representatives of parents "nominated by the Divisional Commissioner". The representation is given to the concerned stakeholders in the matter of determination of fee structure and in particular in the matter of enquiry into the factum whether fee structure proposed by the concerned school Management entails in profiteering or otherwise. In reference to Section 7(2)(a), we must observe that the term of office of representatives of 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, w....
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....ctions of the Divisional Fee Regulatory Committee shall be to adjudicate the dispute between the management and the Parent­Teachers Association regarding fee to be charged by the school management from the students. (2) The Divisional Fee Regulatory Committee may authorize any officer not below the rank of the Head Master of Secondary School to enter any private school or any premises belonging to the management of such school, if the Divisional Fee Regulatory Committee finds so necessary, and search, inspect and seize any records, accounts, registers or other documents belonging to such school 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 Co....
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....tudents. The DFRC has been empowered to undertake search, inspect and seize any records, accounts, registers or other documents belonging to the concerned school 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. It can regulate its own procedure for the discharge of its functions and exercise all powers of a civil court under the Code of Civil Procedure, 1908. 41. Essentially, Section 9 bestows power upon the DFRC to adjudicate the dispute between the school Management and Parent Teachers Association regarding difference of opinion in respect of fee structure for the concerned 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 ame....
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....der has been made an offence and persons responsible for committing such violation can be proceeded with on that count. 45. The appellants having failed to substantiate the challenge to the validity of the relevant provisions of the Act of 2016, must also fail with regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the Rules of 2017. 46. Rule 3 provides for a procedure for conducting meeting of Parent­Teachers Association. The school Management can have no grievance regarding the procedure for conducting meeting of Parent Teachers Association of the school concerned much less violating its fundamental right guaranteed under Article 19(1)(g) of the Constitution regarding establishment 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 de....
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....Act, discharge the following duties and perform the following functions, namely:­ (a) to oversee the compliance of the provisions of the Act and rules made their under; (b) to take decision on proposals received from Management, regarding determination of fee within time specified in sub­section (3) of section 6 of the Act; and (c) to make available necessary documents to the Divisional Fee Regulatory Committee or Revision Committee, as the case may be, where appeal is filed by the Management." We fail to understand as to how Rule 6 would come in the way or infringe the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution. This Rule gives additional powers to the SLFC for ensuring compliances 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 Chairpe....
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....an appeal in Form­V against the decision of the School Level Fee Committee within 30 days from the date of decision of the School Level Fee Committee. (4) The management or 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, in Form­VI, before the Revision Committee along with the proposal of fees submitted by management and the copy of the decision of the School Level Fee Committee and Divisional Fee Regulatory Committee." These Rules deal with purely procedural matters and are in line with the powers and functions of the concerned Committees. The Rules provide for the manner in which the proposal is to be submitted by the school Management and to be taken forward. These provisions 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 ....
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....ecome difficult for the concerned Committees/Authorities to answer the contentious issue regarding profiteering. The fee structure determined by the school Management can be altered by the Adjudicatory Authorities only upon recording a negative finding on the factum of amount claimed towards school fees relating to particular activities is an essential expenditure or otherwise; and that the fee would be in excess of reasonable profit being ploughed back for the development of the institution or otherwise. The recovery of excess amount beyond permissible limit would result in profiteering and commercialisation. In our opinion, therefore, even Rule 11 is a relevant and reasonable provision and does not impact or abridge the fundamental right under Article 19(1)(g) of the Constitution. 51. The last assail was on the argument that the field regarding (school) fee, in particular capitation fee is already covered by the law enacted by the Parliament being RTE Act and for that reason, it was not open 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 b....
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....ders dated 09.04.2020, 07.07.2020 and 28.10.2020 issued by the State Authorities were disposed of. 54. The order dated 09.04.2020 was issued by the Director, Secondary Education, in the wake of COVID­19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months. The said order reads thus: "OFFICE OF DIRECTOR, SECONDARY EDUCATION, RAJASTHAN, BIKANER ORDER As per the direction issued by Hon'ble Chief Minister, order is being issued in regard to collection of fees by Elementary and Secondary Education Department recognized nongovernment schools, which is as follows:­ 1. No fee will be charged by non­government schools from the students/guardians of the period after 15th March, the applicable fees at present and payment of advance fees which is deferred for 3 months. In case of non deposition of fees during this period, name of such student will not be struck off from the rolls of the school. 2. In case of continuation of the studies in the non­government schools, the deferred fees for the present session 2020­21 will be char....
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....ds thus: "13. I have considered the submissions as above and perusal the material available on record. 14. While there are myriad issues involved in the present batch of the writ petitions, which are required to be examined finally; at this interim stage, this Court finds that a balance is required to be struck between financial difficulty of the school management relating to release of the salary of the staff and minimum upkeep of school on one side and the financial pressure, which has come on the parents due to the pandemic and lock­down as noticed above. 15. After noticing the judgments passed by the High Court of Gujarat at Ahmedabad in the case of Nareshbhai Kanubhai Shah Versus State of Gujarat & 2 Others: R/Writ Petition (PIL) No.64/2020 and other connected matters decided on 31.7.2020, the High Court of Punjab and Haryana at Chandigarh in the case of Independent Schools Association Versus State of Punjab & Others: CWP No.7409/2020 and other connected matters decided on 30.6.2020 and the High Court of Delhi in the case of Rajat Vats Versus Govt. of Nct of Delhi & Another: WP (C) No.2977/2020 decided on 20.4.2020, this Court is of the view that....
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....school would face on account of non­payment of the fees. However, burdening the parents with complete tuition fees would not be appropriate and justified. 19. In view of the above, this Court by an interim measure and till the situation gets normalized, directs the school authorities to allow the students to continue their studies online and allow them to deposit 70% of the tuition fees element from the total fees being charged for the year. The said 70% of the tuition fees shall be paid for the period from March, 2020 in three installments to the respective schools. However, it is made clear that on non­payment of the said fees, the student(s) may not be allowed to join online classes, but shall not be expelled from the school. The three installments shall be fixed by depositing the first installment on or before 30.9.2020 while the second installment shall be paid by 30.11.2020 and third installment shall be paid by 31.1.2021. However, it is further made clear that the question regarding remaining fees shall be examined at the stage of final disposal of these writ petitions. The orders are being passed as interim arrangement subject to final adjudication of the c....
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....TOR, SECONDARY EDUCATION, RAJASTHAN, BIKANER ORDER The Hon'ble High Court in DB Special Appeal No.637/2020 Sunil Samdria versus State of Rajasthan and other Special Appeals passed an order dated 23.10.2020 directing the State Government to take a decision in regard to charging of school fees from guardians/students for academic session 2020­21 keeping in view COVID pandemic and the guidelines be issued by 28.10.2020. In compliance of the order passed by Hon'ble Rajasthan High Court, Jaipur dated 23.10.2020 and in pursuance to the State Government's letter No. P.8(3) Shiksha­5/COVID­19 Fees Staghan/2020 dated 28.10.2020, the guidelines for charging of school fees for the academic session 2020­21 by non­government educational institutions from students/guardians, are issued which are as follows:- A ­ THE DETAILS OF THE FEES TO BE CHARGED BY THE SCHOOLS AFTER REOPENING 1. After reopening of the school only tuition fees will be charged from the students. 2. The tuition fees will be as per the prescribed syllabus forteaching. Like CBSE for class 9th to 12th has reduced 30% of the syllabus and has prescribed 70% of t....
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....s can be charged from such students which will be 60% of the tuition fees. For online teaching, the consent of the guardians will be necessary and capacity building charges can be charged from consenting students. 4. When the schools reopen, it will be duty of schools to impart the complete syllabus as prescribed by the board to the students who did not study in online classes and the said syllabus will have to be completed by the schools the schools will ensure equality between the online and offline students. 5. The capacity building charges will be charge from the guardians in monthly installments. 6. Till the permission is granted by Government for starting class/classes of students and online teaching is imparted regularly for that period only the capacity building fees will be charged. 7. If any student does not subscribe to the online education being provided by the school, no capacity building fees will be charged. C ­ DETERMINATION OF TUITION FEES 1. The fees determined by school fee committee formed asper Rajasthan Schools (Regulation of Fees) 2016 and Rules 2017 will be the basis for aforesaid determination of fee....
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....llenge to the order dated 28.10.2020 of the Director, Secondary Education. 60. Accordingly, the appeals and writ petitions were heard and decided together by the common judgment and order pronounced on 18.12.2020, which is impugned in the present appeals. The Division Bench vide impugned judgment opined that the State Government was competent and had jurisdiction to issue directions as given vide order dated 28.10.2020 of the Director, Secondary Education, being a policy decision necessitated due to aftermath of pandemic situation. The Court held that in absence of any legal provision to address the unprecedented difficulties faced by the parents and their wards across the State, it was open to issue administrative directions in exercise of power under Article 162 of the Constitution and especially when there was no legal provision prohibiting issuance of such directions. The Division Bench also opined that such order could be issued even in exercise of power under Section 22 of the Disaster Management Act, 2005, for short, "the Act of 2005". The Division Bench rejected the argument of the appellants that the stated order dated 28.10.2020 does not mention the source of power und....
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....n the Session 2020­ 2021 in terms of the provisions of Section 8 of Rajasthan Schools (Regulation of Fee) Act, 2016 and for this purpose all the schools shall publish necessary details including the strength and salary paid to the staff during the period in which the schools remained closed for such special determination on their notice boards as well as on their websites. This special determination of school fees shall be completed within two months from the date of order positively. IV. With the object to prevent any unfair practice of collection of fees in the process of this special determination of fees the component of tuition fees shall be specifically determined and for that purpose, all heads of the school fees shall be bifurcated as mandated under Section 6(4) of the Act of 2016. V. Besides this, the schools' management or the parents may take recourse of the provision of appeal/reference before Divisional Fee Regulatory Committee/Revision Committee, as the case may be in case any of them are aggrieved of such special determination. Needless to say, that in the process of above special determination of school fees, it will be open for the sc....
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....FC for the relevant academic year that too in the manner done by the Director, Secondary Education vide order dated 28.10.2020. The fact that the parties are at liberty to challenge the modification/reduction of school fees before the statutory forum does not justify the issue of such an order - unless the State Authorities have clear mandate to do so under the governing law. The departure made by the Director, Secondary Education vide order dated 28.10.2020 was not acceptable to the school Management, being ex facie illegal. It does not disclose the source of power under which it has been issued. At best, it can rely on the interim observations made by the High Court in the proceedings pending at the relevant time. Those observations cannot confer power on the State Authorities when no such power exists in the State Government in relation to modification/reduction of fee structure determined by the school Management and approved by the SLFC. Moreover, it is well­established that there can be no rigid uniform fee structure for all the private unaided schools in the State. The High Court had erroneously assumed that the power exercised by the Director, Secondary Education was as....
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....5. In any case, it is necessary to make factual enquiry school wise as to whether the concerned school had completed the entire syllabus for the relevant academic year; and also, whether the liability of the school towards teaching and nonteaching staff and their administrative and infrastructure (recurring) expenses, had been discharged by the school Management. 66. It is then urged that the High Court committed manifest error in upholding the impugned order dated 28.10.2020 as being ascribable to exercise of power under the Act of 2005. For, the stated Act provides express mechanism as to when and by whom the power to issue directions can be exercised. The Director, Secondary Education has no such power under the Act of 2005 nor the State Government could do so thereunder much less to reduce the school fees fixed after approval of the SLFC in terms of the mechanism stipulated under the Act of 2016. The provisions of the Act of 2005 are limited to providing effective management of disasters and for matters connected therewith or incidental thereto. 67. The manner and method of addressing such disaster and in particular "disaster management" as defined in Section 2(e) of the ....
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....r restrict the functioning of offices, Government and private and educational institutions in the State, would not give authority to the State Government to decide about the fee structure of the concerned unaided private school. The regulation can be in regard to the timings when the school should be opened and closed and the protocol to be followed by the school during the working hours, as the case may be. That provision does not empower the State Government to reduce the school fees which is approved by the SLFC and is in force for the concerned academic year. 69. According to the appellants neither the order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law nor the reasons weighed with the Division Bench of the High Court in the impugned judgment to uphold the same can stand the test of judicial scrutiny. 70. Learned counsel for the minority private unaided school additionally contended that the order issued by the Director, Secondary Education violates the fundamental rights guaranteed under Article 19(1)(g) as well as Article 30(1) of the Constitution. That the right to fix the school fees is a fundamental right under Articles 19(1)(g)....
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....hat due to extraordinary and unprecedented situation arisen due to complete lockdown for such a long period, the parents are not in a position to pay the fixed school fees. It is only because of large number of representations made by them, the State Government responded by issuing orders on 09.04.2020 and later on 07.07.2020 to defer the payment of school fees and finally to reduce the school fees in terms of order dated 28.10.2020 issued by the Director, Secondary Education. The dispensation provided in the order dated 28.10.2020 is merely to take mitigating measures and to assuage the concerns of the parents who were in dire need of such assistance. The measures taken by the State Government in terms of Sections 38 and 39 of the Act of 2005, cast onerous responsibility upon the Government to take all measures for mitigation and capacity building in the wake of a pandemic. These provisions must be given widest meaning as narrow construction would result in curtailing the powers of a welfare State to undertake measures for dealing with the unprecedented situation. The spirit of the provisions must be kept in mind and the court must uphold the validity of the impugned order which h....
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....with the State Government having exercised that power. 76. It is urged on behalf of State that the issue in the present appeals is limited to the justness of the order dated 28.10.2020 and, therefore, the direction given to the State in the interim order passed by this Court on 08.02.2021 to ensure that all government outstanding dues towards unit cost payable to respective unaided school are settled within one month from the date of the order, was inapposite and needs to be recalled. It is urged that computation of the unit cost is complex and assessment thereof is a time consuming process. 77. Learned counsel for the State in his written submission has finally suggested to modulate the relief to be given in these appeals in the following words: "5. Re: Modulation of the relief in the present matter • The initial notification issued by the State Government on 09.04.2020 and 07.07.2020 have outlived its utility and worked itself out. The Constitutional Courts do not pronounce upon any academic matter. The validity of the Circular dated 09.04.2020 and 07.07.2020 have become academic in wake of subsequent events. • The order dated 28.10.2020 c....
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....ing all the stakeholders. 79. A written submission has also been filed on behalf of parents (by Mr. Sushil Sharma and others) contending that online classes are not a recognised form of education and that is being done by the private schools on their own without any defined syllabus by the Board. No planning or infrastructure required for online education is in place. No permission has been obtained by the private schools to conduct online classes from the concerned Boards nor any feedback is taken from the parents about the efficacy of the online teaching. It is urged that there is no uniformity in the teaching methodology or any standard operating procedure or protocol prescribed by the concerned Boards to be followed by the private schools. The focus is essentially on the disadvantage of online classes conducted by the private schools. It is also urged in the written submission that the recommendation made by the State Government and recognition of online classes as capacity building classes are inappropriate. At the end, it is urged that this Court ought to direct waiver of complete fees for the duration schools were closed and direct the State to prescribe a fixed fee for o....
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.... No. 2942/2020, SLP (C) No. 5902/2020, Diary No. 6803/2020, SLP (C) No. 5470/2020, SLP (C) No. 5589/2020, SLP (C) No. 431/2021 Diary No(s). 44/2021 (XV), SLP (C) No. 577­579/2021 and SLP (C) No(s). 619/2021 Special Leave Petition (C) Diary No. 3533 of 2021 is taken up along with these matters, at the request of the petitioners therein. The hearing of these cases has been commenced and is part heard. But, since the hearing is likely to take some more time, we deem it appropriate to pass interim directions which will address the concerns of all parties in some measure. We propose to stay the impugned order on the following conditions: (a) The management/school may collect fees for the academic year 2019­2020 as well as 2020­2021 from the students, equivalent to fees amount notified for the academic year 2019­2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th August, 2021. (b) The 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 shal....
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....Education concerning private unaided schools in the State of Rajasthan and as applicable to the academic year 2020­21 only. We do not wish to advert to or analyse any other issue raised by the parties and we may not be understood to have expressed any opinion either way in that regard. 86. Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day­to­day affairs and the basic need of their family made fervent representation to the school Management(s) across the State. A public discourse in that regard surfaced in the media which impelled the political dispensation to intervene. Thus, on the directions of the Chief Minister of the State of Rajasthan, the Department initially issued order dated 09.04.2020 merely to defer the collection of school fees which restriction was extended by....
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.... orders made thereunder and the management of the school shall comply with every such direction." This provision does bestow power on the State Government to issue general or special directions to any school within the State. However, such direction must be consistent with the provisions of the Act of 2016 and the Rules framed thereunder. It cannot be in conflict with the mandate of the Act and the Rules. Additionally, such directions must be necessitated due to expediency for carrying out the purposes of the Act and the Rules or to give effect to the applicable provisions. If the direction issued by the State Government does not qualify these parameters, it must follow that the same has been issued in excess of power bestowed under Section 18 of the Act of 2016. 92. After analysing the scheme of the Act of 2016, at least two aspects are amply clear. The first is that a firm mechanism has been specified under the Act of 2016 regarding determination of fee structure in the form of approval by the SLFC and, if required, adjudication by the DFRC and the Revision Committee. There is no express provision in the Act or Rules authorising the stated functionaries/authorities to modif....
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....y covered by the legislation in the form of the Act of 2016 and the Rules framed thereunder. It is not as if there is no enactment covering that subject or any incidental aspects thereof. The Act of 2016, which in itself is a self­contained code on the said subject, not only provides for the manner in which the concerned school ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three academic years. In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school. The State can provide independent mechanism only to regulate that decision of the school Management to the extent that it does not result in profiteering and commercialisation. 95. Viewed thus, reliance placed on Union of India vs. Moolchand Kharaiti Ram Trust (2018) 8 SCC 321 (paras 90 and 91) will be of no avail. In that case, the hospitals were obligated to render free treatment in lieu of allotment of government land to them for earning no profit and held in trust for public good. The Court opined that there wa....
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....direct causal connection, in the guise of management of pandemic situation or to provide "mitigation to one" of the two private parties "at the cost of the other". This is akin to - rob Peter to pay Paul. It is a different matter, if as a policy, the State Government takes the responsibility to subsidise the school fees of students of private unaided schools, but cannot arrogate power to itself much less under Article 162 of the Constitution to issue impugned directions (to school Management to collect reduced school fee for the concerned academic year). We have no hesitation in observing that the asservation of the State Government of existence of power to issue directions even in respect of economic aspects of legitimate subsisting contracts/transactions between two private parties, if accepted in respect of fee structure of private unaided schools, is fraught with undefined infinite risk and uncertainty for the State. For, applying the same logic the State Government may have to assuage similar concerns in respect of other contractual matters or transactions between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Const....
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....appellants by relying on the instructions issued by the concerned Board indicating to the contrary. In any case, that does not extricate the school Management from incurring recurring capital and revenue expenditure including to pay their academic and non­academic staff their full salary and emoluments for the relevant period. For, no corresponding authority is given to the school Management to deduct suitable amount from their salaries. Thus, the effect of the impugned order is to reduce school fees determined under the Act in absence of authority to do so including under the Act of 2016. Further, on the face of it, the direction given is inconsistent with the provisions of the stated Act. To put it tersely, the impugned order issued is in respect of matters beyond the power of the State Government ­ to regulate the fee structure for ensuring that the school Management does not indulge in profiteering and commercialisation. Accordingly, the impugned order dated 28.10.2020 cannot be sustained even in reference to executive power under Article 162 of the Constitution. 101. Reverting to the provisions of the Act of 2005, no doubt Section 72 thereof predicates that the prov....
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....rdance with the State Plan." 103. Going by the scheme of the Act of 2005, the State Authority established under Section 14 known as State Disaster Management Authority is expected to formulate policies and plans for disaster management in the State. Indeed, such policies and plans may include mitigation, Section 2(i) "mitigation" means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/impact or effects of a disaster or threatening disaster situation. Considering the sphere of functions of the State Authority including the State Executive Committee or different Authorities established at concerned level within the State, there is not even a tittle of indication that in the name of mitigating measures, the disaster management plan may comprehend issue of direction in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the pre....
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....105. The Authorities created under the Act of 2005 are expected to deal with matters concerning the disaster management. The expression "disaster management" has been defined as follows: "2. Definitions.­ In this Act, unless the context otherwise requires,­ xxx xxx xxx (e) "disaster management" means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for - (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity­building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction;" 106. It is also useful to advert to Section 18 of the Act of 2005 which provides for powers and functions of State Authority established under Section 14 consisting of Chief Minister of the State, who acts as Chairperson (E....
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....rent departments of the Government of the State, the State Authority, District Authorities, local authority and other nongovernmental organisations; (b) cooperation and assistance in the disaster management to the National Authority and National Executive Committee, the State Authority and the State Executive Committee, and the District Authorities; (c) cooperation with, and assistance to, the Ministries or Departments of the Government of India in disaster management, as requested by them or otherwise deemed appropriate by it; (d) allocation of funds for measures for prevention of disaster, mitigation, capacity­building and preparedness by the departments of the Government of the State in accordance with the provisions of the State Plan and the District Plans; (e) ensure that the integration of measures for prevention of disaster or mitigation by the departments of the Government of the State in their development plans and projects; (f) integrate in the State development plan, measures to reduce or mitigate the vulnerability of different parts of the State to different disasters; (g) ensure the preparation of disaster manag....
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....preparedness and response plans, capacity­building, data collection and identification and training of personnel in relation to disaster management; (ii) assessing the damage from any disaster; (iii) carrying out rehabilitation and reconstruction; (g) make provision for resources in consultation with the State Authority for the implementation of the District Plan by its authorities at the district level; (h) make available its resources to the National Executive Committee or the State Executive Committee or the District Authorities for the purposes of responding promptly and effectively to any disaster in the State, including measures for- (i) providing emergency communication with a vulnerable or affected area; (ii) transporting personnel and relief goods to and from the affected area; (iii) providing evacuation, rescue, temporary shelter or other immediate relief; (iv) carrying out evacuation of persons or live­stock from an area of any threatening disaster situation or disaster; (v) setting up temporary bridges, jetties and landing places; (vi) providing drinking water, essential pr....
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....epartments of the Government of the State, District Authorities, statutory bodies and other governmental and non­governmental organisations engaged in disaster management; (k) provide necessary technical assistance or give advice to District Authorities and local authorities for carrying out their functions effectively; (l) advise the State Government regarding all financial matters in relation to disaster management; (m) examine the construction, in any local area in the State and, if it is of the opinion that the standards laid for such construction for the prevention of disaster is not being or has not been followed, may direct the District Authority or the local authority, as the case may be, to take such action as may be necessary to secure compliance of such standards; (n) provide information to the National Authority relating to different aspects of disaster management; (o) lay down, review and update State level response plans and guidelines and ensure that the district level plans are prepared, reviewed and updated; (p) ensure that communication systems are in order and the disaster management drills are carried out....
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....tate or any part thereof is visited by or threatened with an outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette, specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such epidemic disease or the spread thereof and require or empower District Collectors to exercise such powers and duties as may be specified in the said regulations or orders. (2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take measures and specify regulations,­ (a) to prohibit any usage or act which the Governmentconsiders sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the State; (b) to inspect the persons arriving in the State by air, rail, road or any other means or in quarantine or in isolation, as the case may be, in hospital, temporary accommodation, home or otherwise of persons suspected of being infected with any such disease by the offic....
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....e Act of 2016 including to reduce the same for the academic year 2020­21 in respect of private unaided schools. Having failed to trace the legitimate source of power under which the directions have been issued, as aforesaid, the respondents ­ State Authorities cannot fall back upon the benign hope expressed by the High Court to do the needful in the backdrop of the representations made by several parents about the difficulties encountered by them due to pandemic situation. It would have been a different matter if the Director, Secondary Education had used his good offices to impress upon the school management(s) of the concerned school(s) to explore the mitigating measures/options on their own for the academic year 2020­21 and to give concession to their students to the extent possible at least in respect of unutilised facilities and savings on overheads by the school Management in that behalf or to give concession in the form of scholarship to deserving students. It is stated by the appellants that the school Management on their own had offered scholarship of 25 per cent of the annual fee to their students. In other words, the Director, Secondary Education could have m....
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....ound 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period. 116. At this stage, we must advert to the stand taken by the learned counsel for the appellants that the appellants would be content with the interim order passed by this Court on 08.02.2021, being confirmed as a final order. This suggestion is indeed attractive, but that arrangement does not provision for the amounts saved by the school Management towards unspent overheads/expenses in respect of facilities not utilised or could not be offered by the school Management to the students due to lockdown situation. As aforesaid, we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (1....
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....tion 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 shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non­payment of fee/arrears for the academic year 2020­21, if any, on obtaining undertaking of the concerned parents/students. 118. We are conscious of the fact that we are issuing general uniform direction of deduction of 15 per cent of the annual school fees in lieu of unutilised facilities/activities and not on the basis of actual data school­wise. As aforesaid, we have chosen to do so with a view to obviate avoidable litigation and to give finality to the issue of determination and collection of school fees for the academic year 2020­21, as a one­time measure which is the subject matter of these appeals. We have consciously limited the quantum of deduction from annual school fees to 15 per cent although the school Management had mentioned about its willingness to provide 25 per cent scholarship to deserving students, as we have compelled the school Managem....