1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1724 OF 2021
(ARISING OUT OF SLP (C) NO. 27881 OF 2019)
INDIAN SCHOOL, JODHPUR & ANR. …PETITIONER(S)
VERSUS
STATE OF RAJASTHAN & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 17131722 OF 2021
(ARISING OUT OF SLP (CIVIL) NOS.2790727916 OF 2019)
CIVIL APPEAL NO. 1723 OF 2021
(ARISING OUT OF SLP (C) NO. 27987 OF 2019)
CIVIL APPEAL NO. 1725 OF 2021
(ARISING OUT OF SLP (C) NO. 2942 OF 2020)
CIVIL APPEAL NO. 1729 OF 2021
(ARISING OUT OF SLP (C) NO. 5470 OF 2020)
CIVIL APPEAL NO. 1730 OF 2021
(ARISING OUT OF SLP (C) NO. 5589 OF 2020)
CIVIL APPEAL NO. 1726 OF 2021
(ARISING OUT OF SLP (C) NO. 5902 OF 2020)
2
CIVIL APPEAL NO. 17271728 OF 2021
(ARISING OUT OF SLP (C) NO. 67436744 OF 2021)
(@ DIARY NO(S). 6803 OF 2020)
AND
CIVIL APPEAL NO. 1732 OF 2021
(ARISING OUT OF SLP (C) NO. 6745 OF 2021)
(@ DIARY NO(S). 44 OF 2021)
CIVIL APPEAL NO. 1731 OF 2021
(ARISING OUT OF SLP (C) NO. 431 OF 2021)
CIVIL APPEAL NOS. 17331735 OF 2021
(ARISING OUT OF SLP (C) NOS. 577579 OF 2021)
CIVIL APPEAL NO. 1736 OF 2021
(ARISING OUT OF SLP (C) NO. 2494 OF 2021)
J U D G M E N T
A.M. Khanwilkar, J.
1. These two sets of appeals are being disposed of by this
common judgment.
2. In the first set of appeals, six appeals1
emanate from common
judgment and order dated 14.08.2019 passed by the High Court of
1 arising out of SLP (C) No. 27881 of 2019; SLP (C) Nos.2790727916 of 2019; SLP (C)
No. 27987 of 2019; SLP (C) No. 2942 of 2020; SLP (C) No. 5902 of 2020; and SLP (C)
No …………. of 2021 @ Diary No(s). 6803 of 2020;
3
Judicature for Rajasthan at Jodhpur and two other appeals2
against the judgment and order dated 11.02.2020 of the Jaipur
Bench of the same High Court, which followed the earlier decision
of the Jodhpur seat referred 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, 20163
, in particular Sections 3, 4, 6 to 11,
15 and 16 and the Rules framed thereunder titled Rajasthan
Schools (Regulation of Fee) Rules, 20174
, 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 appeals5
, 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
2 arising out of SLP (C) Nos. 5470 and 5589 of 2020
3 for short, “the Act of 2016”
4 for short, “the Rules of 2017”
5 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
4
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 of Secondary Education
and 60 per cent from the schools affiliated with Rajasthan Board of
Secondary Education, in view of reduction of syllabus by the
respectiveBoards due to aftermath of pandemic (lockdown) from
March 2020.
4. The issues involved in all these appeals concern around
36,000 private unaided schools including 220 minority private
unaided schools in the State of Rajasthan governed by the
provisions of the Act of 2016 referred to above. Accordingly, all
these appeals were clubbed and heard analogously. However, as
aforesaid, two broad issues would arise for our consideration.
Re: First Set:
5. Reverting to the first set of appeals, the challenge is to the
provisions of the Act of 2016 and Rules of 2017 being violative of
rights guaranteed under Article 19(1)(g) of the Constitution to carry
on occupation of imparting education which includes autonomy to
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determine the school fees by the Managements of private unaided
schools. It is urged that any restriction imposed in that regard
would be arbitrary and unreasonable. Further, the impugned
provisions inevitably limit the autonomy of the school Management
of private unaided schools to the level of merely proposing the
school fees to the School Level Fee Committee6
, in which the
Management has only one representative as against eight others
i.e., five parents, three teachers and one principal. This imbalance
in the constitution of the SLFC negates the effective control of the
Management in the affairs of the school and in particular the
autonomy to determine its own school fees. Notably, five parents,
who are appointed as members of the SLFC are chosen by draw of
lots from amongst the willing parents of the wards pursuing
education in the schools concerned and could include even the
wards who are availing free education under the Right of Children
to Free and Compulsory Education Act, 20097
. In fact, the latter
have no stakes in the matter of determination of school fees. As the
willing parents are selected by lottery system, in the process even
the person who has no modicum of knowledge of development of a
6 for short, “the SLFC”
7 for short, “the RTE Act”
6
school, management of finances and dynamics of quality education,
would become part of the process of determination of school fees.
The members of the SLFC would inevitably have conflicting interest.
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
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quality of education in the school concerned. It is only the school
Management who would be held accountable in that regard, whilst
school Management is denuded of its autonomy to determine school
fees. The school fees so determined by the SLFC as per the
provisions of the impugned Act of 2016, would remain unchanged
and binding for next three years with no provision for increase in
case of contingency of funds needed for new development or general
inflation or hike in salary and wages of staff or any other legitimate
purpose.
6. The impugned Act of 2016 also gives wide powers to the
Divisional Fee Regulatory Committee8
and Revision Committee
including power to issue summons, search, seizure and penalties as
if the occupation of imparting education is akin to res extra
commercium. The school Managementappellants apprehend that
dispute with regard to determination of school fees would be
endless and get embroiled in the process of appeal, revision and
judicial proceedings. Resultantly, schools would suffer uncertainty
in financial matters. Furthermore, there is no mechanism provided
to guarantee the recovery of school fees after it is finally determined
8 for short, “the DFRC”
8
under the Act of 2016. The working of the impugned Act of 2016
would eventually stifle the growth and development of the private
unaided schools and that all schools — small and big, would be
treated equally with same measure, which would be arbitrary and
discriminatory and against the principle expounded by this Court
that the school fees of private unaided schools should be schoolbased and not a rigid or uniform arrangement. According to the
appellants, the factors enumerated for determination of school fees
are vague, subjective and irrelevant. The crucial factors such as for
making a good school are not even adverted to in Section 8 of the
impugned Act of 2016. The process of determination of school fees
is a dynamic exercise and could be effectively done by the school
Management on its own while keeping in mind that establishing a
school is essentially a charity. According to the appellants, the
provisions of the impugned Act of 2016 are unworkable and violate
the fundamental right guaranteed under Article 19(1)(g) of the
Constitution. The State can only regulate the fees determined by
the private unaided schools only if it shows that the same entails in
profiteering or capitation, which is prohibited by law.
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7. It is urged that by now it is wellestablished 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.9
. 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.10
.
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
9 (2002) 8 SCC 481 (paras 60 and 61)
10 (2012) 6 SCC 1 (paras 50 to 53)
10
Management in respect of determination of school fees have no
cogent nexus/object sought to be achieved.
9. It is lastly urged that the legislative field regarding regulation
of school fees is already occupied by the law made by the
Parliament being the RTE Act11 and the Rules12 framed thereunder.
Hence, it was not open to the State legislature to enact a law on the
same subject.
10. These points were urged even before the High Court at the
instance of the appellants. The respondentState countered the
same on the argument that the impugned Act of 2016 was in the
nature of a regulatory law, with complete autonomy to the school
Management to decide about its fee structure which, however, could
be given effect to upon approval given by the SLFC. The SLFC
consists of not only parents of wards, but also the school
Management and their representatives in the form of teachers. It
ensures participation of all the stakeholders and democratisation of
the decisionmaking process. The proposal of the school
Management, if found to be in order, is generally approved and it is
11 Sections 13 and 16 of the RTE Act
12 The Right of Children to Free and Compulsory Education Rules, 2010 (Rules 12, 15
and 16)
11
open to the SLFC to give counter suggestion which if acceptable to
the school Management can be acted upon by it. In case there is a
difference of opinion, only then the matter goes for adjudication of
the rival claims before the DFRC and the decision of that Authority
becomes binding on the parties. Further, the school Management,
the SLFC as well as the AdjudicatorycumRegulatory Authority,
each one of them is guided by the principles and factors delineated
in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017 in
the matter of determination of school fees. Such external regulation
for fee fixation has been recognised and approved by this Court in
successive decisions viz., Islamic Academy of Education & Anr.
vs. State of Karnataka & Ors.13
, P.A. Inamdar & Ors. vs. State
of Maharashtra & Ors.14
, Modern School vs. Union of India &
Ors.15
, Action Committee, Unaided Private Schools & Ors. vs.
Director of Education, Delhi & Ors.16 and Modern Dental
College and Research Centre & Ors. vs. State of Madhya
Pradesh & Ors.17
. According to the respondentState, the setting
13 (2003) 6 SCC 697 (5Judge Bench)
14 (2005) 6 SCC 537 (7Judge Bench)
15 (2004) 5 SCC 583 (3Judge Bench)
16 (2009) 10 SCC 1 (3Judge Bench)
17 (2016) 7 SCC 353 (5Judge Bench)
12
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.
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12. The respondentState would urge that the High Court in the
impugned judgment after adverting to the exposition of different
Constitution Benches of this Court, justly concluded that the
impugned Act of 2016 did not violate Article 19(1)(g) of the
Constitution as the right flowing therefrom was not an absolute
fundamental right. Further, there is no substance in the grounds
set forth to assail the validity of the impugned Act of 2016.
13. The High Court did advert to these arguments canvassed by
both sides and eventually dismissed the challenge to the validity of
the impugned Act of 2016 vide common judgment and order dated
14.08.2019. The High Court after adverting to the exposition in
T.M.A. Pai Foundation (supra), Islamic Academy of Education
(supra), Modern School (supra) and Modern Dental College and
Research Centre (supra), proceeded to dismiss the writ petitions by
observing as follows:
“19. Therefore, in the backdrop of law laid down by
Constitution Bench in Modern Dental College & Research
Centre (supra), if the impugned Act and the provisions
sought to be assailed by the petitioners and the regulatory
measures provided under the Rules are examined objectively
with pragmatic approach, then, it would ipso facto reveal
that State has not made any endeavour to trench into
autonomy of petitionerinstitutions. The provisions are
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regulatory in nature with the solemn object of preventing
profiteering and commercialization in school education. The
constitution of the Committee for regulating fee structure, by
no stretch of imagination be construed as an attempt to
completely byepass the school management. The Committee
as such is chaired by representative of the management
besides principal as a Secretary with three teachers
nominated by the management and five parents nominated
from parent teachers association. Thus, the contention of the
petitioners that State has completely chipped the wings of
management or invaded their autonomy is an euphonious
plea bereft of any merit.
The criteria for determining fee are also based on
legitimate considerations provided under Section 8 of the
Act. Thus, even while considering fee structure of the school,
the Committee cannot be allowed to act at its whims and
fancy but for adhering to the criteria laid down under
Section 8 of the Act. That apart, the remedy against the fee
determined by the Committee is also provided in the Statute
by way of appeal/reference and second appeal, 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
15
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 lack of legislative
competence, nor for failure to conform to the parent statute
under which Rules are made. Moreover, these rules are also
not offending any right conferred on the petitioners under
Part III of the Constitution or in violation of any provision of
the Constitution, therefore, challenge to the Rules is wholly
unsustainable.
21. The argument of the learned counsel for the petitioners,
that the impugned Act is unconstitutional as being in
derogation to Article 13(2) of the Constitution, appears to be
quite alluring but of no substance. Analyzing this argument
meticulously in the backdrop of lis involved in these matters,
we have already repudiated the same. At the cost of
repetition, we may reiterate here that the impugned Act and
its other provisions are not taking away or abridges rights of
the petitioners conferred by Part III of the Constitution. We
may hasten to add that entire edifice of challenge in these
petitions is alleged infraction of Article 19(1)(g) of the
Constitution, which indisputably is not an absolute
fundamental right. As observed hereinabove, the said
fundamental right is subject to reasonable restrictions and
such restrictions are permissible as they are aimed at
seeking laudable objectives in the larger public interest.
Therefore, viewed from any angle, the impugned provisions
of the Act as well as Rules are intravires of the Constitution
not being in violation of Article 13(2) and 19(1)(g) of the
Constitution.
The upshot of above discussion is that all these
petitions fail and are hereby dismissed. The stay petitions
are also dismissed and interim order passed on 9th of April,
2018 is vacated.”
14. We have heard Mr. Pallav Shishodia, learned senior counsel
for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat,
learned senior counsel for the State of Rajasthan.
16
15. After cogitating over the rival arguments and considering the
impugned judgment, we have no hesitation in observing that
although the High Court was right in its conclusion, it has disposed
of the challenge to the validity of different provisions of the
impugned Act of 2016 and the Rules framed thereunder in a
summary manner. We agree that merely adverting to the decisions
of this Court was not enough. The High Court should have then
analysed 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
17
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 vital and
pivotal role to spread education and not to make money. The
Court further noted that when it comes to the notice of the
Government that the institution was charging fee or other charges
which are excessive, it has complete authority coupled with its duty
to issue directions to such an institution to reduce the same so as
to avoid profiteering and commercialisation.
17. In paragraph 76 of the same decision, the Court then
proceeded to consider the next question as to how a regulatory
framework for ensuring that no excessive fee is charged by the
educational institutions, can be put in place. For that, the Court
18
adverted to the decision in T.M.A. Pai Foundation (supra),
Islamic Academy of Education (supra), Modern School (supra)
and P.A. Inamdar (supra) and noted that primary education is a
fundamental right, but it was not an absolute right as private
schools cannot be allowed to receive capitation fee or indulge in
profiteering in the guise of autonomy to determine the school fees
itself. The Court plainly noted that every school management of
private unaided school is free to devise its own fee structure, but
the same can be regulated by the Government in the interests of
general public for preventing profiteering and/or charging of
capitation fee. Further, fixation of fees needs to be regulated and
controlled at the initial stage itself. The Constitution Bench noted
with approval the exposition in Association of Private Dental and
Medical Colleges vs. State of M.P.18
, which reads thus:
“42. We are of the view that Sections 4(1) and 4(8) of the
2007 Act have to be read with Section 9(1) of the 2007 Act,
which deals with factors which have to be taken into
consideration by the Committee while determining the fee to
be charged by a private unaided professional educational
institution. A reading of subsection (1) of Section 9 of the
2007 Act would show that the location of private unaided
professional educational institution, the nature of the
professional course, the cost of land and building, the
available infrastructure, teaching, nonteaching staff and
18 2009 SCC Online MP 760
19
equipment, the expenditure on administration and
maintenance, a reasonable surplus required for growth and
development of the professional institution 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 and the function of the Committee is only to find
out, after giving due opportunity of being heard to the
institution as provided in Section 9(2) of the 2007 Act
whether the fees proposed by the institution to be charged to
the student are based on the factors mentioned in Section
9(1) of the 2007 Act and did not amount to profiteering and
commercialisation of the education. The word
“determination” has been defined in Black's Law Dictionary,
Eighth Edn., to mean a final decision by the Court or an
administrative agency. The Committee, therefore, while
determining the fee only gives the final approval to the
proposed fee to be charged after being satisfied that it was
based on the factors mentioned in Section 9(1) of the 2007
Act and there was no profiteering or commercialisation of
education. The expression “fixation of fees” in Section 4(1) of
the 2007 Act means that the fee to be charged from
candidates seeking admission in the private professional
educational institution did not vary from student to student
and also remained fixed for a certain period as mentioned in
Section 4(8) of the 2007 Act. As has been held by the
Supreme Court in Peerless General Finance and Investment
20
Co. Ltd. v. RBI19, the Court has to examine the substance of
the provisions of the law to find out whether provisions of
the law impose reasonable restrictions in the interest of the
general public. The provisions in Sections 4(1), 4(8) and 9 of
the 2007 Act in substance empower the Committee to be
only satisfied that the fee proposed by a private professional
educational institution did not amount to profiteering or
commercialisation of education and was based on the factors
mentioned in Section 9(1) of the 2007 Act. The provisions of
the 2007 Act do not therefore, violate the right of private
professional educational institution to charge its own fee.”
18. After having quoted the above exposition with approval in
paragraph 81, the Court then proceeded to examine the need for a
regulatory mechanism. It noted that the regulatory measures are
felt necessary to promote basic wellbeing for individuals in need.
In paragraphs 90 to 92 in Modern Dental College and Research
Centre (supra), this Court noted as follows:
“90. Thus, it is felt that in any welfare economy, even for
private industries, there is a need for regulatory body and
such a regulatory 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
19 (1992) 2 SCC 343
21
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 resource which would contribute to
the socioeconomic and political upliftment of the nation.
The concept of welfare of the society would apply more
vigorously in the field of education. Even otherwise, for
economist, education as an economic activity, favourably
compared to those of other economic concerns like
agriculture and industry, has its own inputs and outputs;
and is thus analysed in terms of the basic economic tools
like the laws of return, principle of equimarginal utility and
the public finance. Guided by these principles, the State is
supposed to invest in education up to a point where the
socioeconomic returns to education equal to those from
other State expenditures, whereas the individual is guided in
his decision to pay for a type of education by the possibility
of returns accruable to him. All these considerations make
out a case for setting up of a stable regulatory mechanism.
92. In this sense, when imparting of quality education to
crosssection of the society, particularly, the weaker section
and when such private educational institutions are to rub
shoulders with the State managed educational institution to
meet the challenge of the implementing ambitious
constitutional promises, the matter is to be examined in a
different hue. It is this spirit which we have kept in mind
while balancing the right of these educational institutions
given to them under Article 19(1)(g) on the one hand and
reasonableness of the restrictions which have been imposed
by the impugned legislation. The right to admission or right
to fix the fee guaranteed to these appellants is not taken
away completely, as feared. T.M.A. Pai Foundation20 gives
autonomy to such institutions which remains intact. Holding
of CET under the control of the State does not impinge on
this autonomy. Admission is still in the hands of these
institutions. Once it is even conceded by the appellants that
20 supra at footnote No.9
22
in admission of students “triple test” is to be met, the
impugned legislation aims at that. After all, the sole purpose
of holding CET is to adjudge merit and to ensure that
admissions which are done by the educational institutions,
are strictly on merit. This is again to ensure larger public
interest. It is beyond comprehension that merely 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 enactment stands the
test of reasonableness and rationality and balances the right of the
educational institutions (private unaided schools) guaranteed to
them under Article 19(1)(g) of the Constitution in the matter of
determination of school fees? The Act of 2016 has been enacted by
the State legislature. It was enacted as it was noticed that the
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earlier enactment on the selfsame subject did not include provision
of appeal against the orders of fee determination by the Fee
Determination Committee. It was also noticed that there are large
number of private schools (approximately 34,000) and a single fee
determination committee cannot determine the fee of such schools
in a proper manner in time. For that reason, the Act of 2016 came
into being to provide for regulation of collection of fees by schools in
the State of Rajasthan and matters connected therewith and
incidental thereto. It extends to the whole of the State of Rajasthan
and applies to both aided and unaided schools. The Act provides
for a regulatory mechanism. The expression “aided school” is
defined in Section 2(b) to mean a school receiving any sum of
money as aid from the State Government. The expression “unaided
school” has not been defined. It must, however, follow that all other
private schools, other than aided schools would qualify that
category (i.e., unaided private schools). The expression “school” has
been defined in Section 2(t), which reads thus:
“2. Definitions. In this Act, unless the context otherwise
requires,
xxx xxx xxx
24
(t) “school” means the school imparting elementary,
secondary and senior secondary education recognized by the
Government and managed by any management and affiliated
to any Indian or foreign course or Board, whether aided,
partially aided, unaided including the school run by the
minority educational institution but does not include a
school imparting religious instructions only;”
21. The expression “private school” has been defined in Section
2(p), which reads thus:
“2. Definitions. In this Act, unless the context otherwise
requires,
xxx xxx xxx
(p) “private school” means a school established and
administered or maintained by any person or body of
persons and which is a recognized institution within the
meaning of clause (q) of Section 2 of the Rajasthan NonGovernment Educational Institutions 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:
25
“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, the facilities provided and as
mentioned in the prospectus or website of the school;
(c) the education standard of the school as the State
Government may prescribe;
(d) the expenditure on administration and maintenance;
(e) the excess fund generated from nonresident Indians,
as a part of charity by the management and
contribution by the Government for providing freeship
in fee or for other items under various Government
schemes given to the school for the Scheduled Castes,
the Scheduled Tribes, Other Backward Class and
Special Backward Class students;
(f) qualified teaching and nonteaching staff as per the
norms and their salary components;
(g) reasonable amount for yearly salary increments;
(h) expenditure incurred on the students over total
income of the school;
(i) reasonable revenue surplus for the purpose of
development of education and expansion of the school;
and
(j) any other factor as may be prescribed.”
26
24. In addition to Section 8, it is essential to take note of Rule 10
of the Rules of 2017 which provides for additional factors to be
reckoned for determination of school fees. Rule 10 reads thus:
“10. Additional factors for determination of fee. The
following factors shall be considered while deciding the fee in
addition to the factors specified in section 8 of the Act,
namely:
(i) facilities made available by the school under
egovernance i.e. hardware and software facilities;
(ii) strength of students;
(iii) other facilities made available to students such as
swimming pool, horse riding, shooting, archery and
performing art etc.;
(iv) supply of books, notebooks, etc. and other
educational material provided to students;
(v) provision of meal or snacks; and
(vi) any other factor submitted by the Management
before the School Level Fee Committee.”
25. After adverting to Section 8 and Rule 10, it is amply clear that
the relevant factors for determination of reasonable school fees
under the Act of 2016 and Rules framed thereunder have been duly
articulated 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
27
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 the school. Whereas, if the
SLFC were to accept the proposal of the school Management
regarding fee structure as it is, that would be the fees under the Act
28
of 2016 for the relevant period and then there would be no need for
the DFRC to adjudicate upon the fixation of fee in the concerned
school.
27. The SLFC is constituted institution or school wise, whereas
the DFRC is an independent statutory regulatory authority
empowered to enquire into the factum of whether fee structure of
the given school determined by its Management entails in
profiteering. In the event, the SLFC disapproves the proposal of the
school Management, the dispensation provided for adjudication of
the contentious position between the stakeholders in no manner
violate the fundamental right of establishment of educational
institution guaranteed under Article 19(1)(g) of the Constitution.
28. Section 4 of the Act of 2016 provides for ParentTeachers
Association, which reads thus:
“4. ParentTeachers Association. (1)(a) Every private
school shall constitute the ParentTeachers Association.
(b) The ParentTeachers Association shall be formed by the
head of the school within thirty days from the beginning of
each academic year. Every teacher of the school and parent
of every student in the school shall be a member of the
ParentTeachers Association and an annual amount of
rupees fifty, in case of urban area and rupees twenty, in case
of rural area, shall be collected from each member of such
association.
29
(c) On formation of the ParentTeachers Association, a lottery
shall be conducted by drawing a lot of the willing parents to
constitute the School Level Fee Committee and a notice of
one week before such lottery shall be given to the member of
the ParentTeachers Association.
(2)(a) The School Level Fee Committee shall consist of,
(i) Chairperson representative of management of the
private school nominated by such
management;
(ii) Secretary Principal 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 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
30
the school within thirty days from the beginning of each academic
year. Section 4(1)(b) envisages that every teacher of the school and
parent of every student in the school shall be a member of the
ParentTeachers Association. Section 4(1)(c) provides that on
formation of the ParentTeachers Association, a lottery shall be
conducted by drawing a lot of the willing parents to constitute the
SLFC. In the context of this provision, it was urged that for
choosing the willing parent to become member of the SLFC by draw
of lots, no eligibility criteria has been prescribed in the Act of 2016
or the Rules of 2017. Besides, willing parent of the ward, who is
admitted in the school against the 25 per cent quota of free
education under the RTE Act, may also fit into this category even
though he would have no stakes in the fee structure proposed by
the school Management. The argument seems to be attractive, but
for that reason the provision need not be struck down or declared
as violative of any constitutional right of management of the school.
This provision can be read down to mean that the draw of lots
would be in respect of willing parents whose wards have been
admitted against the seats other than the seats reserved for free
education under the RTE Act. Further, for ensuring that the willing
31
parent must be wellinformed and capable of (meaningful)
interacting in the discourse on the proposal of fee structure
presented by the school Management, he/she must have some
minimum educational qualification and also familiar with the
development of school, management of finances and dynamics of
quality education. The desirability of such eligibility of the willing
parent ought to be specified.
29. Absence of such provisions in the Act or Rules, however, can
be no basis to suspect the validity of the provision in question. We
say so because draw of lots can be one of the ways of identifying the
willing parent who could become member of the SLFC. Whether the
member should be chosen by election from amongst the willing
parents or draw of lots or 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.
32
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
much less on the ground that it violates the fundamental right to
establish an educational institution.
33
31. Section 5 of the Act of 2016 deals with fixation of fee in
“Government schools” and “aided schools”. However, we are not
concerned with the said provision in the cases before us.
32. Section 6 deals with regulation of fees in private schools and
the procedure to be followed for finalisation of the fee structure.
The same reads thus:
“6. Regulation of fees in private schools. (1) The
management of the private schools shall be competent to
propose the fee in such schools.
(2) On the formation of the School Level Fee Committee, the
management shall submit the details of the proposed fee
along with the relevant record to the School Level Fee
Committee for its approval at least six months before the
commencement of the next academic year. While giving the
approval, the School Level Fee Committee shall have the
authority to decide the amount of fee afresh.
(3) After considering all the relevant factors laid down under
Section 8, the School Level Fee Committee shall approve the
fee within a period of thirty days from the date of receipt of
the details of the proposed fee and the record under subsection (2) and communicate the details of the fee so
approved in writing to the management forthwith. The
details of the fee so approved by the School Level Fee
committee shall be displayed on the notice board in Hindi,
English and in the respective medium of school, and if such
school has its own website it shall be displayed on the same
and it shall be binding for three academic years.
(4) The School Level Fee Committee shall indicate the
different heads under which the fee shall be levied.
(5) If the School Level Fee Committee fails to decide the fee
within the period specified in subsection (3), the
management shall immediately refer the matter to the
Divisional Fee Regulatory 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
34
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 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 Section 6(2) is
not binding on the school Management. For, it is open to the school
35
Management to then refer the matter for adjudication to the DFRC
constituted under Section 7 of the Act of 2016, who in turn is
obliged to decide the reference one way or the other. Indeed, that
decision would be binding on both — the school Management as
well as the parents, unless it is interdicted by the Revision
Committee constituted under Section 10 of the Act of 2016 at the
instance of the other party.
34. The stipulation such as in Section 6(3) of the Act of 2016 that
the decision of fee structure proposed by the school Management, if
approved by the SLFC, would be binding for three academic years,
had been recognised and approved in Islamic Academy of
Education (supra) in paragraphs 7 and 161 and also noted in P.A.
Inamdar (supra).
35. To put it differently, the dispensation envisaged under Section
6 of the impugned Act of 2016 is not intended to undermine the
autonomy of the school Management in the matter of determination
of fee structure itself. What it envisages is that the school
Management may determine its own fee structure, but may finalise
or give effect to the same after interacting with the SLFC. It is a
36
broadbased committee, consisting of representatives of the school
Management as well as five parents from ParentTeachers
Association. This is merely a consultative process and
democratisation of the decisionmaking process by taking all the
stakeholders on board. The SLFC does not sit over the proposal
submitted by the school Management as a court of appeal, but only
reassures itself as to whether the proposed fee structure entails in
profiteering by the school on applying the parameters specified in
Section 8 and Rule 10. In other words, it is open to the SLFC to
take a different view regarding the school fees proposed by the
school Management and arrive 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.
37
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 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
Commissioner,
Chairperson;
(b) Deputy Director, Member;
38
Secondary Education
(c) Nominee of Director
Sanskrit Education
Member;
(d) Treasury Officer of
District Treasury situated
at Revenue Division
Headquarter
Member;
(e) Deputy Director,
Elementary Education
Exofficio MemberSecretary;
(f) two representatives of
private schools
nominated by Divisional
Commissioner
Member;
(g) two representatives of
parents nominated by
Divisional Commissioner
Member.
(2)(a) The term of office of the representatives of private
schools and parents shall be for a period of two years from
the date of their nomination and in case of vacancy arising
earlier, for any reason, such vacancy shall be filled for the
remainder period of the term.
(b) The representatives of private schools and parents shall
not be eligible for reappointment.
(c) The representatives of private schools and parents may
resign from the office in writing addressed to the Divisional
Commissioner and on such resignation being accepted, his
office shall become vacant and may be filled in within a
period of three month from the date of occurrence of
vacancy.
(d) A representative of private schools and parents may be
removed, if he does any act which, in the opinion of the
Divisional Commissioner, is unbecoming of a member of
Divisional Fee Regulatory Committee:
Provided that no representative of private schools or
parents shall be removed from the Divisional Fee Regulation
Committee without giving him an opportunity of being heard.
(e) The other terms and conditions for the service of the
representatives of private schools and parents shall be such
as may be prescribed.”
39
From the bare perusal of Section 7(1), it is noticed that first five
members are official members. It is a broadbased independent
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
40
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, who
is empowered to nominate two representatives of private schools
would keep in mind that his/her nominees are from the schools
within the divisional area and at least one amongst them should be
chosen from a minority school so that representation is given to all
stakeholders, including minority and nonminority private unaided
schools. At the same time, it must be borne in mind that such a
person is already not a member of the SLFC of any school in the
divisional area. The dispensation provided in Section 7, is, thus, to
create an independent machinery for adjudication of the question
as to whether the fee structure proposed/determined by the school
41
Management of the concerned school entails in profiteering,
commercialisation or otherwise.
39. As regards challenge to Section 8 of the Act of 2016, the usage
of expression “determination”, in our opinion, does not take away
the autonomy of the school Management in determining its own fee
structure. This provision is only an indicator as to what factors
should be reckoned for determination of fee and on that scale the
SLFC as well as the Statutory Regulatory Committees will be in a
position to analyse the claim of the school Management. This
provision, in fact, sets forth objective parameters as to what would
be the reasonable fee structure — not resulting in profiteering and
commercialisation by the school Management. As aforesaid, this
provision will have to be read along with Rule 10 of the Rules of
2017 which provides for additional factors to be borne in mind
while examining the question regarding reasonableness of the fee
structure proposed by the school Management.
40. Reverting to Section 9, which reads thus:
“9. Powers and functions of Divisional Fee Regulatory
Committee. (1) The powers and functions of the Divisional
Fee Regulatory Committee shall be to adjudicate the dispute
between the management and the ParentTeachers
42
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 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 academic
years. It shall not be called in question in any civil court
except by way of an appeal before the Revision Committee
constituted under this Act.
(5) At the time of resolving the dispute, the Divisional Fee
Regulatory Committee shall not grant any interim stay to the
fee determined by the management. On decision in appeal or
reference, the Divisional Fee Regulatory Committee may pass
appropriate orders for refund of the excess fee to the student
concerned. In case the management fails to refund the
excess fee to such student, the Divisional Fee Regulatory
Committee shall proceed to recover such excess fee from the
management as an arrear of land revenue and pay the same
to such student.
43
(6) The Divisional Fee Regulatory Committee shall, on
determining the fee leviable by a private school,
communicates its decision to the parties concerned.
(7) Every private school preferring an appeal before the
Divisional Fee Regulatory Committee shall place the copy of
decision in appeal on its notice board, and if such school has
website, on its website;
(8) The Divisional Fee Regulatory Committee shall indicate
the different heads under which the fee shall be levied.
(9) The orders passed by the Divisional Fee Regulatory
Committee shall be binding on the private school for three
academic years. At the end of the said period, the private
school shall be at liberty to propose changes in its fee
structure by following the procedure as laid down under this
Act.”
Section 9 deals with powers and functions of the DFRC inter alia to
adjudicate the dispute between the Management and the ParentTeachers Association regarding fee to be charged by the school
Management from the students. 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
44
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 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
45
private schools nominated by the State Government and two
representatives of parents nominated by the State Government.
This is again a broadbased independent Committee to consider the
revision preferred against the decision of the DFRC, constituted on
similar lines. The latter Committee is constituted under Section 7
of the Act of 2016. The observations made in reference to the
constitution of the DFRC under Section 7 hitherto would, therefore,
apply with full force to this provision as well.
43. The procedure to be followed by the Revision Committee is
specified in Section 11 of the Act of 2016, which provision makes it
amply clear that the decision of the Revision Committee shall be
final and conclusive and shall be binding on the parties for three
academic years. Setting up of an independent final adjudicatory
authority especially created for considering the question as to
whether the fee structure proposed by the school Management
results in profiteering or otherwise, it does not impinge upon the
fundamental right of the school Management guaranteed under
Article 19(1)(g) of the Constitution.
46
44. Even the challenge to the validity of Sections 15 and 16 of the
Act of 2016 is devoid of merit. Section 15 deals with consequences
of contravention of the provisions of the Act of 2016 or the Rules
made thereunder by an individual. Whereas, Section 16 deals with
consequences of violation by a management and persons
responsible therefor. It is unfathomable as to how these provisions
can have the propensity to violate the fundamental right of the
school Management under Article 19(1)(g) of the Constitution
especially when violation of the mandate of certain compliances
under the Act of 2016 and Rules framed thereunder 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
47
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 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 way affect
48
the right of the school Management in the matter of determination
of school fees by itself. The purpose of above provision is to
empower the ParentTeachers Association to get information about
tuition fees, term fees and fees for cocurricular activities, to
facilitate it to analyse the claim of the school Management regarding
the fee structure being reasonable or otherwise. It is on the basis of
that information, the representatives of the ParentTeachers
Association, forming part of the SLFC, will be in a position to
meaningfully interact either to give counter offer or agree with the
proposal submitted by the school Management. Even though, the
Act of 2016 is largely for regulation of fee, the information regarding
the incidental aspect thereof as to whether cocurricular activities
proposed by the school Management are necessary or not is
significant. For, if ParentTeachers Association is of the view that it
is unnecessary, it can project its perception in that regard during
the interaction to persuade the school Management to avoid such
cocurricular activities and to reduce the burden of expenses to be
incurred therefor. That would resultantly reduce the liability of the
parents commensurately due to reduced fee liability.
49
48. Rule 6 deals with duties and functions of the SLFC. It
specifies the additional duties to be performed by the SLFC besides
the powers and functions specified in the Act of 2016. Rule 6 reads
thus:
“6. Duties and functions of School Level Fee
Committee. The School Level Fee Committee shall, in
addition to the powers and functions specified in the 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
50
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
shall adjourn the meeting. The adjourned meeting shall be
recalled again after the lapse of ten days from the date of the
meeting which is adjourned.
(4) The Secretary of the School Level Fee Committee shall
prepare minutes of the meeting and circulate the same to all
the members within fifteen days from the date of the
meeting.
(5) The minutes of the meeting shall be made available to the
District Education Officer or Deputy Director concerned, as
and when required.
(6) If a parent member is absent for three consecutive
meetings, his membership shall be deemed to be cancelled
and such vacancy shall be filled in by lottery, from amongst
the applications received for that academic year under rule
5.
8. Procedure to refer proposal to Divisional Fee
Regulatory Committee and to file appeal before
Divisional Fee Regulatory Committee and Revision
Committee under section 6 of the Act. (1) The
Management of the school shall submit fee proposal to the
School Level Fee Committee at least six months before the
commencement of the next academic year in FormIII.
(2) If the School Level Fee Committee fails to decide the fees
within the period specified in subsection (3) of section 6 of
51
the Act, the management shall immediately refer the matter
in FormIV, alongwith the proposal submitted to the School
Level Fee Committee, to the Divisional Fee Regulatory
Committee, within thirty days of expiry of the period
specified in subsection (3) of section 6 of the Act, for its
decision.
(3) The management may prefer 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 other records in the manner
prescribed thereunder. The same reads thus:
52
“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.
(2) Every private school shall, in addition to accounts and
records specified in subrule (1), maintain the following,
namely:
(a) General Register;
(b) Admission Register;
(c) Fee Receipt;
(d) Fee Collection Register;
(e) Cash Book;
(f) Library and Reading Room Account;
(g) Staff Attendance Register and Staff Salary Register;
(h) Students Attendance Register;
(i) Voucher File;
(j) Cheque Register;
(k) Acquaintance Roll;
(1) Stock Registers;
(m) Transfer Certificate Book;
(n) Examination Fees Collection Receipt;
(o) Contingency Expenditure Register;
(p) Asset Register; and
(q) Building Rent Register.
(3) Every private school shall also maintain the other record
of the institution as per the orders issued by the
Government, from time to time.”
In our opinion, even this provision by no stretch of imagination
would affect the fundamental right of the school Management under
Article 19(1)(g) of the Constitution much less to administer the
53
school. This provision, however, is to ensure that a meaningful
inquiry can be undertaken by the SLFC or the Statutory
RegulatorycumAdjudicatory Authorities in determination of the
fact whether the fee structure propounded by the school
Management results in profiteering or otherwise. If information is
furnished in any other manner (other than the manner specified in
Rule 11), it would become 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.
54
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 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
55
impugned Act of 2016 after it is so determined by the school
Management and approved by the SLFC or by the Statutory
Regulatory Authorities, as the case may be. Suffice it to observe
that the field occupied by the Central Act is entirely different than
the field occupied by the State legislation under the impugned Act
of 2016. The impugned Act of 2016 deals specifically with the
subject of regulating fee structure propounded by the private
unaided school management. Hence, there is no substance in this
challenge.
52. Taking overall view of the matter, therefore, we uphold the
conclusion of the High Court in rejecting the challenge to the
validity of the impugned Act of 2016 and Rules framed thereunder.
However, we do so by reading down Sections 4, 7 and 10 of the Act
in the manner indicated in paragraphs 28; 37/38 and 42
respectively of this judgment. These provisions as interpreted be
given effect to, henceforth, in conformity with the law declared in
this judgment. For the reasons mentioned hitherto, we hold that
the High Court rightly concluded that the provisions of the Act of
2016 as well as the Rules of 2017 are intra vires the Constitution of
56
India and not violative of Articles 13(2) and 19(1)(g) of the
Constitution.
Re: Second Set:
53. These appeals assail the common judgment and order dated
18.12.2020 of the Division Bench of the High Court of Judicature
for Rajasthan at Jaipur whereby all the connected cases involving
challenge to the orders 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
57
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 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 2019
20 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/guardians after 15th March, the applicable fees at
present and payment of advance fee was deferred for 3
months, as per the direction of the State Government the
said deferment is extended till the reopening of the schools.
In case of nondeposition of fees during the said period,
name of such student will not be struck off from the rolls of
the school.
58
2. Remaining all will be as per order No.
(Shivra/Ma/PSP/Sikayat/Vetan/201920) dated
09.04.2020.
(Saurabh Swami)
I.A.S.,
Director, Secondary Education,
Rajasthan, Bikaner.
No.ShivraMa/PSPC/A2/60566/201920
Dated 07.07.2020”
56. The private unaided schools then filed writ petition(s) before
the High Court challenging the aforesaid orders dated 09.04.2020
and 07.07.2020. The learned Single Judge of the High Court Bench
at Jaipur considered the prayer for interim relief and vide order
dated 07.09.2020 directed the school Authorities to allow the
students to continue their studies online and also to deposit only
70 per cent of the tuition fees element from the total fees chargeable
for the period from March 2020 in three instalments. The relevant
extract of the order of the learned Single Judge dealing with the
prayer for interim relief at the instance of the appellantsSchools
reads 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
59
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 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
required to provide as all of them would be undergoing
online classes at the same time. Thus, comparative balance
is required to be maintained.
60
18. Prima facie, this Court is also of the view that under the
Act of 2005, the authorities would have jurisdiction to lay
down policy, guideline and direction, which may be found to
be suitable for the purpose of providing the relief to the
persons affected by the disaster as mentioned in Section 22
of the Act of 2005. The guidelines can be laid down for
mitigation of such loss to the citizens. The powers and
functions of the State Executive Committee under Section
22(j) provide that the State Executive Committee shall
ensure that nongovernmental organizations carry out their
activities in an equitable and nondiscriminatory manner.
The petitioners are all nongovernmental organizations and
are expected therefore to play their necessary role in
mitigating the sufferance caused to the public at large, while
at the same time also protect their own staff from facing
financial difficulties. This Court is also conscious of the fact
that the Staterespondents, while passing the impugned
orders, have not taken into consideration the difficulties,
which the staff of the concerned 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 case.
20. The stay applications are accordingly disposed of.”
61
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 fourmember Committee to give suggestions to the State Government in
relation to recovery of fees from parents/students by Private/NonGovernment 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 constituted for determination of fees to be charged
by the private schools for the period of lockdown imposed
due to Covid19 Pandemic. The Committee is in process to
finalize its recommendations and accordingly the affidavit
62
shall be filed on behalf of the State Government on 2nd of
November 2020 positively.
Mr. Kamlakar Sharma learned Senior advocate raised
serious objection and prayed for interim measure in view of
the great hardship being faced by the private schools to run
their institutions.
Considering the hardship of the private schools, it is
directed that the State Government shall issue necessary
directions by 28.10.2020 positively regarding interim fees
which the private schools shall be allowed to charge subject
to final decision in this regard.
In the meanwhile, necessary affidavit in compliance of
earlier directions shall be filed by the State Government by
02.11.2020 without fail after providing a copy of the same to
all the parties.
List on 03.11.2020”
58. The appeals were, thus, directed to be notified on 3.11.2020.
Before that date, however, the Director, Secondary Education
issued order dated 28.10.2020, which reads thus:
“OFFICE OF DIRECTOR, 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:
63
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 for
teaching. Like CBSE for class 9th to 12th has reduced 30% of
the syllabus and has prescribed 70% of the syllabus, hence,
the fees to be charged for this 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 Bal Vaihani etc. then the conveyance charges can
be charged but it will not be more than the conveyance fees
charged during the previous academic session. The
conveyance fees will be in proportion to the number of
working days after reopening of the schools.
9. The conveyance being provide by the schools for students
will have to follow the COVID19 guidelines prescribed by
State Government and any other directions issued by
Government.
10. The SOP issued by State Government will have to be
adhered to by the nongovernment schools.
64
B THE DETAILS OF THE FEES TO BE CHARGED BY
THE SCHOOLS BEFORE REOPENING
1. The schools will determine the fees to be charged from
students after reopening of the school as per the prescribed
syllabus for teaching.
2. Before opening of the schools the online teaching work
was for making them acquainted i.e. capacity building was
the objective. Hence, the fees chargeable will be termed as
capacity building fees.
3. The schools which were/which are imparting online
teaching then capacity building fees 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 as
per Rajasthan Schools (Regulation of Fees) 2016 and Rules
2017 will be the basis for aforesaid determination of fees
which will clearly mention the various fees i.e. tuition fees,
library fee etc.
2. The prescribed total fees and tuition fees of last year will
not be increased.
3. Every guardian will be provided of receipt of tuition
fees/capacity building fees. The said receipt will contain the
65
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 nongovernment
schools will pay prescribed salary to the employees had
teachers and no retrenchment will be done due to
circumstances of COVID19.
The aforesaid has been approved by competent level. All
concerned ensure the compliance.
(Saurabh Swami)
I.A.S.,
Director, Secondary Education,
Rajasthan, Bikaner.
No.ShivraMa/PSP/C/A2/60566/201920
Dated 28.10.2020”
59. This order was assailed by some of the private schools before
the High Court by way of substantive writ petition(s), which, as per
the High Court Rules was required to proceed before the Single
66
Judge in the first place. In addition, applications were filed in the
pending intracourt appeals before the Division Bench seeking
liberty to challenge the order dated 28.10.2020 issued by the
Director, Secondary Education. As a result, the Division Bench
with the consent of parties thought it appropriate to hear all the
matters including involving challenge 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
67
opined that such order could be issued even in exercise of power
under Section 22 of the Disaster Management Act, 200521. The
Division Bench rejected the argument of the appellants that the
stated order dated 28.10.2020 does not mention the source of
power under which the same has been issued by the Director,
Secondary Education or that it was vitiated due to lack of
opportunity of hearing to the school Management(s). Instead, the
Court held that even if there is no formal authentication of the
order, it would be 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
21 for short, “the Act of 2005”
68
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 shall be entitled to collect
school fees from the parents of their students including the
students of preprimary classes in terms of the order dated
28.10.2020 issued by the State Government subject to
special determination of fees as being directed hereunder.
II. All the private schools are directed to form necessary
bodies required for special determination of fees within 15
days, if such bodies have not been constituted so far in
terms of Rajasthan Schools (Regulation of Fee) Act 2016, and
Rajasthan Schools (Regulation of Fee) Rules 2017.
III. In order to safeguard the interests of the schools’
management and the parents, it is further directed that all
the private schools recognized by the Primary and Secondary
School Education Department shall specially determine the
school fees for the period in which schools remained closed
due to COVID19 pandemic and after opening of the schools
in 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.
69
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 schools’
management and the parents to determine the fees in
consonance with the directions contained in order dated
28.10.2020 or they may increase or decrease the fees to be
collected for the current session.
VI. The interim order dated 07.09.2020 passed by learned
Single Judge stands vacated.”
61. In this 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
70
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 years 201819, 201920
and 202021. In the present appeals, as aforementioned, we are
concerned only with the school fees pertaining to the academic year
202021, in light of the impugned order dated 28.10.2020 issued by
the Director, Secondary Education.
63. The appellants would urge that being a responsive school
administration and also being deeply concerned with the
development of wards pursuing education in the concerned schools,
the school Management “on their own” had decided to offer
scholarship of 25 per cent of the annual fee to their students. That
was to mitigate the difficulties faced by the parents and keeping in
71
mind that certain recurring expenses were not being incurred by
the school Management during the lockdown period. Be that as it
may, in law, it is not open to the State Authorities to modify the
school fees once fixed by the SLFC 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
72
schools in the State. The High Court had erroneously assumed that
the power exercised by the Director, Secondary Education was
ascribable to Article 162 of the Constitution. For, the subject of
school fees is fully covered and governed by the provisions of the
Act of 2016 and the Rules framed thereunder. Therefore, in the
name of policy decision, the impugned order dated 28.10.2020
cannot be sustained, which on the face of it is not in conformity
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
73
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 Section 8.
65. It is urged that reliance placed on Section 18 of the Act of
2016 is completely illadvised. There is no mechanism in the Act of
2016 to review or reduce the school fees once approved by the SLFC
or determined by the Statutory Regulatory Authorities. On the
other hand, as per Section 6(3) such school fee is binding on all
concerned for three academic years, which in the present case was
to remain in force until the academic year 202021. Further, the
reduction of school fees has been erroneously linked to the
instructions issued by the concerned Board. In fact, the Board had
issued directives to complete the course including through online
training/teaching. Moreover, there is no concept of “capacity
building fee” under the Act of 2016. The expression “capacity
building” obviously has been borrowed from the legislation such as
74
the Act of 2005. 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.
75
67. The manner and method of addressing such disaster and in
particular “disaster management” as defined in Section 2(e) of the
Act of 2005 is by preparation of a plan for disaster management by
the authority concerned under that Act. A National Plan, State Plan
or District Plan is required to be prepared under the Act of 2005.
That is in respect of prevention of disasters or mitigation of their
effects. It is the direct effect of disaster that is required 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
76
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 2005 is also of no avail because the
same is in reference to the provisions of the Act, which, as
aforesaid, in no way apply to the subject of fixation and collection of
school fees. That subject is exclusively governed under the Act of
2016.
68. Even the invocation of provisions of the Rajasthan Epidemic
Diseases Act, 202022 by the State to justify the stated order has
been stoutly refuted by the appellants. The powers required to be
exercised by the State Government under the Act of 2020 are
delineated in Section 4 of the Act of 2020. None of these measures
(referred to in Section 4) concern the subject of determination of
school fees much less reduction of school fees once it is approved
by the SLFC and is in force for the concerned academic year. The
general provision in Section 4(2)(g) permitting the Government to
22 for short, “the Act of 2020”
77
regulate or 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
78
Articles 19(1)(g) and 30 of the Constitution which cannot be
regulated by the State except for preventing profiteering and
capitation fee. To buttress his submission, reliance was placed on
the dictum in T.M.A. Pai Foundation23 (supra), P.A. Inamdar24
(supra) and Modern School25 (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 Education26 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
23 paras 2938, 45, 5357, 61 and 122
24 paras 9194, 104, 107 and 139141
25 paras 16 and 17
26 Writ Petition (C) No.9688 of 2018 (paras 66, 78, 88 and 91)
79
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, Delhi27 decided on 24.04.2020. He then invited our
attention to the decision of this Court in Pramati Educational
and Cultural Trust (Registered) & Ors. vs. Union of India &
Ors.28 wherein the Constitution Bench opined that the RTE Act will
not apply to minority educational institutions. Whereas, nonminority institutions are bound by the RTE Act to provide 25 per
cent admission to economically weaker sections of the society and
to get reimbursement from the Government towards unit cost. In
substance, he has iterated the argument that the school
Management(s) of private unaided schools has a right to fix their fee
structure and to collect school fees as approved by the SLFC or the
Statutory Regulatory Authority.
71. Per contra, learned counsel appearing for the State and
representing the parents submit that due to extraordinary and
unprecedented situation arisen due to complete lockdown for such
27 Writ Petition (C) No.2993 of 2020 (paras 18 to 21)
28 (2014) 8 SCC 1 (paras 53 to 55)
80
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 has been issued in larger public interest.
Reliance has been placed on the dictum of this Court in the State
81
of M.P. & Ors. vs. Nandlal Jaiswal & Ors.29and Pathan
Mohammed Suleman Rehmatkhan vs. State of Gujarat &
Ors.30, to buttress this submission.
72. According to the respondents, Section 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
29 (1986) 4 SCC 566 (para 34)
30 (2014) 4 SCC 156 (para 10)
82
Panchayat & Ors.31
, M.T. Khan & Ors. v. Govt. of A.P. & Ors.
32
and N. Mani vs. Sangeetha Theatre & Ors.33
.
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 of the court as well
as of the State. It is urged that the State has a legitimate interest
under its parens patriae powers in providing care to its citizens and
since the direction issued is to fulfil that obligation which was
necessitated because of the unprecedented situation coupled with
the fact that even the High Court had expressed a benign hope that
the State Government ought to find out some arrangement, it
became necessary to issue direction vide order dated 28.10.2020.
Such power could be exercised even as a policy matter and the
State Government is competent to do so under Article 162 of the
Constitution.
75. It is also urged that the direction given by the Director,
Secondary Education vide order dated 28.10.2020 could be issued
31 (2003) 4 SCC 712 (para 53)
32 (2004) 2 SCC 267 (para 16)
33 (2004) 12 SCC 278 (para 9)
83
by the State in exercise of power under Section 18 of the Act of
2016 and hence, no fault can be found 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 timeconsuming 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.
84
The order dated 28.10.2020 can also become passed if
following relief, with utmost humility, is granted:
(a) The management of each school shall propose the
fee structure in terms of Section 6(1) and place it
before the schoollevel committee within a period of 15
days from the date of judgment of this Hon’ble Court.
This shall be exclusively for Covid Year (20202021)
irrespective of earlier 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 tuition fees and
that decision is not backed by any tangible material on record.
Moreover, the impugned decision was taken without giving
opportunity to the stakeholders, in particular the parents’
association. For which reason, such a decision should not be
85
allowed to be taken forward by the State Government. It is then
urged that the action taken under the Act of 2005 was obviously in
larger public interest and being a policy decision would not be
amenable to judicial review. In any case, the appropriate course
would be to relegate the parties before a special Committee
comprising of a retired Judge of the High Court, one Chartered
Accountant and retired Teachers/Officers nominated by the
Director of Public Education Board, who can take an appropriate
decision after hearing 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
86
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 online classes to a standard uniform charge on par with
NOIS across schools and to declare exams taken by the schools so
far as invalid in law and to issue such other direction as may be
necessary.
80. Another written submission filed for the intervener
Mr. Charanpal Singh Bagri, claiming to be parent in a private
school in the State of Punjab. He has raised several issues
including the questions pertaining to the matters 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
87
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. According to this respondent, the schools
have saved colossal amount of money towards electricity charges,
water charges, stationary charges and other miscellaneous charges
which are required for physical running of the school and which
may not be collected by the school for the relevant period.
88
82. When the hearing of these appeals was in progress considering
the urgency involved, we thought it appropriate to pass interim
directions which were intended to address the concerns of all
parties in some measure. That order was passed on 08.02.2021,
which reads thus:
“SLP (C) No(s). 619/2021
Delinked.
List the matter on 15th February, 2021.
SLP (C) Nos.2790727916/2019, SLP (C) No. 27987/2019
SLP (C) No. 27881/2019, SLP (C) 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 shall
not withhold the results of the examinations of any
student on that account.
89
(c) Where the parents have difficulty in remitting the fee
in terms of this interim order, it will be open to those
parents to approach the school concerned by an
individual representation and the management of the
school will consider such representation on a casetocase
basis sympathetically.
(d) The above arrangement will not affect collection of fees
for the academic year 20212022, which 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 respondents, namely, the State Government and the
90
parents have a different perception and have addressed us fully to
oppose grant of any relief to the appellants.
84. We have heard Mr. Pallav Shishodia, Mr. Shyam Divan,
learned senior counsel, Mr. Puneet Jain and Mr. Romy Chacko,
learned counsel for the appellants, Dr. Manish Singhvi and Mr.
Devadatt Kamat, learned senior counsel for the State of Rajasthan
and Mr. Sunil Samdaria, inperson.
85. At the outset, in this judgment we consciously opt to limit our
analysis to the challenge/grounds concerning the legality and
justness of the order dated 28.10.2020 issued by the Director,
Secondary 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
91
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
subsequent order dated 07.07.2020.
87. The matter had reached the High Court and by way of interim
arrangement, learned Single Judge of the High Court issued certain
directions against which the parties approached the Division Bench
of the High Court by way of intracourt appeals. During the
pendency of intracourt appeals in deference to the observations of
the court, the State Authority proceeded to issue further order on
28.10.2020, which, essentially is the subject matter of assail in
these appeals.
92
88. The State cannot be heard to rest 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
93
be issued also in exercise of power under the Act of 2020 by the
State Authorities.
90. We now proceed to test the correctness of the pleas taken by
the State Government in seriatim.
91. The source of power derived from Section 18 of the Act of 2016
is a flimsy argument. Section 18 of the Act of 2016 reads thus:
“18. Power to issue directions. The State Government
may issue to any school such general or special directions
consistent with the provision of this Act and the rules made
thereunder as in its opinion are necessary or expedient for
carrying out the purposes of this Act or for giving effect to
any of the provisions contained therein or in any rules or
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
94
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 modify the school fees once finalised in
the manner provided by the Act of 2016. Whereas, the explicit
mandate in the Act of 2016 is that, the fees so fixed by the
concerned functionaries/authorities shall be binding on all
concerned for three academic years. This is a clear indication of not
altering the school fees unilaterally after it is fixed under the Act of
2016 in any manner for the specified period. If we may say so, it
is in the nature of prohibition or a mandate to continue the same
fee structure for at least three academic years, after it is fixed by
the concerned 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
95
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 argument of the respondents relying upon
the existence of executive power under Article 162 of the
Constitution, ought to fail. It is wellestablished position that the
96
executive power of a State under Article 162 of the Constitution
extends to the matters upon which the legislature of the State has
competency to legislate and is not confined to matters over which
legislation has already been passed. It is also wellsettled that the
State Government cannot go against the provisions of the
Constitution or any law. The subject of determination of fee
structure and whether it entails in profiteering, is already 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.
97
95. Viewed thus, reliance placed on Union of India vs.
Moolchand Kharaiti Ram Trust34 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 was no
necessity of enacting a law and the policy formulated by the State
Government in that regard cannot be disregarded.
96. In the present case, we need not dilate on the factum as to
whether the Director, Secondary Education could have issued such
a policy document in exercise of executive power under Article 162
of the Constitution, which power exclusively vests in the State
Government alone. The fact remains that the direction issued in
terms of impugned order dated 28.10.2020, on the face of it, collide
with the dispensation specified in the Act of 2016 in the matter of
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
34 (2018) 8 SCC 321 (paras 90 and 91)
98
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 Punjab35 and Secretary, A.P.D. Jain Pathshala
& Ors. vs. Shivaji Bhagwat More & Ors.36 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 to issue direction with regard to commercial or
economic aspects of matters between private parties with which the
State has no direct causal connection, which we shall examine later
at the appropriate place. In other words, the power of the State
Government to deal with matters during the pandemic situation
35 AIR 1955 SC 549
36 (2011) 13 SCC 99
99
have already been delineated by the Parliament as well as the State
legislature.
98. As such, it is not open to the State Government to issue
directions in respect of commercial or economic aspects of
legitimate subsisting contracts/transactions between two private
parties with which the State has no 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.
100
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
Constitution. That would not only open pandora’s box, but also
push the State Government to entertain demands including to grant
subsidy, from different quarters and sections of the society in the
name of mitigating measures making it financially impossible and
unwieldy for the State and eventually burden the honest tax payers
who also deserve similar indulgence. Selective intervention of the
State in response to such demands may also suffer from the vice of
discrimination and also likely to impinge upon the rights of private
individual(s) — the supplier of goods or service provider, 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
101
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 make a
law touching upon that aspect except to provide statutory
mechanism to regulate fees for ensuring that it does not result in
profiteering and commercialisation by the school Management. Exconsequenti, the State Government also cannot exercise power
under Article 162 of the Constitution in that regard.
100. Notably, the direction given in the impugned order to the
school Management is to collect only specified percentage of annual
102
tuition fees on the assumption that the schools will not be required
to complete the course for the academic year 202021. This
assumption has been rebutted by the 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.
103
101. Reverting to the provisions of the Act of 2005, no doubt
Section 72 thereof predicates that the provisions of the Act will have
overriding effect on other laws for the time being in force or
anything inconsistent in any instrument having effect by virtue of
any law other than the Act of 2005. This provision, however, would
come into effect only if it is to be held that the Statutory Authorities
under the Act of 2005 have power to deal with the subject of school
fee structure of private unaided schools.
102. For that, we may usefully refer to Section 23 of the Act of 2005
which provides for the contents of the plan for disaster management
to be prepared for every State called the State 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;
104
(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 different Departments
of the Government of the State in responding to any
threatening disaster situation or disaster;
(5) The State Plan shall be reviewed and updated annually.
(6) Appropriate provisions shall be made by the State
Government for financing for the measures to be carried out
under the State Plan.
(7) Copies of the State Plan referred to in subsections (2) and (5) shall be made available to the
Departments of the Government of the State and such
Departments shall draw up their own plans in accordance
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 mitigation37 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
37 Section 2(i) “mitigation” means measures aimed at reducing the risk, impact or
effects of a disaster or threatening disaster situation;
105
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
prerogative of the supplier or manufacturer of the goods or service
provider of the services. The scheme of the Act of 2005 obligates
the State Authority to assuage the concerns of the persons arising
from “direct impact” of the disaster and to take mitigation measures
to minimise the impact of such disaster and for that purpose, resort
of capacitybuilding38 including of its own resources39 to wit,
manpower, services, materials and provisions as noted in Section
2(p), and preparedness40 measures referred to in Section 2(m). It is
38 Section 2(b) “capacitybuilding” includes—
(i) identification of existing resources and resources to be acquired or
created;
(ii) acquiring or creating resources identified under subclause (i);
(iii) organisation and training of personnel and coordination of such training for
effective management of disasters;
39 Section 2(p) “resources” includes manpower, services, materials and provisions;
40 Section 2(m) “preparedness” means the state of readiness to deal with a threatening
disaster situation or disaster and the effects thereof;
106
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. In this Act, unless the context otherwise
requires,
xxx xxx xxx
(d) “disaster” means a catastrophe, mishap, calamity or
grave occurrence in any area, arising from natural or man
made causes, or by accident or negligence which results in
substantial loss of life or human suffering or damage to, and
destruction of, property, or damage to, or degradation of,
environment, and is of such a nature or magnitude as to be
beyond the coping capacity of the community of the affected
area;”
107
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 (Ex officio) and other Chairpersons
of the respective Authorities. Section 18 reads thus:
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“18. Powers and functions of State Authority.— (1)
Subject to the provisions of this Act, a State Authority shall
have the responsibility for laying down policies and plans for
disaster management in the State.
(2) Without prejudice to the generality of provisions
contained in subsection (1), the State Authority may—
(a) lay down the State disaster management policy;
(b) approve the State Plan in accordance with the
guidelines laid down by the National Authority;
(c) approve the disaster management plans prepared by
the departments of the Government of the State;
(d) lay down guidelines to be followed by the
departments of the Government of the State for the
purposes 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:
109
“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 by the
National Authority and such further measures as it deems
necessary or expedient, for the purpose of disaster
management.
(2) The measures which the State Government may take
under subsection (1) include measures with respect to all or
any of the following matters, namely:—
(a) coordination of actions of different 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 management plans
by different departments of the State in accordance with
the guidelines laid down by the National Authority and
the State Authority;
(h) establishment of adequate warning systems up to
the level of vulnerable communities;
(i) ensure that different departments of the Government
of the State and the District Authorities take
appropriate preparedness measures;
110
(j) ensure that in a threatening disaster situation or
disaster, the resources of different departments of the
Government of the State are made available to the
National Executive Committee or the State Executive
Committee or the District Authorities, as the case may
be, for the purposes of effective response, rescue and
relief in any threatening disaster situation or disaster;
(k) provide rehabilitation and reconstruction assistance
to the victims of any disaster; and
(l) such other matters as it deems necessary or
expedient for 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
111
the provisions necessary for prevention of disasters,
mitigation or preparedness;
(f) provide assistance, as required, by the National
Executive Committee, the State Executive Committee
and District Authorities, for—
(i) drawing up mitigation, 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 provisions,
healthcare and services in an affected area;
(i) such other actions as may be necessary for disaster
management.”
112
109. The State Executive Committee constituted under the Act of
2005 vide Section 20 is obligated to discharge the functions
delineated in Section 22 of the Act. The same reads thus:
“22. Functions of the State Executive Committee.—
(1) The State Executive Committee shall have the
responsibility for implementing the National Plan and State
Plan and act as the coordinating and monitoring body for
management of disaster in the State.
(2) Without prejudice to the generality of the provisions of
subsection (1), the State Executive Committee may—
(a) coordinate and monitor the implementation of the
National Policy, the National Plan and the State Plan;
(b) examine the vulnerability of different parts of the
State to different forms of disasters and specify
measures to be taken for their prevention or mitigation;
(c) lay down guidelines for preparation of disaster
management plans by the departments of the
Government of the State 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;
113
(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 coordinate the activities of the
Departments 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
periodically;
(q) perform such other functions as may be assigned to
it by the State Authority or as it may consider
necessary.”
110. Having regard to the purport of the Act of 2005, it is
unfathomable as to how the State Authorities established under the
stated Act can arrogate unto themselves power to issue directions to
114
private parties on economic aspects of legitimate subsisting
contractual matters or transactions between them inter se. In any
case, the impugned order has not been issued by the State
Authority referred to in the Act of 2005. It is not enough to say that
the same was issued under the directions of the Chief Minister of
the State. For, the Chief Minister is only the Chairperson (Ex officio)
of the State Disaster Management Authority established under
Section 14 of the Act of 2005. Suffice it to observe that there is no
provision in the Act of 2005 which concerns or governs the subject
of interdicting the school fee structure fixed under the Act of 2016.
111. Section 72 of the Act of 2005 was pressed into service.
However, that cannot be the basis to justify the impugned order
dated 28.10.2020. Section 72 reads thus:
“72. Act to have overriding effect.— The provisions of
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
115
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 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 Government
considers sufficient to spread or transmit epidemic
diseases from person to person in any gathering,
celebration, worship or other such activities within the
State;
116
(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
officer authorized in the regulation or orders;
(c) to seal State Borders for such period as may be
deemed necessary;
(d) to impose restrictions on the operation of public and
private transport;
(e) to prescribe social distancing norms or any other
instructions for the public to observe that are
considered necessary for public health and safety on
account of the epidemic;
(f) to restrict or prohibit congregation of persons in
public places and religious institutions or places of
worship;
(g) to regulate or restrict the functioning of offices,
Government and private and educational institutions in
the State;
(h) to impose prohibition or restrictions on the
functioning of shops and commercial and other offices,
establishments, factories, workshops and godowns;
(i) to restrict duration of services in essential or
emergency services such as banks, media, health care,
food supply, electricity, water, fuel etc.; and
(j) such other measures as may be necessary for the
regulation and prevention of epidemic diseases as
decided by the Government.”
The measures enunciated in Section 4 of the Act of 2020 in no way
deal with the “tariffs” of air, rail, road, hospital, temporary
accommodation. It only enables the Authority to prohibit any usage
or 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
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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 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
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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 mediated between the
Association of the school Management and representatives of the
ParentTeachers Association for arriving at an amicable solution
due to pandemic situation for the academic year 202021, on
humanitarian grounds, but could not issue the impugned order
when even the State had no power to issue the same.
114. Accordingly, the appellants are justified in assailing the order
dated 28.10.2020 issued by the Director, Secondary Education and
must succeed. However, that does not give licence to the appellants
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to be rigid and not be sensitive about aftermath of pandemic. The
school Management supposedly engaged in doing charitable activity
of imparting education, is expected to be responsive and alive to
that situation and take necessary remedial measures to mitigate the
hardship suffered by the students and their parents. It is for the
school Management to reschedule payment of school fee in such a
way that not even a single student is left out or denied opportunity
of pursuing his/her education, so as to effectuate the adage “live
and let live”.
115. In law, the school Management cannot be heard to collect fees
in respect of activities and facilities which are, in fact, not provided
to or availed by its students due to circumstances beyond their
control. Demanding fees even in respect 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,
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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 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
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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 (15 per
cent of the annual school fees for academic year 20202021), would
be a case of profiteering and commercialisation by the school
Management.
117. Ordinarily, we would have thought it appropriate to relegate
the parties before the Regulatory Authority to refix the school fees
for the academic year 202021 after taking into account all aspects
of the matter including the advantage gained by the school
Management due to unspent overheads/expenses in respect of
facilities not availed by the students. However, that course can be
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obviated by the arrangement that we propose to direct in terms of
this judgment. To avoid multiplicity of proceedings (as school fee
structure is linked to school — school wise) including uncertainty of
legal processes by over 36,000 schools in determination of annual
fee structure for the academic year 202021, as a onetime measure
to do complete justice between the parties, we propose to issue
following directions:
(i) The appellants (school Management of the
concerned private unaided school) shall collect annual
school fees from their students as fixed under the Act
of 2016 for the academic year 201920, but by
providing deduction of 15 per cent on that amount in
lieu of unutilised facilities by the students during the
relevant period of academic year 202021.
(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.
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(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
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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
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compelled the school Management to collect annual school fees for
the academic year 202021 as was fixed for the academic year
201920 on which some of the school Management(s) could have
legitimately asked for increase of at least 10 per cent in terms of
Section 6(5) of the Act of 2016.
119. As we are disposing of the appeals in terms of this judgment,
the contempt petition(s) filed before the High Court on the basis of
impugned judgment also need to be disposed of. Accordingly, we
deem it appropriate to dispose of all the contempt petition(s)
initiated in reference to the impugned judgment, as the same is
being overturned by this decision.
120. While parting, we must note that the respondentState of
Rajasthan has moved a formal application for recall/modification of
direction given in clause (g) of the order of this Court dated
08.02.2021 — to ensure payment of outstanding dues towards unit
cost payable to respective unaided schools within specified time. It
is urged that due to complexity of facts, it was not possible to
complete the process of computation before 31.03.2021. In the first
place, there is no question of recall or modification of that direction.
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We were conscious of the fact that that is not the subject matter of
the appeals before this Court. Nevertheless, such direction was
issued taking into account totality of the situation and to give relief
to the private unaided schools by directing the State of Rajasthan to
discharge its statutory obligation within specified time, of paying
the outstanding dues of the concerned private unaided schools
towards unit cost. Accordingly, we reiterate that direction but give
further time to the State Government to complete the process of
calculation and disbursal of the outstanding amount payable
towards unit cost to the concerned unaided schools in the State of
Rajasthan before the end of July 2021. The outstanding dues to be
paid in terms of this direction would be obviously in respect of
academic year upto 202021.
121. We must also note that we have not dilated on each of the
reported decisions relied upon by the parties, as it is not necessary
to do so for the view taken by us. For, there is nothing inconsistent
in those decisions.
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ORDER
In view of the above,
(a) we dispose of the first set of appeals challenging the validity
of the Act of 2016 and the Rules framed thereunder with
observations and the conclusion recorded in paragraph 52
above by reading down Sections 4, 7 and 10 of the Act and
direct that henceforth the same be applied in conformity with
the law declared in this judgment.
(b) The second set of appeals, however, are allowed in the above
terms including mentioned in paragraph 117. The impugned
judgment and order of the High Court dated 18.12.2020 is
quashed and set aside. Instead, the intracourt appeals
preferred by the appellants questioning the decision of the
learned Single Judge and the writ petitions filed before the
High Court to assail the impugned order dated 28.10.2020,
shall stand disposed of in terms of this judgment.
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(c) The contempt petition(s) pending before the High Court in
connection with the subject matter of these appeals also stand
disposed of. No order as to costs.
Pending applications, if any, also stand disposed of.
………………………………J.
(A.M. Khanwilkar)
………………………………J.
(Dinesh Maheshwari)
New Delhi;
May 3, 2021.
