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TMI Blog2021 (5) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan 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 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. 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. An uniform direction of deduction of 15 per cent of the annual school fees in lieu of unutilised facilities/activities and not on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 18.12.2020 of the same High Court. In these appeals, the challenge is to the orders passed by the State Authorities on 09.04.2020, 07.07.2020 and 28.10.2020 regarding deferment of collection of school fees including reduction of fees limited to 70 per cent of tuition fees by schools affiliated with the Central Board 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 respective Boards 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 inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no intention or motivation to create new facilities or commitment to develop the school towards excellence. Moreover, they would not be accountable for anything that finally impacts the quality of education in the school concerned. It is only the school Management who would be held accountable in that regard, whilst 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 Committee, for short, the DFRC 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 Management appellants apprehend that dispute with regard to determination of school fees would be endless and get embroiled in the process of appeal, revision and judicial proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, stands on a totally different footing than determination of fees for professional colleges for medicine etc. The impugned Act of 2016 falls foul of doctrine of proportionality - as restrictions imposed on the school Management in respect of determination of school fees have no cogent nexus/object sought to be achieved. 9. 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 Act, Sections 13 and 16 of the RTE Act and the Rules, The Right of Children to Free and Compulsory Education Rules, 2010 (Rules 12, 15 and 16) 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 respondent State 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 represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State of Madhya Pradesh in relation to fixation of fee by external committees and, therefore, the challenge set up by the appellants cannot be countenanced. 12. The respondent State 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 (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears to be a far cry without any substance. Indisputably, the Rules are in the nature of subordinate legislation and framed by the Government in exercise of power under Section 19 of the Act for carrying out all or any of the purposes of the Act. Thus, the Rules as such are neither assailable on the ground of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 socio economic 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 socio economic 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination 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 earlier enactment on the self same 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 web site 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 non resident Indians, as a part of charity by the management and contribution by the Government for providing free ship 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 non teaching 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 predicates that every private school shall constitute the Parent Teachers Association, which is to be formed by the head of the school within thirty days from the beginning of each academic year. Section 4(1)(b) envisages that every teacher of the school and parent of every student in the school shall be a member of the Parent Teachers Association. Section 4(1)(c) provides that on formation of the Parent Teachers 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresenting 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. 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 afres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onomy 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 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 autonom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Chairperson; Commissioner, (b) Deputy Director, Member; 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 Ex officio Member Secretary; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olate 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 non minority 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 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 indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assail the decision of the DFRC. This is a final adjudicatory body created under Section 10 consisting of official members including two representatives of private schools nominated by the State Government and two representatives of parents nominated by the State Government. This is again a broad based 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities; and to assess the needs of co curricular activities. This is an enabling provision bestowing power coupled with duty in the Parent Teachers Association. This in no way affect 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 Parent Teachers Association to get information about tuition fees, term fees and fees for co curricular 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 Parent Teachers 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 co curricular activities proposed by the school Management are necessary or not is significant. For, if Parent Teachers Association is of the view that it is unnecessary, it can project its perception in that regard during the interaction to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... east 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub rule (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 school. This provision, however, is to ensure that a meaningful inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the school is to be done under the impugned Act of 2016 after it is so determined by the school Management and approved by 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 Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hools, the following order is issued: 1. The fee chargeable by non government 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 non deposition of fees during the said period, name of such student will not be struck off from the rolls of the school. 2. Remaining all will be as per order No. (Shivra/Ma/PSP/Sikayat/Vetan/2019 20) dated 09.04.2020. (Saurabh Swami) I.A.S., Director, Secondary Education, Rajasthan, Bikaner. No. Shivra Ma/PSP C/A 2/60566/2019 20 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 non governmental organizations carry out their activities in an equitable and non discriminatory manner. The petitioners are all non governmental 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 State respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Covid 19 Pandemic. The Committee is in process to finalize its recommendations and accordingly the affidavit 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 COVID 19 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 non government schools. 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 tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion can be charged. 8. For charging fees as per aforesaid the non government schools will pay prescribed salary to the employees had teachers and no retrenchment will be done due to circumstances of COVID 19. The aforesaid has been approved by competent level. All concerned ensure the compliance. (Saurabh Swami) I.A.S., Director, Secondary Education, Rajasthan, Bikaner. No. Shivra Ma/PSP/C/A 2/60566/2019 20 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 Judge in the first place. In addition, applications were filed in the pending intra court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognized by the Primary and Secondary Education Department shall be entitled to collect school fees from the parents of their students including the students of pre primary 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 COVID 19 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under. The same was to remain in force for the academic years 2018 19, 2019 20 and 2020 21. In the present appeals, as aforementioned, we are concerned only with the school fees pertaining to the academic year 2020 21, 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t other parameters referred to in Section 8. 65. It is urged that reliance placed on Section 18 of the Act of 2016 is completely ill advised. 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 2020 21. 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 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 infrastructu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 2020, for short, the Act of 2020 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 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Education, Delhi, Writ Petition (C) No.2993 of 2020 (paras 18 to 21) 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, (2014) 8 SCC 1 (paras 53 to 55) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2020 21 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. 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 De linked. List the matter on 15th February, 2021. SLP (C) Nos.27907 27916/2019, 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. 577 579/2021 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a direction. However, as aforesaid, the respondents, namely, the State Government and the 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, in person. 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 2020 21 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 well established position that the 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 well settled 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 self contained 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aided 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 tuition fees on the assumption that the schools will not be required to complete the course for the academic year 2020 21. 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 non academic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove; (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 sub sections (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 mitigation, Section 2(i) mitigation means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/impact or effects of a disaster or threatening disaster situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 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; 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) capacity building; (iv) preparedness to deal with any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub section (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, capacity building 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e therein 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, capacity building, 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 non governmental 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Governmentconsiders sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the State; (b) to inspect the persons arriving in the State by air, rail, road or any other means or in quarantine or in isolation, as the case may be, in hospital, temporary accommodation, home or otherwise of persons suspected of being infecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 including to reduce the same for the academic year 2020 21 in respect of private unaided schools. Having failed to trace the legitimate source of power under which the directions have been issued, as aforesaid, the respondents State Authorities cannot fall back upon the benign hope expressed by the High Court to do the needful in the backdrop of the representations made by several parents about the difficulties encountered by them due to pandemic situation. It would have been a different matter if the Director, Secondary Education had used his good offices to impress upon the school management(s) of the concerned school(s) to explore the mitigating measures/options on their own for the academic year 2020 21 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 Asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period. 116. At this stage, we must advert to the stand taken by the learned counsel for the appellants that the appellants would be content with the interim order passed by this Court on 08.02.2021, being confirmed as a final order. This suggestion is indeed attractive, but that arrangement does not provision for the amounts saved by the school Management towards unspent overheads/expenses in respect of facilities not utilised or could not be offered by the school Management to the students due to lockdown situation. As aforesaid, we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes 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 non payment of fee/arrears for the academic year 2020 21, 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 school wise. 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 2020 21, as a one time measure which is the subject matter of these appeals. We have consciously limited the quantum of deduction from annual school fees to 15 per cent although the school Management had mentioned about its willingness to provide 25 per cent scholarship to deserving students, as we have compelled the school Management to collect annual school fees for the academic year 2020 21 as was fixed for the academic year 2019 20 on which some of the school Management( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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