This article has been written by Arjun Singhal.

Facts of the case

The Respondent passed an order on 17.04.2020 in the exercise of its power under the Disaster Management Act, 2005 and Section 17(3) of the DSE Act and rule 43 of DSER. Under the order, the respondent passed that no schools shall take any other fee from the parents of the children except for tuition fee.

In continuance of order passed on 17/04/2020, another order was passed on 18/04/2020 which stated:

“Due to covid-19 some parents are not in a position to pay the school fee of their wards at increased rates or even at existing rates if demanded on a quarterly basis in one go. Heads/managers of private unaided recognized schools of Delhi are hereby directed as follows:

• No fee, except Tuition fees, will be charged from the parents during the lockdown period.
• Annual and Development Charges can be charged from the parents, on a pro-rate basis, only on monthly basis after completion of the lockdown period. iii. No earmarked levies such as transportation charges will be charged from the parents during the period the schools remain closed.”

So, no charges will be collected unless the lockdown is lifted. The lockdown was lifted by the central government on 01/06/2020, and so the schools started to charge fees from the date thereon. quarterly. The Respondent then on 28/08/2020 issued another order stating that the schools shall comply with the order issued on 18/04/2020, and the fee that has been changed from the students be refunded to them else action shall be taken against the defaulter school. The Petitioner pleaded that this action by the respondents is violative of the Petitioner’s fundamental right under Article 19(1)(g) of the Indian Constitution and is unconstitutional and illegal.

Contentions by the Petitioner

The Petitioner in its grievances has mentioned that they have not been allowed to charge fees according to their requirements they have listed a no. of expenses that occur even if the schools remain physically shut and thus will need to charge fees above tuition fees from parents. Some of the expenses mentioned by the petitioner are Hostel running expenses, Administrative & General Expenses, Rents, rates and taxes, Communication Expenses, Printing & Stationery, Electricity & Water charges, Travelling & Conveyance, Expenses of teaching & non-teaching staff, Insurance charges, Promotional expenses, Remuneration of Auditors, Repairs & Maintenance of Building and some other for which development fee is required were stated as follows:

1. Furniture;
2. Chairs, Wall panelling, Green/Black Boards;
3. Computers;
4. Projectors;
5. Smart Boards/ Touch Panels in classes;
6. Water Coolers;
7. Air conditioners; and
   
8. Lift, etc.

The petitioner pleads that the respondent has gone ultra vires and had no jurisdiction in this matter in fixing the school fees etc. They have limited jurisdiction which is to interfere only in case it finds that the unaided schools are going commercial or are practising profiteering. It was unconstitutional due to violating Article 19(1)(g) of the Indian Constitution and has been an arbitrary and illegal and should be quashed.

It is pleaded that Sections 3, 17, 18, and 24 of the DSE Act and Rules 172, 174, 175, 176-180 of the Rules do not bestow any power on the respondent to issue the impugned orders. And these are just political acts to take votes from middle-class parents.

The contention of the Respondent

The Respondent first submits that the petition filed by the Petitioner shall be dismissed due to lockdown being still imposed so according to the order they can not file the petition as they have violated the order by charging the fees lockdown is not over yet. 

In Modern school vs. Union of India and ors. (2004) (5) SCC 583, the Respondent referring to this case said that the Petitioner cannot hike fee without the approval of the DOE as held by the Supreme Court.

The Respondent further contends that the order passed by them was not ultra vires as the DOE must check profiteering and commercialization of schools, as schools are educational institutions they must provide education to the children, and in such difficult times of pandemic, the state must look at any such activity being carried out by the schools so that it can offer help to the children and their parents and so that education must not be stopped at any matter. When lots of expenses of the organizations are now not being incurred due to physical closure of the schools then charging fees for those expenses does not stand correct as parents will also need some assistance and the schools, instead of lowering the fee, have hiked fee for the academic session 2020-2021 and has also not provided a lot of study material to the students which stands to total violation of the orders.

It is pleaded that even after lifting of the lockdown continuance of the prohibition to charge Annual Charges and Development Fees is illegal, disproportionate, and violates Article 14, 19(1)(g) read with Article 19(6) of the Constitution. It states that the Respondent has the power of regularisation, imposition, and fixation of fees because of Sections 3, 17(3), 18(3), 18(4), and 24. Reliance is also placed on Rules 43, 172 to 177 of the Rules. Reliance is placed on the judgment of the Division Bench of this court in the case of Delhi Abhibhavak Mahasangh vs. Union of India & Ors,^[1] to support the above contentions. Reliance is also placed on the judgement of the Division Bench of this court in the case of Delhi Abhibhavak Mahasangh vs. Union of India & Ors^[2].

Prayer/relief claimed by the petitioner and appellant

The Respondent has raised four grounds of objections LPA Nos. 179/2021, 180/2021 and 185/2021 that the judgment passed based on Indian School, Jodhpur & Anr. Vs. State of Rajasthan^[3] was totally in a different scenario. Second was that the decision passed in the above case was done by the Supreme Court under the Article 142 of the Constitution which is not available to the single judge bench who passed the order in the present. Moreover, only 40-60 % of tuition fee was used, rest was unused and hence could be utilized towards other expenses.

The Respondent prays that no fees except tuition fees will be charged from the parents during the lockdown. Annual and Development Charges can be charged from the parents on pro rata basis only on monthly basis after completion of the lockdown period and all the charged fees be refunded to the parents^[4].

Prayer/relief claimed by the respondent

The appellant asked for the relief that the orders passed by the Respondent shall be quashed as they are unconstitutional and ultra vires. The Respondent requested for stay on the order.

Single bench decision

The court held that DOE only has the power to interfere via regulating the school fees when the unaided schools charge fees which leads to commercialization of education. But the Respondent needs to prove it so, any impugned order which hinders a private school from charging fees as fees is the only medium for unaided school to pay for the expenses, would be a prejudice to their financial condition and harm to school. 

The division bench, in the case of Naresh Kumar vs. Director of Education & Anr^[5]., observed and said that:- “the schools that are unaided as notifying by the name do not receive and help financially from the government and so for them collecting fees is the medium to incur the expenses as money does not grow on trees.”

The court issued the following directions, to establish justice between both the parties, the directions which were to be followed by both the parties were as provided under:

(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 2019-20, 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 2020-21.  

(ii) The students/parents shall pay the fee in six months before 05.08.2021 as noted in our order dated 08.02.2021.  

(iii) The appellants are free in deciding that if more concessions can be given by them or if they want to have some different pattern provided to the students/parents not in regard of the above mentioned as in over and above what has been mentioned in (i) and  (ii).

(iv) No student shall be refrained from availing education due to not being able to attend physical mode or online mode classes because of the reason of non-payment of fees, or fees pending/due including the instalments, referred to above, and as such results of the exams held shall be declared for all the students and not leaving any student behind due to non-payment of fees or any such thing.

(v) The school authorities should behave in accordance with the circumstances, sympathetically towards requesting applications if made by any student/parent in relation to difficulty in payment of annual school fee for the concerned year 2020-2021.  

(vi) No student from class 10th and 12th shall be refrained from the conduct of board exams by the school authorities due to the reason for non-payment of fees, or fees pending/due. Affidavit from the parents shall be undertaken.

(vii) The provisions mentioned above shall not affect the payment of fees for the financial year 2020-2021.

The directions passed by the court from para. (i) to (vii) is applicable mutatis mutandis on the petitioners. However, clause (ii) must be modified, the payable amount by students concerned will be paid in six monthly installments w.e.f. 10.06.2021.”

The court dismissed the plaint and all other pending applications.

The decision by the Division Bench

The division bench of Justice Rekha Palli and Justice Amit Bansal upheld the decision given by the single judge bench dismissing the appeal.

Conclusion and analysis

The case involves the question of law whether the DOE had the jurisdiction in fixing fees of unaided educational institutions and keep a check on them if they find a reason to believe that the schools are charging unnecessary fees from the parents of the students.

The state considers it its duty to protect the parents of the children from such over-the-top fees. The state also has the duty to ensure that every child below 14 years of age must have education and to do it the state open government-aided schools but there is privatization in the education sector when unaided schools are also available for education this should be the sole purpose of the schools to ensure the education of children if they are taking on themselves this duty of the state.

The court arrived at a similar conclusion and validated the act by the DOE and also keeping in mind the needs of the schools to bear the expenses came out with the conclusion which solved the problem of both the parent’s critical situation regarding payment of lump sum fees amount and for the school organization by allowing them to charge a fee in six-month instalments and with deduction of 15% of the total fee to be paid, hence helping both the parents and the school organization.

References

[1] Delhi Abhibhavak Mahasangh vs. Union of India & Ors, 1999(49) DRJ 766(DB)