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The global COVID-19 outbreak is undoubtedly a story of human tragedy that has disrupted all industries and has put a significant population of the world under lockdown. This has prevented efficient working of schools and colleges by interrupting existing operations and put a halt in their academic activities.
All the schools in the State of Himachal Pradesh were ordered to be closed w.e.f. 14.03.2020 due to nationwide lockdown and curfew imposed by the unprecedented situation emerging from the COVID-19 pandemic.
Amidst the lockdown and disruption of an academic session, a notification dated 27.05.2020 was issued by the Director, Higher Education, Himachal Pradesh regarding the collection of fees and other charges by the Privately Managed Schools in the State during COVID-19 lockdown period.
Facts of the Case:-
The Academic Session of the winter closing schools (January- December) in the State of Himachal Pradesh has already been started by the time of the imposition of lockdown. A communication was addressed to the management of all private schools by the Government of State on 27.03.2020 regarding extension of the last date to deposit school fees from 30.03.2020 to 30.04.2020 because of the 21 days nationwide lockdown imposed by the Government of India.
Also, it was ordered that private schools would restrain from forcing the parents to deposit the school fees/ funds as well as from hiking the same. On 27.05.2020, the eight-points proposal approved by the Governor was circulated by the Director of Higher Education in the form of direction for compliance to all the private schools and was ordered to ensure strict adherence to the directions.
Two contrary writ petitions have been made on account of the proposal issued. A writ petition, primarily seeks to quash the proposal was preferred by a registered association of 45 private schools of Himachal Pradesh, affiliated to Central Board of Secondary Education, and another Writ petition was preferred by a parent seeks enforcement of the same qua a specific private residential/ boarding school.
Issues of the case:-
Arguments Advanced:-
It has been contended on behalf of the Petitioner (School association) that in the case T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481 and P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, it was held that any action of the State seeking to regulate or control admissions including interference in the fee structure of private unaided educational institutes will constitute a serious encroachment on the right and autonomy of such institutions.
The state cannot interfere in the day-to-day administration of private unaided educational institutions in respect of admission of students, recruiting of staff, and quantum of a fee to be charged because, in case of unaided private schools, maximum autonomy has to be with the management about the administration.
Also, at the school level, it is not possible to grant admission based on merit. It was also contended that the examination results at all level of unaided private schools are far superior to the results of the government-maintained schools in the state as they do not provide the same standard of education and curtailing the income of private schools will disable them to provide best facilities because of a lack of funds.
However, it has been contended on behalf of Respondent (State of Himachal Pradesh) that the restriction by the notice has not encroached upon the right of the schools to fix their fee structure, and such restriction is temporary because of necessity. The impugned notification has been issued in exercise of powers conferred under Section 14 of H.P. Private Educational Institutions (Regulation) Act 1997 (In short Act of 1997) read with Rule15 & 16 of the Himachal Pradesh Educational Institutions (Regulations) Rules, 2003 (in short 2003Rules) and other enabling provisions of this Act and Rules framed thereunder.
Therefore, such restrictions imposed on private schools under impugned notifications are within the ambit and scope of the object of the 1997 Act. Also, the notification has been issued under Section 23 and Section 40 of the Disaster Management Act, 2005, which emphasized the State plan and plan of Departments of State.
Observation of the Court:-
It was observed by the Court that 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 institution, commercialization or profiteering by them is not permissible (T.M.A Pai Foundation v. State of Karnataka).
To see that the educational institutions are not indulging in commercialization and exploitation, the Government is equipped with the necessary powers to take regulatory measures and to ensure that these educational institutions keep playing a vital and pivotal role to spread education and not to make money.
In Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549, it was observed that it is open to the State to issue executive orders even if there is no legislation in support thereof under Article 162 of the Constitution of India.
Judgment:-
It was held by the Court that for fixing the fee structure various considerations to be kept in mind such as infrastructure, facilities available, the investment made, etc. The notification issued is only a regulatory measure and does not take away the powers of the educational institution to fix their fee under Section 9(1) of the 2007 Act.
Also, the Act does not apply to students of boarding schools, it only applies to day scholars. The concept of whether “Tuition Fee” can be held to apply to a complete residential school whichdoes not compartmentalize the fees/charges under different heads, is a question which needsconsideration by the State. Hence, with these observations and directions, both the writ petitions are disposed of.
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