Manu SC 0338 2021 Jud20210512164759
Manu SC 0338 2021 Jud20210512164759
in
REPORTABLE
a
b
CIVIL APPEAL NO. 1724 OF 2021
(ARISING OUT OF SLP (C) NO. 27881 OF 2019)
VERSUS
AND
d
CIVIL APPEAL NO. 1736 OF 2021
(ARISING OUT OF SLP (C) NO. 2494 OF 2021)
JUDGMENT
e
A.M. Khanwilkar, J.
common judgment.
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)
h
No …………. of 2021 @ Diary No(s). 6803 of 2020;
Bench of the same High Court, which followed the earlier decision
Constitution of India. e
and 60 per cent from the schools affiliated with Rajasthan Board of b
i.e., five parents, three teachers and one principal. This imbalance
and the parents of the wards and teachers, who would form part of
d
the SLFC. Pertinently, the provisions of the impugned Act of 2016
wards during the relevant period. Effectively, the parents who are
they would not be accountable for anything that finally impacts the h
and binding for next three years with no provision for increase in
c
case of contingency of funds needed for new development or general
purpose.
d
h
8 for short, “the DFRC”
under the Act of 2016. The working of the impugned Act of 2016
a
would eventually stifle the growth and development of the private
unaided schools and that all schools — small and big, would be
are vague, subjective and irrelevant. The crucial factors such as for
d
making a good school are not even adverted to in Section 8 of the
10
Parliament being the RTE Act 11 and the Rules12 framed thereunder.
Hence, it was not open to the State legislature to enact a law on the
c
same subject.
10. These points were urged even before the High Court at the
same on the argument that the impugned Act of 2016 was in the
11
the rival claims before the DFRC and the decision of that Authority b
vs. State of Karnataka & Ors.13, P.A. Inamdar & Ors. vs. State e
g
Pradesh & Ors.17. According to the respondentState, the setting
12
2016, does not ipso facto make the same constitutionally suspect. e
countenanced.
13
12. The respondentState would urge that the High Court in the
a
impugned judgment after adverting to the exposition of different
the impugned Act of 2016 vide common judgment and order dated
observing as follows:
14
15
16
15. After cogitating over the rival arguments and considering the
a
impugned judgment, we have no hesitation in observing that
although the High Court was right in its conclusion, it has disposed
fees. But at the same time the consistent view of this Court has
17
ensure that the private unaided schools keep playing vital and
d
pivotal role to spread education and not to make money. The
which are excessive, it has complete authority coupled with its duty
18
private unaided school is free to devise its own fee structure, but
“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 g
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
h
18 2009 SCC Online MP 760
19
20
91. Thus, when there can be regulators which can fix the
charges for telecom companies in respect of various services
g
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
h
19 (1992) 2 SCC 343
21
h
20 supra at footnote No.9
22
f
20. The question is: whether the impugned enactment stands the
23
in a proper manner in time. For that reason, the Act of 2016 came
c
into being to provide for regulation of collection of fees by schools in
school” has not been defined. It must, however, follow that all other
f
private schools, other than aided schools would qualify that
24
It is, thus, clear that the Act of 2016 applies to all the schools
on its behalf shall collect any fee in excess of the fee fixed or
g
approved under the Act of 2016. The expression “fee” has been
25
thus:
26
25. After adverting to Section 8 and Rule 10, it is amply clear that
e
the relevant factors for determination of reasonable school fees
under the Act of 2016 and Rules framed thereunder have been duly
27
school for the relevant period. The location of the school is not the b
regarding fee structure as it is, that would be the fees under the Act h
28
of 2016 for the relevant period and then there would be no need for
a
the DFRC to adjudicate upon the fixation of fee in the concerned
school.
29
30
the school within thirty days from the beginning of each academic
a
year. Section 4(1)(b) envisages that every teacher of the school and
education under the RTE Act, may also fit into this category even e
This provision can be read down to mean that the draw of lots
g
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 h
31
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
the wards who are already admitted in the school and are pursuing
not take the matter any further much less to declare the relevant
appellants as such. h
32
30. The composition of the SLFC has been specified in Section 4(2)
a
(a) of the Act of 2016. It consists of a Chairperson being
for one academic year and the member chosen from Parent e
observe that the constitution of the SLFC and for the nature of its
g
function, no fault can be found with Section 4 of the Act of 2016
33
b
32. Section 6 deals with regulation of fees in private schools and
34
particular to determine its own fee structure for the relevant period.
g
The consequence of proposal not being accepted by the SLFC is a
35
obliged to decide the reference one way or the other. Indeed, that
34. The stipulation such as in Section 6(3) of the Act of 2016 that
Inamdar (supra).
Management may determine its own fee structure, but may finalise
36
stakeholders on board. The SLFC does not sit over the proposal
aspect.
37
the issue of fee structure for the relevant period between the school
c
Management and the parents’ representative being part of the
38
Secondary Education
(c) Nominee of Director Member; a
Sanskrit Education
(d) Treasury Officer of Member;
District Treasury situated
at Revenue Division
Headquarter b
(e) Deputy Director, Exofficio Member
Elementary Education Secretary;
(f) two representatives of Member;
private schools
nominated by Divisional c
Commissioner
(g) two representatives of Member.
parents nominated by
Divisional Commissioner
d
(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 e
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 f
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
g
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
a
members are official members. It is a broadbased independent
tenure and is not a member of the SLFC of any school within the
40
against 25 per cent quota of free education under the RTE Act.
c
Thus understood, even Section 7 of the Act of 2016 does not violate
would keep in mind that his/her nominees are from the schools e
within the divisional area and at least one amongst them should be
41
42
43
Section 9 deals with powers and functions of the DFRC inter alia to
before the said Committee. It can regulate its own procedure for
the discharge of its functions and exercise all powers of a civil court
g
under the Code of Civil Procedure, 1908.
44
is that Section 9(5) makes it amply clear that the DFRC has no
cent increase in such fee till the final decision of the DFRC, as
45
final and conclusive and shall be binding on the parties for three e
46
the validity of the relevant provisions of the Act of 2016, must also
f
fail with regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the
Rules of 2017.
47
its own.
information about tuition fees, term fees and fees for cocurricular f
48
49
the powers and functions specified in the Act of 2016. Rule 6 reads
thus: b
50
51
These Rules deal with purely procedural matters and are in line
d
52
(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.”
g
53
54
51. The last assail was on the argument that the field regarding
a
(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 b
and tenuous. For, the purpose for which the RTE Act has been
c
enacted by the Parliament is qualitatively different. It is to provide
collect any capitation fee, does not mean that the Central Act deals
f
with the mechanism needed for regulating fee structure to ensure
payment other than the fee notified by the school. On the other
55
that the field occupied by the Central Act is entirely different than b
the field occupied by the State legislation under the impugned Act
challenge.
d
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
53. These appeals assail the common judgment and order dated
ORDER
57
d
55. Before expiry of the period noted in the aforementioned order,
58
(Saurabh Swami)
I.A.S.,
Director, Secondary Education,
Rajasthan, Bikaner. b
No.ShivraMa/PSPC/A2/60566/201920
Dated 07.07.2020”
56. The private unaided schools then filed writ petition(s) before c
and 07.07.2020. The learned Single Judge of the High Court Bench
d
at Jaipur considered the prayer for interim relief and vide order
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 f
reads thus:
g
“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 h
59
60
18. Prima facie, this Court is also of the view that under the
Act of 2005, the authorities would have jurisdiction to lay a
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 b
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
c
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 d
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 e
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
f
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 g
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.”
h
61
a
57. Against this decision, intracourt cross appeals came to be
from several counsel that they were unable to interact with the c
62
63
64
65
No.ShivraMa/PSP/C/A2/60566/201920
Dated 28.10.2020”
g
59. This order was assailed by some of the private schools before
the High Court Rules was required to proceed before the Single h
66
60. Accordingly, the appeals and writ petitions were heard and
parents and their wards across the State, it was open to issue
g
67
power under which the same has been issued by the Director,
h
21 for short, “the Act of 2005”
68
statutory forum for determination of just fee under the Act of 2016. b
“In view of the above discussion, the rest of the petitions are
disposed of as under: c
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
d
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. e
69
had worked out due to efflux of time. For, by these orders the
g
fees for specified period as noted therein; and that period had
already expired. Thus, our focus in this judgment will be and ought h
70
academic year 202021 only, including the basis on which the same
school fee charged from their students was fixed by the SLFC in its
c
meeting held on 28.10.2017, by following procedure prescribed
under the Act of 2016 and the Rules framed thereunder. The same
concerned only with the school fees pertaining to the academic year
71
school fees once fixed by the SLFC for the relevant academic year b
vide order dated 28.10.2020. The fact that the parties are at liberty
c
to challenge the modification/reduction of school fees before the
source of power under which it has been issued. At best, it can rely
can be no rigid uniform fee structure for all the private unaided h
72
schools in the State. The High Court had erroneously assumed that
a
the power exercised by the Director, Secondary Education was
school fees.
d
respect of school fees already fixed under the Act of 2016. Reliance e
carrying out the purposes of that Act or for giving effect to any of
73
Therefore, it was not open to reduce the same much less limit it to
2016 to review or reduce the school fees once approved by the SLFC
other hand, as per Section 6(3) such school fee is binding on all e
concerned for three academic years, which in the present case was
74
completed the entire syllabus for the relevant academic year; and
also, whether the liability of the school towards teaching and non b
66. It is then urged that the High Court committed manifest error
Secondary Education has no such power under the Act of 2005 nor
75
the authority concerned under that Act. A National Plan, State Plan b
76
Diseases Act, 202022 by the State to justify the stated order has e
by the SLFC and is in force for the concerned academic year. The
h
22 for short, “the Act of 2020”
77
regard to the timings when the school should be opened and closed
sustained in law nor the reasons weighed with the Division Bench e
That the right to fix the school fees is a fundamental right under
h
78
for the minority community and for other persons to resort to it.
Learned counsel has also relied upon the decision dated 20.05.2020
fee proposal of the school Management and that the quantum of fee g
79
the decision of the Delhi High Court in Naresh Kumar vs. Director
and Cultural Trust (Registered) & Ors. vs. Union of India &
c
Ors.28 wherein the Constitution Bench opined that the RTE Act will
71. Per contra, learned counsel appearing for the State and
g
representing the parents submit that due to extraordinary and
80
a long period, the parents are not in a position to pay the fixed
a
school fees. It is only because of large number of representations
school fees and finally to reduce the school fees in terms of order
kept in mind and the court must uphold the validity of the
g
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
a
Mohammed Suleman Rehmatkhan vs. State of Gujarat &
b
72. According to the respondents, Section 72 of the Act of 2005
gives an overriding effect over all other laws and, therefore, the
82
Panchayat & Ors.31, M.T. Khan & Ors. v. Govt. of A.P. & Ors.32
a
under its parens patriae powers in providing care to its citizens and
the fact that even the High Court had expressed a benign hope that
e
the State Government ought to find out some arrangement, it
Constitution.
g
75. It is also urged that the direction given by the Director,
83
and, therefore, the direction given to the State in the interim order
c
passed by this Court on 08.02.2021 to ensure that all government
school are settled within one month from the date of the order, was d
consuming process. e
77. Learned counsel for the State in his written submission has
84
85
(by Mr. Sushil Sharma and others) contending that online classes
Boards nor any feedback is taken from the parents about the g
86
that this Court ought to direct waiver of complete fees for the
c
duration schools were closed and direct the State to prescribe a
fixed fee for online classes to a standard uniform charge on par with
necessary.
schools in the State of Punjab which are sub judice. In our opinion,
87
charged for the period the schools have remained closed in the
which are required for physical running of the school and which
88
89
Ordered accordingly.
Heard in part.
Hearing of the aforesaid cases, shall continue on 15th
February, 2021.”
f
83. Learned counsel appearing for the appellants had stated that
90
learned senior counsel, Mr. Puneet Jain and Mr. Romy Chacko, b
learned counsel for the appellants, Dr. Manish Singhvi and Mr.
91
capacity of one and all. A large number of people have lost their
a
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 b
87. The matter had reached the High Court and by way of interim e
these appeals.
92
88. The State cannot be heard to rest its argument to defend the
a
impugned order dated 28.10.2020 as having been issued in light of
have been invoked by the State to justify the exercise of that power.
e
First, it is competent to do so under Section 18 of the Act of 2016
the measures under the Act of 2005. Lastly, such direction could
93
b
the State Government in seriatim.
91. The source of power derived from Section 18 of the Act of 2016
conflict with the mandate of the Act and the Rules. Additionally,
94
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 b
altering the school fees unilaterally after it is fixed under the Act of
f
2016 in any manner for the specified period. If we may say so, it
the concerned authority under the Act. By its very nature, the
95
also the binding effect thereof for the specified period of three
a
academic years on all concerned. Thus understood, the direction
28.10.2020 does not satisfy the twin tests of being consistent with b
the provisions of the Act; and also being necessary or expedient for
carrying out the purposes of the Act, as the case may be.
c
93. Suffice it to observe that the order dated 28.10.2020 being in
the fee structure much less which has been finalised and fixed by
28.10.2020.
96
by the legislation in the form of the Act of 2016 and the Rules
finalise its fee structure, but also declares that the fee so finalised
97
in trust for public good. The Court opined that there was no
fact that in the proceedings before the High Court the State g
Government had ratified the impugned order, does not take the
98
97. Even the exposition in Rai Sahib Ram Jawaya Kapur &
b
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
c
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 d
including the State legislation i.e., the Act of 2020. In fact, the
e
State legislation deals with the subject of epidemic diseases and its
99
parties with which the State has no direct causal connection, in the
c
guise of management of pandemic situation or to provide
“mitigation to one” of the two private parties “at the cost of the
but cannot arrogate power to itself much less under Article 162 of e
fraught with undefined infinite risk and uncertainty for the State. h
100
For, applying the same logic the State Government may have to
a
assuage similar concerns in respect of other contractual matters or
Constitution. That would not only open pandora’s box, but also
unwieldy for the State and eventually burden the honest tax payers
d
who also deserve similar indulgence. Selective intervention of the
State in response to such demands may also suffer from the vice of
may be. The State cannot exercise executive power under Article
f
162 of the Constitution to denude the person offering service(s) or
99. It is one thing to say that the State may regulate the fee
101
102
tuition fees on the assumption that the schools will not be required
a
to complete the course for the academic year 202021. This
their full salary and emoluments for the relevant period. For, no
Further, on the face of it, the direction given is inconsistent with the
103
any law other than the Act of 2005. This provision, however, would
102. For that, we may usefully refer to Section 23 of the Act of 2005 d
which provides for the contents of the plan for disaster management
104
103. Going by the scheme of the Act of 2005, the State Authority e
37 Section 2(i) “mitigation” means measures aimed at reducing the risk, impact or
h
effects of a disaster or threatening disaster situation;
105
to minimise the impact of such disaster and for that purpose, resort
106
private unaided school albeit fixed under the Act of 2016 and which b
level for carrying out the purposes for which the Act has been
107
a
105. The Authorities created under the Act of 2005 are expected to
f
106. It is also useful to advert to Section 18 of the Act of 2005
108
g
107. The obligation of the State Government for the purpose of
reads thus:
h
109
110
c
108. The corresponding responsibilities of departments of the State
111
d
(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 e
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; f
(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;
g
(vi) providing drinking water, essential provisions,
healthcare and services in an affected area;
112
a
109. The State Executive Committee constituted under the Act of
113
g
110. Having regard to the purport of the Act of 2005, it is
114
case, the impugned order has not been issued by the State
the same was issued under the directions of the Chief Minister of
the State. For, the Chief Minister is only the Chairperson (Ex officio)
c
of the State Disaster Management Authority established under
The Act of 2005 is not a panacea for all difficulties much less not
g
concerning disaster management [Section 2(e)] as such. As noted
115
112. For the same reasons, reliance placed on the provisions of the
116
117
118
on their own for the academic year 202021 and to give concession
25 per cent of the annual fee to their students. In other words, the
must succeed. However, that does not give licence to the appellants h
119
also be taken that, due to complete lockdown the schools were not
120
relevant period. Being fee, the principle of quid pro quo must come b
furnished by either side about the extent to which such saving has
c
been or could have been made or benefit derived by the school
attractive, but that arrangement does not provision for the amounts g
121
this assumption is on the higher side than the actual savings by the
education and not make money. That they must willingly and
d
proactively do. Hence, collection of commensurate amount (15 per
cent of the annual school fees for academic year 20202021), would
Management.
for the academic year 202021 after taking into account all aspects
122
08.02.2021.
123
e
(v) If any individual request is made by the
g
(vi) The above arrangement will not affect collection
124
concerned parents/students.
125
e
120. While parting, we must note that the respondentState of
126
We were conscious of the fact that that is not the subject matter of
a
the appeals before this Court. Nevertheless, such direction was
issued taking into account totality of the situation and to give relief
121. We must also note that we have not dilated on each of the
f
reported decisions relied upon by the parties, as it is not necessary
in those decisions. g
127
ORDER
a
In view of the above,
b
of the Act of 2016 and the Rules framed thereunder with
d
(b) The second set of appeals, however, are allowed in the above
128
c
………………………………J.
(A.M. Khanwilkar)
………………………………J.
d
(Dinesh Maheshwari)
New Delhi;
May 3, 2021.
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