On 18th December 2020, a Division Bench consisting of Hon’ble Justice Indrajit Mahanty and Hon’ble Justice Satish Kumar Sharma heard the case of Sunil Samdaria v. The State Government of Rajasthan via video conferencing with relation to the collection of school fees.
Facts of the case
The State Government of Rajasthan on account of the COVID-19 Pandemic deferred the collection of school fees by Private schools recognized by Primary and Secondary Education Departments for three months, through an order passed in April 2020. The deferred collection of school fee was further extended till the opening of the schools through an order passed in July 2020.
Thus, the above orders of the State Government were challenged through several writ petitions. The writ petitions were disposed of off through an order passed in September 2020, directing the schools’ management to allow the students to continue their studies online and allow schools affiliated with the Central Board of Secondary Education to deposit seventy percent of the total fees being charged for the year and sixty percent from the schools affiliated with Rajasthan Board of Secondary Education. This fee was to be deposited for the with the condition that on non-payment of the said fees, students would not be allowed to join the online classes.
Hence, several Special Appeal Writs were filed challenging the order passed in September 2020.
Contentions of the Appellants
Mr. Kamlakar Sharma, the Learned Counsel, contended that the State Government had no authority to issue directions regarding the collection of fees by the private schools. The Counsel contended that Article 162 of the Indian Constitution does not empower the State Government to issue such directions without making any law on the subject matter.
It was also contended that Section 43 of the Rajasthan Non-Government Educational Institution Act, 1989 empowers the State government to make rules with regard to school fees, but not with regard to the collection of fees.
Further, the State Government did not consider the situation of most schools, where all private schools were facing financial hardships. The only source of income for the schools was the school fee, and because of the reduction in the same, it became impossible for schools to meet minimum requirements. Thus, the orders of the State Government were arbitrary and unreasonable.
Contentions of the Respondents
Mr. Rajesh Maharshi, the Learned Counsel for the State, contended that if the directions issued by the Government were not acceptable either to the schools’ management or to the parents, they could take recourse to the mechanism of determination of school fees as per provisions of Rajasthan Schools (Regulation of Fee) Act, 2016 and Rajasthan Schools (Regulation of Fee) Rules, 2017.
Further, the directions were issued by the Government under the powers conferred by Sections 38, 39, 72 and 73 of the Disaster Management Act, 2005 which has an overriding effect on all other statutes. Further, Section 4(2)(g) of the Rajasthan Epidemic Diseases Act 2020, empowers the State Government to regulate the functioning of educational institutions which also covers the aspect of the collection of fees during the pandemic.
It was also contended that Article 162 of the Constitution of India empowers the State Government to use its executive power for issuing directions regarding the collection of school fees during the period of COVID-19 pandemic. Therefore, the orders issued by the State Government were done under the proper authority vested upon it.
Court’s Analysis
The Court observed that Courts cannot replace the policy decisions made by the State Governments under the powers conferred upon it by the Indian Constitution unless the policy was found to be arbitrary and unreasonable.
The Court referred to the case of The Secretary, A.P.D. Jain Pathshala and Ors. vs. Shivaji Bhagwat More and Ors. [(2011) 13 SCC 99], which held that the scope of Article 162 is wide enough to allow the State to issue administrative directions even if there was no enactment covering a particular aspect until the legislation makes the law on a particular subject.
The Court observed that the State government was empowered to take policy decisions and issue necessary directions for mitigation of the plight of the citizens under Disaster Management Act, 2005 and it is not obliged to consult the affected parties before issuing such directions.
Court’s Decision
The petitions were disposed of by the Court by issuing the following directions:
All the private schools recognized by the Primary and Secondary Education Department were entitled to collect school fees from the parents of their students. Moreover, all the private schools were directed to form necessary bodies required for special determination of fees within 15 days.
To prevent any unfair practice of collection of fees, the component of tuition fees would be specifically determined and for that purpose, all heads of the school fees shall be bifurcated. The schools’ management or the parents may take recourse of the provision of appeal/reference before a Divisional Fee Regulatory Committee/Revision Committee, as the case may be in case any of them are aggrieved of such special determination.
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