It is most heartening, most refreshing, most rejuvenating and most remarkable to learn that the Calcutta High Court while exercising its constitutional writ jurisdiction on appellate side in a recent, remarkable and righteous judgment titled Vineet Ruia v. Principal Secretary, Department of School Education, Government of West Bengal and Others in WPA 5890 of 2020 with others delivered on October 13, 2020 after hearing was concluded on October 6, 2020 has slashed the fees charged by private schools in the State by 20%. The two Judge Bench of Calcutta High Court comprising of Justice Sanjib Banerjee and Justice Moushumi Bhattacharya observed clearly, categorically and convincingly that, “From the month beginning April 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 percent reduction of fees across the board.” Rightly so!
To start with, the ball is set rolling in para 1 of this latest, landmark and extremely laudable judgment authored by Justice Sanjib Banerjee for himself and Moushumi Bhattacharya penned her own concurrent judgment agreeing with what Justice Sanjib Banerjee held wherein it is put forth that, “An invisible virus, that has threatened the dominant species on the planet and has spawned an array of bewildering reactions across diverse spheres of life, has also made sure that it leaves its impact in the judicial arena. From bringing to life the act-of-God clause that was mostly regarded as a redundant appendage in contracts to redefining the rules of human engagement, the pandemic has almost been all pervasive. The present lis is born in its wake: upon a unique situation arising where students have been kept away from academic institutions for months together, prompting their parents or guardians to question why regular fees ought to be paid in such a scenario. These five petitions canvass a point of public interest that private unaided schools across the State should allow substantial concession in fees as the physical conduct of classes has not been possible for more than six months and normal functioning may not resume in a full-fledged manner for several months more.”
While elaborating further, the Bench then holds in para 2 that, “The lead petition is WPA 5890 of 2020. In due course the other petitions, though filed earlier, have been heard together. In the principal matter, parents or guardians of students of about 145 schools, mostly in and around the city, have joined together to suggest that these private institutions cannot be allowed to make merry and charge the usual fees despite no classes being conducted for a considerable period and, thereafter, classes being resumed on the online mode in some cases with very limited resources being used by the schools. The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools.”
For the sake of brevity and paucity of space, it would be in the fitness of things to discuss the most significant para 61 of this commendable judgment wherein it is pointed out that, “In the light of the foregoing discussion and purely as a one-time measure necessitated by the present unprecedented situations, the following directions are issued:
i. There will be no increase in fees during financial year 2020-2021.
ii. From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible. For instance, additional charges for laboratory, craft, sporting facilities or extracurricular activities or the like will not be permissible during the months that the schools have not functioned in the physical mode. Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 percent of the quantum charged for the corresponding period in the financial year 2019-20.
iii. The minimum figure of 20 percent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.
iv. For the financial year 2020-21, a maximum of five per cent excess of revenue over expenditure will be permissible; the balance excess (without any mathematical precision) should be passed on by way of general concession or special concession in individual cases of extreme distress. If any school makes a loss as a consequence of following these directions, such loss can be made up in course of the next two financial years, 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
v. No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
vi. There will be no increase in salaries of teachers or of other employees during financial year 2020-21. If any individual school has given effect to a higher pay-scale, the difference must not be realised out of the school fees during the financial year 2020-21.
vii. Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction. However, if any set of guardians or parents obtains the benefit, no questions in such regard can be asked.
viii. In addition to the across-the-board reduction, every school will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Every application in such regard must be supported by the financial statements of the parents or guardians so as to justify the request. The financial statement should be certified by any qualified auditor and accompanied by a declaration by the applicant parent or guardian verifying the particulars to be true and correct.
ix. Each application will be considered on merit. Such applications have to be filed before the respective schools by November 15, 2020 and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020. Till the decision on the individual application is communicated and for a further period of two months thereafter, no coercive action should be taken against the relevant student. In other words, the student must be allowed every facility that a similarly placed other student would enjoy, including the name of such student being put forward for the board examinations, subject, however, to the fees payable to the board being tendered within time on behalf of the relevant student.
x. When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs 1000/-, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection, in full or part, of the request being communicated to the relevant parents or guardians.
xi. The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal (the occupant of the higher of the two offices, if they are two) of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020. The committee will be empowered to engage an auditor or a firm of chartered accountants to assist the committee. The committee and the auditor appointed by the committee will look into the extent of reduction or exemption or the like sought and the feasibility thereof on the basis of the accounts of the relevant school for the financial year 2019-20 and the financial figures for the first six months of the financial year 2020-21 as certified by the auditors of the relevant school. The two other members of the committee will assist the chairperson of the committee to arrive at an appropriate decision, but the chairperson will have the final say therein.
xii. The deposit obtained by the committee will be retained by the committee and Rs. 800/- therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, Rs. 500/- per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain. Any ultimate surplus has to be made over to court for the same to be dealt with in accordance with law. No remuneration is provided for any of the members of the committee and the court hopes that the members nominated graciously accept this onerous task in the larger public interest.
xiii. By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed. The e-mail ID should be communicated to Advocate-on-record for the petitioner in the lead matter for it to be disseminated to all parents and guardians. The money required to be deposited will be tendered in cash to a secretary or manager as may be indicated by the committee. The application will be deemed complete only upon the grievance in writing being forwarded to the relevant e-mail account and the deposit being made. No application will be entertained without the deposit being tendered. Full accounts of the monies received and expenses incurred must be maintained and presented in court, when sought.
14. All schools should have the accounts for the financial year 2019-20 ready and also the accounts for the period of April to September, 2020 ready to be furnished within two days of the demand therefor by the committee.
xv. Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.
xvi. The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof on cogent grounds. Till a dispute between the parents or guardians of a particular student and the relevant school is finally decided, no coercive action against the student may be taken by the school, whether to disallow the student from attending class in any form or taking any examination or for the candidature of such student being forwarded for any board examination (subject to the board’s fees being tendered).
xvii. The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020 for the same to be put upon a website that such petitioner must set up for this purpose. The fees payable for every month and the other periodic charges, like session fees, for the entire financial year 2020-21 should be indicated by the individual schools and put up on the website to be set up by the petitioner in WPA 5890 of 2020 by October 31, 2020.
xviii. By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020 should be tendered on behalf of all students of the 145 schools. To the extent the parents or guardians of the students apply for further reduction or waiver or exemption, they can pay the amount as possible by November 30, 2020 and copies of the applications for further reduction or the like should be deposited by such date.
xix. With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.
xx. No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.
xxi. For the purpose of clarity, it is reiterated that fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.
xxii. There will be no refund of the fees already paid. However, to the extent fees have already been paid which are in excess of the directions contained herein, suitable adjustments will be made over the remaining months of the financial year, unless the parents agree in writing otherwise.
xxiii. The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.
xxiv. The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.
xxv. No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.
xxvi. These directions will continue till such time that physical functioning of the schools resumes in the normal course.
xxvii. The above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than Rs. 800/-. However, such schools may voluntarily take such measures as deemed fit. The exception carved out is perceived to be reasonable since the quantum of concession in such cases will be nominal and the elaborate exercise may be unnecessary as the extent of possible profit is unlikely to be significant. But the monthly fees payable in such cases must be put up on the notice-boards and websites as in the other cases and without any exception.
xxviii. The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation. However, only the disputes pertaining to the 145 schools included in WPD 5890 of 2020 may be referred to the committee constituted herein; and not the disputes pertaining to other private unaided schools in the State.”
While clarifying that this order is only a one-time measure under the present extraordinary circumstances, it is then made clear in para 62 that, “It is made clear that this order may not be used as a precedent for the regulation of fees in the schools in future. The present measure may be seen as an extraordinary step in an unforeseen situation to somewhat relieve the parents and guardians of students of their financial burden in the economic distress brought about by the pandemic.”
Furthermore, it is then made clear in para 63 that, “The writ petitions will remain pending till the physical classes are resumed in the schools and the directions contained herein are worked out completely. The petitions will appear next on December 7, 2020 to monitor the progress in the implementation of the directions contained herein.”
What’s more, it is then directed in para 64 that, “The accounts submitted by the schools in sealed covers should be retained in their present condition by the Registrar-General. The accounts will not be looked into by any person or the sealed covers opened without the express previous leave obtained from the court.”
Not stopping here, it is then also directed in para 65 that, “Out of the deposit made by the petitioners pursuant to the previous directions, a sum of Rs. 20,000/- will be paid on account of secretarial services obtained by the two-member committee appointed earlier. The Registrar-General should ascertain from Prof. Suranjan Das the mode and manner of disbursement of such amount and act accordingly. The court expresses its appreciation for the work done by such committee and its report. The accounts submitted before the committee should be retained in strict confidence by the office of Prof. Suranjan Das and destroyed after three months unless contrary directions are issued by this court.”
Justice Moushumi Bhattachraya who wrote her separate concurring judgment too agrees with her senior colleague – Justice Sanjib Banerjee when she says that, “I entirely support his reasons leading to the conclusions.” She also said that, “Writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under part III of the Constitution.” She further referred to the Supreme Court’s judgment in the case of TMA Pai and recounted that despite recognizing the right of minority institutions to administer their affairs, the Court reprimanded them against profiteering and commercializing of education. In this backdrop, she also said that, “In the case at hand, our aim is not to intermeddle in the internal affairs of these institutions or supplant the present governing bodies of these institutions with a court appointed agency, but to figure out a best-fit in a disparate set of schools and guardians and that also for a limited period of time, with the paramount interest of the students in mind.”
It must also be borne in mind that as for privacy, Justice Moushumi clarified that, “The right to privacy, taken at its most obvious connotation, is the right of a person to draw his or her boundaries in terms of sharing of information. It is a pro-individual right where the person can choose the company he keeps and the time and the agency to disclose what he wishes to. It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution.”
It is a no-brainer that the bedrock of this judgment are the directions that Justice Sanjib Banerjee has listed so exhaustively. So it merits no reiteration that these directions must be implemented in letter and spirit at the earliest. It is rightly concluded that, “It is obvious that schools have incurred less expenditure over a prolonged period of time.” No doubt, schools must comply with this judgment in totality!
Sanjeev Sirohi