While noting that “no bias or any sort of partiality or unfairness can be imputed on the part of the State Government as it has tried to strike the balance between the schools’ management and the parents”, the Rajasthan High Court most recently on December 18, 2020 in a latest, learned, landmark and laudable judgment titled Sunil Samadria v. State of Rajasthan and others along with connections petitions has laid down explicitly that during Covid, CBSE and State Board Schools are entitled to collect 70 and 60 percent tuition fee respectively. The Bench of Chief Justice Indrajit Mahanty and Justice Satish Kumar Sharma which was hearing Special Appeal Writs which were filed challenging the order of Single Bench dated 07.09.2020, held clearly, cogently and convincingly in no uncertain terms that no case is made out for interference by this Court into the policy decisions of the State Government. Very rightly so!
To start with, Justice Satish Kumar Sharma who authored this judgment for himself and Chief Justice Indrajit Mahanty sets the ball rolling by first and foremost observing that, “The brief facts given rise to these matters are that the State Government of Rajasthan in the wake of COVID-19 pandemic, vide its order dated 09.04.2020, deferred the collection of school fees for 3 months by the private schools recognized by Primary and Secondary Education Departments. Subsequently, vide order dated 07.07.2020, the above deferment of collection of fees was extended till the opening of the schools with the stipulation that the name of any student shall not be struck off for non-payment of school fees.”
Needless to say, it is then brought out in the next para of this judgment that, “Above orders of the State Government were challenged by way of S.B. Civil Writ Petition No. 7564/2020; Society of Catholic Education Rajasthan Vs. State Government of Rajasthan And Anr., SBCWP No. 8835/2020; NISA Education And Anr. Vs. State of Rajasthan And Anr., SBCWP No. 8826/2020; School Shiksha Pariwar Sanstha and Anr. Vs. The State Government of Rajasthan and Anr., SBCWP No. 7609/2020; Progressive Schools Association vs. State of Rajasthan And Anr.”
As a corollary, what then follows is then stated in the next para that, “S.B. Civil Misc. Stay applications filed in the above SB Civil Writ Petitions were disposed of vide order dated 07.09.2020 with the directions to the schools’ management to allow the students to continue their studies online and allow them to deposit 70% of the tuition fees element from the total fees being charged for the year. This 70% of the tuition fees was to be deposited for the period from March 2020 in three installments with the condition that on non-payment of the said fees, student(s) may not be allowed to join online classes but they shall not be expelled from the school. Above mentioned Special Appeal Writs came to be filed, challenging above order dated 07.09.2020.”
Of course, it is then pointed out that, “During the course of hearing, on 23.10.2020, Mr. Rajesh Maharshi, Learned Additional Advocate General submitted before the Court that a committee has been constituted by the State Government for determination of fees to be charged by the private schools for the period of lockdown imposed due to COVID-19 pandemic and the recommendations of the committee shall be filed on 02.11.2020. On the objections raised on behalf of the private schools, the State Government was directed to issue necessary directions by 28.10.2020 positively, regarding interim fees which the private schools shall be allowed to charge subject to final decision in this regard.”
For the sake of clarity, the Bench then states that, “In compliance of order dated 23.10.2020, the State Government vide order dated 28.10.2020 issued directions for collection of school fees after opening of the schools to the tune of 70% of tuition fees by the schools affiliated with the Central Board of Secondary Education and 60% from the schools affiliated with Rajasthan Board of Secondary Education on the basis of reduction of syllabus by the respective Boards. Before opening of the schools, it has been directed that the private schools which are conducting online classes shall be entitled to collect 60% of the tuition fees as “Capacity Building Fees” from the students who are availing the facility of online classes and that too after taking consent of the guardians. Such Capacity Building Fees shall be collected in equal monthly installments. The order dated 28.10.2020 also contains the process of determination of tuition fees in terms of Rajasthan Schools (Regulation of Fee) Act, 2016 and under the Rules of 2017 which envisage that separate heads of fees such as tuition fees, library fees, etc. It has also been directed that the fees prescribed for the last academic session will not be enhanced. The private schools shall not recover the fees for the facilities which have not been provided by them such as laboratory facilities, sports facilities, extra co-curricular facilities etc.”
To put things in perspective, the Bench then points out that, “On 07.12.2020 in the course of hearing, learned counsel for all the parties arrived at the consensus that looking at the urgency and importance of the matters and in order for final and expeditious disposal of the same, all the petitions filed regarding collection of school fees by the private schools for the lockdown period imposed due to COVID-19 pandemic should be decided by the Division Bench and the pleadings in all these petitions may be taken as complete and all the matters may be posted for final disposal. In view of this consensus, all such pending matters were directed to be listed before this Bench for final disposal. Learned counsel were required to submit brief written submissions. The applicants who submitted applications for impleadment were also allowed to file their written submissions.”
To say the least, the Bench then points out that, “Contempt petition no. CCP 773/2020, CCP 847/2020, and CCP 864/2020 have been listed but contempt petitions are to be dealt with separately. Therefore, the contempt petition no. CCP 773/2020 filed for the non-compliance of order dated 07.09.2020 by learned Single Bench be listed before the Single Bench. Other two contempt petitions no. CCP 847/2020, and CCP 864/2020 be listed before this bench separately. DBCWP (PIL) 6114/2020, DBCWP (PIL) 8163/2020, DBCWP (PIL) 9263/2020 and DBCWP (PIL) 9857/2020 involve other issues of public importance also which are to be dealt with separately, therefore, these CWP (PILs) be listed separately.”
More seriously, the Bench after noting that, “We have considered rival submissions of respective parties and perused the record and the judgments cited above,” then goes on to observe that, “Before adverting to the legal aspects of the matter it is appropriate to note that an unforeseen and unprecedented situation arose due to COVID-19 pandemic across the world. For containment of the pandemic so many restrictions have been imposed including complete lockdown. In such a situation, the business of the public at large has been badly affected. Almost all the citizens have been facing acute financial hardships. In such peculiar circumstances the Central Government as well as the State Government have issued necessary directions for mitigating the plight of the citizens including parents who are finding it difficult to pay the school fees of their ward in such a great financial hardship being faced by them.”
It would be pertinent to mention that the Bench then notes that, “It is well settled legal position that if a policy decision is taken by the state government in exercise of the powers conferred upon it by the Constitution of India or under any statue, the same shouldn’t be interfered by the courts by replacing its own decision as an appellate body unless in judicial review such policy decision is found to be arbitrary, unreasonable or violative of the fundamental rights of the citizens.”
It would also be relevant to note that the Bench then observes that, “The State Government has issued directions of reducing the school fees in unprecedented situation of COVID-19 pandemic, therefore, it cannot be said that such directions are violative to the verdict of Hon’ble Supreme Court in T.M.A Pai case (supra) in as much as in view of the T.M.A Pai’s case Hon’ble Supreme Court has not prohibited the appropriate Government from issuing any directions regarding collection of school fees in such unprecedented situation particularly when such directions are issued in exercise of the powers given under Disaster Management Act 2005.”
Unquestionably, the Bench then rightly holds that, “The legal position as expounded in the above cited judgments cannot be questioned but in none of the judgments it has been held that the Central Government or the State Government have no power to issue necessary directions to mitigate the plight of the citizens in such an unprecedented crisis. It is true that different amount of fees has been allowed to be collected in different states and the State Government of Rajasthan has substantially reduced the school fees in comparison to other states but as indicated above the State of Rajasthan has also suggested alternative mechanism for collection of fees and accordingly the private schools and parents are being given opportunity for determination of the fees in terms of the provisions of Rajasthan (Regulation of Fees) Act, 2016 and Rajasthan (Regulation of Fees) Rules of 2017 and in case the school management or the parents are not satisfied with the directions of the State Government they would be at liberty to adopt the mechanism of determination of fees as envisaged under Rajasthan (Regulation of Fees) Act, 2016 and in this process both the school management and the parents association may agree to the directions of the State Government or they may increase or decrease the school fees to be levied in the current session of 2020-21. Thus, in view of the unprecedented and peculiar situation, the directions issued by the State Government and the suggested alternative mechanism for collection of fees cannot be held as violative to the judgments cited above.”
While declining to interfere with the decision of the State Government, the Bench then observes that, “Thus, as discussed above, all the impugned orders and the alternative mechanism suggested by the State Government during the course of hearing have not been found to be without competence and authority. In the wake of unprecedented situation of COVID-19 pandemic, the State Government has taken necessary steps in due exercise of its powers in order to mitigate plights of the citizens. No bias or any sort of partiality or unfairness can be imputed on the part of the State Government as it has tried to strike the balance between the schools’ management and the parents, thus, no case is made out for interference by this Court into the above policy decisions of the State Government.”
In view of the aforesaid, the Bench then goes on to hold that, “In view of the above discussion, the rest of the petitions are disposed of as under:-
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 pre-primary classes in terms of the order dated 28.10.2020 issued by the State Government subject to 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.
III. In order to safeguard the interests of the schools’ management and the parents, it is further directed that all the private schools recognized by the Primary and Secondary School Education Department shall specially determine the school fees for the period in which schools remained closed due to COVID-19 pandemic and after opening of the schools in the Session 2020- 2021 in terms of the provisions of Section 8 of Rajasthan Schools (Regulation of Fee) Act, 2016 and for this purpose all the schools shall publish necessary details including the strength and salary paid to the staff during the period in which the schools remained closed for such special determination on their notice boards as well as on their websites. This special determination of school fees shall be completed within two months from the date of order positively.
IV. With the object to prevent any unfair practice of collection of fees in the process of this special determination of fees the component of tuition fees shall be specifically determined and for that purpose, all heads of the school fees shall be bifurcated as mandated under Section 6 (4) of the Act of 2016.
V. Besides this, the schools’ management or the parents may take recourse of the provision of appeal/reference before Divisional Fee Regulatory Committee/Revision Committee, as the case may be in case any of them are aggrieved of such special determination. Needless to say, that in the process of above special determination of school fees, it will be open for the schools’ management and the parents to determine the fees in consonance with the directions contained in order dated 28.10.2020 or they may increase or decrease the fees to be collected for the current session.
VI. The interim order dated 07.09.2020 passed by learned Single Judge stands vacated.”
To conclude, Rajasthan High Court has endorsed the State Government’s stand that no bias or any sort of partiality or unfairness can be imputed on the part of the State Government as it has tried to strike a balance between the schools management and the parents. Therefore no case is made out for interference by this Court into the policy decisions of the State Government. It also very rightly directed the schools to take their fees as per the recommendations of the State Government made on October 28, 2020. No denying it!