Private Unaided Schools Have Substantial Autonomy, Rule Prescribing Fine Of Five Paise Per Day For Late Fee Not Applicable To Them: Delhi High Court

A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan held that Chapter XIII of the Rules are applicable only in relation to aided schools and not to private unaided schools. Chapter XIII of the Rules is divided in three parts — Part A (144-155, fees and other charges in aided schools), Part B (157-170, fee concessions) and Part C (Pupil's Fund Advisory Committee).

Interpreting Rule 35 and Rule 167 of the rules, the court said the latter gives the school principal no discretion in the matter of striking off a student for non-payment of fee but Rule 35 gives a discretion to the school head. Rule 35 applies to private unaided schools and Rule 167 applies only to an aided school, it noted.

"Making Rule 166 or other rules falling in Part 'B' of Chapter XIII of the Rules, applicable to private institutions, thereby, mandating these institutions to compulsorily charge an amount of five paise for everyday of delay and, also requiring that the name of the student be struck off on account of non-payment of fees would be inconsistent with their right to carrying on their affairs in the manner they deem fit," said the court.

Observing that the same would fall foul of the principle of autonomy which has been recognised by the Supreme Court, the court said it cannot be accepted that Rule 167 of the Rules - which complements Rule 166 of the Rules, is not applicable to the students of private unaided schools but Rule 166 of the Rules would apply to private unaided schools. 

"The principles of statutory interpretation provides that a provision has to be read in a meaningful manner and has to be interpreted in a manner so as to save from being declared unconstitutional. It would be inherently inconsistent to suggest that the schools are free to levy the fee after taking into account the need to generate funds but will have to levy a fine for late payment at the rate of five paise per day. It is an admitted case that fee charged from students in a private unaided school is much higher than the fee charged from a student in an aided school," said the bench.

It further said that rules which from their perusal and necessary implications are applicable in relation to aided schools cannot be made applicable in relation to affairs of private unaided schools.

"Even otherwise, Rule 166 of the Rules, which is a subject matter of dispute in the present writ petition, falls in Part 'B', which starts with Rule 157. Rule 157 of the Rules states "the expression, "Fees" includes science fee, music fee etc..", which is required to be paid by the students in an aided school. A holistic reading of Chapter XIII of the Rules leaves no doubt that the said chapter, in its entirety, is applicable in relation to fee and other charges collected by aided schools," it added. 

Delhi's Directorate of Education in 2013 had passed an order prescribing that Rule 166 should also be applicable to private unaided schools. However, it had accepted that charging five paise as late fees is illogical in present times and needs to be reviewed. A single bench of the high court in April 2013 held that Part B of Chapter XIII of the Rules, especially Rules 165 and 166, apply to all private unaided recognized schools in Delhi. 

The Action Committee Unaided Recognized Private School, an umbrella association of more than 500 private unaided schools in the national capital in 2013 sought a direction that the rules contained in Part B (fee concessions) of Chapter XIII do not apply to private unaided recognized schools. In the alternative, the plea challenged the constitutionality of the Rules.