School Fees During COVID: CBSE & State Board Schools Entitled To Collect 70 & 60 Pct Tuition Fee Respectively: Rajasthan High Court

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 that no case is made out for interference by this Court into the policy decisions of the State Government.

Background

In the wake of COVID-19 pandemic, the Rajasthan Government deferred the collection of school fees for 3 months by the private schools recognized by Primary and Secondary Education Departments (vide order dated 09^th April).

Subsequently, 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 (vide order dated 07^th July).

Above orders of the State Government were challenged by way of S.B. Civil Writ Petition. The same was disposed of (vide order dated 07^th September) with the directions to the schools' management that:-

• Allow the students to continue their studies online,
• Allow them to deposit 70% of the tuition fees element from the total fees being charged for the year,
• 70% of the tuition fees to be deposited for the period from March 2020 in three instalments, and
• 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.

Government's 28^th October's order

Considering the hardship being faced by private schools amid rampant demands to slash school fees, the Jaipur Bench of the Rajasthan High Court had directed the State Government to issue instructions regarding payment of interim fees, latest by October 28, 2020.

The State Government vide order dated 28.10.2020 issued following directions:-

• Collection of school fees after opening of the schools to the tune of 70% of tuition fees by the schools affiliated with the CBSE & 60% from Rajasthan Board of Secondary Education affiliated schools with on the basis of reduction of syllabus by the respective Boards.
• Before opening of the schools, it was 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 instalments
• 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.

Arguments put forth

Arguments advanced by Schools' management

The Counsel contended that the State Government has no authority to issue directions regarding collection of fees by the private schools.

It was argued that none of the provisions of the Disaster Management Act, 2005 or the Rajasthan Epidemic Diseases Act, 2020 authorizes the State Government to reduce the quantum of fees to be collected by the private schools.

Further, it was contended that Section 43 of the Rajasthan Non-Government Educational Institution Act, 1989 provides for making rules regarding school fees but no provision regarding collection of fees has been made under the rules of the Act.

It was also contended that the Government did not consider practical situation of most of the schools that they have taken a huge amount of loan to build their infrastructure, they have to pay regular EMIs to repay the loan amount.

It was also argued that they have to maintain their infrastructure and the staff so that the same may be available on reopening of the schools. The only source to meet out the expenses is by the collection of school fees.

It was also stated that the State Government vide order dated 28.10.2020 substantially reduced the school fees without considering above aspects.

Thus, it was argued that all the orders issued by the State Government are without any authority, therefore, liable to be quashed and that the private schools should be allowed to collect the school fees as already determined by them for the previous session of 2019-20.

Arguments advanced by State Government

The State argued that its directions dated 28^th October were issued under the powers conferred on the State Government under Sections 38, 39, 72 and 73 of the Disaster Management Act, 2005.

It was stated that the 2005 Act has an overriding effect on all other statutes. In addition, Section 4 (2) (g) of the Rajasthan Epidemic Diseases Act 2020, empowers the State Government to regulate functioning of the educational institutions which obviously covers the aspect of collection of fees during the pandemic.

Further, the State also submitted that Article 162 of the Constitution of India empowers the State to use its executive power for issuing directions regarding collection of school fees during the period of COVID-19 pandemic.

Therefore, it argued that it was not correct to say that the orders issued by the State Government are without any authority.

Importantly, it was argued that if the directions 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.

Court's observations

Firstly, the Court found that it was not correct to say that the State Government had no power under Article 162 to issue directions in such unforeseen and unprecedented situation that has arisen due to outbreak of COVID-19 pandemic.

Secondly, the Court noted that Schools' management are not required to incur same expenditure on upkeep of the school building, electricity charges and on other facilities.

The Court observed that the teachers are also working from home for lesser period than physical classes.

The Court noted that "during complete lockdown period and afterwards most of the parents have lost their jobs and they are also finding it very difficult to run their family".

The Court also remarked,

"The state government is empowered to take policy decision and issue necessary executive 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 and while issuing impugned directions, it is not feasible to give opportunity of hearing to all the schools and parents."

The Court further directed the schools' management to publish on their website the components of the fees that will be charged from the parents.

In view of the above discussion, the rest of the petitions were disposed of as under:-

• 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.
• 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.
• 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.
• 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.
• 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.

Thus, the interim order dated 07.09.2020 passed by learned Single Judge stood vacated.

Case title - Sunil Samdaria v. State of Rajasthan and others long with connections petitions

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