[READ JUDGMENT] H.P. High Court set asides Government Direction restraining Private Schools from Charging Fees

A Division bench of Himachal Pradesh High Court comprising Justice T.S. Chauhan and Justice J.R. Dua delivered Judgment in the case of Independent Schools Association vs State of H.P. & another {CWP 2202 of 2020, wherein the Private Schools had challenged the Notification dated 27.05.2020 of the Government, whereby Private School were restrained from charging fees from students and to adopt measures to enforce it.

The restrictions imposed by the Government were:

  1. No fee except “Tuition Fee” shall be charged from the parents. The tuition fee shall not be demanded and collected on quarterly basis. The tuition fee shall be collected only on monthly basis.
  2. The tuition fee shall be collected only from the classes which have been provided online learning material/classes.
  3. There shall be no increase in tuition fees and no addition of any other fee/hidden charges in tuition fee.
  4. Other funds like building fund, maintenance fund, sports fund, computer fee, co-curricular fee etc. may be deferred during the period of lockdown.
  5. No transportation Fee shall be charged during the period of lockdown.
  6. No students shall be deprived of online classes/reading material in case of inability to pay the fee because of financial crisis due to lockdown.
  7. If any parent did not deposit the tuition fee during the lockdown period, no fine be charged and name of the students may not be struck off from the school roll.
  8. Private Schools/Management/Trust shall neither stop payment of monthly salary nor reduce the existing total emoluments being paid to the teaching and non-teaching staff of their schools in the name of non-availability of funds and arrange the funds in case of any shortfalls from the Society/Trust running the school.

Contention of Schools:

  1. Notifications have been issued contrary to various pronouncements of Hon’ble Apex Court and are also in violation of Article 19(1)(g) of the Constitution of India.
  2. Notification dated 27.5.2020 has been issued by the State without there being any statutory authority vested in it.
  3. The directions contained in the notification dated 27.05.2020 are harsh, unreasonable and oppressive. Adherence to the same will ultimately lead to closure of private schools.
  4. Notification is against the Judgment of Hon’ble Apex Court in T.M.A. Pai Foundation vs. State of Karnataka reported in (2002)8 SCC 481 and in (2005) 6 SCC 537, titled P.A. Inamdar vs. State of Maharashtra

The Court Held

“In case, the privately managed schools can not authoritatively charge even the ‘tuition fee’ then it is beyond comprehension as to how they will pay the monthly salary/emoluments to not only their teaching but non-teaching staff as well. It cannot be assumed that private schools have unending supply of reserve funds with them.”

Directions:

  1. Respondent-State is directed to revisit and reexamine all the conditions imposed by it upon private schools in its communication dated 27.5.2020 in the light of observations made above. Whereafter a fresh decision in accordance with law and subject to succeeding directions shall be taken on the subject within a period of four weeks from today.
  2. While revisiting the conditions, the judicial pronouncements on the subject shall be kept in view.
  3. It shall be open to the representatives of petitioner and other stakeholders to submit their representations on the issues involved to the respondent No. 2 within a period of one week from today. All these representations shall be considered by the Competent Authority of respondent-state while revisiting the communication dated 27.5.2020.
  4. Conditions No. 6 and 7 of the notification dated 27.05.2020 are quashed and set aside while condition No. 1 is partially modified. Private schools henceforth are allowed to charge monthly tuition fees and are authorized to enforce collection of the same. The past tuition fees due towards the private schools are also permitted to be realized by them without charging any fine/late fees after giving two months notice.
  5. A genuine representation of a parent regarding his/her inability to pay the tuition fee due to financial issues arising out of the lockdown, preferred to the competent authority of the concerned school shall be examined by the competent authority of the school within one week from the date of representation and sympathetic decision in accordance with law shall be taken thereupon.
  6. While revisiting the notification dated 27.5.2020, State shall also examine feasibility of allowing the schools to enforce attendance of their staff in the school premises, for the purpose of imparting proper, good quality education in accordance with prescribed syllabus through continuous and good quality online streaming, after following the protocols regarding maintenance of physical distancing norms within the period granted. A specific decision in this regard shall be taken and indicated in terms of direction No. 5(v)i) above.

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