INDIAN SCHOOL, JODHPUR & ANR. v. STATE OF RAJASTHAN & ORS.

34Copy pinpoint34. The stipulation such as in Section 6(3) of the Act of 2016 that the decision of fee structure proposed by the school Management, if approved by the SLFC, would be binding for three academic years, had been recognised and approved in Islamic Academy of Education (supra) in paragraphs 7 and 161and also noted in P.A. Inamdar (supra). F

35Copy pinpoint35. To put it differently, the dispensation envisaged under Section 6 of the impugned Act of 2016 is not intended to undermine the autonomy of the school Management in the matter of determination of fee structure itself. What it envisages is that the school Management may determine its own fee structure, but may finalise or give effect to the same after interacting with the SLFC. It is a broad-based committee, consisting of G representatives of the school Management as well as five parents from Parent-Teachers Association. This is merely a consultative process and democratisation of the decision-making process by taking all the stakeholders on board. The SLFC does not sit over the proposal submitted by the school Management as a court of appeal, but only reassures itself H

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A as to whether the proposed fee structure entails in profiteering by the school on applying the parameters specified in Section 8 and Rule 10. In other words, it is open to the SLFC to take a different view regarding the school fees proposed by the school Management and arrive at a different fee structure. If that counter proposal is acceptable to the school Management, nothing further is required to be done and the decision so B taken by the school Management would become binding for three academic years on all concerned. However, in case the school Management disagrees with the recommendations of the SLFC, it is open to both sides, namely, the school Management as well as the parents of wards to take the matter to the DFRC for adjudication on that aspect.

36Copy pinpoint36. While deciding the school fees, the school Management/SLFC including the Statutory Regulatory Authorities, all concerned are guided by the factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017. Suffice it to note that the process envisaged in Section 6 is democratic and consensual resolution of the issue of fee structure for the relevant period between the school Management and the parents’ representative being part of the SLFC. It is not to give final authority to the SLFC to determine the fee structure itself which, as aforesaid, is the prerogative of the school Management as per Section 6(1) of the Act of

2016. In that sense, the autonomy of the school Management to determine the fee structure itself in the first place is untrammelled and not undermined in any way.

37Copy pinpoint37. Section 7 of the Act of 2016 is about the constitution of the DFRC. The same reads thus: “7. Constitution of Divisional Fee Regulatory Committee. - (1) The Government shall, by notification in the Official Gazette, F constitute a Divisional Fee Regulatory Committee for each Revenue Division, which shall consist of the following members, namely: -

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 47 [A. M. KHANWILKAR, J.]

(2)(a) The term of office of the representatives of private schools and parents shall be for a period of two years from the date of their nomination and in case of vacancy arising earlier, for any reason, such vacancy shall be filled for the remainder period of the term. (b) The representatives of private schools and parents shall not be eligible for reappointment. (c) The representatives of private schools and parents may resign from the office in writing addressed to the Divisional Commissioner and on such resignation being accepted, his office shall become vacant and may be filled in within a period of three month from the date of occurrence of vacancy. (d) A representative of private schools and parents may be removed, if he does any act which, in the opinion of the Divisional Commissioner, is unbecoming of a member of Divisional Fee Regulatory Committee: Provided that no representative of private schools or parents shall be removed from the Divisional Fee Regulation Committee without giving him an opportunity of being heard. (e) The other terms and conditions for the service of the representatives of private schools and parents shall be such as may be prescribed.” From the bare perusal of Section 7(1), it is noticed that first five members are official members. It is a broad-based independent Committee which includes two representatives of private schools in the divisional area “nominated by the Divisional Commissioner” and similarly two representatives of parents “nominated by the Divisional Commissioner”. The representation is given to the concerned stakeholders in the matter H

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A of determination of fee structure and in particular in the matter of enquiry into the factum whether fee structure proposed by the concerned school Management entails in profiteering or otherwise. In reference to Section 7(2)(a), we must observe that the term of office of representatives of the private schools and, in particular parents has been earmarked as two years from the date of their nomination. This would mean, necessarily, that the concerned parent would be eligible until his/her ward continues in the school during the tenure and is not a member of the SLFC of any school within the divisional area. Any member not fulfilling this criterion would be deemed to have vacated his office forthwith and, in his place, a new member can be nominated by the competent authority from amongst the parents of the wards pursuing studies in the school in the concerned divisional area. Moreover, while nominating representative of parents, the Divisional Commissioner must keep in mind that the person so nominated must possess basic qualification of accounting, development of a school and dynamics of quality education; and whose ward has not secured admission against 25 per cent quota of free education under the D RTE Act. Thus understood, even Section 7 of the Act of 2016 does not violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution in respect of establishment of educational institution.

38Copy pinpoint38. Needless to underscore that the Divisional Commissioner, who is empowered to nominate two representatives of private schools would E keep in mind that his/her nominees are from the schools within the divisional area and at least one amongst them should be chosen from a minority school so that representation is given to all stakeholders, including minority and non-minority private unaided schools. At the same time, it must be borne in mind that such a person is already not a member of the F SLFC of any school in the divisional area. The dispensation provided in Section 7, is, thus, to create an independent machinery for adjudication of the question as to whether the fee structure proposed/determined by the school Management of the concerned school entails in profiteering, commercialisation or otherwise.

39Copy pinpoint39. As regards challenge to Section 8 of the Act of 2016, the usage of expression “determination”, in our opinion, does not take away the autonomy of the school Management in determining its own fee structure. This provision is only an indicator as to what factors should be reckoned for determination of fee and on that scale the SLFC as well as the Statutory Regulatory Committees will be in a position to analyse the H claim of the school Management. This provision, in fact, sets forth

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 49 [A. M. KHANWILKAR, J.]

objective parameters as to what would be the reasonable fee structure A — not resulting in profiteering and commercialisation by the school Management. As aforesaid, this provision will have to be read along with Rule 10 of the Rules of 2017 which provides for additional factors to be borne in mind while examining the question regarding reasonableness of the fee structure proposed by the school Management. B

40Copy pinpoint40. Reverting to Section 9, which reads thus: “9. Powers and functions of Divisional Fee Regulatory Committee. - (1) The powers and functions of the Divisional Fee Regulatory Committee shall be to adjudicate the dispute between the management and the Parent-Teachers Association C regarding fee to be charged by the school management from the students. (2) The Divisional Fee Regulatory Committee may authorize any officer not below the rank of the Head Master of Secondary School to enter any private school or any premises belonging to the D management of such school, if the Divisional Fee Regulatory Committee finds so necessary, and search, inspect and seize any records, accounts, registers or other documents belonging to such school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. The provisions of the Code E of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to searches and seizures shall apply, so far as may be, to searches and seizures under this section. (3) The Divisional Fee Regulatory Committee shall regulate its own procedure, for the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all powers of a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit, in respect of the following matters, namely: - (i) the summoning and enforcing the attendance of any witness and examining him on oath; (ii) the discovery and production of any document; (iii) the reception of evidence on affidavits; (iv) the issue of commission for the examination of the witness; H

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A (4) No order shall be passed by the Divisional Fee Regulatory Committee in the absence of the Chairperson. The order of the Divisional Fee Regulatory Committee shall be binding on the parties to the proceedings before it for three academic years. It shall not be called in question in any civil court except by way of an appeal before the Revision Committee constituted under this Act. B (5) At the time of resolving the dispute, the Divisional Fee Regulatory Committee shall not grant any interim stay to the fee determined by the management. On decision in appeal or reference, the Divisional Fee Regulatory Committee may pass appropriate orders for refund of the excess fee to the student concerned. In case the management fails to refund the excess fee to such student, the Divisional Fee Regulatory Committee shall proceed to recover such excess fee from the management as an arrear of land revenue and pay the same to such student. (6) The Divisional Fee Regulatory Committee shall, on determining the fee leviable by a private school, communicates its decision to the parties concerned. (7) Every private school preferring an appeal before the Divisional Fee Regulatory Committee shall place the copy of decision in appeal on its notice board, and if such school has web-site, on its web-site; (8) The Divisional Fee Regulatory Committee shall indicate the different heads under which the fee shall be levied. (9) The orders passed by the Divisional Fee Regulatory Committee F shall be binding on the private school for three academic years. At the end of the said period, the private school shall be at liberty to propose changes in its fee structure by following the procedure as laid down under this Act.” Section 9 deals with powers and functions of the DFRC inter alia to adjudicate the dispute between the Management and the Parent- G Teachers Association regarding fee to be charged by the school Management from the students. The DFRC has been empowered to undertake search, inspect and seize any records, accounts, registers or other documents belonging to the concerned school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee.

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 51 [A. M. KHANWILKAR, J.]

It can regulate its own procedure for the discharge of its functions and exercise all powers of a civil court under the Code of Civil Procedure, 1908.

41Copy pinpoint41. Essentially, Section 9 bestows power upon the DFRC to adjudicate the dispute between the school Management and Parent- Teachers Association regarding difference of opinion in respect of fee structure for the concerned school. What is significant to note is that Section 9(5) makes it amply clear that the DFRC has no power to grant any interim stay to the fee determined by the Management. However, in light of Section 6(5) during the pendency of the appeal or reference before the DFRC, school Management is at liberty to collect fee of the previous academic year plus ten per cent increase in such fee till the final decision of the DFRC, as predicated in Section 6(5) of the Act of

2016. The decision of the DFRC is amenable to appeal before the Revision Committee constituted under Section 10 of the Act of 2016. None of these violate the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution to determine its own fee structure in any manner.

42Copy pinpoint42. Section 10 deals with constitution of Revision Committee. This Committee discharges the function of an appellate authority where the aggrieved party, namely, school Management or the Parent-Teachers Association can assail the decision of the DFRC. This is a final adjudicatory body created under Section 10 consisting of official members including two representatives of private schools nominated by the State Government and two representatives of parents nominated by the State Government. This is again a broad-based independent Committee to consider the revision preferred against the decision of the DFRC, constituted on similar lines. The latter Committee is constituted under F Section 7 of the Act of 2016. The observations made in reference to the constitution of the DFRC under Section 7 hitherto would, therefore, apply with full force to this provision as well.

43Copy pinpoint43. The procedure to be followed by the Revision Committee is specified in Section 11 of the Act of 2016, which provision makes it G amply clear that the decision of the Revision Committee shall be final and conclusive and shall be binding on the parties for three academic years. Setting up of an independent final adjudicatory authority especially created for considering the question as to whether the fee structure proposed by the school Management results in profiteering or otherwise, H

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A it does not impinge upon the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution.

44Copy pinpoint44. Even the challenge to the validity of Sections 15 and 16 of the Act of 2016 is devoid of merit. Section 15 deals with consequences of contravention of the provisions of the Act of 2016 or the Rules made thereunder by an individual. Whereas, Section 16 deals with consequences of violation by a management and persons responsible therefor. It is unfathomable as to how these provisions can have the propensity to violate the fundamental right of the school Management under Article 19(1)(g) of the Constitution especially when violation of the mandate of certain compliances under the Act of 2016 and Rules framed thereunder has been made an offence and persons responsible for committing such violation can be proceeded with on that count.

45Copy pinpoint45. The appellants having failed to substantiate the challenge to the validity of the relevant provisions of the Act of 2016, must also fail with regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the Rules of D 2017.

46Copy pinpoint46. Rule 3 provides for a procedure for conducting meeting of Parent-Teachers Association. The school Management can have no grievance regarding the procedure for conducting meeting of Parent- Teachers Association of the school concerned much less violating its E fundamental right guaranteed under Article 19(1)(g) of the Constitution regarding establishment of educational institution and administration thereof, including determination of fee structure on its own.

47Copy pinpoint47. Rule 4 deals with duties and functions of Parent-Teachers Association, which reads thus: F “4. Duties and functions of Parent-Teachers Association. - The Association shall discharge the following duties and perform the following functions, namely:- (i) to get information about Tuition fees, Term fees and fees for co-curricular activities as decided by the School Level G Fee Committee; (ii) to observe completion of syllabus as per the planning; (iii) to assist school for planning of other co-curricular activities; and

H (iv) to assess the needs of co-curricular activities.”

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 53 [A. M. KHANWILKAR, J.]

The above Rule enables the Parent-Teachers Association to get A information about tuition fees, term fees and fees for co-curricular activities as decided by the SLFC; to also observe completion of syllabus as per the planning; to assist school for planning of other co-curricular activities; and to assess the needs of co-curricular activities. This is an enabling provision bestowing power coupled with duty in the Parent- B Teachers Association. This in no way affect the right of the school Management in the matter of determination of school fees by itself. The purpose of above provision is to empower the Parent-Teachers Association to get information about tuition fees, term fees and fees for co-curricular activities, to facilitate it to analyse the claim of the school Management regarding the fee structure being reasonable or otherwise. It is on the basis of that information, the representatives of the Parent-Teachers Association, forming part of the SLFC, will be in a position to meaningfully interact either to give counter offer or agree with the proposal submitted by the school Management. Even though, the Act of 2016 is largely for regulation of fee, the information regarding the incidental aspect thereof as to whether co-curricular activities proposed by the school Management are necessary or not is significant. For, if Parent-Teachers Association is of the view that it is unnecessary, it can project its perception in that regard during the interaction to persuade the school Management to avoid such co-curricular activities and to reduce the burden of expenses to be incurred therefor. That E would resultantly reduce the liability of the parents commensurately due to reduced fee liability.

48Copy pinpoint48. Rule 6 deals with duties and functions of the SLFC. It specifies the additional duties to be performed by the SLFC besides the powers and functions specified in the Act of 2016. Rule 6 reads thus: F “6. Duties and functions of School Level Fee Committee. - The School Level Fee Committee shall, in addition to the powers and functions specified in the Act, discharge the following duties and perform the following functions, namely:- G (a) to oversee the compliance of the provisions of the Act and rules made their under; (b) to take decision on proposals received from Management, regarding determination of fee within time specified in sub-section (3) of section 6 of the Act; and H

54 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (c) to make available necessary documents to the Divisional Fee Regulatory Committee or Revision Committee, as the case may be, where appeal is filed by the Management.” We fail to understand as to how Rule 6 would come in the way or infringe the fundamental right of the school Management guaranteed B under Article 19(1)(g) of the Constitution. This Rule gives additional powers to the SLFC for ensuring compliances of the provisions of the Act of 2016 and the Rules made thereunder including regarding determination of school fees.

49Copy pinpoint49. Rules 7 and 8 of the Rules of 2017 deal with meeting of the C SLFC and procedure to refer proposal to DFRC and to file appeal and revision before the Statutory Regulatory Committees respectively. The same reads thus: “7. Meeting of the School Level Fee Committee. - (1) The Chairperson of the School Level Fee Committee shall call the D meetings of the School Level Fee Committee. The Secretary of the committee shall issue notice of meeting to the members of the School Level Fee Committee in Form-II. The notice shall be issued fifteen days before the date of meeting. (2) The notice shall be sent to each member of the School Level E Fee Committee by registered post or delivered through any other mode. The acknowledgement of notice shall be preserved for a period of one year. (3) No business shall be transacted in the meeting of the School Level Fee Committee unless four members are present out of which at least two shall be the parent members of the School Level Fee Committee. If there is no quorum, the Chairperson of the School Level Fee Committee shall adjourn the meeting. The adjourned meeting shall be recalled again after the lapse of ten days from the date of the meeting which is adjourned. (4) The Secretary of the School Level Fee Committee shall prepare minutes of the meeting and circulate the same to all the members within fifteen days from the date of the meeting. (5) The minutes of the meeting shall be made available to the District Education Officer or Deputy Director concerned, as and when required. H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 55 [A. M. KHANWILKAR, J.]

(6) If a parent member is absent for three consecutive meetings, A his membership shall be deemed to be cancelled and such vacancy shall be filled in by lottery, from amongst the applications received for that academic year under rule 5.

8. Procedure to refer proposal to Divisional Fee Regulatory Committee and to file appeal before Divisional Fee B Regulatory Committee and Revision Committee under section 6 of the Act. - (1) The Management of the school shall submit fee proposal to the School Level Fee Committee at least six months before the commencement of the next academic year in Form-III. C (2) If the School Level Fee Committee fails to decide the fees within the period specified in sub-section (3) of section 6 of the Act, the management shall immediately refer the matter in Form- IV, along-with the proposal submitted to the School Level Fee Committee, to the Divisional Fee Regulatory Committee, within D thirty days of expiry of the period specified in sub-section (3) of section 6 of the Act, for its decision. (3) The management may prefer an appeal in Form-V against the decision of the School Level Fee Committee within 30 days from the date of decision of the School Level Fee Committee. E (4) The management or School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal, in Form-VI, before the Revision Committee along with the proposal of fees submitted by management and the copy of the decision of the School Level Fee Committee and Divisional Fee Regulatory Committee.” These Rules deal with purely procedural matters and are in line with the powers and functions of the concerned Committees. The Rules provide for the manner in which the proposal is to be submitted by the school Management and to be taken forward. These provisions in no way affect the fundamental right guaranteed under Article 19(1)(g) of the Constitution much less autonomy of the school Management to determine the fee structure itself in the first place including the administration of the school as such. H

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50Copy pinpoint50. The next challenge is to Rule 11 which obligates the private schools to maintain accounts and other records in the manner prescribed thereunder. The same reads thus: “11. Maintenance of accounts and other records.- (1) Every private school shall,- B (a) maintain separate accounts for different kinds of transactions, such as, fees collected, grants received, financial assistance received, payments of salary to staff, purchase of machinery and equipment, laboratory apparatus and consumables, library books, stationery, computers, software and other expenditure incurred; C (b) keep the registers, accounts and records within the premises of their school as they shall be made available at all reasonable time for inspection; and (c) preserve the accounts maintained, together with all vouchers relating to various items or receipts and expenditure, until the audit D of accounts is over and objections, if any, raised are settled. (2) Every private school shall, in addition to accounts and records specified in sub-rule (1), maintain the following, namely:- (a) General Register; E (b) Admission Register; (c) Fee Receipt; (d) Fee Collection Register; (e) Cash Book; F (f) Library and Reading Room Account; (g) Staff Attendance Register and Staff Salary Register; (h) Students Attendance Register; (i) Voucher File; G (j) Cheque Register; (k) Acquaintance Roll; (1) Stock Registers; (m) Transfer Certificate Book; H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 57 [A. M. KHANWILKAR, J.]

(n) Examination Fees Collection Receipt; A (o) Contingency Expenditure Register; (p) Asset Register; and (q) Building Rent Register. (3) Every private school shall also maintain the other record of B the institution as per the orders issued by the Government, from time to time.” In our opinion, even this provision by no stretch of imagination would affect the fundamental right of the school Management under Article 19(1)(g) of the Constitution much less to administer the school. C This provision, however, is to ensure that a meaningful inquiry can be undertaken by the SLFC or the Statutory Regulatory-cum-Adjudicatory Authorities in determination of the fact whether the fee structure propounded by the school Management results in profiteering or otherwise. If information is furnished in any other manner (other than the manner specified in Rule 11), it would become difficult for the concerned Committees/Authorities to answer the contentious issue regarding profiteering. The fee structure determined by the school Management can be altered by the Adjudicatory Authorities only upon recording a negative finding on the factum of amount claimed towards school fees relating to particular activities is an essential expenditure or otherwise; and that the fee would be in excess of reasonable profit being ploughed back for the development of the institution or otherwise. The recovery of excess amount beyond permissible limit would result in profiteering and commercialisation. In our opinion, therefore, even Rule 11 is a relevant and reasonable provision and does not impact or abridge the fundamental right under Article 19(1)(g) of the Constitution.

51Copy pinpoint51. The last assail was on the argument that the field regarding (school) fee, in particular capitation fee is already covered by the law enacted by the Parliament being RTE Act and for that reason, it was not open to the State to enact law on the same subject such as the impugned G Act of 2016. This argument is completely misplaced and tenuous. For, the purpose for which the RTE Act has been enacted by the Parliament is qualitatively different. It is to provide for free and compulsory education to all children of the age of 6 to 14 years, which is markedly different from the purpose for which the Act of 2016 has been enacted by the State legislature. Merely because the Central Act refers to the expression H

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A “capitation fee” as defined in Section 2(b) and also in Section 13 of the RTE Act — mandating that no school or person shall, while admitting a child, collect any capitation fee, does not mean that the Central Act deals with the mechanism needed for regulating fee structure to ensure that the schools do not collect fees resulting in profiteering and commercialisation. By its very definition, the capitation fee under the B Central Act means any kind of donation or contribution or payment other than the fee notified by the school. On the other hand, fee to be notified by the school is to be done under the impugned Act of 2016 after it is so determined by the school Management and approved by the SLFC or by the Statutory Regulatory Authorities, as the case may be. Suffice it to C observe that the field occupied by the Central Act is entirely different than the field occupied by the State legislation under the impugned Act of 2016. The impugned Act of 2016 deals specifically with the subject of regulating fee structure propounded by the private unaided school management. Hence, there is no substance in this challenge.

52Copy pinpoint52. Taking overall view of the matter, therefore, we uphold the conclusion of the High Court in rejecting the challenge to the validity of the impugned Act of 2016 and Rules framed thereunder. However, we do so by reading down Sections 4, 7 and 10 of the Act in the manner indicated in paragraphs 28; 37/38 and 42 respectively of this judgment. These provisions as interpreted be given effect to, henceforth, in E conformity with the law declared in this judgment. For the reasons mentioned hitherto, we hold that the High Court rightly concluded that the provisions of the Act of 2016 as well as the Rules of 2017 are intra vires the Constitution of India and not violative of Articles 13(2) and 19(1)(g) of the Constitution. F Re: Second Set:

53Copy pinpoint53. These appeals assail the common judgment and order dated 18.12.2020 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur whereby all the connected cases involving challenge to the orders dated 09.04.2020, 07.07.2020 and 28.10.2020 issued by the G State Authorities were disposed of.

54Copy pinpoint54. The order dated 09.04.2020 was issued by the Director, Secondary Education, in the wake of COVID-19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three H months. The said order reads thus:

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 59 [A. M. KHANWILKAR, J.]

“OFFICE OF DIRECTOR, SECONDARY EDUCATION, A RAJASTHAN, BIKANER ORDER As per the direction issued by Hon’ble Chief Minister, order is being issued in regard to collection of fees by Elementary and Secondary Education Department recognized non-government schools, which is as follows:-

1. No fee will be charged by non-government schools from the students/guardians of the period after 15th March, the applicable fees at present and payment of advance fees which is deferred for 3 months. In case of non deposition of fees during this period, name of such student will not be struck off from the rolls of the school.

2. In case of continuation of the studies in the non-government schools, the deferred fees for the present session 2020-21 will be chargeable after deferment period is over. D

3. After completion of the Lock down period, if any student of non-government school wants his Transfer Certificate for continuing studies in another school then the same can be obtained after depositing fees of the previous session 2019-20 and obtaining the no-dues certificate. E (Saurabh Swami) I.A.S., Director, Secondary Education, Rajasthan, Bikaner. No.-Shivra-Ma/PSP/Sikayat/Vetan/2019-20 F dated 09.04.2020"

55Copy pinpoint55. Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on 07.07.2020. The same reads thus: G “OFFICE OF DIRECTOR, SECONDARY EDUCATION, RAJASTHAN, BIKANER ORDER In continuation of the Government letter No.P.8(3) Shiksha-5/ COVID-19 Fees Staghan/2020 dated 01.07.2020, for collection H

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A of fees by Elementary and Secondary Education Department recognized non-government schools, the following order is issued:-

1. The fee chargeable by non-government schools from the students/guardians after 15th March, the applicable fees at present and payment of advance fee was deferred for 3 months, as per B the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non-deposition of fees during the said period, name of such student will not be struck off from the rolls of the school.

2. Remaining all will be as per order No. C (Shivra/Ma/PSP/Sikayat/Vetan/2019-20) dated 09.04.2020. (Saurabh Swami) I.A.S., Director, Secondary Education, D Rajasthan, Bikaner. No.-Shivra-Ma/PSP-C/A-2/60566/2019-20 Dated 07.07.2020"

6. The private unaided schools then filed writ petition(s) before the High Court challenging the aforesaid orders dated 09.04.2020 and 07.07.2020. The learned Single Judge of the High Court Bench at Jaipur considered the prayer for interim relief and vide order dated 07.09.2020 directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments. The relevant extract of the order of the learned Single Judge dealing with the prayer for interim relief at the instance of the appellants-Schools reads thus: “13. I have considered the submissions as above and perusal the material available on record.

14. While there are myriad issues involved in the present batch of the writ petitions, which are required to be examined finally; at this interim stage, this Court finds that a balance is required to be struck between financial difficulty of the school management relating to release of the salary of the staff and minimum upkeep H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 61 [A. M. KHANWILKAR, J.]

of school on one side and the financial pressure, which has come A on the parents due to the pandemic and lock-down as noticed above.

15. After noticing the judgments passed by the High Court of Gujarat at Ahmedabad in the case of Nareshbhai Kanubhai Shah Versus State of Gujarat & 2 Others: R/Writ Petition (PIL) No.64/ B 2020 and other connected matters decided on 31.7.2020, the High Court of Punjab and Haryana at Chandigarh in the case of Independent Schools Association Versus State of Punjab & Others: CWP No.7409/2020 and other connected matters decided on 30.6.2020 and the High Court of Delhi in the case of Rajat Vats Versus Govt. of Nct of Delhi & Another: WP (C) No.2977/ C 2020 decided on 20.4.2020, this Court is of the view that prima facie, members of the petitioner association cannot be deprived of receiving the tuition fees for the students, who continued to remain on their rolls.

16. However, this Court notices that total infrastructure cost, which D the school may incur for the regular studies during normal days, has been definitely reduced day to day schools are not opening. It is noticed that the tuition fees is assessed on the basis of the infrastructure expenditure including staff salary and operation cost incurred by the schools in terms of the provisions of the Rajasthan E Schools (Regulation of Fee) Act, 2016, after following the procedures laid down therein.

17. This Court agrees prima facie with the counsel for intervenors that while the institutes had to incur certain additional expenditure for developing online classes process, the same would be less than individual expenditure being incurred by the parents for providing infrastructure to their each ward, who is undergoing online classes at home. There may be also cases where the parents may have two or three children. To each one separate laptop or computer will be required to provide as all of them would be undergoing online classes at the same time. Thus, comparative balance is required to be maintained.

18. Prima facie, this Court is also of the view that under the Act of 2005, the authorities would have jurisdiction to lay down policy, guideline and direction, which may be found to be suitable for the purpose of providing the relief to the persons affected by the H

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A disaster as mentioned in Section 22 of the Act of 2005. The guidelines can be laid down for mitigation of such loss to the citizens. The powers and functions of the State Executive Committee under Section 22(j) provide that the State Executive Committee shall ensure that non-governmental organizations carry out their activities in an equitable and non-discriminatory manner. B The petitioners are all non-governmental organizations and are expected therefore to play their necessary role in mitigating the sufferance caused to the public at large, while at the same time also protect their own staff from facing financial difficulties. This Court is also conscious of the fact that the State-respondents, C while passing the impugned orders, have not taken into consideration the difficulties, which the staff of the concerned school would face on account of non-payment of the fees. However, burdening the parents with complete tuition fees would not be appropriate and justified.

D 19. In view of the above, this Court by an interim measure and till the situation gets normalized, directs the school authorities 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. The said 70% of the tuition fees shall be paid for the period from March, 2020 in three installments to the E respective schools. However, it is made clear that on non-payment of the said fees, the student(s) may not be allowed to join online classes, but shall not be expelled from the school. The three installments shall be fixed by depositing the first installment on or before 30.9.2020 while the second installment shall be paid by F 30.11.2020 and third installment shall be paid by 31.1.2021. However, it is further made clear that the question regarding remaining fees shall be examined at the stage of final disposal of these writ petitions. The orders are being passed as interim arrangement subject to final adjudication of the case.

G 20. The stay applications are accordingly disposed of.”

57Copy pinpoint57. Against this decision, intra-court cross appeals came to be filed. In those appeals, the Division Bench vide order dated 01.10.2020 stayed the operation of the interim order passed by the learned Single Judge. The appeals were then heard on 12.10.2020 and reserved for orders. However, as representations were received from several counsel

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 63 [A. M. KHANWILKAR, J.]

that they were unable to interact with the court through video conferencing, the matters were notified for further hearing on 14.10.2020. The Court then directed listing of appeals on 20.10.2020. However, before next date of hearing, the State Government vide order dated 16.10.2020 constituted a four-member Committee to give suggestions to the State Government in relation to recovery of fees from parents/students by B Private/Non-Government Educational Institutions during the academic session 2020-21. The High Court was apprised about this development when the matters were taken up on 23.10.2020 as is noticed from the said order, which reads thus: “Order C 23/10/2020 Mr. Rajesh Maharshi, AAG, submits that a committee has been constituted for determination of fees to be charged by the private schools for the period of lockdown imposed due to Covid- 19 Pandemic. The Committee is in process to finalize its recommendations and accordingly the affidavit shall be filed on behalf of the State Government on 2nd of November 2020 positively. Mr. Kamlakar Sharma learned Senior advocate raised serious objection and prayed for interim measure in view of the great hardship being faced by the private schools to run their institutions. Considering the hardship of the private schools, it is directed that the State Government shall 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. In the meanwhile, necessary affidavit in compliance of earlier directions shall be filed by the State Government by 02.11.2020 without fail after providing a copy of the same to all the parties. G List on 03.11.2020"

58Copy pinpoint58. The appeals were, thus, directed to be notified on 3.11.2020. Before that date, however, the Director, Secondary Education issued order dated 28.10.2020, which reads thus: H

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A “OFFICE OF DIRECTOR, SECONDARY EDUCATION, RAJASTHAN, BIKANER ORDER The Hon’ble High Court in DB Special Appeal No.637/2020 Sunil Samdria versus State of Rajasthan and other Special Appeals B passed an order dated 23.10.2020 directing the State Government to take a decision in regard to charging of school fees from guardians/students for academic session 2020-21 keeping in view COVID pandemic and the guidelines be issued by 28.10.2020. In compliance of the order passed by Hon’ble Rajasthan High C Court, Jaipur dated 23.10.2020 and in pursuance to the State Government’s letter No. P.8(3) Shiksha-5/COVID-19 Fees Staghan/2020 dated 28.10.2020, the guidelines for charging of school fees for the academic session 2020-21 by non- government educational institutions from students/guardians, are issued which are as follows:- D A - THE DETAILS OF THE FEES TO BE CHARGED BY THE SCHOOLS AFTER REOPENING

1. After reopening of the school only tuition fees will be charged from the students.

E 2. The tuition fees will be as per the prescribed syllabus for teaching. Like CBSE for class 9th to 12th has reduced 30% of the syllabus and has prescribed 70% of the syllabus, hence, the fees to be charged for this session will be 70% of the tuition fees of last academic session. Similarly, Rajasthan Board of Secondary Education for class 9th to 12th has reduced 40% of the syllabus and has prescribed 60% of the syllabus, hence, the fees to be charged for this session will be 60% of the tuition fees of last academic session.

3. Looking to the circumstance arising out of COVID-19 pandemic, the decision to call the students of Class 1st to 8th to school has not been taken, hence whenever the decision is taken and as per the reduction of syllabus, in the same proportion the fees will be charged.

4. The fees decided as per above payable to the school for which guardians/student will be given option of payment of fees monthly/ H quarterly.

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 65 [A. M. KHANWILKAR, J.]

5. The schools will not change the uniform prescribed in the previous academic session.

6. The facilities not being utilized by students like laboratory, sports, library, curricular activities, development fees, boarding fees etc. no fees under this head will be charged by schools.

7. For presence of the students in the school, written consent of the guardians will be required.

8. In case the student is using conveyance provided by the school like Bal Vaihani etc. then the conveyance charges can be charged but it will not be more than the conveyance fees charged during the previous academic session. The conveyance fees will be in proportion to the number of working days after reopening of the schools.

9. The conveyance being provide by the schools for students will have to follow the COVID-19 guidelines prescribed by State Government and any other directions issued by Government. D

10. The SOP issued by State Government will have to be adhered to by the non-government schools. B - THE DETAILS OF THE FEES TO BE CHARGED BY THE SCHOOLS BEFORE REOPENING E

1. The schools will determine the fees to be charged from students after reopening of the school as per the prescribed syllabus for teaching.

2. Before opening of the schools the online teaching work was for making them acquainted i.e. capacity building was the objective. F Hence, the fees chargeable will be termed as capacity building fees.

3. The schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees. For online teaching, the G consent of the guardians will be necessary and capacity building charges can be charged from consenting students.

4. When the schools reopen, it will be duty of schools to impart the complete syllabus as prescribed by the board to the students who did not study in online classes and the said syllabus will have H

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A to be completed by the schools the schools will ensure equality between the online and offline students.

5. The capacity building charges will be charge from the guardians in monthly installments.

6. Till the permission is granted by Government for starting class/ B classes of students and online teaching is imparted regularly for that period only the capacity building fees will be charged.

7. If any student does not subscribe to the online education being provided by the school, no capacity building fees will be charged. C C - DETERMINATION OF TUITION FEES

1. The fees determined by school fee committee formed as per Rajasthan Schools (Regulation of Fees) 2016 and Rules 2017 will be the basis for aforesaid determination of fees which will clearly mention the various fees i.e. tuition fees, library fee etc. D

2. The prescribed total fees and tuition fees of last year will not be increased.

3. Every guardian will be provided of receipt of tuition fees/ capacity building fees. The said receipt will contain the details of the prescribed fees and the reduced fees necessarily.

4. The students who are undergoing online classes and want to continue with online classes but their guardians are unable to pay the fees, in such cases a committee will be formed at school level which will examine such cases and will take a decision in regard to the relaxation of fees to be granted looking to the circumstances from case to case.

5. The remaining fees for the academic session 2019-20 (remaining till the schools remained open) will be charged in equal monthly installments. The guardians of such students will not compelled to pay the fees in single installment.

6. No student will be prevented from registration for Board Examination even if he has not attended the online classes and has not paid the fees, even the transfer certificate of such students will not be issued. H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 67 [A. M. KHANWILKAR, J.]

7. If any student wants to take transfer certificate and has attended A online classes than capacity building fees as per aforesaid provision can be charged.

8. For charging fees as per aforesaid the non-government schools will pay prescribed salary to the employees had teachers and no retrenchment will be done due to circumstances of COVID-19. B The aforesaid has been approved by competent level. All concerned ensure the compliance. (Saurabh Swami) I.A.S., C Director, Secondary Education, Rajasthan, Bikaner. No.-Shivra-Ma/PSP/C/A-2/60566/2019-20 Dated 28.10.2020" D

59Copy pinpoint59. This order was assailed by some of the private schools before the High Court by way of substantive writ petition(s), which, as per the High Court Rules was required to proceed before the Single Judge in the first place. In addition, applications were filed in the pending intra- court appeals before the Division Bench seeking liberty to challenge the order dated 28.10.2020 issued by the Director, Secondary Education. As a result, the Division Bench with the consent of parties thought it appropriate to hear all the matters including involving challenge to the order dated 28.10.2020 of the Director, Secondary Education.

60Copy pinpoint60. Accordingly, the appeals and writ petitions were heard and decided together by the common judgment and order pronounced on 18.12.2020, which is impugned in the present appeals. The Division Bench vide impugned judgment opined that the State Government was competent and had jurisdiction to issue directions as given vide order dated 28.10.2020 of the Director, Secondary Education, being a policy decision necessitated due to aftermath of pandemic situation. The Court held that in absence of any legal provision to address the unprecedented difficulties faced by the parents and their wards across the State, it was open to issue administrative directions in exercise of power under Article 162 of the Constitution and especially when there was no legal provision prohibiting issuance of such directions. The Division Bench also opined that such H

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A order could be issued even in exercise of power under Section 22 of the Disaster Management Act, 200521. The Division Bench rejected the argument of the appellants that the stated order dated 28.10.2020 does not mention the source of power under which the same has been issued by the Director, Secondary Education or that it was vitiated due to lack of opportunity of hearing to the school Management(s). Instead, the B Court held that even if there is no formal authentication of the order, it would be of no consequence. For, the direction was given by the Chief Minister being the administrative and political head of the State Government. It was the bounden duty of the State Government to reckon the ground realities and strike a balance between the interests of private schools as well as of the parents and students and to mitigate the plight of the citizens due to unprecedented crisis post COVID-19 pandemic. The Court did advert to the fact that the school Management was obliged to honour its commitment, rather obligation to pay salary to its staff on account of governing statutory provisions despite the pandemic situation. Further, the State of Rajasthan had adopted a different pattern of substantially reducing the school fees in comparison to other States. Nevertheless, it noted that it is always open to the school Management as well as the parents to approach the statutory forum for determination of just fee under the Act of 2016. The Division Bench finally proceeded to conclude as follows: E “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.

21 H for short, “the Act of 2005”

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 69 [A. M. KHANWILKAR, J.]

III. In order to safeguard the interests of the schools’ A 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- B 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.” G

61Copy pinpoint61. In this backdrop, the management of private unaided schools in the State of Rajasthan have approached this Court to assail the impugned judgment of the Division Bench of the High Court and also the order dated 28.10.2020 issued by the Director, Secondary Education. As a matter of fact, challenge to the orders issued by the Director, H

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A Secondary Education on 09.04.2020 and 07.07.2020 had worked outdue to efflux of time. For, by these orders the school Management was merely directed to defer collection of school fees for specified period as noted therein; and that period had already expired. Thus, our focus in this judgment will be and ought to be only on the legality and rationality of the order issued by the Director, Secondary Education on 28.10.2020 and B applicable to academic year 2020-21 only, including the basis on which the same has been upheld by the High Court vide impugned judgment.

62Copy pinpoint62. According to the appellants (private unaided schools), the school fee charged from their students was fixed by the SLFC in its meeting held on 28.10.2017, by following procedure prescribed under the Act of C 2016 and the Rules framed thereunder. The same was to remain in force for the academic years 2018-19, 2019-20 and 2020-21. In the present appeals, as aforementioned, we are concerned only with the school fees pertaining to the academic year 2020-21, in light of the impugned order dated 28.10.2020 issued by the Director, Secondary D Education.

63Copy pinpoint63. The appellants would urge that being a responsive school administration and also being deeply concerned with the development of wards pursuing education in the concerned schools, the school Management “on their own” had decided to offer scholarship of 25 per E cent of the annual fee to their students. That was to mitigate the difficulties faced by the parents and keeping in mind that certain recurring expenses were not being incurred by the school Management during the lockdown period. Be that as it may, in law, it is not open to the State Authorities to modify the school fees once fixed by the SLFC for the relevant academic year that too in the manner done by the Director, Secondary Education F vide order dated 28.10.2020. The fact that the parties are at liberty to challenge the modification/reduction of school fees before the statutory forum does not justify the issue of such an order — unless the State Authorities have clear mandate to do so under the governing law. The departure made by the Director, Secondary Education vide order dated G 28.10.2020 was not acceptable to the school Management, being ex facie illegal. It does not disclose the source of power under which it has been issued. At best, it can rely on the interim observations made by the High Court in the proceedings pending at the relevant time. Those observations cannot confer power on the State Authorities when no such power exists in the State Government in relation to modification/reduction H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 71 [A. M. KHANWILKAR, J.]

of fee structure determined by the school Management and approved by the SLFC. Moreover, it is well-established that there can be no rigid uniform fee structure for all the private unaided schools in the State. The High Court had erroneously assumed that the power exercised by the Director, Secondary Education was ascribable to Article 162 of the Constitution. For, the subject of school fees is fully covered and governed by the provisions of the Act of 2016 and the Rules framed thereunder. Therefore, in the name of policy decision, the impugned order dated 28.10.2020 cannot be sustained, which on the face of it is not in conformity with the express statutory provisions governing the subject of school fees.

64Copy pinpoint64. It is urged that there was no express provision in the Act of C 2016 permitting such intervention by the State Authorities in respect of school fees already fixed under the Act of 2016. Reliance placed on Section 18 of the Act of 2016 was completely inapposite as that merely confers power upon the State Government to issue directions consistent with the provisions of the Act of 2016 and for carrying out the purposes of that Act or for giving effect to any of the provisions of that Act. Thus, recourse cannot be taken by the State Authorities to the provisions of the Act of 2016 much less Section 18 to justify the impugned order dated 28.10.2020. In any case that order, on the face of it, is unreasonable, arbitrary and irrational. For, Section 8 provides for the parameters for determination of school fee and admittedly the school fee had already been fixed by the SLFC on 28.10.2017 which was still in force and applicable for the academic year 2020-21 as well. Therefore, it was not open to reduce the same much less limit it to only one parameter of tuition fee amongst other parameters referred to in Section 8.

65Copy pinpoint65. It is urged that reliance placed on Section 18 of the Act of F 2016 is completely ill-advised. There is no mechanism in the Act of 2016 to review or reduce the school fees once approved by the SLFC or determined by the Statutory Regulatory Authorities. On the other hand, as per Section 6(3) such school fee is binding on all concerned for three academic years, which in the present case was to remain in force until G the academic year 2020-21.Further, the reduction of school fees has been erroneously linked to the instructions issued by the concerned Board. In fact, the Board had issued directives to complete the course including through online training/teaching. Moreover, there is no concept of “capacity building fee” under the Act of 2016. The expression “capacity H

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A building” obviously has been borrowed from the legislation such as the Act of 2005. In any case, it is necessary to make factual enquiry school wise as to whether the concerned school had completed the entire syllabus for the relevant academic year; and also, whether the liability of the school towards teaching and non-teaching staff and their administrative and infrastructure (recurring) expenses, had been discharged by the school B Management.

66Copy pinpoint66. It is then urged that the High Court committed manifest error in upholding the impugned order dated 28.10.2020 as being ascribable to exercise of power under the Act of 2005. For, the stated Act provides express mechanism as to when and by whom the power to issue directions can be exercised. The Director, Secondary Education has no such power under the Act of 2005 nor the State Government could do so thereunder much less to reduce the school fees fixed after approval of the SLFC in terms of the mechanism stipulated under the Act of 2016. The provisions of the Act of 2005 are limited to providing effective management of disasters and for matters connected therewith or incidental thereto.

67Copy pinpoint67. The manner and method of addressing such disaster and in particular “disaster management” as defined in Section 2(e) of the Act of 2005 is by preparation of a plan for disaster management by the authority concerned under that Act. A National Plan, State Plan or District E Plan is required to be prepared under the Act of 2005. That is in respect of prevention of disasters or mitigation of their effects. It is the direct effect of disaster that is required to be mitigated and not indirect hardship caused to individuals much less in respect of contractual matters. The plan must advert to the measures to be taken for the integration of mitigation measures in the development plans and the measures to be F taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster including the roles and responsibilities of different Ministries or Departments of the Government of India. In any case, the action is to be initiated by the State Authorities, established under the Act of 2005, namely, the Disaster Management G Authority at the concerned level. In the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships — such as inability of parents to pay school fees due to pandemic situation. The Director, Secondary Education, in no way, is concerned with the preparation of a disaster plan or its enforcement and implementation under the Act of 2005. As a H result, the order dated 28.10.2020 cannot be sustained with reference to

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 73 [A. M. KHANWILKAR, J.]

the provisions of the Act of 2005. The provision in the form of Section A 72 of the Act of 2005 is also of no avail because the same is in reference to the provisions of the Act, which, as aforesaid, in no way apply to the subject of fixation and collection of school fees. That subject is exclusively governed under the Act of 2016.

68Copy pinpoint68. Even the invocation of provisions of the Rajasthan Epidemic B Diseases Act, 202022 by the State to justify the stated order has been stoutly refuted by the appellants. The powers required to be exercised by the State Government under the Act of 2020 are delineated in Section 4 of the Act of 2020. None of these measures (referred to in Section 4) concern the subject of determination of school fees much less reduction of school fees once it is approved by the SLFC and is in force for the concerned academic year. The general provision in Section 4(2)(g) permitting the Government to regulate or restrict the functioning of offices, Government and private and educational institutions in the State, would not give authority to the State Government to decide about the fee structure of the concerned unaided private school. The regulation can be in regard to the timings when the school should be opened and closed and the protocol to be followed by the school during the working hours, as the case may be. That provision does not empower the State Government to reduce the school fees which is approved by the SLFC and is in force for the concerned academic year. E

69Copy pinpoint69. According to the appellants neither the order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law nor the reasons weighed with the Division Bench of the High Court in the impugned judgment to uphold the same can stand the test of judicial scrutiny. F

70Copy pinpoint70. Learned counsel for the minority private unaided school additionally contended that the order issued by the Director, Secondary Education violates the fundamental rights guaranteed under Article 19(1)(g) as well as Article 30(1) of the Constitution. That the right to fix the school fees is a fundamental right under Articles 19(1)(g) and 30 of the Constitution which cannot be regulated by the State except for G preventing profiteering and capitation fee. To buttress his submission, reliance was placed on the dictum in T.M.A. Pai Foundation23 (supra),

22 for short, “the Act of 2020” 23 paras 29-38, 45, 53-57, 61 and 122 H

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A P.A. Inamdar24 (supra) and Modern School25 (supra). He would submit that in the case of minorities, the State regulation on minority right has to satisfy a dual test — the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to make the institution an effective vehicle of education for the minority community and for other persons to resort to it. Learned counsel has also relied upon the decision dated 20.05.2020 of the Delhi High Court in the case of Ramjas School vs. Directorate of Education26 wherein the High Court noted that in the case of unaided educational institutions, availability of surplus is no ground to disapprove the fee hike. Absent any charging of capitation fee/profiteering, the State Authorities cannot reject the fee proposal of the school Management and that the quantum of fee to be charged is an element of administrative functioning of the school, over which the autonomy of the unaided educational institution cannot be compromised. He has also placed reliance on the decision of the Delhi High Court in Naresh Kumar vs. Director of Education, Delhi27 decided on 24.04.2020. He then invited our attention to the decision of this Court in Pramati Educational and Cultural Trust (Registered) & Ors. vs. Union of India & Ors.28 wherein the Constitution Bench opined that the RTE Act will not apply to minority educational institutions. Whereas, non-minority institutions are bound by the RTE Act to provide 25 per cent admission to economically weaker sections of the society and to get reimbursement from the Government towards unit cost. In substance, he has iterated the argument that the school Management(s) of private unaided schools has a right to fix their fee structure and to collect school fees as approved by the SLFC or the Statutory Regulatory Authority.

71Copy pinpoint71. Per contra, learned counsel appearing for the State and representing the parents submit that due to extraordinary and unprecedented situation arisen due to complete lockdown for such a long period, the parents are not in a position to pay the fixed school fees. It is only because of large number of representations made by them, the State Government responded by issuing orders on 09.04.2020 and later G on 07.07.2020 to defer the payment of school fees and finally to reduce 24 paras 91-94, 104, 107 and 139-141 25 paras 16 and 17 26 Writ Petition (C) No.9688 of 2018 (paras 66, 78, 88 and 91) 27 Writ Petition (C) No.2993 of 2020 (paras 18 to 21) H 28 (2014) 8 SCC 1 (paras 53 to 55)

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 75 [A. M. KHANWILKAR, J.]

the school fees in terms of order dated 28.10.2020 issued by the Director, A Secondary Education. The dispensation provided in the order dated 28.10.2020 is merely to take mitigating measures and to assuage the concerns of the parents who were in dire need of such assistance. The measures taken by the State Government in terms of Sections 38 and 39 of the Act of 2005, cast onerous responsibility upon the Government to take all measures for mitigation and capacity building in the wake of a pandemic. These provisions must be given widest meaning as narrow construction would result in curtailing the powers of a welfare State to undertake measures for dealing with the unprecedented situation. The spirit of the provisions must be kept in mind and the court must uphold the validity of the impugned order which has been issued in larger public interest. Reliance has been placed on the dictum of this Court in the State of M.P. & Ors. vs. Nandlal Jaiswal & Ors.29 And Pathan Mohammed Suleman Rehmatkhan vs. State of Gujarat & Ors.30, to buttress this submission.

72Copy pinpoint72. According to the respondents, Section 72 of the Act of 2005 D gives an overriding effect over all other laws and, therefore, the power of the State Government exercised in terms of Sections 38 and 39 in respect of measures articulated therein, need not be constricted keeping in mind the language of the said provisions. In other words, all that is required to be done by the State to assuage the concerns of the society and citizenry related to the situation arisen from the lockdown due to E pandemic, is permissible within the meaning of the said provisions.

73Copy pinpoint73. It is urged that mere omission to mention the source of power will not invalidate the exercise of power itself as long as there is a valid source to that exercise of power as noted by this Court in High Court of Gujarat & Anr. vs. Gujarat Kishan Mazdoor Panchayat & Ors. 31, F M.T. Khan & Ors. v. Govt. of A.P. & Ors.32 and N. Mani vs. Sangeetha Theatre & Ors.33.

74Copy pinpoint74. It is then urged that the order dated 28.10.2020 was necessitated and was in furtherance of the observations made by the Division Bench vide order dated 23.10.2020. That was, obviously, to fulfil the parens patriae G

29 (1986) 4 SCC 566 (para 34) 30 (2014) 4 SCC 156 (para 10) 31 (2003) 4 SCC 712 (para 53) 32 (2004) 2 SCC 267 (para 16) 33 (2004) 12 SCC 278 (para 9) H

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A obligations of the court as well as of the State. It is urged that the State has a legitimate interest under its parens patriae powers in providing care to its citizens and since the direction issued is to fulfil that obligation which was necessitated because of the unprecedented situation coupled with the fact that even the High Court had expressed a benign hope that the State Government ought to find out some arrangement, it became necessary to issue direction vide order dated 28.10.2020. Such power could be exercised even as a policy matter and the State Government is competent to do so under Article 162 of the Constitution.

75Copy pinpoint75. It is also urged that the direction given by the Director, Secondary Education vide order dated 28.10.2020 could be issued by the State in exercise of power under Section 18 of the Act of 2016 and hence, no fault can be found with the State Government having exercised that power.

76Copy pinpoint76. It is urged on behalf of State that the issue in the present appeals is limited to the justness of the order dated 28.10.2020 and, therefore, the direction given to the State in the interim order passed by this Court on 08.02.2021 to ensure that all government outstanding dues towards unit cost payable to respective unaided school are settled within one month from the date of the order, was inapposite and needs to be recalled. It is urged that computation of the unit cost is complex and assessment thereof is a time-consuming process.

77Copy pinpoint77. Learned counsel for the State in his written submission has finally suggested to modulate the relief to be given in these appeals in the following words: “5. Re: Modulation of the relief in the present matter F The initial notification issued by the State Government on 09.04.2020 and 07.07.2020 have outlived its utility and worked itself out. The Constitutional Courts do not pronounce upon any academic matter. The validity of the Circular dated 09.04.2020 and 07.07.2020 have become academic in wake of subsequent events. The order dated 28.10.2020 can also become passed if following relief, with utmost humility, is granted: (a) The management of each school shall propose the fee structure in terms of Section 6(1) and place it before the school-level committee within a period of 15 days

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from the date of judgment of this Hon’ble Court. This A shall be exclusively for Covid Year (2020-2021) irrespective of earlier determination of fees. (b) The management shall take into account the special circumstances of the COVID and curtailment of expenses during COVID along with the factors mentioned in Section 8 of the Act of 2016. The management shall be reasonable and explain expenditure under each head as enjoined by the statute. Section 6(4) read in conjunction with Section 8 of the Act. (c) The school-level fee committee will approve the fee within a period of 30 days. (d) There shall be compulsory fixation of fee for COVID year 2020-21 separately (alone) for each school in accordance with the provisions of the Act of 2016. (e) The fixation of fee for 2021-22 can, thereafter, take place normally in accordance with the provisions of the Act of 2016. Thus, the final school fee shall come into existence for the COVID year 2020-21 within a period of 45 days from the date of judgment of this Hon’ble Court and the order of E 28.10.2020 interim order passed by this Hon’ble Court shall subsume in the same.”

78Copy pinpoint78. According to Ms. Pragya Baghel, learned counsel representing the parents, the State Government had not followed proper procedure for determination of 70 per cent of the tuition fees and that decision is not backed by any tangible material on record. Moreover, the impugned decision was taken without giving opportunity to the stakeholders, in particular the parents’ association. For which reason, such a decision should not be allowed to be taken forward by the State Government. It is then urged that the action taken under the Act of 2005 was obviously in larger public interest and being a policy decision would not be amenable to judicial review. In any case, the appropriate course would be to relegate the parties before a special Committee comprising of a retired Judge of the High Court, one Chartered Accountant and retired Teachers/Officers nominated by the Director of Public Education Board, who can take an appropriate decision after hearing all the stakeholders. H

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79Copy pinpoint79. A written submission has also been filed on behalf of parents (by Mr. Sushil Sharma and others)contending that online classes are not a recognised form of education and that is being done by the private schools on their own without any defined syllabus by the Board. No planning or infrastructure required for online education is in place. No permission has been obtained by the private schools to conduct online classes from the concerned Boards nor any feedback is taken from the parents about the efficacy of the online teaching. It is urged that there is no uniformity in the teaching methodology or any standard operating procedure or protocol prescribed by the concerned Boards to be followed by the private schools. The focus is essentially on the disadvantage of online classes conducted by the private schools. It is also urged in the written submission that the recommendation made by the State Government and recognition of online classes as capacity building classes are inappropriate. At the end, it is urged that this Court ought to direct waiver of complete fees for the duration schools were closed and direct the State to prescribe a fixed fee for online classes to a standard uniform charge on par with NOIS across schools and to declare exams taken by the schools so far as invalid in law and to issue such other direction as may be necessary.

80Copy pinpoint80. Another written submission filed for the intervener - Mr. Charanpal Singh Bagri, claiming to be parent in a private school in the E State of Punjab. He has raised several issues including the questions pertaining to the matters concerning the schools in the State of Punjab which are sub judice. In our opinion, it is not necessary to dilate on this written submission as the present appeals pertain to the issues concerning the private unaided schools in the State of Rajasthan governed by the F Act of 2016 and the Rules framed thereunder. It will be open to the intervener to pursue all the points raised in the written submission in the proceedings pending in the High Court or this Court concerning the private schools in the State of Punjab. We may not be understood to have expressed any opinion in that regard.

81Copy pinpoint81. We also have the benefit of written submission filed by Mr. Sunil Samdaria, appearing in-person who has essentially commended us to uphold the impugned judgment and order dated 18.12.2020 of the High Court of Rajasthan and seeking directions to further reduce the school fees below the percentage specified in the order dated 28.10.2020 and as upheld by the High Court. In fact, he has gone to the extent of H

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suggesting that no fee should be charged for the period the schools have remained closed in the academic session 2020-21 as that would result in profiteering by the school Management. According to this respondent, the schools have saved colossal amount of money towards electricity charges, water charges, stationary charges and other miscellaneous charges which are required for physical running of the school and which may not be collected by the school for the relevant period.

82Copy pinpoint82. When the hearing of these appeals was in progress considering the urgency involved, we thought it appropriate to pass interim directions which were intended to address the concerns of all parties in some measure. That order was passed on 08.02.2021, which reads thus: C “SLP (C) No(s). 619/2021 De-linked. List the matter on 15th February, 2021. SLP (C) Nos.27907-27916/2019, SLP (C) No. 27987/2019 SLP D (C) No. 27881/2019, SLP (C) No. 2942/2020, SLP (C) No. 5902/ 2020, Diary No. 6803/2020, SLP (C) No. 5470/2020, SLP (C) No. 5589/2020, SLP (C) No. 431/2021 Diary No(s). 44/2021 (XV), SLP (C) No. 577-579/2021 and SLP (C) No(s). 619/2021 Special Leave Petition (C) Diary No. 3533 of 2021 is taken E up along with these matters, at the request of the petitioners therein. The hearing of these cases has been commenced and is part heard. But, since the hearing is likely to take some more time, we deem it appropriate to pass interim directions which will address the concerns of all parties in some measure. F We propose to stay the impugned order on the following conditions: (a) The management/school may collect fees for the academic year 2019-2020 as well as 2020-2021 from the students, equivalent to fees amount notified for the academic G year 2019-2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th August, 2021. (b) The Management shall not debar any student from attending either online classes or physical classes on account of non-payment of fees, arrears/outstanding fees including H

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A the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (c) Where the parents have difficulty in remitting the fee in terms of this interim order, it will be open to those parents to approach the school concerned by an individual representation and the management of the school will consider such representation on a case-to-case basis sympathetically. (d) The above arrangement will not affect collection of fees for the academic year 2021-2022, which would be payable by the students as and when it becomes due and payable, and as notified by the management/school. (e) In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non-payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student. (f) The above arrangements would be subject to the outcome of these matters including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings. (g) We also direct the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st March, 2021. F Ordered accordingly. Heard in part. Hearing of the aforesaid cases, shall continue on 15th February, 2021.”

83Copy pinpoint83. Learned counsel appearing for the appellants had stated that if the Court were to make this interim arrangement absolute, the appellants would be satisfied with such a direction. However, as aforesaid, the respondents, namely, the State Government and the parents have a different perception and have addressed us fully to oppose grant of any relief to the appellants. H

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84Copy pinpoint84. We have heard Mr. Pallav Shishodia, Mr. Shyam Divan, learned senior counsel, Mr. Puneet Jain and Mr. Romy Chacko, learned counsel for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learned senior counsel for the State of Rajasthan and Mr. Sunil Samdaria, in- person.

85Copy pinpoint85. At the outset, in this judgment we consciously opt to limit our analysis to the challenge/grounds concerning the legality and justness of the order dated 28.10.2020 issued by the Director, Secondary Education concerning private unaided schools in the State of Rajasthan and as applicable to the academic year 2020-21 only. We do not wish to advert to or analyse any other issue raised by the parties and we may not be understood to have expressed any opinion either way in that regard. C

86Copy pinpoint86. Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day-to-day affairs and the basic need of their family made fervent representation to the school Management(s) across the State. A public discourse in that regard surfaced in the media which impelled the political dispensation to intervene. Thus, on the directions of the Chief Minister of the State of Rajasthan, the Department initially issued order dated 09.04.2020 merely to defer the collection of school fees which restriction was extended by subsequent order dated 07.07.2020.

87Copy pinpoint87. The matter had reached the High Court and by way of interim arrangement, learned Single Judge of the High Court issued certain directions against which the parties approached the Division Bench of the High Court by way of intra-court appeals. During the pendency of intra-court appeals in deference to the observations of the court, the State Authority proceeded to issue further order on 28.10.2020, which, essentially is the subject matter of assail in these appeals. G

88Copy pinpoint88. The State cannot be heard to rest its argument to defend the impugned order dated 28.10.2020 as having been issued in light of benign hope expressed by the High Court. It could do so only if the law permitted the State Government to intervene on the subject of school fees of private unaided schools (minority or non-minority, as the case may be). H

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A Resultantly, what we need to examine in these appeals is whether order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law.

89Copy pinpoint89. Although the stated order makes no reference to the source of power under which it had been issued, four different perspectives have been invoked by the State to justify the exercise of that power. First, it is competent to do so under Section 18 of the Act of 2016 itself. Second, being a policy decision, it could issue an executive direction to mitigate the concerns of the parents in exercise of power under Article 162 of the Constitution. Third, such power can be exercised by the State Government for mitigating the concerns of the parents and for capacity building of the stakeholders as one of the measures under the Act of

2005. Lastly, such direction could be issued also in exercise of power under the Act of 2020 by the State Authorities.

90Copy pinpoint90. We now proceed to test the correctness of the pleas taken by the State Government in seriatim. D

91Copy pinpoint91. The source of power derived from Section 18 of the Act of 2016 is a flimsy argument. Section 18 of the Act of 2016 reads thus: “18. Power to issue directions. - The State Government may issue to any school such general or special directions consistent with the provision of this Act and the rules made thereunder as in its opinion are necessary or expedient for carrying out the purposes of this Act or for giving effect to any of the provisions contained therein or in any rules or orders made thereunder and the management of the school shall comply with every such direction.” This provision does bestow power on the State Government to issue general or special directions to any school within the State. However, such direction must be consistent with the provisions of the Act of 2016 and the Rules framed thereunder. It cannot be in conflict with the mandate of the Act and the Rules. Additionally, such directions must be necessitated due to expediency for carrying out the purposes of the Act and the Rules or to give effect to the applicable provisions. If the direction issued by the State Government does not qualify these parameters, it must follow that the same has been issued in excess of power bestowed under Section 18 of the Act of 2016.

92Copy pinpoint92. After analysing the scheme of the Act of 2016, at least two aspects are amply clear. The first is that a firm mechanism has been specified under the Act of 2016 regarding determination of fee structure

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in the form of approval by the SLFC and, if required, adjudication by the A DFRC and the Revision Committee. There is no express provision in the Act or Rules authorising the stated functionaries/authorities to modify the school fees once finalised in the manner provided by the Act of

2016. Whereas, the explicit mandate in the Act of 2016 is that, the fees so fixed by the concerned functionaries/authorities shall be binding on all B concerned for three academic years. This is a clear indication of not altering the school fees unilaterally after it is fixed under the Act of 2016 in any manner for the specified period. If we may say so, it is in the nature of prohibition or a mandate to continue the same fee structure for at least three academic years, after it is fixed by the concerned authority under the Act. By its very nature, the direction given by the State C Government is in conflict with the scheme of finalisation of fee structure under the Act of 2016 and also the binding effect thereof for the specified period of three academic years on all concerned. Thus understood, the direction issued by the State Government in the form of order dated 28.10.2020 does not satisfy the twin tests of being consistent with the provisions of the Act; and also being necessary or expedient for carrying out the purposes of the Act, as the case may be.

93Copy pinpoint93. Suffice it to observe that the order dated 28.10.2020 being in the nature of direction, has been issued in breach of the pre-conditions specified in Section 18 of the Act of 2016. As a matter of law, the State Government had no power, whatsoever, to interdict the fee structure much less which has been finalised and fixed by the concerned functionaries/authorities under the Act of 2016 itself before expiry of the statutory period as specified. As a result, Section 18 of the Act of 2016 will be of no avail to the respondents, in particular the State Government to justify the order dated 28.10.2020. F

94Copy pinpoint94. A fortiori, even the argument of the respondents relying upon the existence of executive power under Article 162 of the Constitution, ought to fail. It is well-established position that the executive power of a State under Article 162 of the Constitution extends to the matters upon which the legislature of the State has competency to legislate and is not G confined to matters over which legislation has already been passed. It is also well-settled that the State Government cannot go against the provisions of the Constitution or any law. The subject of determination of fee structure and whether it entails in profiteering, is already covered by the legislation in the form of the Act of 2016 and the Rules framed H

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A thereunder. It is not as if there is no enactment covering that subject or any incidental aspects thereof. The Act of 2016, which in itself is a self- contained code on the said subject, not only provides for the manner in which the concerned school ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three B academic years. In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school. The State can provide independent mechanism only to regulate that decision of the school Management to the extent that it does not result in profiteering and commercialisation.

95Copy pinpoint95. Viewed thus, reliance placed on Union of India vs. Moolchand Kharaiti Ram Trust34 will be of no avail. In that case, the hospitals were obligated to render free treatment in lieu of allotment of government land to them for earning no profit and held in trust for public good. The Court opined that there was no necessity of enacting a law and the D policy formulated by the State Government in that regard cannot be disregarded.

96Copy pinpoint96. In the present case, we need not dilate on the factum as to whether the Director, Secondary Education could have issued such a policy document in exercise of executive power under Article 162 of the E Constitution, which power exclusively vests in the State Government alone. The fact remains that the direction issued in terms of impugned order dated 28.10.2020, on the face of it, collide with the dispensation specified in the Act of 2016 in the matter of determination of school fees and its binding effect on all concerned for a period of three academic years, without any exception. The fact that in the proceedings before F the High Court the State Government had ratified the impugned order, does not take the matter any further. In that, there can be no ex post facto ratification by the State Government in respect of subject, on which, it itself could not issue such direction in law.

97Copy pinpoint97. Even the exposition in Rai Sahib Ram Jawaya Kapur & G Ors. vs. State of Punjab35 and Secretary, A.P.D. Jain Pathshala & Ors. vs. Shivaji Bhagwat More & Ors.36 Will not come to the aid of

34 (2018) 8 SCC 321 (paras 90 and 91) 35 AIR 1955 SC 549 36 H (2011) 13 SCC 99

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the respondents for the same reasons. Notably, not only the subject of finalisation of fee structure and the matters incidental thereto have been codified in the form of the Act of 2016, but also a law has been enacted to deal with the matters during the pandemic situation in the form of Central Act, namely, the Act of 2005 including the State legislation i.e., the Act of 2020. In fact, the State legislation deals with the subject of epidemic diseases and its management. Even those enactments do not vest any power in the State Government to issue direction with regard to commercial or economic aspects of matters between private parties with which the State has no direct causal connection, which we shall examine later at the appropriate place. In other words, the power of the State Government to deal with matters during the pandemic situation have already been delineated by the Parliament as well as the State legislature.

98Copy pinpoint98. As such, it is not open to the State Government to issue directions in respect of commercial or economic aspects of legitimate subsisting contracts/transactions between two private parties with which the State has no direct causal connection, in the guise of management of pandemic situation or to provide “mitigation to one” of the two private parties “at the cost of the other”. This is akin to – rob Peter to pay Paul. It is a different matter, if as a policy, the State Government takes the responsibility to subsidise the school fees of students of private unaided schools, but cannot arrogate power to itself much less under Article 162 E of the Constitution to issue impugned directions (to school Management to collect reduced school fee for the concerned academic year). We have no hesitation in observing that the asservation of the State Government of existence of power to issue directions even in respect of economic aspects of legitimate subsisting contracts/transactions between F two private parties, if accepted in respect of fee structure of private unaided schools, is fraught with undefined infinite risk and uncertainty for the State. For, applying the same logic the State Government may have to assuage similar concerns in respect of other contractual matters or transactions between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Constitution. G That would not only open pandora’s box, but also push the State Government to entertain demands including to grant subsidy, from different quarters and sections of the society in the name of mitigating measures making it financially impossible and unwieldy for the State and eventually burden the honest tax payers - who also deserve similar indulgence. H

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A Selective intervention of the State in response to such demands may also suffer from the vice of discrimination and also likely to impinge upon the rights of private individual(s) — the supplier of goods or service provider, as the case may be. The State cannot exercise executive power under Article 162 of the Constitution to denude the person offering service(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence the State has no direct causal relationship therewith.

99Copy pinpoint99. It is one thing to say that the State may regulate the fee structure of private unaided schools to ensure that the school Management does not indulge in profiteering and commercialisation, but in the guise of exercise of that power, it cannot transcend the line of regulation and impinge upon the autonomy of the school to fix and collect “just” and “permissible” school fees from its students. It is certainly not an essential commodity governed by the legislation such as Essential Commodities Act, 1955 empowering the State to fix tariff or price thereof. In light of consistent enunciation by this Court including the Constitution Bench, that determination of school fee structure (which includes reduction of fixed school fee for the relevant period) is the exclusive prerogative of the school Management running a private unaided school, it is not open to the Legislature to make a law touching upon that aspect except to provide statutory mechanism to regulate fees for ensuring that it does not result in profiteering and commercialisation by the school Management. Ex-consequenti, the State Government also cannot exercise power under Article 162 of the Constitution in that regard.

100Copy pinpoint100. Notably, the direction given in the impugned order to the school Management is to collect only specified percentage of annual tuition fees on the assumption that the schools will not be required to complete the course for the academic year 2020-21. This assumption has been rebutted by the appellants by relying on the instructions issued by the concerned Board indicating to the contrary. In any case, that does not extricate the school Management from incurring recurring capital and revenue expenditure including to pay their academic and non- academic staff their full salary and emoluments for the relevant period. For, no corresponding authority is given to the school Management to deduct suitable amount from their salaries. Thus, the effect of the impugned order is to reduce school fees determined under the Act in absence of authority to do so including under the Act of 2016. Further, H

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on the face of it, the direction given is inconsistent with the provisions of the stated Act. To put it tersely, the impugned order issued is in respect of matters beyond the power of the State Government - to regulate the fee structure for ensuring that the school Management does not indulge in profiteering and commercialisation. Accordingly, the impugned order dated 28.10.2020 cannot be sustained even in reference to executive power under Article 162 of the Constitution.

101Copy pinpoint101. Reverting to the provisions of the Act of 2005, no doubt Section 72 thereof predicates that the provisions of the Act will have overriding effect on other laws for the time being in force or anything inconsistent in any instrument having effect by virtue of any law other than the Act of 2005. This provision, however, would come into effect only if it is to be held that the Statutory Authorities under the Act of 2005 have power to deal with the subject of school fee structure of private unaided schools.

102Copy pinpoint102. For that, we may usefully refer to Section 23 of the Act of 2005 which provides for the contents of the plan for disaster management to be prepared for every State called the State Disaster Management Plan. Section 23 reads thus: “23. State Plan.— (1) There shall be a plan for disaster management for every State to be called the State Disaster Management Plan. E (2) The State Plan shall be prepared by the State Executive Committee having regard to the guidelines laid down by the National Authority and after such consultation with local authorities, district authorities and the people’s representatives as the State Executive Committee may deem fit. F (3) The State Plan prepared by the State Executive Committee under sub-section (2) shall be approved by the State Authority. (4) The State Plan shall include,— (a) the vulnerability of different parts of the State to different G forms of disasters; (b) the measures to be adopted for prevention and mitigation of disasters; (c) the manner in which the mitigation measures shall be integrated with the development plans and projects; H

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A (d) the capacity-building and preparedness measures to be taken; (e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above; B (f) the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster; (5) The State Plan shall be reviewed and updated annually.

C (6) Appropriate provisions shall be made by the State Government for financing for the measures to be carried out under the State Plan. (7) Copies of the State Plan referred to in sub-sections (2) and (5) shall be made available to the Departments of the Government of the D State and such Departments shall draw up their own plans in accordance with the State Plan.”

103Copy pinpoint103. Going by the scheme of the Act of 2005, the State Authority established under Section 14 known as State Disaster Management Authority is expected to formulate policies and plans for disaster management in the State. Indeed, such policies and plans may include E mitigation37 measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/ impact or effects of a disaster or threatening disaster situation. Considering the sphere of functions of the State Authority including the State Executive Committee or different Authorities established at concerned level within the State, there is not even a tittle of indication that in the name of mitigating measures, the disaster management plan may comprehend issue of direction in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the prerogative of the supplier or manufacturer of the goods or service provider of the services. The scheme of the Act of 2005 obligates the State Authority to assuage the concerns of the persons arising from “direct impact” of the disaster and to take mitigation measures 37 Section 2(i) “mitigation” means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; H

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to minimise the impact of such disaster and for that purpose, resort of capacity-building³⁸ including of its own resources³⁹ to wit, manpower, services, materials and provisions as noted in Section 2(p), and preparedness⁴⁰ measures referred to in Section 2(m). It is not possible to countenance the persuasive argument of the respondents that expansive meaning be assigned to the provisions of the Act of 2005 so as to include power to reduce school fees of private unaided school albeit fixed under the Act of 2016 and which by law is to remain in force until academic year 2020-21.

104Copy pinpoint104. As is noticed from the preamble of the Act of 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto. It extends to the whole of C India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. The expression “disaster” has been defined in Section 2(d) of the Act of 2005, which reads thus: D “2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (d) “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, E or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;” F

105Copy pinpoint105. The Authorities created under the Act of 2005 are expected to deal with matters concerning the disaster management. The expression “disaster management” has been defined as follows:

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A “2. Definitions.- In this Act, unless the context otherwise requires,- xxx xxx xxx (e) “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing B measures which are necessary or expedient for— (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; C (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; D (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction;”

106Copy pinpoint106. It is also useful to advert to Section 18 of the Act of 2005 E which provides for powers and functions of State Authority established under Section 14 consisting of Chief Minister of the State, who acts as Chairperson (Ex officio) and other Chairpersons of the respective Authorities. Section 18 reads thus: “18. Powers and functions of State Authority.— (1) Subject F to the provisions of this Act, a State Authority shall have the responsibility for laying down policies and plans for disaster management in the State. (2) Without prejudice to the generality of provisions contained in sub-section (1), the State Authority may— G (a) lay down the State disaster management policy; (b) approve the State Plan in accordance with the guidelines laid down by the National Authority; (c) approve the disaster management plans prepared by the departments of the Government of the State; H

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(d) lay down guidelines to be followed by the departments A of the Government of the State for the purposes of integration of measures for prevention of disasters and mitigation in their development plans and projects and provide necessary technical assistance therefor; (e) coordinate the implementation of the State Plan; B (f) recommend provision of funds for mitigation and preparedness measures; (g) review the development plans of the different departments of the State and ensure that prevention and mitigation measures are integrated therein; C (h) review the measures being taken for mitigation, capacity building and preparedness by the departments of the Government of the State and issue such guidelines as may be necessary. (3) The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority.”

107Copy pinpoint107. The obligation of the State Government for the purpose of disaster management can be culled out from Section 38, which reads thus: “38. State Government to take measures.— (1) Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management. (2) The measures which the State Government may take under sub-section (1) include measures with respect to all or any of the following matters, namely:— (a) coordination of actions of different departments of the G Government of the State, the State Authority, District Authorities, local authority and other non-governmental organisations; (b) cooperation and assistance in the disaster management to the National Authority and National Executive Committee, H

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A the State Authority and the State Executive Committee, and the District Authorities; (c) cooperation with, and assistance to, the Ministries or Departments of the Government of India in disaster management, as requested by them or otherwise deemed B appropriate by it; (d) allocation of funds for measures for prevention of disaster, mitigation, capacity-building and preparedness by the departments of the Government of the State in accordance with the provisions of the State Plan and the C District Plans; (e) ensure that the integration of measures for prevention of disaster or mitigation by the departments of the Government of the State in their development plans and projects; D (f) integrate in the State development plan, measures to reduce or mitigate the vulnerability of different parts of the State to different disasters; (g) ensure the preparation of disaster management plans by different departments of the State in accordance with the guidelines laid down by the National Authority and the State Authority; (h) establishment of adequate warning systems up to the level of vulnerable communities; (i) ensure that different departments of the Government of the State and the District Authorities take appropriate preparedness measures; (j) ensure that in a threatening disaster situation or disaster, the resources of different departments of the Government of the State are made available to the National Executive G Committee or the State Executive Committee or the District Authorities, as the case may be, for the purposes of effective response, rescue and relief in any threatening disaster situation or disaster; (k) provide rehabilitation and reconstruction assistance to the victims of any disaster; and

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(l) such other matters as it deems necessary or expedient for the purpose of securing effective implementation of provisions of this Act.”

108Copy pinpoint108. The corresponding responsibilities of departments of the State Government have been delineated in Section 39, which reads thus: “39. Responsibilities of departments of the State B Government.— It shall be the responsibility of every department of the Government of a State to— (a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority and the State Authority; (b) integrate into its development plans and projects, the measures for prevention of disaster and mitigation; (c) allocate funds for prevention of disaster, mitigation, capacity-building and preparedness; (d) respond effectively and promptly to any threatening disaster situation or disaster in accordance with the State Plan, and in accordance with the guidelines or directions of the National Executive Committee and the State Executive E Committee; (e) review the enactments administered by it, its policies, rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters, mitigation or preparedness; F (f) provide assistance, as required, by the National Executive Committee, the State Executive Committee and District Authorities, for— (i) drawing up mitigation, preparedness and response plans, capacity-building, data collection and identification G and training of personnel in relation to disaster management; (ii) assessing the damage from any disaster; (iii) carrying out rehabilitation and reconstruction; H

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A (g) make provision for resources in consultation with the State Authority for the implementation of the District Plan by its authorities at the district level; (h) make available its resources to the National Executive Committee or the State Executive Committee or the District B Authorities for the purposes of responding promptly and effectively to any disaster in the State, including measures for— (i) providing emergency communication with a vulnerable or affected area; C (ii) transporting personnel and relief goods to and from the affected area; (iii) providing evacuation, rescue, temporary shelter or other immediate relief;

D (iv) carrying out evacuation of persons or live-stock from an area of any threatening disaster situation or disaster; (v) setting up temporary bridges, jetties and landing places; (vi) providing drinking water, essential provisions, E healthcare and services in an affected area; (i) such other actions as may be necessary for disaster management.”

109Copy pinpoint109. The State Executive Committee constituted under the Act of 2005 vide Section 20 is obligated to discharge the functions delineated in F Section 22 of the Act. The same reads thus: “22. Functions of the State Executive Committee.— (1) The State Executive Committee shall have the responsibility for implementing the National Plan and State Plan and act as the coordinating and monitoring body for management of disaster in G the State. (2) Without prejudice to the generality of the provisions of sub- section (1), the State Executive Committee may— (a) coordinate and monitor the implementation of the National Policy, the National Plan and the State Plan; H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 95 [A. M. KHANWILKAR, J.]

(b) examine the vulnerability of different parts of the State A to different forms of disasters and specify measures to be taken for their prevention or mitigation; (c) lay down guidelines for preparation of disaster management plans by the departments of the Government of the State and the District Authorities; B (d) monitor the implementation of disaster management plans prepared by the departments of the Government of the State and District Authorities; (e) monitor the implementation of the guidelines laid down by the State Authority for integrating of measures for prevention of disasters and mitigation by the departments in their development plans and projects; (f) evaluate preparedness at all governmental or non- governmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness; (g) coordinate response in the event of any threatening disaster situation or disaster; (h) give directions to any Department of the Government of the State or any other authority or body in the State E regarding actions to be taken in response to any threatening disaster situation or disaster; (i) promote general education, awareness and community training in regard to the forms of disasters to which different parts of the State are vulnerable and the measures that may be taken by such community to prevent the disaster, mitigate and respond to such disaster; (j) advise, assist and coordinate the activities of the Departments of the Government of the State, District Authorities, statutory bodies and other governmental and non-governmental organisations engaged in disaster management; (k) provide necessary technical assistance or give advice to District Authorities and local authorities for carrying out their functions effectively; H

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A (l) advise the State Government regarding all financial matters in relation to disaster management; (m) examine the construction, in any local area in the State and, if it is of the opinion that the standards laid for such construction for the prevention of disaster is not being or has not been followed, may direct the District Authority or the local authority, as the case may be, to take such action as may be necessary to secure compliance of such standards; (n) provide information to the National Authority relating to different aspects of disaster management; (o) lay down, review and update State level response plans and guidelines and ensure that the district level plans are prepared, reviewed and updated; (p) ensure that communication systems are in order and the disaster management drills are carried out periodically; (q) perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.”

110Copy pinpoint110. Having regard to the purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated E Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se. In any case, the impugned order has not been issued by the State Authority referred to in the Act of 2005. It is not enough to say that the same was issued under the directions of F the Chief Minister of the State. For, the Chief Minister is only the Chairperson (Ex officio) of the State Disaster Management Authority established under Section 14 of the Act of 2005. Suffice it to observe that there is no provision in the Act of 2005 which concerns or governs the subject of interdicting the school fee structure fixed under the Act of 2016. G

111Copy pinpoint111. Section 72 of the Act of 2005 was pressed into service. However, that cannot be the basis to justify the impugned order dated 28.10.2020. Section 72 reads thus: “72. Act to have overriding effect.— The provisions of this H Act, shall have effect, notwithstanding anything inconsistent

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 97 [A. M. KHANWILKAR, J.]

therewith contained in any other law for the time being in force or A in any instrument having effect by virtue of any law other than this Act.” The Act of 2005 is not a panacea for all difficulties much less not concerning disaster management [Section 2(e)] as such. As noted earlier, there is no express provision in the Act of 2005 which empowers the B Director, Secondary Education (or the State Government) to issue order and directions in respect of school fee structure because of the pandemic situation.

112Copy pinpoint112. For the same reasons, reliance placed on the provisions of the State legislation, namely, the Act of 2020 dealing with epidemic C diseases will be of no avail to justify the impugned order dated 28.10.2020 issued by the Director, Secondary Education. The power to take special measures and specify regulation as to epidemic disease can be exercised by the State Government under Section 4 of the Act of 2020. Section 4 reads thus: D “4. Power to take special measures and specify regulations as to epidemic disease.— (1) When at any time the Government is satisfied that the State or any part thereof is visited by or threatened with an outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette, specify such E temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such epidemic disease or the spread thereof and require or empower District Collectors to exercise such powers and duties as may be specified in the said regulations or orders. F (2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take measures and specify regulations,- (a) to prohibit any usage or act which the Government considers sufficient to spread or transmit epidemic diseases G from person to person in any gathering, celebration, worship or other such activities within the State; (b) to inspect the persons arriving in the State by air, rail, road or any other means or in quarantine or in isolation, as the case may be, in hospital, temporary accommodation, home H

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A or otherwise of persons suspected of being infected with any such disease by the officer authorized in the regulation or orders; (c) to seal State Borders for such period as may be deemed necessary; B (d) to impose restrictions on the operation of public and private transport; (e) to prescribe social distancing norms or any other instructions for the public to observe that are considered necessary for public health and safety on account of the C epidemic; (f) to restrict or prohibit congregation of persons in public places and religious institutions or places of worship; (g) to regulate or restrict the functioning of offices, Government and private and educational institutions in the D State; (h) to impose prohibition or restrictions on the functioning of shops and commercial and other offices, establishments, factories, workshops and godowns; (i) to restrict duration of services in essential or emergency E services such as banks, media, health care, food supply, electricity, water, fuel etc.; and (j) such other measures as may be necessary for the regulation and prevention of epidemic diseases as decided by the Government.” F The measures enunciated in Section 4 of the Act of 2020 in no way deal with the “tariffs” of air, rail, road, hospital, temporary accommodation. It only enables the Authority to prohibit any usage or activities which the Government considers sufficient to spread or transmit epidemic diseases and for that purpose to inspect various places suspected of being infected with such diseases. Indeed, it can regulate or restrict the functioning of offices, Government and private and educational institutions in the State. That, however, would be only in respect of manner of its use and its timings including to observe standard operating procedures to ensure that epidemic diseases do not transmit or spread on account of activities carried out therein. That power to regulate cannot

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 99 [A. M. KHANWILKAR, J.]

be invoked to control the tariffs, fees or cost of goods and services and in particular economic aspects of contractual matters between two private parties or so to say school fees of private unaided schools. Accordingly, even the last point urged by the State to justify the impugned order dated 28.10.2020 falls to the ground.

113Copy pinpoint113. A priori, it must follow that the Director, Secondary Education B had no authority whatsoever to issue direction in respect of fee structure determined under the Act of 2016 including to reduce the same for the academic year 2020-21 in respect of private unaided schools. Having failed to trace the legitimate source of power under which the directions have been issued, as aforesaid, the respondents - State Authorities cannot fall back upon the benign hope expressed by the High Court to do the needful in the backdrop of the representations made by several parents about the difficulties encountered by them due to pandemic situation. It would have been a different matter if the Director, Secondary Education had used his good offices to impress upon the school management(s) of the concerned school(s) to explore the mitigating measures/options on their own for the academic year 2020-21 and to give concession to their students to the extent possible at least in respect of unutilised facilities and savings on overheads by the school Management in that behalf or to give concession in the form of scholarship to deserving students. It is stated by the appellants that the school Management on their own had offered scholarship of 25 per cent of the annual fee to their students. In E other words, the Director, Secondary Education could have mediated between the Association of the school Management and representatives of the Parent-Teachers Association for arriving at an amicable solution due to pandemic situation for the academic year 2020-21, on humanitarian grounds, but could not issue the impugned order when even the State F had no power to issue the same.

114Copy pinpoint114. Accordingly, the appellants are justified in assailing the order dated 28.10.2020 issued by the Director, Secondary Education and must succeed. However, that does not give licence to the appellants to be rigid and not be sensitive about aftermath of pandemic. The school G Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single H