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

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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;”

106. 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.”

107. 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

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 93 [A. M. KHANWILKAR, J.]

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

108. 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.”

109. 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.”

110. 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

111. 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

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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.

112. 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.

113. 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.

114. 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

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A student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.

115. In law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. B Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation. It is a well-known fact and judicial notice can also be taken that, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020-21. Resultantly, the school Management must have saved overheads and recurring cost on various C items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc. Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period. Being fee, the principle of quid pro quo must come into play. However, D no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management. Without insisting for mathematical exactitude approach, we would assume that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory E Authorities for the relevant period.

116. At this stage, we must advert to the stand taken by the learned counsel for the appellants that the appellants would be content with the interim order passed by this Court on 08.02.2021, being confirmed as a final order. This suggestion is indeed attractive, but that arrangement does not provision for the amounts saved by the school Management towards unspent overheads/expenses in respect of facilities not utilised or could not be offered by the school Management to the students due to lockdown situation. As aforesaid, we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per H

INDIAN SCHOOL, JODHPUR v. STATE OF RAJASTHAN 101 [A. M. KHANWILKAR, J.]

cent of the annual school fees for academic year 2020-2021), would be A a case of profiteering and commercialisation by the school Management.

117. Ordinarily, we would have thought it appropriate to relegate the parties before the Regulatory Authority to refix the school fees for the academic year 2020-21 after taking into account all aspects of the matter including the advantage gained by the school Management due B to unspent overheads/expenses in respect of facilities not availed by the students. However, that course can be obviated by the arrangement that we propose to direct in terms of this judgment. To avoid multiplicity of proceedings (as school fee structure is linked to school — school wise) including uncertainty of legal processes by over 36,000 schools in determination of annual fee structure for the academic year 2020-21, as C a one-time measure to do complete justice between the parties, we propose to issue following directions: (i) The appellants (school Management of the concerned private unaided school) shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019-20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020- 21. (ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021 as noted in our order dated 08.02.2021. (iii) Regardless of the above, it will be open to the appellants (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above. (iv) The school 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 the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020- 21 in the above terms, the school Management to consider such representation on case-to-case basis sympathetically. H

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A (vi) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable. (vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment of fee/arrears for the academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.

118. We are conscious of the fact that we are issuing general uniform direction of deduction of 15 per cent of the annual school fees in lieu of unutilised facilities/activities and not on the basis of actual data school-wise. As aforesaid, we have chosen to do so with a view to obviate avoidable litigation and to give finality to the issue of determination and collection of school fees for the academic year 2020-21, as a one- time measure which is the subject matter of these appeals. We have consciously limited the quantum of deduction from annual school fees to 15 per cent although the school Management had mentioned about its willingness to provide 25 per cent scholarship to deserving students, as we have compelled the school Management to collect annual school fees for the academic year 2020-21 as was fixed for the academic year E 2019-20 on which some of the school Management(s) could have legitimately asked for increase of at least 10 per cent in terms of Section 6(5) of the Act of 2016.

119. As we are disposing of the appeals in terms of this judgment, the contempt petition(s) filed before the High Court on the basis of impugned judgment also need to be disposed of. Accordingly, we deem it appropriate F to dispose of all the contempt petition(s) initiated in reference to the impugned judgment, as the same is being overturned by this decision.

120. While parting, we must note that the respondent-State of Rajasthan has moved a formal application for recall/modification of direction given in clause (g) of the order of this Court dated 08.02.2021 G — to ensure payment of outstanding dues towards unit cost payable to respective unaided schools within specified time. It is urged that due to complexity of facts, it was not possible to complete the process of computation before 31.03.2021. In the first place, there is no question of recall or modification of that direction. We were conscious of the fact that that is not the subject matter of the appeals before this Court.

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Nevertheless, such direction was issued taking into account totality of the situation and to give relief to the private unaided schools by directing the State of Rajasthan to discharge its statutory obligation within specified time, of paying the outstanding dues of the concerned private unaided schools towards unit cost. Accordingly, we reiterate that direction but give further time to the State Government to complete the process of calculation and disbursal of the outstanding amount payable towards unit cost to the concerned unaided schools in the State of Rajasthan before the end of July 2021. The outstanding dues to be paid in terms of this direction would be obviously in respect of academic year upto 2020-21.

121. We must also note that we have not dilated on each of the reported decisions relied upon by the parties, as it is not necessary to do so for the view taken by us. For, there is nothing inconsistent in those decisions. ORDER In view of the above, D (a) we dispose of the first set of appeals challenging the validity of the Act of 2016 and the Rules framed thereunder with observations and the conclusion recorded in paragraph 52 above by reading down Sections 4, 7 and 10 of the Act and direct that henceforth the same be applied in conformity with the law declared in this judgment. E

(b) The second set of appeals, however, are allowed in the above terms including mentioned in paragraph 117. The impugned judgment and order of the High Court dated 18.12.2020 is quashed and set aside. Instead, the intra-court appeals preferred by the appellants questioning the decision of the learned Single Judge and the writ petitions filed before the High Court to assail the impugned order dated 28.10.2020, shall stand disposed of in terms of this judgment. (c) The contempt petition(s) pending before the High Court in connection with the subject matter of these appeals also stand disposed of. No order as to costs. Pending applications, if any, also stand disposed of.

Nidhi Jain Appeals disposed of. H