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

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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”.

115Copy pinpoint115. 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.

116Copy pinpoint116. 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.

117Copy pinpoint117. 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.

118Copy pinpoint118. 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.

119Copy pinpoint119. 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.

120Copy pinpoint120. 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.

121Copy pinpoint121. 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