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

[2021] 14 S.C.R. 1

INDIAN SCHOOL, JODHPUR & ANR.

STATE OF RAJASTHAN & ORS.

(Civil Appeal No. 1724 of 2021)

MAY 03, 2021

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Education/Educational Institutions:

Rajasthan Schools (Regulation of Fee) Act, 2016 – ss. 3, 4,6-11, 15 and 16 – Rajasthan Schools (Regulation of Fee) Rules,2017 – rr. 3, 4, 6-8 and 11 –Validity of – Challenge to, by theManagement of the private unaided schools in the State of Rajasthan,on the ground of being ultra vires the Constitution; and violative ofArt. 19(1)(g) since it takes away autonomy to determine the Schoolfees – High Court rejected the challenge to the validity of the Act of2016 and Rules framed thereunder – Justification of –Held: Justified– High Court rightly concluded that the provisions of the Act of2016 as well as the Rules of 2017 are intra vires the Constitution ofIndia and not violative of Arts. 13(2) and 19(1)(g) – However, it isdone so by reading down ss. 4, 7 and 10 –Act of 2016 provides forthe regulatory mechanism – Autonomy of the school Managementto determine the fee structure is untrammelled and not undermined– Institution is entitled to fix its own fee structure, as long as it doesnot entail in profiteering and commercialization – Thus, the orderpassed by the High Court upheld – Constitutionof India – Arts 13(2)and 19(1)(g).

Rajasthan Schools (Regulation of Fee) Act, 2016 – s. 18 –Power to issue directions – On facts, order by the State Authorities-Director, Secondary Education regarding deferment of collectionof school fees, including reduction of 70% of tuition fees of CBSEaffiliated schools and 60% of Rajasthan State Board affiliatedschools due to pandemic – Challenge to, by the Management of theprivate unaided schools in the State of Rajasthan – High Courtheld that the State Government was competent and had jurisdictionto issue directions – On appeal, held: Director, Secondary Educationhad no authority whatsoever to issue direction in respect of feestructure determined under the Act of 2016 including to reduce thesame for the academic year 2020-21 in respect of private unaided

Aschools – Also order could not be sustained even in reference toexecutive power u/Art. 162 – Furthermore, it was not open to theState Government to issue directions in respect of commercial oreconomic aspects of legitimate subsisting contracts/transactionsbetween two private parties with which the State has no direct causalconnection,in the guise of management of pandemic situation– Also,Bno provision in the Act of 2005 which governs the subject ofinterdicting the school fee structure fixed under the 2016 Act –During the lockdown the School Management must have savedoverhead and operational costs on various heads, as such issuanceof direction of deduction of 15 per cent of the annual school fees inClieu of unutilised facilities/activities–DisasterManagement Act,2005–Rajasthan Epidemic Relief Act, 2020 – Judicial notice.

Disposing of the appeals, the Court

HELD: 1.1 The conclusion of the High Court in rejectingthe challenge to the validity of the impugned Act of 2016-DRajasthan Schools (Regulation of Fee) Act, 2016 and Rules-Rajasthan Schools (Regulation of Fee) Rules, 2017 framedthereunder is upheld.However, it is done so by reading downSections 4, 7 and 10 of the Act in the manner indicated. Theseprovisions as interpreted be given effect to, henceforth, inEconformity with the law declared in this judgment. The High Courtrightly concluded that the provisions of the Act of 2016 as well asthe Rules of 2017 are intra vires the Constitution of India andnot violative of Articles 13(2) and 19(1)(g) of the Constitution.[Para 52][58-D-F]F1.2 The appellants are justified in assailing the order dated28.10.2020 issued by the Director, Secondary Education regardingdeferment of collection of school fees and must succeed. However,that does not give licence to the appellants to be rigid and not besensitive about aftermath of pandemic. The general uniformdirection of deduction of 15 per cent of the annual school fees inGlieu of unutilised facilities/activities and not on the basis of actualdata school-wise are issued. This is with view to obviate avoidablelitigation and to give finality to the issue of determination andcollection of school fees for the academic year 2020-21, as one-time measure. [Paras 114, 118][99-F-G; 102-C-D]

2. It is not open to argue that the Government cannotprovide for external regulatory mechanism for determination ofschool fees or so to say fixation of “just” and “permissible” schoolfees at the initial stage itself. [Para 19][37-A-B]

T.M.A. Pai Foundation & Ors. vs. State of Karnataka& Ors. (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587;Society for Unaided Private Schools of Rajasthan vs.Union of India &Anr. (2012) 6 SCC 1 : [2012] 2 SCR715; Islamic Academy of Education &Anr. vs. State ofKarnataka & Ors. (2003) 6 SCC 697 : 2003 (2) Suppl.SCR 474; P.A. Inamdar & Ors. vs. State of Maharashtra& Ors. (2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603;Modern School vs. Union of India & Ors. (2004) 5 SCC583; Action Committee, Unaided Private Schools & Ors.vs. Director of Education, Delhi & Ors. (2009) 10 SCC1 : [2009] 12 SCR 631; Modern Dental College andResearch Centre & Ors. vs. State of Madhya Pradesh& Ors. (2016) 7 SCC 353 : 2004 (1) Suppl. SCR 668;Association of Private Dental and Medical Colleges vs.State of M.P. 2009 SCC Online MP 760 - referred to.

3.1 The Act of 2016 has been enacted by the Statelegislature.It was enacted as it was noticed that the earlierenactment on the self-same subject did not include provision ofappeal against the orders of fee determination by the FeeDetermination Committee.It was also noticed that there are largenumber of private schools (approximately 34,000) and singlefee determination committee cannot determine the fee of suchschools in proper manner in time.For that reason, the Act of2016 came into being to provide for regulation of collection offees by schools in the State of Rajasthan and matters connectedtherewith and incidental thereto.It extends to the whole of theState of Rajasthan and applies to both aided and unaidedschools.The Act provides for regulatory mechanism.It is clearthat the Act of 2016 applies to all the schools within the State ofRajasthan referred to in Section 2(t) including private schools asdefined in Section 2(p).Section 3 of the Act of 2016 predicates

Athat no school itself or on its behalf shall collect any fee inexcess of the fee fixed or approved under the Act of 2016.[Para 20-22][37-B-E; 38-C-E]

3.2 After adverting to Section 8 and Rule 10, it is amplyclear that the relevant factors for determination of reasonableBschool fees under the Act of 2016 and Rules framed thereunderhave been duly articulated and are based on objective parameters.The factors referred to in Section 8 and Rule 10 for determinationof fee are founded on the dictum of this Court, as relevantfactors.The factor of location of the school is certainly relevantfor determination of fee as are the other factors referred to inCSection 8 and Rule 10.The totality of the effect of all the specifiedfactors is to be reckoned for determining the school fees of theconcerned school for the relevant period.The location of theschool is not the only factor that is to be taken into account.[Para 25][40-A-C]

3.3 What is relevant is that the institution is entitled to fixits own fee structure, which may include reasonable revenuesurplus for the purpose of development of education andexpansion of the institution, as long as it does not entail inprofiteering and commercialisation. Whether fee structureEevolved by the concerned school results in profiteering orotherwise is matter which eventually would become final withthe determination/adjudication by the Statutory RegulatoryCommittees constituted under Sections 7 and 10 of the Act of2016, namely, Divisional Fee Regulatory Committee (DFRC) andRevision Committee respectively, as the case may be.ThatFadjudication, however, becomes necessary only if the School LevelFee Committee (SLFC) were to disapprove the proposal of theschool Management regarding fee structure determined by theschool.Whereas, if the SLFC were to accept the proposal of theschool Management regarding fee structure as it is, that wouldGbe the fees under the Act of 2016 for the relevant period andthen there would be no need for the DFRC to adjudicate uponthe fixation of fee in the concerned school. [Para 26][40-C-F]

3.4 The SLFC is constituted institution or school wise,whereas the DFRC is an independent statutory regulatoryHauthority empowered to enquire into the factum of whether fee

structure of the given school determined by its Managemententails in profiteering.In the event, the SLFC disapproves theproposal of the school Management, the dispensation providedfor adjudication of the contentious position between thestakeholders in no manner violate the fundamental right ofestablishment of educational institution guaranteed under Article19(1)(g) of the Constitution. [Para 27][40-G-H]

3.5 Section 4 predicates that every private school shallconstitute the Parent-Teachers Association, which is to be formedby the head of the school within thirty days from the beginning ofeach academic year.Section 4(1)(b) envisages that every teacherof the school and parent of every student in the school shall be amember of the Parent-Teachers Association.Section 4(1)(c)provides that on formation of the Parent-Teachers Association, alottery shall be conducted by drawing lot of the willing parentsto constitute the SLFC. It was urged that for choosing the willingparent to become member of the SLFC by draw of lots, noeligibility criteria has been prescribed in the Act of 2016 or theRules of 2017.Besides, willing parent of the ward, who is admittedin the school against the 25 per cent quota of free education underthe RTE Act, may also fit into this category even though he wouldhave no stakes in the fee structure proposed by the schoolManagement.The argument seems to be attractive, but for thatreason the provision need not be struck down or declared asviolative of any constitutional right of management of theschool.This provision can be read down to mean that the draw oflots would be in respect of willing parents whose wards have beenadmitted against the seats other than the seats reserved for freeeducation under the RTE Act.Further, for ensuring that the willingparent must be well-informed and capable of (meaningful)interacting in the discourse on the proposal of fee structurepresented by the school Management, he/she must have someminimum educational qualification and also familiar with thedevelopment of school, management of finances and dynamics ofquality education.The desirability of such eligibility of the willingparent ought to be specified.Absence of such provisions in theAct or Rules, however, can be no basis to suspect the validity ofthe provision in question. It is said so because draw of lots can

Abe one of the ways of identifying the willing parent who couldbecome member of the SLFC.Whether the member should bechosen by election from amongst the willing parents or draw oflots or by nomination including his/her eligibility conditions, is alegislative policy. [Para 28-29][42-C-H; 43-A-B]

B3.6 The composition of the SLFC has been specified inSection 4(2)(a) of the Act of 2016.It consists of Chairpersonbeing representative of management of the private schoolnominated by such management; Secretary-Principal of theprivate school (Ex officio); three teachers nominated by themanagement of private school as to be the members of the SLFC;Cand five parents from Parent-Teachers Association chosen by alottery conducted by drawing lot of willing parents.The SLFCconsists of ten members-five are, in way, representatives ornominees of the Management and five parents from the Parent-Teachers Association.The constitution of the SLFC and for theDnature of its function, no fault can be found with Section 4 of theAct of 2016 much less on the ground that it violates thefundamental right to establish an educational institution.[Para 30][43-C-F]3.7 On bare perusal of s. 6, it is noticed that theEManagement has the prerogative to submit its proposal regardingthe fee structure in the given school.That proposal is submittedto the SLFC set up under Section 4 of the Act of 2016.Themechanism provided in Section 6 onwards would primarily applyto private unaided schools.Indeed, the expression “propose”used in Section 6(1) would mean that the proposal of the schoolFManagement is its in-principle decision regarding the feestructure for the relevant period.The usage of expression“propose” in no way undermines the autonomy of the schoolManagement, in particular to determine its own fee structure forthe relevant period.The consequence of proposal not beingGaccepted by the SLFC is different issue.Notably, the SLFC’sdecision under Section 6(2) is not binding on the schoolManagement.For, it is open to the school Management to thenrefer the matter for adjudication to the DFRC constituted underSection 7 of the Act of 2016, who in turn is obliged to decide the

reference one way or the other.Indeed, that decision would bebinding on both-the school Management as well as the parents,unless it is interdicted by the Revision Committee constitutedunder Section 10 of the Act of 2016 at the instance of the otherparty.To put it differently, the dispensation envisaged underSection 6 of the impugned Act of 2016 is not intended toundermine the autonomy of the school Management in the matterof determination of fee structure itself.What it envisages is thatthe school Management may determine its own fee structure,but may finalise or give effect to the same after interacting withthe SLFC.It is broad-based committee, consisting ofrepresentatives of the school Management as well as five parentsfrom Parent-Teachers Association.This is merely consultativeprocess and democratisation of the decision-making process bytaking all the stakeholders on board.The SLFC does not sit overthe proposal submitted by the school Management as court ofappeal, but only reassures itself as to whether the proposed feestructure entails in profiteering by the school on applying theparameters specified in Section 8 and Rule 10. [Para 33, 35][45-B-E, F-H; 46-A]

3.8 While deciding the school fees, the school Management/SLFC including the Statutory Regulatory Authorities, allconcerned are guided by the factors delineated in Section 8 ofthe Act of 2016 and Rule 10 of the Rules of 2017.The processenvisaged in Section 6 is democratic and consensual resolutionof the issue of fee structure for the relevant period between theschool Management and the parents’ representative being partof the SLFC.It is not to give final authority to the SLFC todetermine the fee structure itself which, is the prerogative of theschool Management as per Section 6(1) of the Act of 2016. Thus,the autonomy of the school Management to determine the feestructure itself in the first place is untrammelled and notundermined in any way. [Para 36][46-C-E]

3.9 From the bare perusal of Section 7(1), it is noticed thatfirst five members are official members.It is broad-basedindependent Committee which includes two representatives ofprivate schools in the divisional area “nominated by the DivisionalCommissioner” and similarly two representatives of parents

A“nominated by the Divisional Commissioner”.The representationis given to the concerned stakeholders in the matter ofdetermination of fee structure and in particular in the matter ofenquiry into the factum whether fee structure proposed by theconcerned school Management entails in profiteering orotherwise. Thus understood, even Section 7 of the Act of 2016Bdoes not violate the fundamental right guaranteed under Article19(1)(g) of the Constitution in respect of establishment ofeducational institution.The dispensation provided in Section 7,is, thus, to create an independent machinery for adjudication ofthe question as to whether the fee structure proposed/determinedCby the school Management of the concerned school entails inprofiteering, commercialisation or otherwise. [Para 37-38][47-G-H; 48-A, D, F-G]

3.10 As regards challenge to Section 8 of the Act of 2016,the usage of expression “determination”, does not take awayDthe autonomy of the school Management in determining its ownfee structure.This provision is only an indicator as to what factorsshould be reckoned for determination of fee and on that scalethe SLFC as well as the Statutory Regulatory Committees wouldbe in position to analyse the claim of the schoolManagement.This provision, in fact, sets forth objectiveEparameters as to what would be the reasonable fee structure –not resulting in profiteering and commercialisation by the schoolManagement. [Para 39][48-G-H; 49-A]

3.11 Section 9 bestows power upon the DFRC to adjudicatethe dispute between the school Management and Parent-TeachersFAssociation regarding difference of opinion in respect of feestructure for the concerned school. It is significant to note thatSection 9(5) makes it amply clear that the DFRC has no power togrant any interim stay to the fee determined by theManagement.However, in light of Section 6(5) during theGpendency of the appeal or reference before the DFRC, schoolManagement is at liberty to collect fee of the previous academicyear plus ten per cent increase in such fee till the final decisionof the DFRC, as predicated in Section 6(5) of the Act of 2016.Thedecision of the DFRC is amenable to appeal before the RevisionCommittee constituted under Section 10 of the Act of 2016. NoneH

of these violate the fundamental right of the school Managementguaranteed under Article 19(1)(g) of the Constitution to determineits own fee structure in any manner. [Para 41][51-B-D]

3.12 Section 10 deals with constitution of RevisionCommittee.This Committee discharges the function of anappellate authority where the aggrieved party, namely, schoolManagement or the Parent-Teachers Association can assail thedecision of the DFRC. This is again broad-based independentCommittee to consider the revision preferred against the decisionof the DFRC, constituted on similar lines. Setting up of anindependent final adjudicatory authority especially created forconsidering the question as to whether the fee structure proposedby the school Management results in profiteering or otherwise,it does not impinge upon the fundamental right of the schoolManagement guaranteed under Article 19(1)(g) of theConstitution. [Para 42-43][51-D-E, F, H; 52-A]3.13 Section 15 deals with consequences of contraventionof the provisions of the Act of 2016 or the Rules made thereunderby an individual. Whereas, Section 16 deals with consequencesof violation by management and persons responsible therefor.Itis unfathomable as to how these provisions can have thepropensity to violate the fundamental right of the schoolManagement under Article 19(1)(g) of the Constitution especiallywhen violation of the mandate of certain compliances under theAct of 2016 and Rules framed thereunder has been made an offenceand persons responsible for committing such violation can beproceeded with on that count. [Para 44][52-A-C]

3.14 Rule 3 provides for procedure for conducting meetingof Parent-Teachers Association.The school Management canhave no grievance regarding the procedure for conductingmeeting of Parent-Teachers Association of the school concernedmuch less violating its fundamental right guaranteed under Article19(1)(g) regarding establishment of educational institution andadministration thereof, including determination of fee structureon its own. [Para 46][52-D-F]

10SUPREME COURT REPORTS

A3.15 Rule 4 is an enabling provision bestowing powercoupled with duty in the Parent-Teachers Association. This in noway affect the right of the school Management in the matter ofdetermination of school fees by itself. The purpose of the provisionis to empower the Parent-Teachers Association to get informationabout tuition fees, term fees and fees for co-curricular activities,Bto facilitate it to analyse the claim of the school Managementregarding the fee structure being reasonable or otherwise.It ison the basis of that information, the representatives of the Parent-Teachers Association, forming part of the SLFC, will be in aposition to meaningfully interact either to give counter offer orCagree with the proposal submitted by the school Management.[Para 47][53-B-D]

3.16 Rule 6 gives additional powers to the SLFC forensuring compliances of the provisions of the Act of 2016 andthe Rules made thereunder including regarding determinationDof school fees. It cannot be understood as to how Rule 6 wouldcome in the way or infringe the fundamental right of the schoolManagement guaranteed under Article 19(1)(g) of theConstitution. [Para 48][54-B]

3.17 Rules 7 and 8 of the Rules deal with purely proceduralEmatters and are in line with the powers and functions of theconcerned Committees.The Rules provide for the manner inwhich the proposal is to be submitted by the school Managementand to be taken forward.These provisions in no way affect thefundamental right guaranteed under Article 19(1)(g) of theConstitution much less autonomy of the school Management toFdetermine the fee structure itself in the first place including theadministration of the school as such. [Para 49][55-F-H]

3.18 Rule 11 by no stretch of imagination would affect thefundamental right of the school Management under Article19(1)(g) of the Constitution much less to administer theGschool.This provision, however, is to ensure that meaningfulinquiry can be undertaken by the SLFC or the StatutoryRegulatory-cum-Adjudicatory Authorities in determination of thefact whether the fee structure propounded by the schoolManagement results in profiteering or otherwise. If information

is furnished in any other manner (other than the manner specifiedin Rule 11), it would become difficult for the concernedCommittees/Authorities to answer the contentious issueregarding profiteering.The fee structure determined by the schoolManagement can be altered by the Adjudicatory Authorities onlyupon recording negative finding on the factum of amount claimedtowards school fees relating to particular activities is an essentialexpenditure or otherwise; and that the fee would be in excess ofreasonable profit being ploughed back for the development ofthe institution or otherwise.The recovery of excess amountbeyond permissible limit would result in profiteering andcommercialisation. Therefore, even Rule 11 is relevant andreasonable provision and does not impact or abridge thefundamental right under Article 19(1)(g) of the Constitution.[Para 50][57-C-F]

3.19 The submission that the issue regarding (school) fee,in particular capitation fee is already covered by the law enactedby the Parliament being RTE Act and for that reason, it was notopen to the State to enact law on the same subject such as theimpugned Act of 2016, is completely misplaced and tenuous.For,the purpose for which the RTE Act has been enacted by theParliament is qualitatively different.It is to provide for free andcompulsory education to all children of the age of 6 to 14 years,which is markedly different from the purpose for which the Act of2016 has been enacted by the State legislature.Merely becausethe Central Act refers to the expression “capitation fee” asdefined in Section 2(b) and also in Section 13 of the RTE Act-mandating that no school or person shall, while admitting child,collect any capitation fee, does not mean that the Central Actdeals with the mechanism needed for regulating fee structure toensure that the schools do not collect fees resulting in profiteeringand commercialisation. By its very definition, the capitation feeunder the Central Act means any kind of donation or contributionor payment other than the fee notified by the school.On the otherhand, fee to be notified by the school is to be done under theimpugned Act of 2016 after it is so determined by the schoolManagement and approved by the SLFC or by the StatutoryRegulatory Authorities, as the case may be. The field occupied

Aby the Central Act is entirely different than the field occupied bythe State legislation under the impugned Act of 2016.Theimpugned Act of 2016 deals specifically with the subject ofregulating fee structure propounded by the private unaided schoolmanagement. [Para 51][57-F-H; 58-A-D]

B4.1 It is not open to the State Authorities to modify theschool fees once fixed by the SLFC for the relevant academicyear that too in the manner done by the Director, SecondaryEducation vide order dated 28.10.2020.The fact that the partiesare at liberty to challenge the modification/reduction of schoolfees before the statutory forum does not justify the issue of suchCan order – unless the State Authorities have clear mandate to doso under the governing law.The departure made by the Director,Secondary Education vide order dated 28.10.2020 was notacceptable to the school Management, being ex facie illegal.Itdoes not disclose the source of power under which it has beenDissued.At best, it can rely on the interim observations made bythe High Court in the proceedings pending at the relevanttime.Those observations cannot confer power on the StateAuthorities when no such power exists in the State Governmentin relation to modification/reduction of fee structure determinedby the school Management and approved by the SLFC.Moreover,Eit is well-established that there can be no rigid uniform feestructure for all the private unaided schools in the State. TheHigh Court erroneously assumed that the power exercised bythe Director, Secondary Education was ascribable to Article 162of the Constitution.For, the subject of school fees is fully covered

Fand governed by the provisions of the Act of 2016 and the Rulesframed thereunder.Therefore, in the name of policy decision, theimpugned order dated 28.10.2020 cannot be sustained, which onthe face of it is not in conformity with the express statutoryprovisions governing the subject of school fees. [Para 63][70-F-H; 71-A-C]G

4.2 Undeniably, an unprecedented situation has had evolvedon account of complete lockdown due to pandemic.It had seriouseffect on the individuals, entrepreneurs, industries and the nationas whole including in the matter of economy and purchasingcapacity of one and all.A large number of people have lost theirH

jobs and livelihood as aftermath of such economic upheaval.Theparents who were under severe stress and even unable to managetheir day-to-day affairs and the basic need of their family madefervent representation to the school Management(s) across theState.A public discourse in that regard surfaced in the media whichimpelled the political dispensation to intervene.Thus, on thedirections of the Chief Minister of the State of Rajasthan, theDepartment initially issued order dated 09.04.2020 merely todefer the collection of school fees which restriction was extendedby subsequent order dated 07.07.2020. [Para 86][81-C-F]

4.3 s. 18 does bestow power on the State Government toissue general or special directions to any school within theState.However, such direction must be consistent with theprovisions of the Act of 2016 and the Rules framed thereunder.Itcannot be in conflict with the mandate of the Act and theRules.Additionally, such directions must be necessitated due toexpediency for carrying out the purposes of the Act and the Rulesor to give effect to the applicable provisions.If the direction issuedby the State Government does not qualify these parameters, itmust follow that the same has been issued in excess of powerbestowed under Section 18 of the Act of 2016. [Para 91][82-F-G]4.4 Two aspects are amply clear, after analysing the schemeof the Act of 2016.The first is that firm mechanism has beenspecified under the Act of 2016 regarding determination of feestructure in the form of approval by the SLFC and, if required,adjudication by the DFRC and the Revision Committee.There isno express provision in the Act or Rules authorising the statedfunctionaries/authorities to modify the school fees once finalisedin the manner provided by the Act of 2016.Whereas, the explicitmandate in the Act of 2016 is that, the fees so fixed by theconcerned functionaries/authorities shall be binding on allconcerned for three academic years.This is clear indication ofnot altering the school fees unilaterally after it is fixed under theAct of 2016 in any manner for the specified period.By its verynature, the direction given by the State Government is in conflictwith the scheme of finalisation of fee structure under the Act of2016 and also the binding effect thereof for the specified period

Aof three academic years on all concerned.Thus the directionissued by the State Government in the form of order dated28.10.2020 does not satisfy the twin tests of being consistentwith the provisions of the Act; and also being necessary orexpedient for carrying out the purposes of the Act. [Para 92][82-H; 83-A-D]B

4.5 The order dated 28.10.2020 being in the nature ofdirection, has been issued in breach of the pre-conditions specifiedin Section 18 of the Act of 2016.As matter of law, the StateGovernment had no power, whatsoever, to interdict the feestructure much less which has been finalised and fixed by theCconcerned functionaries/authorities under the Act of 2016 itselfbefore expiry of the statutory period as specified.As result,Section 18 would be of no avail to the respondents, in particularthe State Government to justify the order dated 28.10.2020.[Para 93][83-D-F]

4.6 It is well-established position that the executive powerof State under Article 162 of the Constitution extends to thematters upon which the legislature of the State has competencyto legislate and is not confined to matters over which legislationhas already been passed.It is also well-settled that the StateEGovernment cannot go against the provisions of the Constitutionor any law.The subject of determination of fee structure andwhether it entails in profiteering, is already covered by thelegislation in the form of the Act of 2016 and the Rules framedthereunder.It is not as if there is no enactment covering thatsubject or any incidental aspects thereof.The Act of 2016, whichFin itself is self-contained code on the said subject, not onlyprovides for the manner in which the concerned school ought tofinalise its fee structure, but also declares that the fee so finalisedeither by consensus or through adjudication mode shall be bindingon all concerned for period of three academic years.In any case,Gdetermination of fees including reduction thereof is the exclusiveprerogative of the management of the private unaided school.TheState can provide independent mechanism only to regulate thatdecision of the school Management to the extent that it does notresult in profiteering and commercialisation. [Para 94][83-F-H;84-A-C]H

4.7 The fact remains that the direction issued in terms ofimpugned order dated 28.10.2020, on the face of it, collide withthe dispensation specified in the Act of 2016 in the matter ofdetermination of school fees and its binding effect on all concernedfor period of three academic years, without any exception.Thefact that in the proceedings before the High Court the StateGovernment had ratified the impugned order, does not take thematter any further.In that, there can be no ex post facto ratificationby the State Government in respect of subject, on which, it itselfcould not issue such direction in law. [Para 96][84-E-G]4.8 Notably, not only the subject of finalisation of feestructure and the matters incidental thereto have been codifiedin the form of the Act of 2016, but also law has been enacted todeal with the matters during the pandemic situation in the formof Central Act, namely, the Disaster Management Act 2005including the State legislation i.e., the Act of 2020.In fact, theState legislation deals with the subject of epidemic diseases andits management.Even those enactments do not vest any powerin the State Government to issue direction with regard tocommercial or economic aspects of matters between privateparties with which the State has no direct causal connection. Inother words, the power of the State Government to deal withmatters during the pandemic situation have already beendelineated by the Parliament as well as the State legislature. Assuch, it is not open to the State Government to issue directionsin respect of commercial or economic aspects of legitimatesubsisting contracts/transactions between two private parties withwhich the State has no direct causal connection, in the guise ofmanagement of pandemic situation or to provide “mitigation toone” of the two private parties “at the cost of the other”.It is adifferent matter, if as policy, the State Government takes theresponsibility to subsidise the school fees of students of privateunaided schools, but cannot arrogate power to itself much lessunder Article 162 of the Constitution to issue impugned directions(to school Management to collect reduced school fee for theconcerned academic year). There is no hesitation in observingthat the asservation of the State Government of existence of powerto issue directions even in respect of economic aspects of

Alegitimate subsisting contracts/transactions between two privateparties, if accepted in respect of fee structure of private unaidedschools, is fraught with undefined infinite risk and uncertaintyfor the State.For, applying the same logic the State Governmentmay have to assuage similar concerns in respect of othercontractual matters or transactions between two privateBindividuals in every aspect of life which may have bearing on rightto life guaranteed under the Constitution.That would not onlyopen pandora’s box, but also push the State Government toentertain demands including to grant subsidy, from differentquarters and sections of the society in the name of mitigatingCmeasures making it financially impossible and unwieldy for theState and eventually burden the honest tax payers - who alsodeserve similar indulgence.Selective intervention of the State inresponse to such demands may also suffer from the vice ofdiscrimination and also likely to impinge upon the rights of privateindividual(s) — the supplier of goods or service provider, as theDcase may be.The State cannot exercise executive power underArticle 162 of the Constitution to denude the person offeringservice(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence theState has no direct causal relationship therewith. [Para 97-98]E[85-A-H; 86-A-B]

Rai Sahib Ram Jawaya Kapur & Ors. vs. State of PunjabAIR 1955 SC 549 : [1955] 2 SCR 225; Secretary, A.P.D.Jain Pathshala & Ors. vs. Shivaji Bhagwat More & Ors.(2011) 13 SCC 99 : [2011] 6 SCR 1173 – referred to.F

4.9 It is one thing to say that the State may regulate the feestructure of private unaided schools to ensure that the schoolManagement does not indulge in profiteering and commercialisation,but in the guise of exercise of that power, it cannot transcend theline of regulation and impinge upon the autonomy of the schoolGto fix and collect “just” and “permissible” school fees from itsstudents.It is certainly not an essential commodity governed bythe legislation such as Essential Commodities Act, 1955empowering the State to fix tariff or price thereof.In light ofconsistent enunciation by this Court including the ConstitutionBench, that determination of school fee structure (which includesHreduction of fixed school fee for the relevant period) is theexclusive prerogative of the school Management running privateunaided school, it is not open to the Legislature to make lawtouching upon that aspect except to provide statutory mechanismto regulate fees for ensuring that it does not result in profiteeringand commercialisation by the school Management.Ex-consequenti, the State Government also cannot exercisepower under Article 162 of the Constitution in that regard.[Para 99][86-C-E]

4.10 The direction given in the impugned order to the schoolManagement is to collect only specified percentage of annualtuition fees on the assumption that the schools will not berequired to complete the course for the academic year 2020-21.This assumption has been rebutted by the appellants by relyingon the instructions issued by the concerned Board indicating tothe contrary.In any case, that does not extricate the schoolManagement from incurring recurring capital and revenueexpenditure including to pay their academic and non-academicstaff their full salary and emoluments for the relevant period.For,no corresponding authority is given to the school Managementto deduct suitable amount from their salaries.Thus, the effect ofthe impugned order is to reduce school fees determined underthe Act in absence of authority to do so including under the Actof 2016.Further, on the face of it, the direction given is inconsistentwith the provisions of the stated Act. To put it tersely, theimpugned order issued is in respect of matters beyond the powerof the State Government - to regulate the fee structure forensuring that the school Management does not indulge inprofiteering and commercialisation. Accordingly, the impugnedorder dated 28.10.2020 cannot be sustained even in reference toexecutive power under Article 162 of the Constitution.[Para 100][86-F-H; 87-A-B]

4.11 Having regard to the purport of the Act of 2005, it isunfathomable as to how the State Authorities established underthe stated Act can arrogate unto themselves power to issuedirections to private parties on economic aspects of legitimatesubsisting contractual matters or transactions between them interse.In any case, the impugned order has not been issued by theState Authority referred to in the Act of 2005.It is not enough to

Asay that the same was issued under the directions of the ChiefMinister of the State.For, the Chief Minister is only theChairperson (Ex officio) of the State Disaster ManagementAuthority established under Section 14 of the Act of 2005.Thereis no provision in the Act of 2005 which concerns or governs thesubject of interdicting the school fee structure fixed under theBAct of 2016. [Para 110][96-E-G]

4.12 Section 72 thereof predicates that the provisions ofthe Act would have overriding effect on other laws for the timebeing in force or anything inconsistent in any instrument havingeffect by virtue of any law other than the Act of 2005.ThisCprovision, however, would come into effect only if it is to be heldthat the Statutory Authorities under the Act of 2005 have powerto deal with the subject of school fee structure of private unaidedschools. Section 72 of the Act of 2005 cannot be the basis tojustify the impugned order dated 28.10.2020.There is no expressDprovision in the Act of 2005 which empowers the Director,Secondary Education (or the State Government) to issue orderand directions in respect of school fee structure because of thepandemic situation. [Paras 101, 111][87-B; 96-G-H; 97-B]4.13 Reliance placed on the provisions of the StateElegislation, namely, the Rajasthan Epidemic Diseases Act, 2020would be of no avail to justify the impugned order dated28.10.2020. The measures enunciated in Section 4 of the Act of2020 in no way deal with the “tariffs” of air, rail, road, hospital,temporary accommodation.It only enables the Authority to prohibitany usage or activities which the Government considers sufficientFto spread or transmit epidemic diseases and for that purpose toinspect various places suspected of being infected with suchdiseases.Indeed, it can regulate or restrict the functioning ofoffices, Government and private and educational institutions inthe State.That, however, would be only in respect of manner ofGits use and its timings including to observe standard operatingprocedures to ensure that epidemic diseases do not transmit orspread on account of activities carried out therein.That power toregulate cannot be invoked to control the tariffs, fees or cost ofgoods and services and in particular economic aspects of

contractual matters between two private parties or so to sayschool fees of private unaided schools. [Para 112][97-C; 98-F-H;99-A]

4.14 priori, it must follow that the Director, SecondaryEducation had no authority whatsoever to issue direction inrespect of fee structure determined under the Act of 2016including to reduce the same for the academic year 2020-21 inrespect of private unaided schools.Having failed to trace thelegitimate source of power under which the directions have beenissued, the respondents - State Authorities cannot fall back uponthe benign hope expressed by the High Court to do the needfulin the backdrop of the representations made by several parentsabout the difficulties encountered by them due to pandemicsituation.It would have been different matter if the Director,Secondary Education had used his good offices to impress uponthe school management(s) of the concerned school(s) to explorethe mitigating measures/options on their own for the academicyear 2020-21 and to give concession to their students to the extentpossible at least in respect of unutilised facilities and savings onoverheads by the school Management in that behalf or to giveconcession in the form of scholarship to deserving students.It isstated by the appellants that the school Management on theirown had offered scholarship of 25 per cent of the annual fee totheir students.In other words, the Director, Secondary Educationcould have mediated between the Association of the schoolManagement and representatives of the Parent-TeachersAssociation for arriving at an amicable solution due to pandemicsituation for the academic year 2020-21, on humanitarian grounds,but could not issue the impugned order when even the State hadno power to issue the same. [Para 113][99-B-F]

4.15 The school Management supposedly engaged in doingcharitable activity of imparting education, is expected to beresponsive and alive to that situation and take necessary remedialmeasures to mitigate the hardship suffered by the students andtheir parents.It is for the school Management to reschedulepayment of school fee in such way that not even single studentis left out or denied opportunity of pursuing his/her education, soas to effectuate the adage “live and let live”. [Para 114][99-G-H;100-A]

A4.16 In law, the school Management cannot be heard tocollect fees in respect of activities and facilities which are, infact, not provided to or availed by its students due tocircumstances beyond their control.Demanding fees even inrespect of overheads on such activities would be nothing shortof indulging in profiteering and commercialisation. It is well-Bknown fact and judicial notice can also be taken that, due tocomplete lockdown the schools were not allowed to open forsubstantially long period during the academic year 2020-21.Resultantly, the school Management must have savedoverheads and recurring cost on various items such as petrol/Cdiesel, electricity, maintenance cost, water charges, stationerycharges, etc.Indeed, overheads and operational cost so savedwould be nothing, but an amount undeservedly earned by theschool without offering such facilities to the students during therelevant period.Being fee, the principle of quid pro quo mustcome into play.However, no accurate (factual) empirical data hasDbeen furnished by either side about the extent to which suchsaving has been or could have been made or benefit derived bythe school Management.Without insisting for mathematicalexactitude approach, it is assumed that the school Management(s)must have saved around 15 per cent of the annual school feesEfixed by the school/adjudicated by the Statutory RegulatoryAuthorities for the relevant period. [Para 115][100-B-E]

4.17 It is assumed that at least 15 per cent of the annualschool fees would be towards overheads/expenses saved by theschool Management.Arguendo, this assumption is on the higherFside than the actual savings by the school Management of privateunaided schools, yet there is an inclination to fix that percentagebecause the educational institutions are engaged in doingcharitable activity of imparting and spreading education and notmake money.That they must willingly and proactively do.Hence,collection of commensurate amount (15 per cent of the annualGschool fees for academic year 2020-2021), would be case ofprofiteering and commercialisation by the school Management.[Para 116][100-E-H; 101-A]

4.18 Ordinarily, it would have been appropriate to relegatethe parties before the Regulatory Authority to refix the school feesfor the academic year 2020-21 after taking into account all aspectsof the matter including the advantage gained by the schoolManagement due to unspent overheads/expenses in respect offacilities not availed by the students.However, that course can beobviated by the arrangement that is proposed in terms of thisjudgment. To avoid multiplicity of proceedings (as school feestructure is linked to school – school wise) including uncertainty oflegal processes by over 36,000 schools in determination of annualfee structure for the academic year 2020-21, as one-time measureto do complete justice between the parties, the directions are issued:

(i)The appellants (school Management of the concernedprivate unaided school) shall collect annual schoolfees from their students as fixed under the Act of 2016for the academic year 2019-20, but by providingdeduction of 15 per cent on that amount in lieu ofunutilised facilities by the students during the relevantperiod of academic year 2020-21.

(ii)The amount so payable by the concerned students bepaid in six equal monthly instalments before05.08.2021 as noted in the order dated 08.02.2021.

(iii)It would be open to the appellants (concerned schools)to give further concession to their students or toevolve different pattern for giving concession overand above those noted in clauses (i) and (ii).

(iv)The school Management would not debar any studentfrom attending either online classes or physical classeson account of non-payment of fees, arrears/outstandingfees including the installments, and would not withholdthe results of the examinations of any student on thataccount.

(v)If any individual request is made by the parent/wardfinding it difficult to remit annual fees for the academicyear 2020-21 in the above terms, the schoolManagement to consider such representation oncase-to-case basis sympathetically.

A(vi)The said arrangement would not affect collection offees for the academic year 2021-22, as is payable bythe students of the concerned school as and when itbecomes due and payable.

(vii) The school Management would not withhold the nameBof any student/candidate for the ensuing Boardexaminations for Classes X and XII on the ground ofnon-payment of fee/arrears for the academic year2020-21, if any, on obtaining undertaking of theconcerned parents/students. [Para 117][101-B-H;102-A-B]

4.19 The quantum of deduction from annual school fees islimited to 15 per cent although the school Management hadmentioned about its willingness to provide 25 per cent scholarshipto deserving students, as the school Management is compelledto collect annual school fees for the academic year 2020-21 asDwas fixed for the academic year 2019-20 on which some of theschool Management(s) could have legitimately asked for increaseof at least 10 per cent in terms of Section 6(5) of the Act of 2016.[Para 118][102-D-E]

Ramjas School vs. Directorate of Education WritEPetition (C) No. 9688 of 2018; Naresh Kumar vs.Director of Education, Delhi Writ Petition (C) No. 2993of 2020; Pramati Educational and Cultural Trust(Registered) & Ors. vs. Union of India & Ors. (2014) 8SCC 1 : [2014] 11 SCR 712; State of M.P. & Ors. vs.FNandlal Jaiswal & Ors. (1986) 4 SCC 566 : [1987] 1SCR 1; Pathan Mohammed Suleman Rehmatkhan vs.State of Gujarat & Ors. (2014) 4 SCC 156 : 2013 (12)SCR 446; High Court of Gujarat & Anr. vs. GujaratKishan Mazdoor Panchayat & Ors. (2003) 4 SCC 712: [2003] 2 SCR 799; M.T. Khan & Ors. v. Govt. of A.P.G& Ors. (2004) 2 SCC 267 : [2004] 1 SCR 117; N. Manivs. Sangeetha Theatre & Ors. (2004) 12 SCC 278; Unionof India vs. Moolchand Kharaiti Ram Trust (2018) 8SCC 321 : [2018] 7 SCR 939 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1724of 2021.

From the Judgment and Order dated 14.08.2019 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.6453 of 2018 with D.B. Civil Writ Petition No. 6414 of 2018 with D.B.Civil Writ Petition No. 5080 of 2017 with D.B. Civil Writ Petition No.5088 of 2017 with D.B. Civil Writ Petition No. 6454 of 2018 with D.B.Civil Writ Petition No. 6480 of 2018 with D.B. Civil Writ Petition No.6485 of 2018 with D.B. Civil Writ Petition No. 6491 of 2018 with D.B.Civil Writ Petition No. 6492 of 2018 and D.B. Civil Writ Petition No.7919 of 2018.

With

Civil Appeal Nos. 1713-1722, 1723, 1725, 1729, 1730, 1726, 1727-28, 1732, 1731, 1733-35, 1736 of 2021.

AShyam Divan, Pallav Shishodia, Dr. Manish Singhvi, DevadattKamat, Sr. Advs., Anuroop Singhi, Puneet Jain, Ankit Anandraj Shah,Ms. Christi Jain, Saurabh Rajpal, Ms. Anshula Laroiya, Rishabh Sancheti,Ms. Padma Priya, Anchit Bhandari, Ms. Shreya Gupta, K. Paarivendhan,Sandeep Kumar Jha, Ms. Padhmalakshmi Iyengar, Nishanth Patil, ViditMonga, Azeem Samuel, Ms. Alankrita Sharma, Rishab Khandelwal, Ms.BDaisy Hannah, Prateek Kasliwal, Ms. Archana Pathak Dave, Ms. GauriJasana, Prakhar Sharma, Sunil Samdaria, Santosh Mishra, NeerajShekhar, Romy Chacko, Shakthi Chand Jaidwal, Ms. Anshul Sharma,Amit Chhangani, Bhrigu Sharma, Ms. Anisha Upadhyay, M/S. UnucLegal Llp, Dr, Raman Deep Singh Sidhu (Kharlia), Mrs. Pragya Baghel,CRupesh Kumar, Rajeev Sharma, Ms. Neelam Sharma, Ms. PankhuriShrivastava, Alekshendra Sharma, Pravesh Bahuguna, Anilendra Pandey,Charan Pal Singh Bagri, Sandeep, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.D

1. These two sets of appeals are being disposed of by this commonjudgment.

2. In the first set of appeals, six appeals[1] emanate from commonjudgment and order dated 14.08.2019 passed by the High Court ofEJudicature for Rajasthan at Jodhpur and two other appeals[2] against thejudgment and order dated 11.02.2020 of the Jaipur Bench of the sameHigh Court, which followed the earlier decision of the Jodhpur seatreferred to above. In these matters, the appellants (Management(s) ofprivate unaided schools in the State of Rajasthan) had assailed the validityof the Rajasthan Schools (Regulation of Fee) Act, 2016[3], in particularFSections 3, 4, 6 to 11, 15 and 16 and the Rules framed thereunder titledRajasthan Schools (Regulation of Fee) Rules, 2017[4], in particular Rules3, 4, 6 to 8 and 11 thereof being ultra vires the Constitution and abridgethe fundamental right guaranteed under Article 19(1)(g) of the Constitutionof India.G

1 arising out of SLP (C) No. 27881 of 2019; SLP (C) Nos.27907-27916 of 2019; SLP(C) No. 27987 of 2019; SLP (C) No. 2942 of 2020; SLP (C) No. 5902 of 2020; and SLP(C) No …………. of 2021 @ Diary No(s). 6803 of 2020;2 arising out of SLP (C) Nos. 5470 and 5589 of 20203 for short, “the Act of 2016”H4 for short, “the Rules of 2017”

3. In the second set of appeals, four appeals[5], also filed by theManagement(s) of private unaided schools in the State of Rajasthan,emanate from the common judgment and order dated 18.12.2020 of thesame High Court. In these appeals, the challenge is to the orders passedby the State Authorities on 09.04.2020, 07.07.2020 and 28.10.2020regarding deferment of collection of school fees including reduction offees limited to 70 per cent of tuition fees by schools affiliated with theCentral Board of Secondary Education and 60 per cent from the schoolsaffiliated with Rajasthan Board of Secondary Education, in view ofreduction of syllabus by the respective-Boards due to aftermath ofpandemic (lockdown) from March 2020.

4. The issues involved in all these appeals concern around 36,000private unaided schools including 220 minority private unaided schools inthe State of Rajasthan governed by the provisions of the Act of 2016referred to above. Accordingly, all these appeals were clubbed and heardanalogously. However, as aforesaid, two broad issues would arise forour consideration.

Re: First Set:

5. Reverting to the first set of appeals, the challenge is to theprovisions of the Act of 2016 and Rules of 2017 being violative of rightsguaranteed under Article 19(1)(g) of the Constitution to carry onoccupation of imparting education which includes autonomy to determinethe school fees by the Managements of private unaided schools. It isurged that any restriction imposed in that regard would be arbitrary andunreasonable. Further, the impugned provisions inevitably limit theautonomy of the school Management of private unaided schools to thelevel of merely proposing the school fees to the School Level FeeCommittee[6], in which the Management has only one representative asagainst eight others i.e., five parents, three teachers and one principal.This imbalance in the constitution of the SLFC negates the effectivecontrol of the Management in the affairs of the school and in particularthe autonomy to determine its own school fees. Notably, five parents,who are appointed as members of the SLFC are chosen by draw of lotsfrom amongst the willing parents of the wards pursuing education in theschools concerned and could include even the wards who are availing

5 arising out of SLP (C) No …………. of 2021 @ Diary No(s). 44 of 2021; SLP (C) No.431 of 2021; SLP (C) Nos. 577-579 of 2021; and SLP (C) No. 2494 of 2021

6 for short, “the SLFC”

Afree education under the Right of Children to Free and CompulsoryEducation Act, 2009[7]. In fact, the latter have no stakes in the matter ofdetermination of school fees. As the willing parents are selected by lotterysystem, in the process even the person who has no modicum ofknowledge of development of school, management of finances anddynamics of quality education, would become part of the process ofBdetermination of school fees. The members of the SLFC would inevitablyhave conflicting interest. They would be interested in ensuring thatminimum school fee is finalised. The nominated teachers may constantlyseek favour of the Management by exploiting their position as memberof the SLFC. In the process, an environment of constant difference ofCopinion would prevail between the school Management on one side andthe parents of the wards and teachers, who would form part of theSLFC. Pertinently, the provisions of the impugned Act of 2016 giveauthority to the SLFC to override the proposal of the school Managementin the matter of school fees to be collected from the wards during therelevant period. Effectively, the parents who are members of the SLFC,Dwould control the decision-making process impacting the autonomy ofthe school Management in regard to determination of school fees,guaranteed under Article 19(1)(g) of the Constitution. The parents-teachers duo who are part of the SLFC would have no intention ormotivation to create new facilities or commitment to develop the schoolEtowards excellence. Moreover, they would not be accountable foranything that finally impacts the quality of education in the schoolconcerned. It is only the school Management who would be heldaccountable in that regard, whilst school Management is denuded of itsautonomy to determine school fees. The school fees so determined bythe SLFC as per the provisions of the impugned Act of 2016, wouldFremain unchanged and binding for next three years with no provision forincrease in case of contingency of funds needed for new developmentor general inflation or hike in salary and wages of staff or any otherlegitimate purpose.6. The impugned Act of 2016 also gives wide powers to theGDivisional Fee Regulatory Committee[8] and Revision Committee includingpower to issue summons, search, seizure and penalties as if the occupationof imparting education is akin to res extra commercium. The school

7 for short, “the RTE Act”H8 for short, “the DFRC”

Management-appellants apprehend that dispute with regard todetermination of school fees would be endless and get embroiled in theprocess of appeal, revision and judicial proceedings. Resultantly, schoolswould suffer uncertainty in financial matters. Furthermore, there is nomechanism provided to guarantee the recovery of school fees after it isfinally determined under the Act of 2016. The working of the impugnedAct of 2016 would eventually stifle the growth and development of theprivate unaided schools and that all schools — small and big, would betreated equally with same measure, which would be arbitrary anddiscriminatory and against the principle expounded by this Court that theschool fees of private unaided schools should be school-based and not arigid or uniform arrangement. According to the appellants, the factorsenumerated for determination of school fees are vague, subjective andirrelevant. The crucial factors such as for making good school are noteven adverted to in Section 8 of the impugned Act of 2016. The processof determination of school fees is dynamic exercise and could beeffectively done by the school Management on its own while keeping inmind that establishing school is essentially charity. According to theappellants, the provisions of the impugned Act of 2016 are unworkableand violate the fundamental right guaranteed under Article 19(1)(g) ofthe Constitution. The State can only regulate the fees determined by theprivate unaided schools only if it shows that the same entails in profiteeringor capitation, which is prohibited by law.

7. It is urged that by now it is well-established that the privateunaided schools ought to have maximum autonomy with regard toadministration including the right of appointment, disciplinary powers,admission of students and the “fees to be charged” as expounded by thisCourt in T.M.A. Pai Foundation & Ors. vs. State of Karnataka &Ors.[9]. The Court noted that it is in the interests of the general public thatmore good quality schools are established. Autonomy and non-regulationof the school administration in matters referred to above will ensure thatmore such institutions are established. This view has been restated inSociety for Unaided Private Schools of Rajasthan vs. Union of India& Anr.[10].

8. According to the appellants, the activities of school leveleducation are qualitatively different from that of professional level

9 (2002) 8 SCC 481 (paras 60 and 61)10 (2012) 6 SCC 1 (paras 50 to 53)

Aeducation. The determination of school fees, therefore, stands on totallydifferent footing than determination of fees for professional colleges formedicine etc. The impugned Act of 2016 falls foul of doctrine ofproportionality — as restrictions imposed on the school Management inrespect of determination of school fees have no cogent nexus/objectsought to be achieved.B

9. It is lastly urged that the legislative field regarding regulation ofschool fees is already occupied by the law made by the Parliament beingthe RTE Act[11] and the Rules[12] framed thereunder. Hence, it was notopen to the State legislature to enact law on the same subject.

C10. These points were urged even before the High Court at theinstance of the appellants. The respondent-State countered the same onthe argument that the impugned Act of 2016 was in the nature of aregulatory law, with complete autonomy to the school Management todecide about its fee structure which, however, could be given effect toDupon approval given by the SLFC. The SLFC consists of not only parentsof wards, but also the school Management and their representatives inthe form of teachers. It ensures participation of all the stakeholders anddemocratisation of the decision-making process. The proposal of theschool Management, if found to be in order, is generally approved and itis open to the SLFC to give counter suggestion which if acceptable toEthe school Management can be acted upon by it. In case there is adifference of opinion, only then the matter goes for adjudication of therival claims before the DFRC and the decision of that Authority becomesbinding on the parties. Further, the school Management, the SLFC aswell as the Adjudicatory-cum-Regulatory Authority, each one of them isFguided by the principles and factors delineated in Section 8 of the Act of2016 and Rule 10 of the Rules of 2017 in the matter of determination ofschool fees. Such external regulation for fee fixation has been recognisedand approved by this Court in successive decisions viz., IslamicAcademy of Education & Anr. vs. State of Karnataka & Ors.[13], P.A.Inamdar & Ors. vs. State of Maharashtra & Ors.[14], Modern SchoolG

11 Sections 13 and 16 of the RTE Act12 The Right of Children to Free and Compulsory Education Rules, 2010 (Rules 12, 15and 16)

13 (2003) 6 SCC 697 (5-Judge Bench)

14 (2005) 6 SCC 537 (7-Judge Bench)H

vs. Union of India & Ors.[15], Action Committee, Unaided PrivateSchools & Ors. vs. Director of Education, Delhi & Ors.[16]and ModernDental College and Research Centre & Ors. vs. State of MadhyaPradesh & Ors.[17]. According to the respondent-State, the setting up ofExternal Fee Regulatory Authority is consistent with the jurisprudentialexposition of this Court and held not to be violative of Article 19(1)(g) orArticle 30 of the Constitution of India. According to the State, there is noambiguity in the provisions of the Act of 2016. In that, the principlesenunciated in the statutory provisions under consideration are notirrelevant or irrational as suggested by the appellants.

11. The respondent-State has also refuted the challenge to theimpugned Act of 2016 merely on the basis of its nomenclature. Accordingto the State, non-mentioning of the words prevention of profiteering andcharging of capitation fee in the impugned Act of 2016, does not ipsofacto make the same constitutionally suspect. It is urged that aConstitution Bench of this Court in Modern Dental College andResearch Centre (supra) has upheld the validity of identical provisionsenacted by the State of Madhya Pradesh in relation to fixation of fee byexternal committees and, therefore, the challenge set up by the appellantscannot be countenanced.

12. The respondent-State would urge that the High Court in theimpugned judgment after adverting to the exposition of differentConstitution Benches of this Court, justly concluded that the impugnedAct of 2016 did not violate Article 19(1)(g) of the Constitution as theright flowing therefrom was not an absolute fundamental right. Further,there is no substance in the grounds set forth to assail the validity of theimpugned Act of 2016.

13. The High Court did advert to these arguments canvassed byboth sides and eventually dismissed the challenge to the validity of theimpugned Act of 2016 vide common judgment and order dated14.08.2019. The High Court after adverting to the exposition in T.M.A.Pai Foundation (supra), Islamic Academy of Education (supra),Modern School (supra) and Modern Dental College and ResearchCentre (supra), proceeded to dismiss the writ petitions by observing asfollows:

15 (2004) 5 SCC 583 (3-Judge Bench)16 (2009) 10 SCC 1 (3-Judge Bench)17 (2016) 7 SCC 353 (5-Judge Bench)

“19. Therefore, in the backdrop of law laid down by ConstitutionBench in Modern Dental College & Research Centre (supra), ifthe impugned Act and the provisions sought to be assailed by thepetitioners and the regulatory measures provided under the Rulesare examined objectively with pragmatic approach, then, it wouldipso facto reveal that State has not made any endeavour to trenchinto autonomy of petitioner-institutions. The provisions areregulatory in nature with the solemn object of preventingprofiteering and commercialization in school education. Theconstitution of the Committee for regulating fee structure, by nostretch of imagination be construed as an attempt to completelybye-pass the school management. The Committee as such ischaired by representative of the management besides principal asa Secretary with three teachers nominated by the managementand five parents nominated from parent teachers association. Thus,the contention of the petitioners that State has completely chippedthe wings of management or invaded their autonomy is aneuphonious plea bereft of any merit.

The criteria for determining fee are also based on legitimateconsiderations provided under Section 8 of the Act. Thus, evenwhile considering fee structure of the school, the Committee cannotbe allowed to act at its whims and fancy but for adhering to thecriteria laid down under Section 8 of the Act. That apart, theremedy against the fee determined by the Committee is alsoprovided in the Statute by way of appeal/reference and secondappeal, which sufficiently repudiate the contention of the petitionersabout unreasonable restrictions on their autonomy within themischief of unacceptable constraints envisaged under clause (6)of Article 19 of the Constitution.

20. Switching on to the coercive measures and penal provisionsprovided under the Statute and enforcement methodologyprescribed under the Rules, it would be just and appropriate toobserve that all these provisions are essential and necessaryconcomitant of regulatory mechanism for achieving desiredobjectives, and therefore cannot be categorized as unreasonablerestrictions. In the overall scenario, we are also convinced thatSections 13 to 18 of the impugned Act and Rule 11 of the Rulesare not intended to be invoked on sundry occasions for interfering

with day to day functioning of the unaided recognized schools.Thus, complaint of the petitioners about fanciful and capricioussupplication of these provisions per se appears to be far crywithout any substance.

Indisputably, the Rules are in the nature of subordinatelegislation and framed by the Government in exercise of powerunder Section 19 of the Act for carrying out all or any of thepurposes of the Act. Thus, the Rules as such are neither assailableon the ground of lack of legislative competence, nor for failure toconform to the parent statute under which Rules are made.Moreover, these rules are also not offending any right conferredon the petitioners under Part III of the Constitution or in violationof any provision of the Constitution, therefore, challenge to theRules is wholly unsustainable.

21. The argument of the learned counsel for the petitioners, thatthe impugned Act is unconstitutional as being in derogation toArticle 13(2) of the Constitution, appears to be quite alluring butof no substance. Analyzing this argument meticulously in thebackdrop of lis involved in these matters, we have alreadyrepudiated the same. At the cost of repetition, we may reiteratehere that the impugned Act and its other provisions are not takingaway or abridges rights of the petitioners conferred by Part III ofthe Constitution. We may hasten to add that entire edifice ofchallenge in these petitions is alleged infraction of Article 19(1)(g)of the Constitution, which indisputably is not an absolutefundamental right. As observed hereinabove, the said fundamentalright is subject to reasonable restrictions and such restrictions arepermissible as they are aimed at seeking laudable objectives inthe larger public interest. Therefore, viewed from any angle, theimpugned provisions of the Act as well as Rules are intra-viresof the Constitution not being in violation of Article 13(2) and19(1)(g) of the Constitution.

The upshot of above discussion is that all these petitionsfail and are hereby dismissed. The stay petitions are also dismissedand interim order passed on 9[th] of April, 2018 is vacated.”

14. We have heard Mr. Pallav Shishodia, learned senior counselfor the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learnedsenior counsel for the State of Rajasthan.

ABC

A15. After cogitating over the rival arguments and considering theimpugned judgment, we have no hesitation in observing that although theHigh Court was right in its conclusion, it has disposed of the challenge tothe validity of different provisions of the impugned Act of 2016 and theRules framed thereunder in summary manner. We agree that merelyadverting to the decisions of this Court was not enough. The High CourtBshould have then analysed the challenge to the respective provisions andalso the overall scheme of the Act of 2016. Ordinarily, we would haverelegated the parties before the High Court for reconsideration of theentire matter afresh. However, considering the nature of issues raisedand the concerns expressed by the parties, we proceed to address theCchallenge to the relevant provisions of the Act of 2016 in this judgmentitself.

16. Indeed, Constitution Bench of this Court in T.M.A. PaiFoundation (supra) has expounded that the private unaided schoolmanagement must have absolute autonomy to determine the school fees.DBut at the same time the consistent view of this Court has been restatedand enunciated by the Constitution Bench in Modern Dental Collegeand Research Centre (supra) in paragraph 75 of the reported decision.In that, though the fee can be fixed by the educational institutions and itmay vary from institution to institution depending upon the quality ofeducation provided by each of such institutions, commercialisation is notEpermissible; and in order to ensure that the educational institutions arenot indulging in commercialisation and exploitation, the Government isequipped with necessary powers to take regulatory measures and toensure that the private unaided schools keep playing vital and pivotalrole to spread education and not to make money. The Court furtherFnoted that when it comes to the notice of the Government that theinstitution was charging fee or other charges which are excessive, it hascomplete authority coupled with its duty to issue directions to such aninstitution to reduce the same so as to avoid profiteering andcommercialisation.G17. In paragraph 76 of the same decision, the Court then proceededto consider the next question as to how regulatory framework forensuring that no excessive fee is charged by the educational institutions,can be put in place. For that, the Court adverted to the decision in T.M.A.Pai Foundation (supra), Islamic Academy of Education (supra),Modern School (supra) and P.A. Inamdar (supra) and noted thatH

primary education is fundamental right, but it was not an absolute rightas private schools cannot be allowed to receive capitation fee or indulgein profiteering in the guise of autonomy to determine the school feesitself. The Court plainly noted that every school management of privateunaided school is free to devise its own fee structure, but the same canbe regulated by the Government in the interests of general public forpreventing profiteering and/or charging of capitation fee. Further, fixationof fees needs to be regulated and controlled at the initial stage itself. TheConstitution Bench noted with approval the exposition in Association ofPrivate Dental and Medical Colleges vs. State of M.P.[18], which readsthus:

“42. We are of the view that Sections 4(1) and 4(8) of the 2007Act have to be read with Section 9(1) of the 2007 Act, whichdeals with factors which have to be taken into consideration bythe Committee while determining the fee to be charged by privateunaided professional educational institution. reading of sub-section (1) of Section 9 of the 2007 Act would show that thelocation of private unaided professional educational institution, thenature of the professional course, the cost of land and building,the available infrastructure, teaching, non-teaching staff andequipment, the expenditure on administration and maintenance, areasonable surplus required for growth and development of theprofessional institution and any other relevant factor, have to betaken into consideration by the Committee while determining thefees to be charged by private unaided professional educationalinstitution. Thus, all the cost components of the particular privateunaided professional educational institution as well as thereasonable surplus required for growth and development of theinstitution and all other factors relevant for imparting professionaleducation have to be considered by the Committee whiledetermining the fee. Section 4(8) of the 2007 Act further providesthat the Committee may require private aided or unaidedprofessional educational institution to furnish information that maybe necessary for enabling the Committee to determine the feesthat may be charged by the institution in respect of eachprofessional course. Each professional educational institution,therefore, can furnish information with regard to the fees that it

EFG

Aproposes to charge from the candidates seeking admission takinginto account all the cost components, the reasonable surplusrequired for growth and development and other factors relevantto impart professional education as mentioned in Section 9(1) ofthe 2007 Act and the function of the Committee is only to find out,after giving due opportunity of being heard to the institution asBprovided in Section 9(2) of the 2007 Act whether the fees proposedby the institution to be charged to the student are based on thefactors mentioned in Section 9(1) of the 2007 Act and did notamount to profiteering and commercialisation of the education.The word “determination” has been defined in Black’s LawCDictionary, Eighth Edn., to mean final decision by the Court oran administrative agency. The Committee, therefore, whiledetermining the fee only gives the final approval to the proposedfee to be charged after being satisfied that it was based on thefactors mentioned in Section 9(1) of the 2007 Act and there wasno profiteering or commercialisation of education. The expressionD“fixation of fees” in Section 4(1) of the 2007 Act means that thefee to be charged from candidates seeking admission in the privateprofessional educational institution did not vary from student tostudent and also remained fixed for certain period as mentionedin Section 4(8) of the 2007 Act. As has been held by the SupremeECourt in Peerless General Finance and Investment Co.Ltd. v. RBI[19], the Court has to examine the substance of theprovisions of the law to find out whether provisions of the lawimpose reasonable restrictions in the interest of the general public.The provisions in Sections 4(1), 4(8) and 9 of the 2007 Act insubstance empower the Committee to be only satisfied that theFfee proposed by private professional educational institution didnot amount to profiteering or commercialisation of education andwas based on the factors mentioned in Section 9(1) of the 2007Act. The provisions of the 2007 Act do not therefore, violate theright of private professional educational institution to charge itsGown fee.”

18. After having quoted the above exposition with approval inparagraph 81, the Court then proceeded to examine the need for aregulatory mechanism. It noted that the regulatory measures are felt

H19 (1992) 2 SCC 343

necessary to promote basic well-being for individuals in need. Inparagraphs 90 to 92 in Modern Dental College and Research Centre(supra), this Court noted as follows:

“90. Thus, it is felt that in any welfare economy, even for privateindustries, there is need for regulatory body and such regulatoryframework for education sector becomes all the more necessary.It would be more so when, unlike other industries,commercialisation of education is not permitted as mandated bythe Constitution of India, backed by various judgments of this Courtto the effect that profiteering in the education is to be avoided.

91. Thus, when there can be regulators which can fix the chargesfor telecom companies in respect of various services that suchcompanies provide to the consumers; when regulators can fix thepremium and other charges which the insurance companies aresupposed to receive from the persons who are insured; whenregulators can fix the rates at which the producer of electricity isto supply the electricity to the distributors; we fail to understandas to why there cannot be regulatory mechanism when it comesto education which is not treated as purely economic activity butwelfare activity aimed at achieving more egalitarian andprosperous society by empowering the people of this country byeducating them. In the field of education, therefore, thisconstitutional goal remains pivotal which makes it distinct andspecial in contradistinction with other economic activities as thepurpose of education is to bring about social transformation andthereby better society as it aims at creating better humanresource which would contribute to the socio-economic and politicalupliftment of the nation. The concept of welfare of the societywould apply more vigorously in the field of education. Evenotherwise, for economist, education as an economic activity,favourably compared to those of other economic concerns likeagriculture and industry, has its own inputs and outputs; and isthus analysed in terms of the basic economic tools like the laws ofreturn, principle of equimarginal utility and the public finance.Guided by these principles, the State is supposed to invest ineducation up to point where the socio-economic returns toeducation equal to those from other State expenditures, whereasthe individual is guided in his decision to pay for type of education

Aby the possibility of returns accruable to him. All theseconsiderations make out case for setting up of stable regulatorymechanism.

92. In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and whenBsuch private educational institutions are to rub shoulders with theState managed educational institution to meet the challenge of theimplementing ambitious constitutional promises, the matter is tobe examined in different hue. It is this spirit which we have keptin mind while balancing the right of these educational institutionsgiven to them under Article 19(1)(g) on the one hand andCreasonableness of the restrictions which have been imposed by

the impugned legislation. The right to admission or right to fix thefee guaranteed to these appellants is not taken away completely,as feared. T.M.A. Pai Foundation[20] gives autonomy to suchinstitutions which remains intact. Holding of CET under the controlDof the State does not impinge on this autonomy. Admission is stillin the hands of these institutions. Once it is even conceded by theappellants that in admission of students “triple test” is to be met,the impugned legislation aims at that. After all, the sole purpose ofholding CET is to adjudge merit and to ensure that admissionswhich are done by the educational institutions, are strictly on merit.EThis is again to ensure larger public interest. It is beyondcomprehension that merely by assuming the power to hold CET,fundamental right of the appellants to admit the students is takenaway. Likewise, when it comes to fixation of fee, as already dealtwith in detail, the main purpose is that the State acts as regulatorFand satisfies itself that the fee which is proposed by the educationalinstitution does not have the element of profiteering and also thatno capitation fee, etc. is charged. In fact, this dual function ofregulatory nature is going to advance the public interest inasmuchas those students who are otherwise meritorious but are not in aposition to meet unreasonable demands of capitation fee, etc. areGnot deprived of getting admissions. The impugned provisions,therefore, are aimed at seeking laudable objectives in larger publicinterest. Law is not static, it has to change with changing timesand changing social/societal conditions.”

19. After this jurisprudential exposition, it is not open to argue thatthe Government cannot provide for external regulatory mechanism fordetermination of school fees or so to say fixation of “just” and“permissible” school fees at the initial stage itself.

20. The question is: whether the impugned enactment stands thetest of reasonableness and rationality and balances the right of theeducational institutions (private unaided schools) guaranteed to them underArticle 19(1)(g) of the Constitution in the matter of determination ofschool fees? The Act of 2016 has been enacted by the State legislature.It was enacted as it was noticed that the earlier enactment on the self-same subject did not include provision of appeal against the orders offee determination by the Fee Determination Committee. It was alsonoticed that there are large number of private schools (approximately34,000) and single fee determination committee cannot determine thefee of such schools in proper manner in time. For that reason, the Actof 2016 came into being to provide for regulation of collection of fees byschools in the State of Rajasthan and matters connected therewith andincidental thereto. It extends to the whole of the State of Rajasthan andapplies to both aided and unaided schools. The Act provides for aregulatory mechanism. The expression “aided school” is defined in Section2(b) to mean school receiving any sum of money as aid from the StateGovernment. The expression “unaided school” has not been defined. Itmust, however, follow that all other private schools, other than aidedschools would qualify that category (i.e., unaided private schools). Theexpression “school” has been defined in Section 2(t), which reads thus:

“2. Definitions.- In this Act, unless the context otherwiserequires,-

xxxxxx

(t) “school” means the school imparting elementary, secondaryand senior secondary education recognized by the Governmentand managed by any management and affiliated to any Indian orforeign course or Board, whether aided, partially aided, un-aidedincluding the school run by the minority educational institution butdoes not include school imparting religious instructions only;”

21. The expression “private school” has been defined in Section2(p), which reads thus:

A“2. Definitions.- In this Act, unless the context otherwiserequires,-

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(p) ”private school” means school established and administeredor maintained by any person or body of persons and which is aBrecognized institution within the meaning of clause (q) of Section2 of the Rajasthan Non-Government Educational Institutions Act,1989 (Act No. 19 of 1992), but does not include -

(i) an aided school; and

(ii) school established and administered or maintained by theCCentral Government or the State Government or any localauthority;”

It is, thus, clear that the Act of 2016 applies to all the schoolswithin the State of Rajasthan referred to in Section 2(t) including privateschools as defined in Section 2(p).D

22. Section 3 of the Act of 2016 predicates that no school itself oron its behalf shall collect any fee in excess of the fee fixed or approvedunder the Act of 2016. The expression “fee” has been defined in Section2(h), which reads thus:

“2. Definitions.- In this Act, unless the context otherwiseErequires,-

xxxxxx

(h) “fee” means any amount, by whatever name called, collected,directly or indirectly, by school for admission of pupil to anyStandard or course of study;”F

23. Besides the definition of expression “fee”, it would be appositeto advert to the factors for determination of fee under the Act of 2016 asdelineated in Section 8 of the Act of 2016. The same reads thus:

“8. Factors for determination of fee. - The following factorsGshall be considered while deciding the fee leviable by school,namely: -

(a) the location of the school;

(b) the infrastructure made available to the students for thequalitative education, the facilities provided and as mentionedHin the prospectus or web-site of the school;

(c) the education standard of the school as the StateGovernment may prescribe;

(d) the expenditure on administration and maintenance;

(e) the excess fund generated from non-resident Indians,as part of charity by the management and contribution bythe Government for providing free-ship in fee or for otheritems under various Government schemes given to theschool for the Scheduled Castes, the Scheduled Tribes,Other Backward Class and Special Backward Classstudents;

(f) qualified teaching and non-teaching staff as per the normsand their salary components;

(g) reasonable amount for yearly salary increments;

(h) expenditure incurred on the students over total incomeof the school;

(i) reasonable revenue surplus for the purpose ofdevelopment of education and expansion of the school; and

(j) any other factor as may be prescribed.”

24. In addition to Section 8, it is essential to take note of Rule 10of the Rules of 2017 which provides for additional factors to be reckonedfor determination of school fees. Rule 10 reads thus:

“10. Additional factors for determination of fee. - Thefollowing factors shall be considered while deciding the fee inaddition to the factors specified in section 8 of the Act, namely:-

(i) facilities made available by the school under e-governance

i.e. hardware and software facilities;

(ii) strength of students;

(iii) other facilities made available to students such asswimming pool, horse riding, shooting, archery andperforming art etc.;

(iv) supply of books, notebooks, etc. and other educationalmaterial provided to students;

(v) provision of meal or snacks; and

(vi) any other factor submitted by the Management beforethe School Level Fee Committee.”

A25. After adverting to Section 8 and Rule 10, it is amply clear thatthe relevant factors for determination of reasonable school fees underthe Act of 2016 and Rules framed thereunder have been duly articulatedand are based on objective parameters. It was urged that clause (a) ofSection 8 is vague. We find force in the argument of the respondent-State that the factors referred to in Section 8 and Rule 10 forBdetermination of fee are founded on the dictum of this Court in successivereported precedents, as relevant factors. The factor of location of theschool is certainly relevant for determination of fee as are the otherfactors referred to in Section 8 and Rule 10. The totality of the effect ofall the specified factors is to be reckoned for determining the schoolCfees of the concerned school for the relevant period. The location of theschool is not the only factor that is to be taken into account.

26. At the end, what is relevant is that the institution is entitled tofix its own fee structure, which may include reasonable revenue surplusfor the purpose of development of education and expansion of theDinstitution, as long as it does not entail in profiteering andcommercialisation. Whether fee structure evolved by the concernedschool results in profiteering or otherwise is matter which eventuallywould become final with the determination/adjudication by the StatutoryRegulatory Committees constituted under Sections 7 and 10 of the Actof 2016, namely, Divisional Fee Regulatory Committee (DFRC) andERevision Committee respectively, as the case may be. That adjudication,however, becomes necessary only if the SLFC were to disapprove theproposal of the school Management regarding fee structure determinedby the school. Whereas, if the SLFC were to accept the proposal of theschool Management regarding fee structure as it is, that would be theFfees under the Act of 2016 for the relevant period and then there wouldbe no need for the DFRC to adjudicate upon the fixation of fee in theconcerned school.

27. The SLFC is constituted institution or school wise, whereasthe DFRC is an independent statutory regulatory authority empoweredGto enquire into the factum of whether fee structure of the given schooldetermined by its Management entails in profiteering. In the event, theSLFC disapproves the proposal of the school Management, thedispensation provided for adjudication of the contentious position betweenthe stakeholders in no manner violate the fundamental right ofestablishment of educational institution guaranteed under Article 19(1)(g)Hof the Constitution.

28. Section 4 of the Act of 2016 provides for Parent-TeachersAssociation, which reads thus:

“4. Parent-Teachers Association. - (1)(a) Every private schoolshall constitute the Parent-Teachers Association.

(b) The Parent-Teachers Association shall be formed by the headof the school within thirty days from the beginning of eachacademic year. Every teacher of the school and parent of everystudent in the school shall be member of the Parent-TeachersAssociation and an annual amount of rupees fifty, in case of urbanarea and rupees twenty, in case of rural area, shall be collectedfrom each member of such association.

(c) On formation of the Parent-Teachers Association, lotteryshall be conducted by drawing lot of the willing parents toconstitute the School Level Fee Committee and notice of oneweek before such lottery shall be given to the member of theParent-Teachers Association.

(2)(a) The School Level Fee Committee shall consist of, -

(b) The list of members of the School Level Fee Committee shallbe displayed on the notice board within period of fifteen daysfrom formation of the School Level Fee Committee and copythereof shall forthwith be forwarded to the District EducationOfficer concerned.

(c) The term of the School Level Fee Committee shall be for oneacademic year and no parent member shall be eligible for drawinga lot by lottery within the period of next three years since theexpiry of his/her last term as the member of the School Level FeeCommittee.

A(d) The School Level Fee Committee shall meet at least once inthree months. The procedure to be followed for conducting themeeting of the School Level Fee Committee shall be such as maybe prescribed.

(e) The Parent-Teachers Association shall have general meetingBat least once before the 15th August of every year. The procedureto be followed for conducting the meeting of the Parent-TeachersAssociation shall be such as may be prescribed. The Parent-Teachers Association shall discharge such duties and perform suchfunctions as may be assigned to it under this Act and as may beprescribed.”C

Section 4 predicates that every private school shall constitutethe Parent-Teachers Association, which is to be formed by the head ofthe school within thirty days from the beginning of each academicyear. Section 4(1)(b) envisages that every teacher of the school andparent of every student in the school shall be member of the Parent-DTeachers Association. Section 4(1)(c) provides that on formation ofthe Parent-Teachers Association, lottery shall be conducted bydrawing lot of the willing parents to constitute the SLFC. In thecontext of this provision, it was urged that for choosing the willingparent to become member of the SLFC by draw of lots, no eligibilityEcriteria has been prescribed in the Act of 2016 or the Rules of 2017.Besides, willing parent of the ward, who is admitted in the school againstthe 25 per cent quota of free education under the RTE Act, may alsofit into this category even though he would have no stakes in the feestructure proposed by the school Management. The argument seemsto be attractive, but for that reason the provision need not be struckFdown or declared as violative of any constitutional right of managementof the school. This provision can be read down to mean that the drawof lots would be in respect of willing parents whose wards have beenadmitted against the seats other than the seats reserved for freeeducation under the RTE Act. Further, for ensuring that the willingGparent must be well-informed and capable of (meaningful) interactingin the discourse on the proposal of fee structure presented by the schoolManagement, he/she must have some minimum educational qualificationand also familiar with the development of school, management offinances and dynamics of quality education. The desirability of sucheligibility of the willing parent ought to be specified.H

29. Absence of such provisions in the Act or Rules, however, canbe no basis to suspect the validity of the provision in question. We say sobecause draw of lots can be one of the ways of identifying the willingparent who could become member of the SLFC. Whether the membershould be chosen by election from amongst the willing parents or drawof lots or by nomination including his/her eligibility conditions, is alegislative policy. They may serve the same purpose for constituting theSLFC to give representation to the parents of the wards who are alreadyadmitted in the school and are pursuing education thereat. In any case,this argument of the appellants will not take the matter any further muchless to declare the relevant provision ultra vires as being violative offundamental right of the appellants as such.30. The composition of the SLFC has been specified in Section4(2)(a) of the Act of 2016. It consists of Chairperson beingrepresentative of management of the private school nominated by suchmanagement; Secretary — Principal of the private school (Ex officio);three teachers nominated by the management of private school as to bethe members of the SLFC; and five parents from Parent-TeachersAssociation chosen by lottery conducted by drawing lot of willingparents. The SLFC consists of ten members — five are, in way,representatives or nominees of the Management and five parents fromthe Parent-Teachers Association. The SLFC so constituted wouldcontinue to function for one academic year and the member chosenfrom Parent-Teachers Association is not eligible to participate again fora period of three years thereafter from the date of expiry of his/her termas the member of the SLFC. By this process, the parents representingdifferent wards get opportunity to be part of the SLFC. Suffice it toobserve that the constitution of the SLFC and for the nature of its function,no fault can be found with Section 4 of the Act of 2016 much less on theground that it violates the fundamental right to establish an educationalinstitution.

31. Section 5 of the Act of 2016 deals with fixation of fee in“Government schools” and “aided schools”. However, we are notconcerned with the said provision in the cases before us.

32. Section 6 deals with regulation of fees in private schools andthe procedure to be followed for finalisation of the fee structure. Thesame reads thus:

“6. Regulation of fees in private schools. - (1) Themanagement of the private schools shall be competent to proposethe fee in such schools.

(2) On the formation of the School Level Fee Committee, themanagement shall submit the details of the proposed fee alongwith the relevant record to the School Level Fee Committee forits approval at least six months before the commencement of thenext academic year. While giving the approval, the School LevelFee Committee shall have the authority to decide the amount offee afresh.

C(3) After considering all the relevant factors laid down underSection 8, the School Level Fee Committee shall approve the feewithin period of thirty days from the date of receipt of the detailsof the proposed fee and the record under sub-section (2) andcommunicate the details of the fee so approved in writing to themanagement forthwith. The details of the fee so approved by theDSchool Level Fee committee shall be displayed on the notice boardin Hindi, English and in the respective medium of school, and ifsuch school has its own website it shall be displayed on the sameand it shall be binding for three academic years.

(4) The School Level Fee Committee shall indicate the differentEheads under which the fee shall be levied.

(5) If the School Level Fee Committee fails to decide the feewithin the period specified in sub-section (3), the managementshall immediately refer the matter to the Divisional Fee RegulatoryCommittee for its decision under intimation to the School LevelFFee Committee in such manner as may be prescribed. During thependency of the reference, the management shall be at liberty tocollect the fee of the previous academic year plus ten percentincrease in such fee till the final decision of the Divisional FeeRegulatory Committee.

(6) The Divisional Fee Regulatory Committee shall decide theappeal or reference as far as possible within the period of sixtydays from the date of its filing after giving the opposite party anopportunity of being heard.

(7) The management or the School Level Fee CommitteeHaggrieved by the decision of the Divisional Fee Regulatory

Committee in appeal or reference may, within thirty days fromthe date of such decision, prefer an appeal before the RevisionCommittee in such manner as may be prescribed.”

33. On bare perusal of this provision, it is noticed that theManagement has the prerogative to submit its proposal regarding thefee structure in the given school. That proposal is submitted to the SLFCset up under Section 4 of the Act of 2016. The mechanism provided inSection 6 onwards would primarily apply to private unaided schools.Indeed, the expression “propose” used in Section 6(1) would mean thatthe proposal of the school Management is its in-principle decisionregarding the fee structure for the relevant period. The usage ofexpression “propose” in no way undermines the autonomy of the schoolManagement, in particular to determine its own fee structure for therelevant period. The consequence of proposal not being accepted by theSLFC is different issue. Notably, the SLFC’s decision under Section6(2) is not binding on the school Management. For, it is open to theschool Management to then refer the matter for adjudication to the DFRCconstituted under Section 7 of the Act of 2016, who in turn is obliged todecide the reference one way or the other. Indeed, that decision wouldbe binding on both — the school Management as well as the parents,unless it is interdicted by the Revision Committee constituted underSection 10 of the Act of 2016 at the instance of the other party.

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

35. To put it differently, the dispensation envisaged under Section6 of the impugned Act of 2016 is not intended to undermine the autonomyof the school Management in the matter of determination of fee structureitself. What it envisages is that the school Management may determineits own fee structure, but may finalise or give effect to the same afterinteracting with the SLFC. It is broad-based committee, consisting ofrepresentatives of the school Management as well as five parents fromParent-Teachers Association. This is merely consultative process anddemocratisation of the decision-making process by taking all thestakeholders on board. The SLFC does not sit over the proposal submittedby the school Management as court of appeal, but only reassures itself

Aas to whether the proposed fee structure entails in profiteering by theschool on applying the parameters specified in Section 8 and Rule 10. Inother words, it is open to the SLFC to take different view regardingthe school fees proposed by the school Management and arrive at adifferent fee structure. If that counter proposal is acceptable to the schoolManagement, nothing further is required to be done and the decision soBtaken by the school Management would become binding for threeacademic years on all concerned. However, in case the schoolManagement disagrees with the recommendations of the SLFC, it isopen to both sides, namely, the school Management as well as the parentsof wards to take the matter to the DFRC for adjudication on that aspect.C36. While deciding the school fees, the school Management/SLFCincluding the Statutory Regulatory Authorities, all concerned are guidedby the factors delineated in Section 8 of the Act of 2016 and Rule 10 ofthe Rules of 2017. Suffice it to note that the process envisaged in Section6 is democratic and consensual resolution of the issue of fee structureDfor the relevant period between the school Management and the parents’representative being part of the SLFC. It is not to give final authority tothe SLFC to determine the fee structure itself which, as aforesaid, is theprerogative of the school Management as per Section 6(1) of the Act of2016. In that sense, the autonomy of the school Management to determinethe fee structure itself in the first place is untrammelled and notEundermined in any way.37. Section 7 of the Act of 2016 is about the constitution of theDFRC. The same reads thus:

“7. Constitution of Divisional Fee Regulatory Committee. -(1) The Government shall, by notification in the Official Gazette,Fconstitute Divisional Fee Regulatory Committee for eachRevenue Division, which shall consist of the following members,namely: -

(2)(a) The term of office of the representatives of private schoolsand parents shall be for period of two years from the date oftheir nomination and in case of vacancy arising earlier, for anyreason, such vacancy shall be filled for the remainder period ofthe term.

(b) The representatives of private schools and parents shall notbe eligible for reappointment.

(c) The representatives of private schools and parents may resignfrom the office in writing addressed to the Divisional Commissionerand on such resignation being accepted, his office shall becomevacant and may be filled in within period of three month fromthe date of occurrence of vacancy.

(d) representative of private schools and parents may be removed,if he does any act which, in the opinion of the DivisionalCommissioner, is unbecoming of member of Divisional FeeRegulatory Committee:

Provided that no representative of private schools or parents shallbe removed from the Divisional Fee Regulation Committee withoutgiving him an opportunity of being heard.

(e) The other terms and conditions for the service of therepresentatives of private schools and parents shall be such asmay be prescribed.”

From the bare perusal of Section 7(1), it is noticed that first fivemembers are official members. It is broad-based independentCommittee which includes two representatives of private schools in thedivisional area “nominated by the Divisional Commissioner” and similarlytwo representatives of parents “nominated by the Divisional Commissioner”.The representation is given to the concerned stakeholders in the matter

Aof determination of fee structure and in particular in the matter of enquiryinto the factum whether fee structure proposed by the concerned schoolManagement entails in profiteering or otherwise. In reference to Section7(2)(a), we must observe that the term of office of representatives ofthe private schools and, in particular parents has been earmarked as twoyears from the date of their nomination. This would mean, necessarily,Bthat the concerned parent would be eligible until his/her ward continuesin the school during the tenure and is not member of the SLFC of anyschool within the divisional area. Any member not fulfilling this criterionwould be deemed to have vacated his office forthwith and, in his place,a new member can be nominated by the competent authority fromCamongst the parents of the wards pursuing studies in the school in theconcerned divisional area. Moreover, while nominating representativeof parents, the Divisional Commissioner must keep in mind that the personso nominated must possess basic qualification of accounting, developmentof school and dynamics of quality education; and whose ward has notsecured admission against 25 per cent quota of free education under theDRTE Act. Thus understood, even Section 7 of the Act of 2016 does notviolate the fundamental right guaranteed under Article 19(1)(g) of theConstitution in respect of establishment of educational institution.

38. Needless to underscore that the Divisional Commissioner, whois empowered to nominate two representatives of private schools wouldEkeep in mind that his/her nominees are from the schools within thedivisional area and at least one amongst them should be chosen from aminority school so that representation is given to all stakeholders, includingminority and non-minority private unaided schools. At the same time, itmust be borne in mind that such person is already not member of theFSLFC of any school in the divisional area. The dispensation provided inSection 7, is, thus, to create an independent machinery for adjudicationof the question as to whether the fee structure proposed/determined bythe school Management of the concerned school entails in profiteering,commercialisation or otherwise.

39. As regards challenge to Section 8 of the Act of 2016, theGusage of expression “determination”, in our opinion, does not take awaythe autonomy of the school Management in determining its own feestructure. This provision is only an indicator as to what factors should bereckoned for determination of fee and on that scale the SLFC as well asthe Statutory Regulatory Committees will be in position to analyse theHclaim of the school Management. This provision, in fact, sets forth

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

40. Reverting to Section 9, which reads thus:

“9. Powers and functions of Divisional Fee RegulatoryCommittee. - (1) The powers and functions of the DivisionalFee Regulatory Committee shall be to adjudicate the disputebetween the management and the Parent-Teachers Associationregarding fee to be charged by the school management from thestudents.

(2) The Divisional Fee Regulatory Committee may authorize anyofficer not below the rank of the Head Master of Secondary Schoolto enter any private school or any premises belonging to themanagement of such school, if the Divisional Fee RegulatoryCommittee finds so necessary, and search, inspect and seize anyrecords, accounts, registers or other documents belonging to suchschool or the management in so far as such records, accounts,registers or other documents are necessary and relevant to decidethe issues before the said Committee. The provisions of the Codeof Criminal Procedure, 1973 (Central Act No. 2 of 1974) relatingto searches and seizures shall apply, so far as may be, to searchesand seizures under this section.

(3) The Divisional Fee Regulatory Committee shall regulate itsown procedure, for the discharge of its functions, and shall, forthe purpose of making any inquiry under this Act, have all powersof civil court under the Code of Civil Procedure, 1908 (CentralAct No. 5 of 1908) while trying suit, in respect of the followingmatters, namely: -

(i) the summoning and enforcing the attendance of anywitness 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 thewitness;

A(4) No order shall be passed by the Divisional Fee RegulatoryCommittee in the absence of the Chairperson. The order of theDivisional Fee Regulatory Committee shall be binding on the partiesto the proceedings before it for three academic years. It shall notbe called in question in any civil court except by way of an appealbefore the Revision Committee constituted under this Act.B

(5) At the time of resolving the dispute, the Divisional FeeRegulatory Committee shall not grant any interim stay to the feedetermined by the management. On decision in appeal orreference, the Divisional Fee Regulatory Committee may passappropriate orders for refund of the excess fee to the studentCconcerned. In case the management fails to refund the excessfee to such student, the Divisional Fee Regulatory Committeeshall proceed to recover such excess fee from the managementas an arrear of land revenue and pay the same to such student.

(6) The Divisional Fee Regulatory Committee shall, on determiningDthe fee leviable by private school, communicates its decision tothe parties concerned.

(7) Every private school preferring an appeal before the DivisionalFee Regulatory Committee shall place the copy of decision inappeal on its notice board, and if such school has web-site, on itsEweb-site;

(8) The Divisional Fee Regulatory Committee shall indicate thedifferent heads under which the fee shall be levied.

(9) The orders passed by the Divisional Fee Regulatory CommitteeFshall be binding on the private school for three academic years.At the end of the said period, the private school shall be at libertyto propose changes in its fee structure by following the procedureas laid down under this Act.”

Section 9 deals with powers and functions of the DFRC interalia to adjudicate the dispute between the Management and the Parent-GTeachers Association regarding fee to be charged by the schoolManagement from the students. The DFRC has been empowered toundertake search, inspect and seize any records, accounts, registers orother documents belonging to the concerned school or the managementin so far as such records, accounts, registers or other documents areHnecessary and relevant to decide the issues before the said Committee.

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

41. Essentially, Section 9 bestows power upon the DFRC toadjudicate the dispute between the school Management and Parent-Teachers Association regarding difference of opinion in respect of feestructure for the concerned school. What is significant to note is thatSection 9(5) makes it amply clear that the DFRC has no power to grantany interim stay to the fee determined by the Management. However, inlight of Section 6(5) during the pendency of the appeal or referencebefore the DFRC, school Management is at liberty to collect fee of theprevious academic year plus ten per cent increase in such fee till thefinal decision of the DFRC, as predicated in Section 6(5) of the Act of2016. The decision of the DFRC is amenable to appeal before the RevisionCommittee constituted under Section 10 of the Act of 2016. None ofthese violate the fundamental right of the school Management guaranteedunder Article 19(1)(g) of the Constitution to determine its own feestructure in any manner.

42. Section 10 deals with constitution of Revision Committee. ThisCommittee discharges the function of an appellate authority where theaggrieved party, namely, school Management or the Parent-TeachersAssociation can assail the decision of the DFRC. This is finaladjudicatory body created under Section 10 consisting of official membersincluding two representatives of private schools nominated by the StateGovernment and two representatives of parents nominated by the StateGovernment. This is again broad-based independent Committee toconsider the revision preferred against the decision of the DFRC,constituted on similar lines. The latter Committee is constituted underSection 7 of the Act of 2016. The observations made in reference to theconstitution of the DFRC under Section 7 hitherto would, therefore, applywith full force to this provision as well.

43. The procedure to be followed by the Revision Committee isspecified in Section 11 of the Act of 2016, which provision makes itamply clear that the decision of the Revision Committee shall be finaland conclusive and shall be binding on the parties for three academicyears. Setting up of an independent final adjudicatory authority especiallycreated for considering the question as to whether the fee structureproposed by the school Management results in profiteering or otherwise,

DEF

Ait does not impinge upon the fundamental right of the school Managementguaranteed under Article 19(1)(g) of the Constitution.

44. Even the challenge to the validity of Sections 15 and 16 of theAct of 2016 is devoid of merit. Section 15 deals with consequences ofcontravention of the provisions of the Act of 2016 or the Rules madeBthereunder by an individual. Whereas, Section 16 deals with consequencesof violation by management and persons responsible therefor. It isunfathomable as to how these provisions can have the propensity toviolate the fundamental right of the school Management under Article19(1)(g) of the Constitution especially when violation of the mandate ofcertain compliances under the Act of 2016 and Rules framed thereunderChas been made an offence and persons responsible for committing suchviolation can be proceeded with on that count.

45. The appellants having failed to substantiate the challenge tothe validity of the relevant provisions of the Act of 2016, must also failwith regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the Rules ofD2017.

46. Rule 3 provides for procedure for conducting meeting ofParent-Teachers Association. The school Management can have nogrievance regarding the procedure for conducting meeting of Parent-Teachers Association of the school concerned much less violating itsEfundamental right guaranteed under Article 19(1)(g) of the Constitutionregarding establishment of educational institution and administrationthereof, including determination of fee structure on its own.

47. Rule 4 deals with duties and functions of Parent-TeachersAssociation, which reads thus:F“4. Duties and functions of Parent-Teachers Association.

“4. Duties and functions of Parent-Teachers Association. -The Association shall discharge the following duties and performthe following functions, namely:-

(i) to get information about Tuition fees, Term fees and feesfor co-curricular activities as decided by the School LevelFee Committee;

(ii) to observe completion of syllabus as per the planning;

(iii) to assist school for planning of other co-curricularactivities; and

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

The above Rule enables the Parent-Teachers Association to getinformation about tuition fees, term fees and fees for co-curricularactivities as decided by the SLFC; to also observe completion of syllabusas per the planning; to assist school for planning of other co-curricularactivities; and to assess the needs of co-curricular activities. This is anenabling provision bestowing power coupled with duty in the Parent-Teachers Association. This in no way affect the right of the schoolManagement in the matter of determination of school fees by itself.The purpose of above provision is to empower the Parent-TeachersAssociation to get information about tuition fees, term fees and feesfor co-curricular activities, to facilitate it to analyse the claim of theschool Management regarding the fee structure being reasonable orotherwise. It is on the basis of that information, the representatives ofthe Parent-Teachers Association, forming part of the SLFC, will be ina position to meaningfully interact either to give counter offer or agreewith the proposal submitted by the school Management. Even though,the Act of 2016 is largely for regulation of fee, the information regardingthe incidental aspect thereof as to whether co-curricular activitiesproposed 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 topersuade the school Management to avoid such co-curricular activitiesand to reduce the burden of expenses to be incurred therefor. Thatwould resultantly reduce the liability of the parents commensuratelydue to reduced fee liability.

48. Rule 6 deals with duties and functions of the SLFC. It specifiesthe additional duties to be performed by the SLFC besides the powersand functions specified in the Act of 2016. Rule 6 reads thus:

“6. Duties and functions of School Level Fee Committee. -The School Level Fee Committee shall, in addition to the powersand functions specified in the Act, discharge the following dutiesand perform the following functions, namely:-

(a) to oversee the compliance of the provisions of the Actand rules made their under;

(b) to take decision on proposals received fromManagement, regarding determination of fee within timespecified in sub-section (3) of section 6 of the Act; and

ABC

(c) to make available necessary documents to the DivisionalFee Regulatory Committee or Revision Committee, as thecase may be, where appeal is filed by the Management.”

We fail to understand as to how Rule 6 would come in the way orinfringe the fundamental right of the school Management guaranteedBunder Article 19(1)(g) of the Constitution. This Rule gives additionalpowers to the SLFC for ensuring compliances of the provisions of theAct of 2016 and the Rules made thereunder including regardingdetermination of school fees.

49. Rules 7 and 8 of the Rules of 2017 deal with meeting of theCSLFC and procedure to refer proposal to DFRC and to file appeal andrevision before the Statutory Regulatory Committees respectively. Thesame reads thus:

“7. Meeting of the School Level Fee Committee. - (1) TheChairperson of the School Level Fee Committee shall call theDmeetings of the School Level Fee Committee. The Secretary ofthe committee shall issue notice of meeting to the members of theSchool Level Fee Committee in Form-II. The notice shall be issuedfifteen days before the date of meeting.

(2) The notice shall be sent to each member of the School LevelEFee Committee by registered post or delivered through any othermode. The acknowledgement of notice shall be preserved for aperiod of one year.

(3) No business shall be transacted in the meeting of the SchoolLevel Fee Committee unless four members are present out ofFwhich at least two shall be the parent members of the SchoolLevel Fee Committee. If there is no quorum, the Chairperson ofthe School Level Fee Committee shall adjourn the meeting. Theadjourned meeting shall be recalled again after the lapse of tendays from the date of the meeting which is adjourned.

(4) The Secretary of the School Level Fee Committee shallGprepare minutes of the meeting and circulate the same to all themembers within fifteen days from the date of the meeting.

(5) The minutes of the meeting shall be made available to theDistrict Education Officer or Deputy Director concerned, as andwhen required.H

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

8. Procedure to refer proposal to Divisional Fee RegulatoryCommittee and to file appeal before Divisional FeeRegulatory Committee and Revision Committee undersection 6 of the Act. - (1) The Management of the school shallsubmit fee proposal to the School Level Fee Committee at leastsix months before the commencement of the next academic yearin Form-III.

(2) If the School Level Fee Committee fails to decide the feeswithin the period specified in sub-section (3) of section 6 of theAct, the management shall immediately refer the matter in Form-IV, along-with the proposal submitted to the School Level FeeCommittee, to the Divisional Fee Regulatory Committee, withinthirty days of expiry of the period specified in sub-section (3) ofsection 6 of the Act, for its decision.

(3) The management may prefer an appeal in Form-V against thedecision of the School Level Fee Committee within 30 days fromthe date of decision of the School Level Fee Committee.

(4) The management or School Level Fee Committee aggrievedby the decision of the Divisional Fee Regulatory Committee inappeal or reference may, within thirty days from the date of suchdecision, prefer an appeal, in Form-VI, before the RevisionCommittee along with the proposal of fees submitted bymanagement and the copy of the decision of the School LevelFee Committee and Divisional Fee Regulatory Committee.”

These Rules deal with purely procedural matters and are in linewith the powers and functions of the concerned Committees. The Rulesprovide for the manner in which the proposal is to be submitted by theschool Management and to be taken forward. These provisions in noway affect the fundamental right guaranteed under Article 19(1)(g) ofthe Constitution much less autonomy of the school Management todetermine the fee structure itself in the first place including theadministration of the school as such.

A50. The next challenge is to Rule 11 which obligates the privateschools to maintain accounts and other records in the manner prescribedthereunder. The same reads thus:

“11. Maintenance of accounts and other records.- (1) Everyprivate school shall,-

(a) maintain separate accounts for different kinds of transactions,such as, fees collected, grants received, financial assistancereceived, payments of salary to staff, purchase of machinery andequipment, laboratory apparatus and consumables, library books,stationery, computers, software and other expenditure incurred;

C(b) keep the registers, accounts and records within the premisesof their school as they shall be made available at all reasonabletime for inspection; and

(c) preserve the accounts maintained, together with all vouchersrelating to various items or receipts and expenditure, until the auditDof accounts is over and objections, if any, raised are settled.

(2) Every private school shall, in addition to accounts and recordsspecified in sub-rule (1), maintain the following, namely:-

(a) General Register;

(b) Admission Register;

(c) Fee Receipt;

(d) Fee Collection Register;

(e) Cash Book;

(f) Library and Reading Room Account;

(g) Staff Attendance Register and Staff Salary Register;

(h) Students Attendance Register;

(i) Voucher File;

(j) Cheque Register;

(k) Acquaintance Roll;

(1) Stock Registers;

(m) Transfer Certificate Book;

(n) Examination Fees Collection Receipt;

(o) Contingency Expenditure Register;

(p) Asset Register; and

(q) Building Rent Register.

(3) Every private school shall also maintain the other record ofthe institution as per the orders issued by the Government, fromtime to time.”

In our opinion, even this provision by no stretch of imaginationwould affect the fundamental right of the school Management underArticle 19(1)(g) of the Constitution much less to administer the school.This provision, however, is to ensure that meaningful inquiry can beundertaken by the SLFC or the Statutory Regulatory-cum-AdjudicatoryAuthorities in determination of the fact whether the fee structurepropounded by the school Management results in profiteering orotherwise. If information is furnished in any other manner (other thanthe manner specified in Rule 11), it would become difficult for theconcerned Committees/Authorities to answer the contentious issueregarding profiteering. The fee structure determined by the schoolManagement can be altered by the Adjudicatory Authorities only uponrecording negative finding on the factum of amount claimed towardsschool fees relating to particular activities is an essential expenditure orotherwise; and that the fee would be in excess of reasonable profit beingploughed back for the development of the institution or otherwise. Therecovery of excess amount beyond permissible limit would result inprofiteering and commercialisation. In our opinion, therefore, even Rule11 is relevant and reasonable provision and does not impact or abridgethe fundamental right under Article 19(1)(g) of the Constitution.

51. The last assail was on the argument that the field regarding(school) fee, in particular capitation fee is already covered by the lawenacted by the Parliament being RTE Act and for that reason, it was notopen to the State to enact law on the same subject such as the impugnedAct of 2016. This argument is completely misplaced and tenuous. For,the purpose for which the RTE Act has been enacted by the Parliamentis qualitatively different. It is to provide for free and compulsory educationto all children of the age of 6 to 14 years, which is markedly differentfrom the purpose for which the Act of 2016 has been enacted by theState legislature. Merely because the Central Act refers to the expression

DEF

A“capitation fee” as defined in Section 2(b) and also in Section 13 of theRTE Act — mandating that no school or person shall, while admitting achild, collect any capitation fee, does not mean that the Central Actdeals with the mechanism needed for regulating fee structure to ensurethat the schools do not collect fees resulting in profiteering andcommercialisation. By its very definition, the capitation fee under theBCentral Act means any kind of donation or contribution or payment otherthan the fee notified by the school. On the other hand, fee to be notifiedby the school is to be done under the impugned Act of 2016 after it is sodetermined by the school Management and approved by the SLFC or bythe Statutory Regulatory Authorities, as the case may be. Suffice it toCobserve that the field occupied by the Central Act is entirely differentthan the field occupied by the State legislation under the impugned Actof 2016. The impugned Act of 2016 deals specifically with the subject ofregulating fee structure propounded by the private unaided schoolmanagement. Hence, there is no substance in this challenge.D52. Taking overall view of the matter, therefore, we uphold theconclusion of the High Court in rejecting the challenge to the validity ofthe impugned Act of 2016 and Rules framed thereunder. However, wedo so by reading down Sections 4, 7 and 10 of the Act in the mannerindicated in paragraphs 28; 37/38 and 42 respectively of this judgment.These provisions as interpreted be given effect to, henceforth, inEconformity with the law declared in this judgment. For the reasonsmentioned hitherto, we hold that the High Court rightly concluded thatthe provisions of the Act of 2016 as well as the Rules of 2017 are intravires the Constitution of India and not violative of Articles 13(2) and19(1)(g) of the Constitution.F

Re: Second Set:

53. These appeals assail the common judgment and order dated18.12.2020 of the Division Bench of the High Court of Judicature forRajasthan at Jaipur whereby all the connected cases involving challengeto the orders dated 09.04.2020, 07.07.2020 and 28.10.2020 issued by theGState Authorities were disposed of.

54. The order dated 09.04.2020 was issued by the Director,Secondary Education, in the wake of COVID-19 pandemic, directingthe private schools recognised by the Primary and Secondary EducationDepartments to defer collection of school fees for period of threeHmonths. The said order reads thus:

“OFFICE OF DIRECTOR, SECONDARY EDUCATION,RAJASTHAN, BIKANER

ORDER

As per the direction issued by Hon’ble Chief Minister, order isbeing issued in regard to collection of fees by Elementary andSecondary Education Department recognized non-governmentschools, which is as follows:-

1. No fee will be charged by non-government schools from thestudents/guardians of the period after 15[th] March, the applicablefees at present and payment of advance fees which is deferredfor 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 theschool.

2. In case of continuation of the studies in the non-governmentschools, the deferred fees for the present session 2020-21 will bechargeable after deferment period is over.

3. After completion of the Lock down period, if any student ofnon-government school wants his Transfer Certificate forcontinuing studies in another school then the same can be obtainedafter depositing fees of the previous session 2019-20 and obtainingthe no-dues certificate.

(Saurabh Swami)

I.A.S.,

Director, Secondary Education, Rajasthan, Bikaner.

No.-Shivra-Ma/PSP/Sikayat/Vetan/2019-20

dated 09.04.2020"

55. 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:“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

Aof fees by Elementary and Secondary Education Departmentrecognized non-government schools, the following order is issued:-

1. The fee chargeable by non-government schools from thestudents/guardians after 15[th] March, the applicable fees at presentand payment of advance fee was deferred for 3 months, as perBthe direction of the State Government the said deferment isextended till the reopening of the schools. In case of non-depositionof fees during the said period, name of such student will not bestruck 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,

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) beforeEthe High Court challenging the aforesaid orders dated 09.04.2020 and07.07.2020. The learned Single Judge of the High Court Bench at Jaipurconsidered the prayer for interim relief and vide order dated 07.09.2020directed the school Authorities to allow the students to continue theirstudies online and also to deposit only 70 per cent of the tuition feesFelement from the total fees chargeable for the period from March 2020in three instalments. The relevant extract of the order of the learnedSingle Judge dealing with the prayer for interim relief at the instance ofthe appellants-Schools reads thus:

“13. I have considered the submissions as above and perusal thematerial available on record.G

14. While there are myriad issues involved in the present batch ofthe writ petitions, which are required to be examined finally; atthis interim stage, this Court finds that balance is required to bestruck between financial difficulty of the school managementrelating to release of the salary of the staff and minimum upkeepH

of school on one side and the financial pressure, which has comeon the parents due to the pandemic and lock-down as noticedabove.

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

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

17. This Court agrees prima facie with the counsel for intervenorsthat while the institutes had to incur certain additional expenditurefor developing online classes process, the same would be lessthan individual expenditure being incurred by the parents forproviding infrastructure to their each ward, who is undergoingonline classes at home. There may be also cases where the parentsmay have two or three children. To each one separate laptop orcomputer will be required to provide as all of them would beundergoing online classes at the same time. Thus, comparativebalance is required to be maintained.

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

Adisaster as mentioned in Section 22 of the Act of 2005. Theguidelines can be laid down for mitigation of such loss to thecitizens. The powers and functions of the State ExecutiveCommittee under Section 22(j) provide that the State ExecutiveCommittee shall ensure that non-governmental organizations carryout their activities in an equitable and non-discriminatory manner.BThe petitioners are all non-governmental organizations and areexpected therefore to play their necessary role in mitigating thesufferance caused to the public at large, while at the same timealso protect their own staff from facing financial difficulties. ThisCourt is also conscious of the fact that the State-respondents,Cwhile passing the impugned orders, have not taken intoconsideration the difficulties, which the staff of the concernedschool would face on account of non-payment of the fees.However, burdening the parents with complete tuition fees wouldnot be appropriate and justified.

D19. In view of the above, this Court by an interim measure and tillthe situation gets normalized, directs the school authorities to allowthe students to continue their studies online and allow them todeposit 70% of the tuition fees element from the total fees beingcharged for the year. The said 70% of the tuition fees shall bepaid for the period from March, 2020 in three installments to theErespective schools. However, it is made clear that on non-paymentof the said fees, the student(s) may not be allowed to join onlineclasses, but shall not be expelled from the school. The threeinstallments shall be fixed by depositing the first installment on orbefore 30.9.2020 while the second installment shall be paid byF30.11.2020 and third installment shall be paid by 31.1.2021.However, it is further made clear that the question regardingremaining fees shall be examined at the stage of final disposal ofthese writ petitions. The orders are being passed as interimarrangement subject to final adjudication of the case.

G20. The stay applications are accordingly disposed of.”

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

that they were unable to interact with the court through videoconferencing, the matters were notified for further hearing on 14.10.2020.The Court then directed listing of appeals on 20.10.2020. However, beforenext date of hearing, the State Government vide order dated 16.10.2020constituted four-member Committee to give suggestions to the StateGovernment in relation to recovery of fees from parents/students byPrivate/Non-Government Educational Institutions during the academicsession 2020-21. The High Court was apprised about this developmentwhen the matters were taken up on 23.10.2020 as is noticed from thesaid order, which reads thus:

“Order

23/10/2020

Mr. Rajesh Maharshi, AAG, submits that committee hasbeen constituted for determination of fees to be charged by theprivate schools for the period of lockdown imposed due to Covid-19 Pandemic. The Committee is in process to finalize itsrecommendations and accordingly the affidavit shall be filed onbehalf of the State Government on 2[nd] of November 2020 positively.

Mr. Kamlakar Sharma learned Senior advocate raisedserious objection and prayed for interim measure in view of thegreat hardship being faced by the private schools to run theirinstitutions.

Considering the hardship of the private schools, it is directedthat the State Government shall issue necessary directions by28.10.2020 positively regarding interim fees which the privateschools shall be allowed to charge subject to final decision in thisregard.

In the meanwhile, necessary affidavit in compliance ofearlier directions shall be filed by the State Government by02.11.2020 without fail after providing copy of the same to allthe parties.

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

A“OFFICE OF DIRECTOR, SECONDARY EDUCATION,RAJASTHAN, BIKANER

ORDER

The Hon’ble High Court in DB Special Appeal No.637/2020 SunilSamdria versus State of Rajasthan and other Special Appealspassed an order dated 23.10.2020 directing the State Governmentto take decision in regard to charging of school fees fromguardians/students for academic session 2020-21 keeping in viewCOVID pandemic and the guidelines be issued by 28.10.2020.

In compliance of the order passed by Hon’ble Rajasthan HighCourt, Jaipur dated 23.10.2020 and in pursuance to the StateGovernment’s letter No. P.8(3) Shiksha-5/COVID-19 FeesStaghan/2020 dated 28.10.2020, the guidelines for charging ofschool fees for the academic session 2020-21 by non-government educational institutions from students/guardians, areissued which are as follows:-

- THE DETAILS OF THE FEES TO BE CHARGED BYTHE SCHOOLS AFTER REOPENING

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

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

3. Looking to the circumstance arising out of COVID-19 pandemic,the decision to call the students of Class 1[st] to 8[th] to school has notbeen taken, hence whenever the decision is taken and as per thereduction of syllabus, in the same proportion the fees will becharged.

4. The fees decided as per above payable to the school for whichguardians/student will be given option of payment of fees monthly/Hquarterly.

5. The schools will not change the uniform prescribed in theprevious 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 ofthe guardians will be required.

8. In case the student is using conveyance provided by the schoollike Bal Vaihani etc. then the conveyance charges can be chargedbut it will not be more than the conveyance fees charged duringthe previous academic session. The conveyance fees will be inproportion to the number of working days after reopening of theschools.

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

10. The SOP issued by State Government will have to be adheredto by the non-government schools.

- THE DETAILS OF THE FEES TO BE CHARGED BYTHE SCHOOLS BEFORE REOPENING

1. The schools will determine the fees to be charged from studentsafter reopening of the school as per the prescribed syllabus forteaching.

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

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

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

to be completed by the schools the schools will ensure equalitybetween the online and offline students.

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

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

7. If any student does not subscribe to the online education beingprovided by the school, no capacity building fees will be charged.

- DETERMINATION OF TUITION FEES

1. The fees determined by school fee committee formed as perRajasthan Schools (Regulation of Fees) 2016 and Rules 2017 willbe the basis for aforesaid determination of fees which will clearlymention the various fees i.e. tuition fees, library fee etc.

2. The prescribed total fees and tuition fees of last year will notbe increased.

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

4. The students who are undergoing online classes and want tocontinue with online classes but their guardians are unable to paythe fees, in such cases committee will be formed at school levelwhich will examine such cases and will take decision in regardFto the relaxation of fees to be granted looking to the circumstancesfrom case to case.

5. The remaining fees for the academic session 2019-20 (remainingtill the schools remained open) will be charged in equal monthlyinstallments. The guardians of such students will not compelled topay the fees in single installment.

6. No student will be prevented from registration for BoardExamination even if he has not attended the online classes andhas not paid the fees, even the transfer certificate of such studentswill not be issued.

7. If any student wants to take transfer certificate and has attendedonline classes than capacity building fees as per aforesaid provisioncan be charged.

8. For charging fees as per aforesaid the non-government schoolswill pay prescribed salary to the employees had teachers and noretrenchment will be done due to circumstances of COVID-19.

The aforesaid has been approved by competent level. Allconcerned ensure the compliance.

(Saurabh Swami)

I.A.S.,

Director, Secondary Education,

Rajasthan, Bikaner.

No.-Shivra-Ma/PSP/C/A-2/60566/2019-20

Dated 28.10.2020"

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

60. Accordingly, the appeals and writ petitions were heard anddecided together by the common judgment and order pronounced on18.12.2020, which is impugned in the present appeals. The Division Benchvide impugned judgment opined that the State Government was competentand had jurisdiction to issue directions as given vide order dated 28.10.2020of the Director, Secondary Education, being policy decision necessitateddue to aftermath of pandemic situation. The Court held that in absenceof any legal provision to address the unprecedented difficulties faced bythe parents and their wards across the State, it was open to issueadministrative directions in exercise of power under Article 162 of theConstitution and especially when there was no legal provision prohibitingissuance of such directions. The Division Bench also opined that such

68SUPREME COURT REPORTS

Aorder could be issued even in exercise of power under Section 22 of theDisaster Management Act, 2005[21]. The Division Bench rejected theargument of the appellants that the stated order dated 28.10.2020 doesnot mention the source of power under which the same has been issuedby the Director, Secondary Education or that it was vitiated due to lackof opportunity of hearing to the school Management(s). Instead, theBCourt held that even if there is no formal authentication of the order, itwould be of no consequence. For, the direction was given by the ChiefMinister being the administrative and political head of the StateGovernment. It was the bounden duty of the State Government to reckonthe ground realities and strike balance between the interests of privateCschools as well as of the parents and students and to mitigate the plightof the citizens due to unprecedented crisis post COVID-19 pandemic.The Court did advert to the fact that the school Management was obligedto honour its commitment, rather obligation to pay salary to its staff onaccount of governing statutory provisions despite the pandemic situation.Further, the State of Rajasthan had adopted different pattern ofDsubstantially reducing the school fees in comparison to other States.Nevertheless, it noted that it is always open to the school Managementas well as the parents to approach the statutory forum for determinationof just fee under the Act of 2016. The Division Bench finally proceededto conclude as follows:E“In view of the above discussion, the rest of the petitions aredisposed of as under:-

I. All the private schools recognized by the Primary andSecondary Education Department shall be entitled to collect schoolfees from the parents of their students including the students ofFpre-primary classes in terms of the order dated 28.10.2020 issuedby the State Government subject to special determination of feesas being directed hereunder.

II. All the private schools are directed to form necessarybodies required for special determination of fees within 15 days,Gif such bodies have not been constituted so far in terms of RajasthanSchools (Regulation of Fee) Act 2016, and Rajasthan Schools(Regulation of Fee) Rules 2017.

III. In order to safeguard the interests of the schools’management and the parents, it is further directed that all theprivate schools recognized by the Primary and Secondary SchoolEducation Department shall specially determine the school feesfor the period in which schools remained closed due to COVID-19 pandemic and after opening of the schools in the Session 2020-2021 in terms of the provisions of Section 8 of Rajasthan Schools(Regulation of Fee) Act, 2016 and for this purpose all the schoolsshall publish necessary details including the strength and salarypaid to the staff during the period in which the schools remainedclosed for such special determination on their notice boards aswell as on their websites. This special determination of schoolfees shall be completed within two months from the date of orderpositively.

IV. With the object to prevent any unfair practice ofcollection of fees in the process of this special determination offees the component of tuition fees shall be specifically determinedand for that purpose, all heads of the school fees shall be bifurcatedas mandated under Section 6(4) of the Act of 2016.

V. Besides this, the schools’ management or the parentsmay take recourse of the provision of appeal/reference beforeDivisional Fee Regulatory Committee/Revision Committee, as thecase may be in case any of them are aggrieved of such specialdetermination.

Needless to say, that in the process of above specialdetermination of school fees, it will be open for the schools’management and the parents to determine the fees in consonancewith the directions contained in order dated 28.10.2020 or theymay increase or decrease the fees to be collected for the currentsession.

VI. The interim order dated 07.09.2020 passed by learnedSingle Judge stands vacated.”

61. In this backdrop, the management of private unaided schoolsin the State of Rajasthan have approached this Court to assail theimpugned judgment of the Division Bench of the High Court and alsothe order dated 28.10.2020 issued by the Director, Secondary Education.As matter of fact, challenge to the orders issued by the Director,

ASecondary Education on 09.04.2020 and 07.07.2020 had worked outdueto efflux of time. For, by these orders the school Management was merelydirected to defer collection of school fees for specified period as notedtherein; and that period had already expired. Thus, our focus in thisjudgment will be and ought to be only on the legality and rationality of theorder issued by the Director, Secondary Education on 28.10.2020 andBapplicable to academic year 2020-21 only, including the basis on whichthe same has been upheld by the High Court vide impugned judgment.

62. According to the appellants (private unaided schools), the schoolfee charged from their students was fixed by the SLFC in its meetingheld on 28.10.2017, by following procedure prescribed under the Act ofC2016 and the Rules framed thereunder. The same was to remain inforce for the academic years 2018-19, 2019-20 and 2020-21. In thepresent appeals, as aforementioned, we are concerned only with theschool fees pertaining to the academic year 2020-21, in light of theimpugned order dated 28.10.2020 issued by the Director, SecondaryDEducation.

63. The appellants would urge that being responsive schooladministration and also being deeply concerned with the development ofwards pursuing education in the concerned schools, the schoolManagement “on their own” had decided to offer scholarship of 25 perEcent of the annual fee to their students. That was to mitigate the difficultiesfaced by the parents and keeping in mind that certain recurring expenseswere not being incurred by the school Management during the lockdownperiod. Be that as it may, in law, it is not open to the State Authorities tomodify the school fees once fixed by the SLFC for the relevant academicyear that too in the manner done by the Director, Secondary EducationFvide order dated 28.10.2020. The fact that the parties are at liberty tochallenge the modification/reduction of school fees before the statutoryforum does not justify the issue of such an order — unless the StateAuthorities have clear mandate to do so under the governing law. Thedeparture made by the Director, Secondary Education vide order datedG28.10.2020 was not acceptable to the school Management, being exfacie illegal. It does not disclose the source of power under which it hasbeen issued. At best, it can rely on the interim observations made by theHigh Court in the proceedings pending at the relevant time. Thoseobservations cannot confer power on the State Authorities when no suchpower exists in the State Government in relation to modification/reductionH

of fee structure determined by the school Management and approvedby the SLFC. Moreover, it is well-established that there can be no rigiduniform fee structure for all the private unaided schools in the State.The High Court had erroneously assumed that the power exercised bythe Director, Secondary Education was ascribable to Article 162 of theConstitution. For, the subject of school fees is fully covered and governedby the provisions of the Act of 2016 and the Rules framed thereunder.Therefore, in the name of policy decision, the impugned order dated28.10.2020 cannot be sustained, which on the face of it is not inconformity with the express statutory provisions governing the subjectof school fees.64. It is urged that there was no express provision in the Act of2016 permitting such intervention by the State Authorities in respect ofschool fees already fixed under the Act of 2016. Reliance placed onSection 18 of the Act of 2016 was completely inapposite as that merelyconfers power upon the State Government to issue directions consistentwith the provisions of the Act of 2016 and for carrying out the purposesof 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 ofthe Act of 2016 much less Section 18 to justify the impugned order dated28.10.2020. In any case that order, on the face of it, is unreasonable,arbitrary and irrational. For, Section 8 provides for the parameters fordetermination of school fee and admittedly the school fee had alreadybeen fixed by the SLFC on 28.10.2017 which was still in force andapplicable for the academic year 2020-21 as well. Therefore, it was notopen to reduce the same much less limit it to only one parameter oftuition fee amongst other parameters referred to in Section 8.

65. It is urged that reliance placed on Section 18 of the Act of2016 is completely ill-advised. There is no mechanism in the Act of 2016to review or reduce the school fees once approved by the SLFC ordetermined by the Statutory Regulatory Authorities. On the other hand,as per Section 6(3) such school fee is binding on all concerned for threeacademic years, which in the present case was to remain in force untilthe academic year 2020-21.Further, the reduction of school fees hasbeen erroneously linked to the instructions issued by the concerned Board.In fact, the Board had issued directives to complete the course includingthrough online training/teaching. Moreover, there is no concept of“capacity building fee” under the Act of 2016. The expression “capacity

Abuilding” obviously has been borrowed from the legislation such as theAct of 2005. In any case, it is necessary to make factual enquiry schoolwise as to whether the concerned school had completed the entire syllabusfor the relevant academic year; and also, whether the liability of theschool towards teaching and non-teaching staff and their administrativeand infrastructure (recurring) expenses, had been discharged by the schoolBManagement.

66. It is then urged that the High Court committed manifest errorin upholding the impugned order dated 28.10.2020 as being ascribable toexercise of power under the Act of 2005. For, the stated Act providesexpress mechanism as to when and by whom the power to issue directionsCcan be exercised. The Director, Secondary Education has no such powerunder the Act of 2005 nor the State Government could do so thereundermuch less to reduce the school fees fixed after approval of the SLFC interms of the mechanism stipulated under the Act of 2016. The provisionsof the Act of 2005 are limited to providing effective management ofDdisasters and for matters connected therewith or incidental thereto.67. The manner and method of addressing such disaster and inparticular “disaster management” as defined in Section 2(e) of the Actof 2005 is by preparation of plan for disaster management by theauthority concerned under that Act. National Plan, State Plan or DistrictEPlan is required to be prepared under the Act of 2005. That is in respectof prevention of disasters or mitigation of their effects. It is the directeffect of disaster that is required to be mitigated and not indirect hardshipcaused to individuals much less in respect of contractual matters. Theplan must advert to the measures to be taken for the integration ofmitigation measures in the development plans and the measures to beFtaken for preparedness and capacity building to effectively respond toany threatening disaster situations or disaster including the roles andresponsibilities of different Ministries or Departments of the Governmentof India. In any case, the action is to be initiated by the State Authorities,established under the Act of 2005, namely, the Disaster ManagementAuthority at the concerned level. In the scheme of the Act of 2005,Gthere is nothing to indicate that the Authorities can interfere withcontractual matters or indirect hardships — such as inability of parentsto pay school fees due to pandemic situation. The Director, SecondaryEducation, in no way, is concerned with the preparation of disasterplan or its enforcement and implementation under the Act of 2005. As aHresult, the order dated 28.10.2020 cannot be sustained with reference to

the provisions of the Act of 2005. The provision in the form of Section72 of the Act of 2005 is also of no avail because the same is in referenceto the provisions of the Act, which, as aforesaid, in no way apply to thesubject of fixation and collection of school fees. That subject is exclusivelygoverned under the Act of 2016.

68. Even the invocation of provisions of the Rajasthan EpidemicDiseases Act, 2020[22] by the State to justify the stated order has beenstoutly refuted by the appellants. The powers required to be exercisedby the State Government under the Act of 2020 are delineated in Section4 of the Act of 2020. None of these measures (referred to in Section 4)concern the subject of determination of school fees much less reductionof school fees once it is approved by the SLFC and is in force for theconcerned 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, wouldnot give authority to the State Government to decide about the feestructure of the concerned unaided private school. The regulation canbe in regard to the timings when the school should be opened and closedand the protocol to be followed by the school during the working hours,as the case may be. That provision does not empower the StateGovernment to reduce the school fees which is approved by the SLFCand is in force for the concerned academic year.

69. According to the appellants neither the order dated 28.10.2020issued by the Director, Secondary Education can be sustained in law northe reasons weighed with the Division Bench of the High Court in theimpugned judgment to uphold the same can stand the test of judicialscrutiny.

70. Learned counsel for the minority private unaided schooladditionally contended that the order issued by the Director, SecondaryEducation violates the fundamental rights guaranteed under Article19(1)(g) as well as Article 30(1) of the Constitution. That the right to fixthe school fees is fundamental right under Articles 19(1)(g) and 30 ofthe Constitution which cannot be regulated by the State except forpreventing profiteering and capitation fee. To buttress his submission,reliance was placed on the dictum in T.M.A. Pai Foundation[23](supra),

22 for short, “the Act of 2020”

23 paras 29-38, 45, 53-57, 61 and 122

AP.A. Inamdar[24](supra) and Modern School[25](supra). He would submitthat in the case of minorities, the State regulation on minority right has tosatisfy dual test — the test of reasonableness and the test that it isregulative of the educational character of the institution and is conduciveto make the institution an effective vehicle of education for the minoritycommunity and for other persons to resort to it. Learned counsel hasBalso relied upon the decision dated 20.05.2020 of the Delhi High Court inthe case of Ramjas School vs. Directorate of Education[26] whereinthe High Court noted that in the case of unaided educational institutions,availability of surplus is no ground to disapprove the fee hike. Absentany charging of capitation fee/profiteering, the State Authorities cannotCreject the fee proposal of the school Management and that the quantumof fee to be charged is an element of administrative functioning of theschool, over which the autonomy of the unaided educational institutioncannot be compromised. He has also placed reliance on the decision ofthe Delhi High Court in Naresh Kumar vs. Director of Education,Delhi[27] decided on 24.04.2020. He then invited our attention to the decisionDof this Court in Pramati Educational and Cultural Trust (Registered)& Ors. vs. Union of India & Ors.[28]wherein the Constitution Benchopined that the RTE Act will not apply to minority educational institutions.Whereas, non-minority institutions are bound by the RTE Act to provide25 per cent admission to economically weaker sections of the societyEand to get reimbursement from the Government towards unit cost. Insubstance, he has iterated the argument that the school Management(s)of private unaided schools has right to fix their fee structure and tocollect school fees as approved by the SLFC or the Statutory RegulatoryAuthority.

F71. Per contra, learned counsel appearing for the State andrepresenting the parents submit that due to extraordinary andunprecedented situation arisen due to complete lockdown for such along period, the parents are not in 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 laterGon 07.07.2020 to defer the payment of school fees and finally to reduce

24 paras 91-94, 104, 107 and 139-14125 paras 16 and 1726 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)H28 (2014) 8 SCC 1 (paras 53 to 55)

the school fees in terms of order dated 28.10.2020 issued by the Director,Secondary Education. The dispensation provided in the order dated28.10.2020 is merely to take mitigating measures and to assuage theconcerns of the parents who were in dire need of such assistance. Themeasures taken by the State Government in terms of Sections 38 and 39of the Act of 2005, cast onerous responsibility upon the Government totake all measures for mitigation and capacity building in the wake of apandemic. These provisions must be given widest meaning as narrowconstruction would result in curtailing the powers of welfare State toundertake measures for dealing with the unprecedented situation. Thespirit of the provisions must be kept in mind and the court must upholdthe validity of the impugned order which has been issued in larger publicinterest. Reliance has been placed on the dictum of this Court in theState of M.P. & Ors. vs. Nandlal Jaiswal & Ors.[29]And PathanMohammed Suleman Rehmatkhan vs. State of Gujarat & Ors.[30], tobuttress this submission.72. According to the respondents, Section 72 of the Act of 2005gives an overriding effect over all other laws and, therefore, the powerof the State Government exercised in terms of Sections 38 and 39 inrespect of measures articulated therein, need not be constricted keepingin mind the language of the said provisions. In other words, all that isrequired to be done by the State to assuage the concerns of the societyand citizenry related to the situation arisen from the lockdown due topandemic, is permissible within the meaning of the said provisions.

73. It is urged that mere omission to mention the source of powerwill not invalidate the exercise of power itself as long as there is validsource to that exercise of power as noted by this Court in High Courtof Gujarat & Anr. vs. Gujarat Kishan Mazdoor Panchayat & Ors.[31],M.T. Khan & Ors. v. Govt. of A.P. & Ors.[32] and N. Mani vs. SangeethaTheatre & Ors.[33].

74. It is then urged that the order dated 28.10.2020 was necessitatedand was in furtherance of the observations made by the Division Benchvide order dated 23.10.2020. That was, obviously, to fulfil the parens patriae

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)

Aobligations of the court as well as of the State. It is urged that the Statehas legitimate interest under its parens patriae powers in providingcare to its citizens and since the direction issued is to fulfil that obligationwhich was necessitated because of the unprecedented situation coupledwith the fact that even the High Court had expressed benign hope thatthe State Government ought to find out some arrangement, it becameBnecessary to issue direction vide order dated 28.10.2020. Such powercould be exercised even as policy matter and the State Government iscompetent to do so under Article 162 of the Constitution.

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

76. It is urged on behalf of State that the issue in the presentappeals is limited to the justness of the order dated 28.10.2020 and,Dtherefore, the direction given to the State in the interim order passed bythis Court on 08.02.2021 to ensure that all government outstanding duestowards unit cost payable to respective unaided school are settled withinone month from the date of the order, was inapposite and needs to berecalled. It is urged that computation of the unit cost is complex andEassessment thereof is time-consuming process.77. Learned counsel for the State in his written submission hasfinally suggested to modulate the relief to be given in these appeals inthe following words:

“5. Re: Modulation of the relief in the present matterF�The initial notification issued by the State Government on09.04.2020 and 07.07.2020 have outlived its utility andworked itself out. The Constitutional Courts do notpronounce upon any academic matter. The validity of theCircular dated 09.04.2020 and 07.07.2020 have becomeGacademic in wake of subsequent events.

�The order dated 28.10.2020 can also become passed iffollowing relief, with utmost humility, is granted:

(a) The management of each school shall propose thefee structure in terms of Section 6(1) and place it beforeHthe school-level committee within period of 15 days

from the date of judgment of this Hon’ble Court. Thisshall be exclusively for Covid Year (2020-2021)irrespective of earlier determination of fees.

(b) The management shall take into account the specialcircumstances of the COVID and curtailment ofexpenses during COVID along with the factorsmentioned in Section 8 of the Act of 2016. Themanagement shall be reasonable and explain expenditureunder 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 feewithin period of 30 days.

(d) There shall be compulsory fixation of fee for COVIDyear 2020-21 separately (alone) for each school inaccordance with the provisions of the Act of 2016.

(e) The fixation of fee for 2021-22 can, thereafter, takeplace normally in accordance with the provisions of theAct of 2016.

�Thus, the final school fee shall come into existence for theCOVID year 2020-21 within period of 45 days from thedate of judgment of this Hon’ble Court and the order of28.10.2020 interim order passed by this Hon’ble Court shallsubsume in the same.”

78. According to Ms. Pragya Baghel, learned counsel representingthe parents, the State Government had not followed proper procedurefor determination of 70 per cent of the tuition fees and that decision isnot backed by any tangible material on record. Moreover, the impugneddecision was taken without giving opportunity to the stakeholders, inparticular the parents’ association. For which reason, such decisionshould not be allowed to be taken forward by the State Government. Itis then urged that the action taken under the Act of 2005 was obviouslyin larger public interest and being policy decision would not be amenableto judicial review. In any case, the appropriate course would be to relegatethe parties before special Committee comprising of retired Judge ofthe High Court, one Chartered Accountant and retired Teachers/Officersnominated by the Director of Public Education Board, who can take anappropriate decision after hearing all the stakeholders.

A79. written submission has also been filed on behalf of parents(by Mr. Sushil Sharma and others)contending that online classes are nota recognised form of education and that is being done by the privateschools on their own without any defined syllabus by the Board. Noplanning or infrastructure required for online education is in place. Nopermission has been obtained by the private schools to conduct onlineBclasses from the concerned Boards nor any feedback is taken from theparents about the efficacy of the online teaching. It is urged that there isno uniformity in the teaching methodology or any standard operatingprocedure or protocol prescribed by the concerned Boards to be followedby the private schools. The focus is essentially on the disadvantage ofConline classes conducted by the private schools. It is also urged in thewritten submission that the recommendation made by the StateGovernment and recognition of online classes as capacity building classesare inappropriate. At the end, it is urged that this Court ought to directwaiver of complete fees for the duration schools were closed and directthe State to prescribe fixed fee for online classes to standard uniformDcharge on par with NOIS across schools and to declare exams taken bythe schools so far as invalid in law and to issue such other direction asmay be necessary.80. Another written submission filed for the intervener - Mr.Charanpal Singh Bagri, claiming to be parent in private school in theEState of Punjab. He has raised several issues including the questionspertaining to the matters concerning the schools in the State of Punjabwhich are sub judice. In our opinion, it is not necessary to dilate on thiswritten submission as the present appeals pertain to the issues concerningthe private unaided schools in the State of Rajasthan governed by theFAct of 2016 and the Rules framed thereunder. It will be open to theintervener to pursue all the points raised in the written submission in theproceedings pending in the High Court or this Court concerning the privateschools in the State of Punjab. We may not be understood to haveexpressed any opinion in that regard.G81. We also have the benefit of written submission filed by Mr.Sunil Samdaria, appearing in-person who has essentially commended usto uphold the impugned judgment and order dated 18.12.2020 of theHigh Court of Rajasthan and seeking directions to further reduce theschool fees below the percentage specified in the order dated 28.10.2020and as upheld by the High Court. In fact, he has gone to the extent ofH

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

82. When the hearing of these appeals was in progress consideringthe urgency involved, we thought it appropriate to pass interim directionswhich were intended to address the concerns of all parties in somemeasure. That order was passed on 08.02.2021, which reads thus:

“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(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 takenup along with these matters, at the request of the petitioners therein.

The hearing of these cases has been commenced and ispart heard. But, since the hearing is likely to take some moretime, we deem it appropriate to pass interim directions which willaddress the concerns of all parties in some measure.

We propose to stay the impugned order on the followingconditions:

(a) The management/school may collect fees for theacademic year 2019-2020 as well as 2020-2021 from thestudents, equivalent to fees amount notified for the academicyear 2019-2020, in six monthly installments commencingfrom 5th March, 2021 and ending on 5th August, 2021.

(b) The Management shall not debar any student fromattending either online classes or physical classes on accountof non-payment of fees, arrears/outstanding fees including

the installments, referred to above, and shall not withholdthe results of the examinations of any student on that account.

(c) Where the parents have difficulty in remitting the fee interms of this interim order, it will be open to those parentsto approach the school concerned by an individualrepresentation and the management of the school willconsider such representation on case-to-case basissympathetically.

(d) The above arrangement will not affect collection of feesfor the academic year 2021-2022, which would be payableby 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 classesX and XII (to be conducted in 2021) the school managementshall not withhold the name of any student/candidate on theground of non-payment of the fee/arrears, if any, onobtaining undertaking of the concerned parent/student.

(f) The above arrangements would be subject to the outcomeof these matters including the final directions to be given tothe parties and without prejudice to the rights and contentionsof the parties in these proceedings.

(g) We also direct the State of Rajasthan to ensure that allgovernment outstanding dues towards unit cost payable torespective unaided schools are settled within one monthfrom the today and, in any case, before 31st March, 2021.

FOrdered accordingly.

Heard in part.

Hearing of the aforesaid cases, shall continue on 15thFebruary, 2021.”

G83. Learned counsel appearing for the appellants had stated thatif the Court were to make this interim arrangement absolute, theappellants would be satisfied with such direction. However, as aforesaid,the respondents, namely, the State Government and the parents have adifferent perception and have addressed us fully to oppose grant of anyrelief to the appellants.H

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

85. At the outset, in this judgment we consciously opt to limit ouranalysis to the challenge/grounds concerning the legality and justness ofthe order dated 28.10.2020 issued by the Director, Secondary Educationconcerning private unaided schools in the State of Rajasthan and asapplicable to the academic year 2020-21 only. We do not wish to advertto or analyse any other issue raised by the parties and we may not beunderstood to have expressed any opinion either way in that regard.

86. Undeniably, an unprecedented situation has had evolved onaccount of complete lockdown due to pandemic. It had serious effect onthe individuals, entrepreneurs, industries and the nation as wholeincluding in the matter of economy and purchasing capacity of one andall. large number of people have lost their jobs and livelihood asaftermath of such economic upheaval. The parents who were undersevere stress and even unable to manage their day-to-day affairs andthe basic need of their family made fervent representation to the schoolManagement(s) across the State. public discourse in that regardsurfaced in the media which impelled the political dispensation tointervene. Thus, on the directions of the Chief Minister of the State ofRajasthan, the Department initially issued order dated 09.04.2020 merelyto defer the collection of school fees which restriction was extended bysubsequent order dated 07.07.2020.

87. The matter had reached the High Court and by way of interimarrangement, learned Single Judge of the High Court issued certaindirections against which the parties approached the Division Bench ofthe High Court by way of intra-court appeals. During the pendency ofintra-court appeals in deference to the observations of the court, theState Authority proceeded to issue further order on 28.10.2020, which,essentially is the subject matter of assail in these appeals.

88. The State cannot be heard to rest its argument to defend theimpugned order dated 28.10.2020 as having been issued in light of benignhope expressed by the High Court. It could do so only if the law permittedthe State Government to intervene on the subject of school fees of privateunaided schools (minority or non-minority, as the case may be).

AResultantly, what we need to examine in these appeals is whether orderdated 28.10.2020 issued by the Director, Secondary Education can besustained in law.

89. Although the stated order makes no reference to the sourceof power under which it had been issued, four different perspectivesBhave 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 policy decision, it could issue an executive direction tomitigate the concerns of the parents in exercise of power under Article162 of the Constitution. Third, such power can be exercised by the StateGovernment for mitigating the concerns of the parents and for capacityCbuilding of the stakeholders as one of the measures under the Act of2005. Lastly, such direction could be issued also in exercise of powerunder the Act of 2020 by the State Authorities.

90. We now proceed to test the correctness of the pleas taken bythe State Government in seriatim.D91. The source of power derived from Section 18 of the Act of2016 is flimsy argument. Section 18 of the Act of 2016 reads thus:

“18. Power to issue directions. - The State Government mayissue to any school such general or special directions consistentwith the provision of this Act and the rules made thereunder as inEits opinion are necessary or expedient for carrying out the purposesof this Act or for giving effect to any of the provisions containedtherein or in any rules or orders made thereunder and themanagement of the school shall comply with every such direction.”

This provision does bestow power on the State Government toFissue general or special directions to any school within the State. However,such direction must be consistent with the provisions of the Act of 2016and the Rules framed thereunder. It cannot be in conflict with the mandateof the Act and the Rules. Additionally, such directions must be necessitateddue to expediency for carrying out the purposes of the Act and theRules or to give effect to the applicable provisions. If the direction issuedGby the State Government does not qualify these parameters, it mustfollow that the same has been issued in excess of power bestowed underSection 18 of the Act of 2016.

92. After analysing the scheme of the Act of 2016, at least twoaspects are amply clear. The first is that firm mechanism has beenHspecified under the Act of 2016 regarding determination of fee structure

in the form of approval by the SLFC and, if required, adjudication by theDFRC and the Revision Committee. There is no express provision in theAct or Rules authorising the stated functionaries/authorities to modifythe school fees once finalised in the manner provided by the Act of2016. Whereas, the explicit mandate in the Act of 2016 is that, the feesso fixed by the concerned functionaries/authorities shall be binding on allconcerned for three academic years. This is clear indication of notaltering the school fees unilaterally after it is fixed under the Act of 2016in any manner for the specified period. If we may say so, it is in thenature of prohibition or mandate to continue the same fee structure forat least three academic years, after it is fixed by the concerned authorityunder the Act. By its very nature, the direction given by the StateGovernment is in conflict with the scheme of finalisation of fee structureunder the Act of 2016 and also the binding effect thereof for the specifiedperiod of three academic years on all concerned. Thus understood, thedirection issued by the State Government in the form of order dated28.10.2020 does not satisfy the twin tests of being consistent with theprovisions of the Act; and also being necessary or expedient for carryingout the purposes of the Act, as the case may be.

93. Suffice it to observe that the order dated 28.10.2020 being inthe nature of direction, has been issued in breach of the pre-conditionsspecified in Section 18 of the Act of 2016. As matter of law, the StateGovernment had no power, whatsoever, to interdict the fee structuremuch less which has been finalised and fixed by the concernedfunctionaries/authorities under the Act of 2016 itself before expiry ofthe statutory period as specified. As result, Section 18 of the Act of2016 will be of no avail to the respondents, in particular the StateGovernment to justify the order dated 28.10.2020.

94. fortiori, even the argument of the respondents relying uponthe existence of executive power under Article 162 of the Constitution,ought to fail. It is well-established position that the executive power of aState under Article 162 of the Constitution extends to the matters uponwhich the legislature of the State has competency to legislate and is notconfined to matters over which legislation has already been passed. It isalso well-settled that the State Government cannot go against theprovisions of the Constitution or any law. The subject of determinationof fee structure and whether it entails in profiteering, is already coveredby the legislation in the form of the Act of 2016 and the Rules framed

Athereunder. It is not as if there is no enactment covering that subject orany incidental aspects thereof. The Act of 2016, which in itself is self-contained code on the said subject, not only provides for the manner inwhich the concerned school ought to finalise its fee structure, but alsodeclares that the fee so finalised either by consensus or throughadjudication mode shall be binding on all concerned for period of threeBacademic years. In any case, determination of fees including reductionthereof is the exclusive prerogative of the management of the privateunaided school. The State can provide independent mechanism only toregulate that decision of the school Management to the extent that itdoes not result in profiteering and commercialisation.C

95. Viewed thus, reliance placed on Union of India vs. MoolchandKharaiti Ram Trust[34]will be of no avail. In that case, the hospitalswere obligated to render free treatment in lieu of allotment of governmentland to them for earning no profit and held in trust for public good. TheCourt opined that there was no necessity of enacting law and theDpolicy formulated by the State Government in that regard cannot bedisregarded.

96. In the present case, we need not dilate on the factum as towhether the Director, Secondary Education could have issued such apolicy document in exercise of executive power under Article 162 of theEConstitution, which power exclusively vests in the State Governmentalone. The fact remains that the direction issued in terms of impugnedorder dated 28.10.2020, on the face of it, collide with the dispensationspecified in the Act of 2016 in the matter of determination of school feesand its binding effect on all concerned for period of three academicyears, without any exception. The fact that in the proceedings beforeFthe High Court the State Government had ratified the impugned order,does not take the matter any further. In that, there can be no ex postfacto ratification by the State Government in respect of subject, on which,it itself could not issue such direction in law.

97. Even the exposition in Rai Sahib Ram Jawaya Kapur &GOrs. vs. State of Punjab[35]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 549H36 (2011) 13 SCC 99

the respondents for the same reasons. Notably, not only the subject offinalisation of fee structure and the matters incidental thereto have beencodified in the form of the Act of 2016, but also law has been enactedto deal with the matters during the pandemic situation in the form ofCentral 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 ofepidemic diseases and its management. Even those enactments do notvest any power in the State Government to issue direction with regard tocommercial or economic aspects of matters between private partieswith which the State has no direct causal connection, which we shallexamine later at the appropriate place. In other words, the power of theState Government to deal with matters during the pandemic situationhave already been delineated by the Parliament as well as the Statelegislature.98. As such, it is not open to the State Government to issuedirections in respect of commercial or economic aspects of legitimatesubsisting contracts/transactions between two private parties with whichthe State has no direct causal connection, in the guise of management ofpandemic situation or to provide “mitigation to one” of the two privateparties “at the cost of the other”. This is akin to – rob Peter to pay Paul.It is different matter, if as policy, the State Government takes theresponsibility to subsidise the school fees of students of private unaidedschools, but cannot arrogate power to itself much less under Article 162of the Constitution to issue impugned directions (to school Managementto collect reduced school fee for the concerned academic year). Wehave no hesitation in observing that the asservation of the StateGovernment of existence of power to issue directions even in respect ofeconomic aspects of legitimate subsisting contracts/transactions betweentwo private parties, if accepted in respect of fee structure of privateunaided schools, is fraught with undefined infinite risk and uncertaintyfor the State. For, applying the same logic the State Government mayhave to assuage similar concerns in respect of other contractual mattersor transactions between two private individuals in every aspect of lifewhich may have bearing on right to life guaranteed under the Constitution.That would not only open pandora’s box, but also push the StateGovernment to entertain demands including to grant subsidy, from differentquarters and sections of the society in the name of mitigating measuresmaking it financially impossible and unwieldy for the State and eventuallyburden the honest tax payers - who also deserve similar indulgence.

ASelective intervention of the State in response to such demands mayalso suffer from the vice of discrimination and also likely to impingeupon the rights of private individual(s) — the supplier of goods or serviceprovider, as the case may be. The State cannot exercise executive powerunder Article 162 of the Constitution to denude the person offeringservice(s) or goods of his just claim to get fair compensation/cost fromBthe recipient of such service(s) or goods, whence the State has no directcausal relationship therewith.

99. It is one thing to say that the State may regulate the fee structureof private unaided schools to ensure that the school Management doesnot indulge in profiteering and commercialisation, but in the guise ofCexercise of that power, it cannot transcend the line of regulation andimpinge upon the autonomy of the school to fix and collect “just” and“permissible” school fees from its students. It is certainly not an essentialcommodity governed by the legislation such as Essential CommoditiesAct, 1955 empowering the State to fix tariff or price thereof. In light ofDconsistent enunciation by this Court including the Constitution Bench,that determination of school fee structure (which includes reduction offixed school fee for the relevant period) is the exclusive prerogative ofthe school Management running private unaided school, it is not opento the Legislature to make law touching upon that aspect except toprovide statutory mechanism to regulate fees for ensuring that it doesEnot result in profiteering and commercialisation by the schoolManagement. Ex-consequenti, the State Government also cannotexercise power under Article 162 of the Constitution in that regard.100. Notably, the direction given in the impugned order to theschool Management is to collect only specified percentage of annualFtuition fees on the assumption that the schools will not be required tocomplete the course for the academic year 2020-21. This assumptionhas been rebutted by the appellants by relying on the instructions issuedby the concerned Board indicating to the contrary. In any case, thatdoes not extricate the school Management from incurring recurring capitalGand 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 todeduct suitable amount from their salaries. Thus, the effect of theimpugned order is to reduce school fees determined under the Act inabsence of authority to do so including under the Act of 2016. Further,H

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

101. Reverting to the provisions of the Act of 2005, no doubtSection 72 thereof predicates that the provisions of the Act will haveoverriding effect on other laws for the time being in force or anythinginconsistent in any instrument having effect by virtue of any law otherthan the Act of 2005. This provision, however, would come into effectonly if it is to be held that the Statutory Authorities under the Act of 2005have power to deal with the subject of school fee structure of privateunaided schools.

102. For that, we may usefully refer to Section 23 of the Act of2005 which provides for the contents of the plan for disaster managementto be prepared for every State called the State Disaster ManagementPlan. Section 23 reads thus:

“23. State Plan.— (1) There shall be plan for disastermanagement for every State to be called the State DisasterManagement Plan.

(2) The State Plan shall be prepared by the State ExecutiveCommittee having regard to the guidelines laid down by the NationalAuthority and after such consultation with local authorities, districtauthorities and the people’s representatives as the State ExecutiveCommittee may deem fit.

(3) The State Plan prepared by the State Executive Committeeunder 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 differentforms of disasters;

(b) the measures to be adopted for prevention and mitigationof disasters;

(c) the manner in which the mitigation measures shall beintegrated with the development plans and projects;

A(d) the capacity-building and preparedness measures to betaken;

(e) the roles and responsibilities of each Department of theGovernment of the State in relation to the measures specifiedin clauses (b), (c) and (d) above;

(f) the roles and responsibilities of different Departmentsof the Government of the State in responding to anythreatening disaster situation or disaster;

(5) The State Plan shall be reviewed and updated annually.

C(6) Appropriate provisions shall be made by the State Governmentfor financing for the measures to be carried out under the StatePlan.

(7) Copies of the State Plan referred to in sub-sections (2) and (5) shallbe made available to the Departments of the Government of theDState and such Departments shall draw up their own plans inaccordance with the State Plan.”

103. Going by the scheme of the Act of 2005, the State Authorityestablished under Section 14 known as State Disaster ManagementAuthority is expected to formulate policies and plans for disastermanagement in the State. Indeed, such policies and plans may includeEmitigation[37] measures in respect of persons affected by disaster. Themitigation measures, however, are aimed merely for reducing the risk/impact or effects of disaster or threatening disaster situation. Consideringthe sphere of functions of the State Authority including the State ExecutiveCommittee or different Authorities established at concerned level withinFthe State, there is not even tittle of indication that in the name of mitigatingmeasures, the disaster management plan may comprehend issue of directionin respect of economic aspects of legitimate subsisting contracts ortransactions between two private individuals with which the State has nodirect causal relationship, and especially when the determination ofcompensation/cost/fees is the prerogative of the supplier or manufacturerGof the goods or service provider of the services. The scheme of the Act of2005 obligates the State Authority to assuage the concerns of the personsarising 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 effectsof disaster or threatening disaster situation;H

to minimise the impact of such disaster and for that purpose, resort ofcapacity-building[38] including of its own resources[39] to wit, manpower,services, materials and provisions as noted in Section 2(p), andpreparedness[40] measures referred to in Section 2(m). It is not possible tocountenance the persuasive argument of the respondents that expansivemeaning be assigned to the provisions of the Act of 2005 so as to includepower to reduce school fees of private unaided school albeit fixed underthe Act of 2016 and which by law is to remain in force until academic year2020-21.

104. As is noticed from the preamble of the Act of 2005, it is toprovide for the effective management of disasters and for mattersconnected therewith or incidental thereto. It extends to the whole ofIndia. The Act is to establish Statutory Committees at different level forcarrying out the purposes for which the Act has been enacted. It isessentially for effective management of disasters and for mattersconnected therewith or incidental thereto. The expression “disaster” hasbeen defined in Section 2(d) of the Act of 2005, which reads thus:

“2. Definitions.- In this Act, unless the context otherwiserequires,-

xxxxxxxxx

(d) “disaster” means catastrophe, mishap, calamity or graveoccurrence in any area, arising from natural or man made causes,or by accident or negligence which results in substantial loss oflife or human suffering or damage to, and destruction of, property,or damage to, or degradation of, environment, and is of such anature or magnitude as to be beyond the coping capacity of thecommunity of the affected area;”

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

38 Section 2(b) “capacity-building” includes—

(i) identification of existing resources and resources to be acquired or created;

(ii) acquiring or creating resources identified under sub-clause (i);

(iii) organisation and training of personnel and coordination of such training foreffective management of disasters;

39 Section 2(p) “resources” includes manpower, services, materials and provisions;

40 Section 2(m) “preparedness” means the state of readiness to deal with threateningdisaster situation or disaster and the effects thereof;

[2021] 14 S.C.R.

A“2. Definitions.- In this Act, unless the context otherwiserequires,-

xxxxxx

(e) “disaster management” means continuous and integratedprocess of planning, organising, coordinating and implementingBmeasures 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 orconsequences;

(iii) capacity-building;

(iv) preparedness to deal with any disaster;

(v) prompt response to any threatening disaster situation ordisaster;

(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 2005Ewhich provides for powers and functions of State Authority establishedunder Section 14 consisting of Chief Minister of the State, who acts asChairperson (Ex officio) and other Chairpersons of the respectiveAuthorities. Section 18 reads thus:

“18. Powers and functions of State Authority.— (1) SubjectFto the provisions of this Act, State Authority shall have theresponsibility for laying down policies and plans for disastermanagement in the State.

(2) Without prejudice to the generality of provisions contained insub-section (1), the State Authority may—

(a) lay down the State disaster management policy;

(b) approve the State Plan in accordance with the guidelineslaid down by the National Authority;

(c) approve the disaster management plans prepared bythe departments of the Government of the State;

(d) lay down guidelines to be followed by the departmentsof the Government of the State for the purposes ofintegration of measures for prevention of disasters andmitigation in their development plans and projects andprovide necessary technical assistance therefor;

(e) coordinate the implementation of the State Plan;

(f) recommend provision of funds for mitigation andpreparedness measures;

(g) review the development plans of the differentdepartments of the State and ensure that prevention andmitigation measures are integrated therein;

(h) review the measures being taken for mitigation, capacitybuilding and preparedness by the departments of theGovernment of the State and issue such guidelines as maybe necessary.

(3) The Chairperson of the State Authority shall, in the case ofemergency, have power to exercise all or any of the powers ofthe State Authority but the exercise of such powers shall be subjectto ex post facto ratification of the State Authority.”

107. The obligation of the State Government for the purpose ofdisaster management can be culled out from Section 38, which readsthus:

“38. State Government to take measures.— (1) Subject tothe provisions of this Act, each State Government shall take allmeasures specified in the guidelines laid down by the NationalAuthority and such further measures as it deems necessary orexpedient, for the purpose of disaster management.

(2) The measures which the State Government may take undersub-section (1) include measures with respect to all or any of thefollowing matters, namely:—

(a) coordination of actions of different departments of theGovernment of the State, the State Authority, DistrictAuthorities, local authority and other non-governmentalorganisations;

(b) cooperation and assistance in the disaster managementto the National Authority and National Executive Committee,

the State Authority and the State Executive Committee, andthe District Authorities;

(c) cooperation with, and assistance to, the Ministries orDepartments of the Government of India in disastermanagement, as requested by them or otherwise deemedappropriate by it;

(d) allocation of funds for measures for prevention ofdisaster, mitigation, capacity-building and preparedness bythe departments of the Government of the State inaccordance with the provisions of the State Plan and theDistrict Plans;

(e) ensure that the integration of measures for preventionof disaster or mitigation by the departments of theGovernment of the State in their development plans andprojects;

(f) integrate in the State development plan, measures toreduce or mitigate the vulnerability of different parts of theState to different disasters;

(g) ensure the preparation of disaster management plansby different departments of the State in accordance withthe guidelines laid down by the National Authority and theState Authority;

(h) establishment of adequate warning systems up to thelevel of vulnerable communities;

(i) ensure that different departments of the Government ofthe State and the District Authorities take appropriatepreparedness measures;

(j) ensure that in threatening disaster situation or disaster,the resources of different departments of the Governmentof the State are made available to the National ExecutiveCommittee or the State Executive Committee or the DistrictAuthorities, as the case may be, for the purposes ofeffective response, rescue and relief in any threateningdisaster situation or disaster;

(k) provide rehabilitation and reconstruction assistance tothe victims of any disaster; and

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

108. The corresponding responsibilities of departments of the StateGovernment have been delineated in Section 39, which reads thus:

“39. Responsibilities of departments of the StateGovernment.— It shall be the responsibility of every departmentof the Government of State to—

(a) take measures necessary for prevention of disasters,mitigation, preparedness and capacity building in accordancewith the guidelines laid down by the National Authority andthe State Authority;

(b) integrate into its development plans and projects, themeasures 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 threateningdisaster situation or disaster in accordance with the StatePlan, and in accordance with the guidelines or directions ofthe National Executive Committee and the State ExecutiveCommittee;

(e) review the enactments administered by it, its policies,rules and regulations with view to incorporate therein theprovisions necessary for prevention of disasters, mitigationor preparedness;

(f) provide assistance, as required, by the National ExecutiveCommittee, the State Executive Committee and DistrictAuthorities, for—

(i) drawing up mitigation, preparedness and responseplans, capacity-building, data collection and identificationand training of personnel in relation to disastermanagement;

(ii) assessing the damage from any disaster;

(iii) carrying out rehabilitation and reconstruction;

(g) make provision for resources in consultation with theState Authority for the implementation of the District Planby its authorities at the district level;

(h) make available its resources to the National ExecutiveCommittee or the State Executive Committee or the DistrictAuthorities for the purposes of responding promptly andeffectively to any disaster in the State, including measures

for—

(i) providing emergency communication with vulnerableor affected area;

(ii) transporting personnel and relief goods to and fromthe affected area;

(iii) providing evacuation, rescue, temporary shelter orother immediate relief;

(iv) carrying out evacuation of persons or live-stock froman area of any threatening disaster situation or disaster;

(v) setting up temporary bridges, jetties and landingplaces;

(vi) providing drinking water, essential provisions,healthcare and services in an affected area;

(i) such other actions as may be necessary for disastermanagement.”

109. The State Executive Committee constituted under the Act of2005 vide Section 20 is obligated to discharge the functions delineated inFSection 22 of the Act. The same reads thus:

“22. Functions of the State Executive Committee.— (1) TheState Executive Committee shall have the responsibility forimplementing the National Plan and State Plan and act as thecoordinating and monitoring body for management of disaster inthe 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 theNational Policy, the National Plan and the State Plan;

(b) examine the vulnerability of different parts of the Stateto different forms of disasters and specify measures to betaken for their prevention or mitigation;

(c) lay down guidelines for preparation of disastermanagement plans by the departments of the Governmentof the State and the District Authorities;

(d) monitor the implementation of disaster management plansprepared by the departments of the Government of the Stateand District Authorities;

(e) monitor the implementation of the guidelines laid downby the State Authority for integrating of measures forprevention of disasters and mitigation by the departmentsin their development plans and projects;

(f) evaluate preparedness at all governmental or non-governmental levels to respond to any threatening disastersituation or disaster and give directions, where necessary,for enhancing such preparedness;

(g) coordinate response in the event of any threateningdisaster situation or disaster;

(h) give directions to any Department of the Governmentof the State or any other authority or body in the Stateregarding actions to be taken in response to any threateningdisaster situation or disaster;

(i) promote general education, awareness and communitytraining in regard to the forms of disasters to which differentparts of the State are vulnerable and the measures thatmay be taken by such community to prevent the disaster,mitigate and respond to such disaster;

(j) advise, assist and coordinate the activities of theDepartments of the Government of the State, DistrictAuthorities, statutory bodies and other governmental andnon-governmental organisations engaged in disastermanagement;

(k) provide necessary technical assistance or give adviceto District Authorities and local authorities for carrying outtheir functions effectively;

96SUPREME COURT REPORTS

(l) advise the State Government regarding all financialmatters in relation to disaster management;

(m) examine the construction, in any local area in the Stateand, if it is of the opinion that the standards laid for suchconstruction for the prevention of disaster is not being orhas not been followed, may direct the District Authority orthe local authority, as the case may be, to take such actionas may be necessary to secure compliance of suchstandards;

(n) provide information to the National Authority relating todifferent aspects of disaster management;

(o) lay down, review and update State level response plansand guidelines and ensure that the district level plans areprepared, reviewed and updated;

(p) ensure that communication systems are in order andthe disaster management drills are carried out periodically;

(q) perform such other functions as may be assigned to itby the State Authority or as it may consider necessary.”

110. Having regard to the purport of the Act of 2005, it isunfathomable as to how the State Authorities established under the statedEAct can arrogate unto themselves power to issue directions to privateparties on economic aspects of legitimate subsisting contractual mattersor transactions between them inter se. In any case, the impugned orderhas 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 ofFthe Chief Minister of the State. For, the Chief Minister is only theChairperson (Ex officio) of the State Disaster Management Authorityestablished under Section 14 of the Act of 2005. Suffice it to observethat there is no provision in the Act of 2005 which concerns or governsthe subject of interdicting the school fee structure fixed under the Act of2016.G

111. Section 72 of the Act of 2005 was pressed into service.However, that cannot be the basis to justify the impugned order dated28.10.2020. Section 72 reads thus:

“72. Act to have overriding effect.— The provisions of thisAct, shall have effect, notwithstanding anything inconsistent

therewith contained in any other law for the time being in force orin any instrument having effect by virtue of any law other thanthis Act.”

The Act of 2005 is not panacea for all difficulties much less notconcerning disaster management [Section 2(e)] as such. As noted earlier,there is no express provision in the Act of 2005 which empowers theDirector, Secondary Education (or the State Government) to issue orderand directions in respect of school fee structure because of the pandemicsituation.

112. For the same reasons, reliance placed on the provisions ofthe State legislation, namely, the Act of 2020 dealing with epidemicdiseases will be of no avail to justify the impugned order dated 28.10.2020issued by the Director, Secondary Education. The power to take specialmeasures and specify regulation as to epidemic disease can be exercisedby the State Government under Section 4 of the Act of 2020. Section 4reads thus:

“4. Power to take special measures and specify regulationsas to epidemic disease.— (1) When at any time the Governmentis satisfied that the State or any part thereof is visited by orthreatened with an outbreak of any epidemic disease, theGovernment may take such measures, as it deems necessary forthe purpose, by notification in the Official Gazette, specify suchtemporary regulations or orders to be observed by the public orby any person or class of persons so as to prevent the outbreak ofsuch epidemic disease or the spread thereof and require orempower District Collectors to exercise such powers and dutiesas may be specified in the said regulations or orders.

(2) In particular and without prejudice to the generality of theforegoing provisions, the Government may take measures andspecify regulations,-

(a) to prohibit any usage or act which the Governmentconsiders sufficient to spread or transmit epidemic diseasesfrom person to person in any gathering, celebration, worshipor 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, asthe case may be, in hospital, temporary accommodation, home

or otherwise of persons suspected of being infected withany such disease by the officer authorized in the regulationor orders;

(c) to seal State Borders for such period as may be deemednecessary;

(d) to impose restrictions on the operation of public andprivate transport;

(e) to prescribe social distancing norms or any otherinstructions for the public to observe that are considerednecessary for public health and safety on account of theepidemic;

(f) to restrict or prohibit congregation of persons in publicplaces and religious institutions or places of worship;

(g) to regulate or restrict the functioning of offices,Government and private and educational institutions in theState;

(h) to impose prohibition or restrictions on the functioningof shops and commercial and other offices, establishments,factories, workshops and godowns;

(i) to restrict duration of services in essential or emergencyservices such as banks, media, health care, food supply,electricity, water, fuel etc.; and

(j) such other measures as may be necessary for theregulation and prevention of epidemic diseases as decidedby the Government.”

The measures enunciated in Section 4 of the Act of 2020 in noway deal with the “tariffs” of air, rail, road, hospital, temporaryaccommodation. It only enables the Authority to prohibit any usage oractivities which the Government considers sufficient to spread or transmitepidemic diseases and for that purpose to inspect various places suspectedof being infected with such diseases. Indeed, it can regulate or restrictthe functioning of offices, Government and private and educationalinstitutions in the State. That, however, would be only in respect of mannerof its use and its timings including to observe standard operatingprocedures to ensure that epidemic diseases do not transmit or spreadon account of activities carried out therein. That power to regulate cannot

be invoked to control the tariffs, fees or cost of goods and services andin particular economic aspects of contractual matters between two privateparties or so to say school fees of private unaided schools. Accordingly,even the last point urged by the State to justify the impugned order dated28.10.2020 falls to the ground.

113. priori, it must follow that the Director, Secondary Educationhad no authority whatsoever to issue direction in respect of fee structuredetermined under the Act of 2016 including to reduce the same for theacademic year 2020-21 in respect of private unaided schools. Havingfailed to trace the legitimate source of power under which the directionshave been issued, as aforesaid, the respondents - State Authorities cannotfall back upon the benign hope expressed by the High Court to do theneedful in the backdrop of the representations made by several parentsabout the difficulties encountered by them due to pandemic situation. Itwould have been different matter if the Director, Secondary Educationhad used his good offices to impress upon the school management(s) ofthe concerned school(s) to explore the mitigating measures/options ontheir own for the academic year 2020-21 and to give concession to theirstudents to the extent possible at least in respect of unutilised facilitiesand savings on overheads by the school Management in that behalf or togive concession in the form of scholarship to deserving students. It isstated by the appellants that the school Management on their own hadoffered scholarship of 25 per cent of the annual fee to their students. Inother words, the Director, Secondary Education could have mediatedbetween the Association of the school Management and representativesof the Parent-Teachers Association for arriving at an amicable solutiondue to pandemic situation for the academic year 2020-21, on humanitariangrounds, but could not issue the impugned order when even the Statehad no power to issue the same.

114. Accordingly, the appellants are justified in assailing the orderdated 28.10.2020 issued by the Director, Secondary Education and mustsucceed. However, that does not give licence to the appellants to berigid and not be sensitive about aftermath of pandemic. The schoolManagement supposedly engaged in doing charitable activity of impartingeducation, is expected to be responsive and alive to that situation andtake necessary remedial measures to mitigate the hardship suffered bythe students and their parents. It is for the school Management toreschedule payment of school fee in such way that not even single

Astudent is left out or denied opportunity of pursuing his/her education, soas to effectuate the adage “live and let live”.

115. In law, the school Management cannot be heard to collectfees in respect of activities and facilities which are, in fact, not providedto or availed by its students due to circumstances beyond their control.BDemanding fees even in respect of overheads on such activities wouldbe nothing short of indulging in profiteering and commercialisation. It isa well-known fact and judicial notice can also be taken that, due tocomplete lockdown the schools were not allowed to open for substantiallylong period during the academic year 2020-21. Resultantly, the schoolManagement must have saved overheads and recurring cost on variousCitems such as petrol/diesel, electricity, maintenance cost, water charges,stationery charges, etc. Indeed, overheads and operational cost so savedwould be nothing, but an amount undeservedly earned by the schoolwithout offering such facilities to the students during the relevant period.Being fee, the principle of quid pro quo must come into play. However,Dno accurate (factual) empirical data has been furnished by either sideabout the extent to which such saving has been or could have beenmade or benefit derived by the school Management. Without insistingfor mathematical exactitude approach, we would assume that the schoolManagement(s) must have saved around 15 per cent of the annual schoolfees fixed by the school/adjudicated by the Statutory RegulatoryEAuthorities for the relevant period.

116. At this stage, we must advert to the stand taken by the learnedcounsel for the appellants that the appellants would be content with theinterim order passed by this Court on 08.02.2021, being confirmed as afinal order. This suggestion is indeed attractive, but that arrangementFdoes not provision for the amounts saved by the school Managementtowards unspent overheads/expenses in respect of facilities not utilisedor could not be offered by the school Management to the students due tolockdown situation. As aforesaid, we would assume that at least 15 percent of the annual school fees would be towards overheads/expensesGsaved by the school Management. Arguendo, this assumption is on thehigher side than the actual savings by the school Management of privateunaided schools, yet we are inclined to fix that percentage because theeducational institutions are engaged in doing charitable activity of impartingand spreading education and not make money. That they must willinglyand proactively do. Hence, collection of commensurate amount (15 perH

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

117. Ordinarily, we would have thought it appropriate to relegatethe parties before the Regulatory Authority to refix the school fees forthe academic year 2020-21 after taking into account all aspects of thematter including the advantage gained by the school Management dueto unspent overheads/expenses in respect of facilities not availed by thestudents. However, that course can be obviated by the arrangement thatwe propose to direct in terms of this judgment. To avoid multiplicity ofproceedings (as school fee structure is linked to school — school wise)including uncertainty of legal processes by over 36,000 schools indetermination of annual fee structure for the academic year 2020-21, asa one-time measure to do complete justice between the parties, wepropose to issue following directions:

(i)The appellants (school Management of the concernedprivate unaided school) shall collect annual school fees fromtheir students as fixed under the Act of 2016 for theacademic year 2019-20, but by providing deduction of 15per cent on that amount in lieu of unutilised facilities by thestudents during the relevant period of academic year 2020-21.

(ii)The amount so payable by the concerned students be paidin six equal monthly instalments before 05.08.2021 as notedin 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 theirstudents or to evolve different pattern for giving concessionover and above those noted in clauses (i) and (ii) above.

(iv)The school Management shall not debar any student fromattending either online classes or physical classes on accountof non-payment of fees, arrears/outstanding fees includingthe installments, referred to above, and shall not withholdthe results of the examinations of any student on that account.

(v)If any individual request is made by the parent/ward findingit difficult to remit annual fees for the academic year 2020-21 in the above terms, the school Management to considersuch representation on case-to-case basis sympathetically.

A(vi)The above arrangement will not affect collection of feesfor the academic year 2021-22, as is payable by the studentsof the concerned school as and when it becomes due andpayable.

(vii)The school Management shall not withhold the name ofBany student/candidate for the ensuing Board examinationsfor Classes X and XII on the ground of non-payment offee/arrears for the academic year 2020-21, if any, onobtaining undertaking of the concerned parents/students.

118. We are conscious of the fact that we are issuing generalCuniform direction of deduction of 15 per cent of the annual school fees inlieu of unutilised facilities/activities and not on the basis of actual dataschool-wise. As aforesaid, we have chosen to do so with view toobviate avoidable litigation and to give finality to the issue of determinationand collection of school fees for the academic year 2020-21, as one-time measure which is the subject matter of these appeals. We haveDconsciously limited the quantum of deduction from annual school fees to15 per cent although the school Management had mentioned about itswillingness to provide 25 per cent scholarship to deserving students, aswe have compelled the school Management to collect annual schoolfees for the academic year 2020-21 as was fixed for the academic yearE2019-20 on which some of the school Management(s) could havelegitimately asked for increase of at least 10 per cent in terms of Section6(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 impugnedjudgment also need to be disposed of. Accordingly, we deem it appropriateFto dispose of all the contempt petition(s) initiated in reference to theimpugned judgment, as the same is being overturned by this decision.

120. While parting, we must note that the respondent-State ofRajasthan has moved formal application for recall/modification ofdirection given in clause (g) of the order of this Court dated 08.02.2021G— to ensure payment of outstanding dues towards unit cost payable torespective unaided schools within specified time. It is urged that due tocomplexity of facts, it was not possible to complete the process ofcomputation before 31.03.2021. In the first place, there is no question ofrecall or modification of that direction. We were conscious of the factHthat that is not the subject matter of the appeals before this Court.Nevertheless, such direction was issued taking into account totality ofthe situation and to give relief to the private unaided schools by directingthe State of Rajasthan to discharge its statutory obligation within specifiedtime, of paying the outstanding dues of the concerned private unaidedschools towards unit cost. Accordingly, we reiterate that direction butgive further time to the State Government to complete the process ofcalculation and disbursal of the outstanding amount payable towards unitcost to the concerned unaided schools in the State of Rajasthan before theend of July 2021. The outstanding dues to be paid in terms of this directionwould be obviously in respect of academic year upto 2020-21.

121. We must also note that we have not dilated on each of thereported decisions relied upon by the parties, as it is not necessary to doso for the view taken by us. For, there is nothing inconsistent in thosedecisions.

ORDER

In view of the above,

(a)we dispose of the first set of appeals challenging the validityof the Act of 2016 and the Rules framed thereunder withobservations and the conclusion recorded in paragraph 52above by reading down Sections 4, 7 and 10 of the Act anddirect that henceforth the same be applied in conformitywith the law declared in this judgment.E

(b)The second set of appeals, however, are allowed in theabove terms including mentioned in paragraph 117. Theimpugned judgment and order of the High Court dated18.12.2020 is quashed and set aside. Instead, the intra-courtappeals preferred by the appellants questioning the decisionFof the learned Single Judge and the writ petitions filed beforethe High Court to assail the impugned order dated28.10.2020, shall stand disposed of in terms of this judgment.

(c)The contempt petition(s) pending before the High Court inconnection with the subject matter of these appeals alsoGstand disposed of. No order as to costs.

Pending applications, if any, also stand disposed of.