Report by Karthi

Bombay High Court stated that the state cannot make any changes in the fee structure of private unaided schools that are not dependent on government. The resolution which was issued on 08.05.2020 regarding the fee structure which was stayed till further orders.

Petitioner’s Contention:

This case before the High court of Bombay is a writ petition filed during the pandemic crisis. This is not a single petition but collaged because of the similarity of the problem placed and for the relief claimed. The writs were filed based on a government resolution No.Misc-2020/CR33/SM-6 dated 8th May,2020-08-09, which was issued by Principal Secretary to the Government of Maharashtra, School Education and Sports Department. Petitioners were individuals who runs private unaided schools with different boards like CBSE, ICSE , etc , therefore the fees collected from the students are the source of income as they are not aided by the government. The Resolution passed by the Principal Secretary was regarding the non-increase of the fees for the academic year 2020-2021, because the Epidemic Diseases Act and the Disaster Management act was implemented in the state due to the COVID crisis. The order issued in the name of Governor of Maharashtra. What the petitioners stated was that the power of approval of the fees was given to the executive committee of parent teachers association in accordance with the Maharashtra Educational Institutions Act, 2011.

Key Highlights:

  1. The State is not empowered with any laws to issue such a resolution in accordance to the fee of private institutions.
  2. Because of the compulsion to pay fee by the institutions the state exercised Section 21 of the Maharashtra Educational Institutions Act,2011 and Section 26(i) of Disaster Management Act,2005 and have made some decisions in the following:-  Payment in Installations, Online mode of payment, no hike in fees for the academic year and reduction in fees proportionate to reduction in usage of reduction in resources.
  3. Whether the Resolution passed by the State could be justified with the power of state to take an executive action under Article 162 of the Indian constitution.
  4. TMA Pai Foundation vs State of Karnataka,2002 8 SCC 481, this case stated that it is totally unacceptable for the government to interfere in determining the fee structure of Private schools especially which is not aided by the Government.
  5. Based on having the above case as a Precedent, Supreme court in State of Bihar vs Project Uccha Vidya Shiksha Sangh said that with precedents it is clear that article 19 cannot be achieved by issuing a circular of resolution under Article 162 of the Constitution of India.
  6. The court also asked the management to consider the difficulties faced by the parents in this pandemic situation and their financial struggle, therefore provide them to pay fees in instalments and provide online payment facilities.

Respondent’s Contention

When we look it from the State’s perspective it is done for the welfare of the people of the state as they were compelled to pay fees and to protect them from the increase of fees the Principal Secretary has passed such a resolution. Section 25 of the Disaster Management Act, 2005 has given the powers to the State Executive Committee in an event of Disaster situation and to look after the welfare of people, clause (i) empowers the state executive committee to build temporary plans for the welfare of the state and also to remove hazardous plans that will affect public. Later it was stated by the court that the resolution passed on 08.05.2020 was issued without Jurisdiction. Right to establish educational institution is a fundamental right which is mentioned in Article 19(1)(g) of the Indian Constitution and the fees must be fixed reasonably and also for the betterment of the institution.

The Government Resolution order issued on 08.05.2020 was Stayed until further Orders.

With all the statues and favourable precedents, it was a decision favoured for the petitioners for the private aided schools which are unaided by the government. It was explicitly stated that there were no provisions for the government to interfere in the fee structure or alter any fees module of Private schools. The entire power to fix the fee lies with the private school and is left for approval with the Parent-teacher Association. No article in the constitution allows the state to take decisions on the fee structure even during the time of disaster as stated above, even with Article 162 where it is stated that the state could exercise executive powers. The Petitioners were asked to consider the financial struggle of the parents and do the need by the Bombay High Court.

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