covid 19 private schools

SC Refuses to Stay Order Allowing Private Schools to Levy Development, Annual Fees

The Supreme Court refused to stay the order made by the Delhi HC that allowed private unaided schools to collect annual and development charges from the students after the period of the lockdown being lifted.

New Delhi: The Supreme Court Monday refused to stay the Delhi high court order allowing private unaided schools to collect annual and development charges from students for the period after the lockdown ended in the national capital last year.

A bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and Aniruddha Bose did not agree with the submission of the Directorate of Education (DoE) of the Delhi government that it has the power to regulate the levy of fees by private unaided schools and the high court judgement permitting such a levy of annual and development charges be stayed.

“We are not inclined to grant you the stay,” the bench told senior advocate Vikas Singh, appearing for Delhi government, vehemently seeking the stay of the judgement saying, lakhs and lakhs of parents will be affected. “Please don’t shut us out.”

The top court, however, said although it was dismissing the appeal of the Delhi government, this would not come in the adjudication of its plea by a division bench of the high court as nothing on merits have been recorded by it.

Considering the fact that the division bench is hearing the matter on July 12, all the contentions remain open and can be raised before the division bench and the dismissal of the petition does not reflect upon merits of the case, the bench said.

On May 31, a single judge bench of the high court had quashed the office orders of April and August 2020 issued by DoE of the Delhi government forbidding and postponing collection of annual charges and development fees.

The Delhi government then filed the intra-court appeal before a division bench of the high court which on June 7 issued notices the plea but had refused to stay its single-judge order allowing private unaided schools to collect annual and development charges from students.

Aggrieved by the refusal of stay, the DoE moved the top court saying that grave injustice would be done if the stay was not granted as the government had already allowed such institutions to keep collecting 100% of tuition fees.

At the outset, senior advocates Shyam Divan and N.K. Kaul, appearing for bodies representing private schools, opposed the Delhi government’s appeal.

They said the single judge bench of the high court, on May 31, had taken note of an apex court’s judgement in the Indian School, Jodhpur vs State of Rajasthan, in which it was held that the schools shall collect annual fees with a deduction of 15% and had applied that in the instant case.

Singh said the apex court’s judgement was not applicable in Delhi’s context as it has been held in past that DoE is duly empowered to decide the issue of levy of fees and moreover, the private schools have been already been allowed to charge tuition fees.

Referring to a report of the Duggal panel, the senior counsel for Delhi government said the schools have to meet all their expenses from funds collected under the head of tuition fees which have been allowed to be levied fully by the administration.

Schools were asked to waive only annual charges and development fees, Singh said.

Earlier on June 7, while refusing to stay the May 31 order of the single judge bench allowing private unaided schools to collect annual and development charges, the division bench had observed that if the AAP government was so populist, it can help schools with some funds.

Don’t be just a populist government. Give money to schools also. They also need money to run the schools. They have to pay taxes also If you want to be such a populist government, please help them. Do something, who is stopping you, the division bench of the high court had said.

The May 31 verdict had quashed two office orders of April and August last year issued by the Directorate of Education (DoE) of the Delhi government forbidding and postponing collection of annual charges and development fees, saying they were “illegal” and “ultra vires” the powers of DoE stipulated under the Delhi School Education (DSE) Act and the Rules.

Delhi Govt, Students Appeal in HC Against Order Allowing Private Schools to Charge Annual Fees

The HC said the Delhi government has no power to indefinitely postpone collection of annual charges and development fees by private unaided schools as it would unreasonably restrict their functioning.

New Delhi: Several appeals, including one by the Aam Aadmi Party (AAP) government, have been moved in the Delhi high court against its single-judge order allowing private unaided recognised schools to collect annual and development charges from students for the period after the lockdown ended in the national capital last year.

The petitions were initially listed before a bench of Chief Justice D.N. Patel and Justice Jyoti Singh on Friday.

However, since the bench did not sit, the matter was transferred to another bench comprising Justices Manmohan and Navin Chawla to be heard in the second half of the day.

Senior advocate Vikas Singh and Delhi government standing counsel Santosh K. Tripathi, appearing for the AAP government, and the lawyers representing the students told the bench that an interim order be passed to maintain the status quo as the private schools have started harassing the parents.

The bench declined to pass any such order, saying it has not gone through the petitions and listed the matter for hearing on June 7.

The Delhi government and the students have contended that the single judge’s May 31 decision was based on incorrect facts and law.

The single judge verdict had quashed two office orders of April and August 2020 issued by the Directorate of Education of the Delhi government forbidding and postponing collection of annual charges and development fees, saying they were “illegal” and “ultra vires” the powers of DoE stipulated under the Delhi School Education (DSE) Act and the Rules.

It said the Delhi government has no power to indefinitely postpone collection of annual charges and development fees by private unaided schools as it would unreasonably restrict their functioning.

Also read: Delhi Private Schools: Is There a Case to Be Made for Hiking Fees?

The Delhi government has contended that its orders of April and August last year were issued in larger public interest as due to the COVID-19 lockdown people were in financial crisis.

The DoE has contended that “charging fees is not the only source of augmenting the income” and any observation to the contrary will not only be prejudicial to the interest of the private unaided schools, but it will be difficult to regulate them.

The DoE has said schools, if unregulated, will determine their own fee structure “as per their whims and fancies” and it was duty bound to not allow any other head of fees other than those necessary to be charged as ‘fees’.

The appeals on behalf of the students have claimed that establishment costs, like repairing of buildings, administrative expenses, rent and hostel expenses, are not applicable when the schools are closed.

They have also contended that the charging of annual and development fees was only deferred and not stopped and the schools could have charged the same once the pandemic situation normalised.

The pleas on behalf of the students and that filed by DoE have also contended that the conditions imposed by the Supreme Court on Indian School, Jodhpur vs State of Rajasthan, could not have been made applicable to Delhi, as the education laws in both states are different.

The single-judge verdict said that schools shall collect annual fees with a deduction of 15 per cent as allowed by the apex court in the Indian School case.

It also said the amount payable by the students have to be paid in six monthly installments from June 10.

The other directions of the apex court, incorporated in the May 31 judgement, were — it would be open to the schools to give further concession to their students or to evolve a different pattern for giving concession, management shall not debar any student from attending online classes or physical classes or withhold exam results on account of non-payment of fees and students’ name for Board exams shall also not be withheld over non-payment of fees/arrears.

The May 31 decision had come on the plea moved by Action Committee Unaided Recognized Private Schools, which represents 450 private unaided schools, through advocate Kamal Gupta.

The organisation had challenged the two office orders of April and August last year of the DoE on grounds that they curtail the rights of the private unaided recognized schools to fix their own fees.

The organisation had also contended that to restrict the collection of fee to certain heads or amounts was illegal and without any authority or jurisdiction.

It had also said that the DoE has limited jurisdiction to regulate fees, that too only to prevent commercialisation and profiteering.

In Tamil Nadu, There Are No Easy Answers for the Private School Fee Dilemma

While it is natural for the state government to do whatever it can to ease the burden on its citizens in these trying times, many private schools are staring at a bleak financial picture.

A dilemma of an unusual kind is playing out in Tamil Nadu. On the face of it, both sides of the divide have a point. Is there a middle path? If there isn’t one, it could very well spell disaster for the education system in the state.

The cause of the present dilemma – nay, the trouble – lies in the prolonged lockdown. With kids confined to homes, many private schools in the state have virtually run out of steam. With no visibility on the way forward, their sustainability has come under severe test.

For private schools, the situation has become more complicated on the financial front after the state government told them not to force-collect fees from parents of students. The chief educational officer of Chennai and other district-level officials have warned schools in their jurisdictions not to force parents to pay fees immediately. Chief minister Edappadi K. Palaniswami had even said that action would be taken if specific complaints were received about schools pressurising parents.

With the extended lockdown forcing everything to a halt, it is quite natural for the government to be seen as taking every measure to ease the pressure on its citizens in these trying times.

Also read: With Decision on Classes to Be Taken in July, Jharkhand Must Review Its School Reorganisation Policy

In a few states, there is also evidence that the economic effects of the pandemic has forced lower-income families to take their children out of private schools – the Punjab education department, for instance, set a new record by adding 1.65 lakh new admissions in government schools this year.

At the same time, this move has pushed many private schools into a corner. They are ‘non-aided’ in the sense that they get no government funding. The Tamil Nadu government’s diktat on fee collection, according to many well-known educationists, is a virtual death warrant against private schools. What’s worse is that this has encouraged even well-off families, who can afford to pay, to hold back from making any fee payments.

On the one hand, the state government insists on these private education institutions pay salaries to all their teaching and non-teaching staff. On the other hand, it warns them of action if they collect fees from students. The government may argue that it is only against forcible collection of fees during the pandemic – and not a blanket waiver per se – but this move may have opened up a Pandora’s Box with many parents holding back on payment. If schools are not allowed to collect even minimum fees, how can the state government expect private institutions to pay salaries?

Also read: Here’s How We Can Gear up to Open Schools After the Lockdown

The entire issue has now taken a legal turn with the Federations of Association of Private Schools in Tamil Nadu and others taking their case before the Madras high court.

Like many states, private schools are a dime-a-dozen in Tamil Nadu. They are of assorted categories – big, small, wealthy and not-so-wealthy. The marquee and big-brand institutions are formidable and have deep pockets and can afford to wait out the lockdown.

But smaller private institutions – and they too do their job by serving different niches – are the ones who could be hit very hard by this directive. And, these form a sizeable number in the state.

Also read: Is Social Distancing Feasible for a Majority of Schools in India?

How to carve a middle path?

The face-off between private institutions and the state government poses a number of questions. For instance, if the state government is really concerned about its citizens while ordering private schools not to collect fees, why hasn’t it done more to ease hardship and put money in the hands of its citizens by waiving utility bills? Electricity charges, water tax and the like, to name a few, are still being collected despite the lockdown situation.

In fact, state governments are looking to get their hands on revenue wherever they can find it. A case in point is the higher taxes on liquor levied by a number of states and union territories.

When the state government has not provided relief in this regard, should it be up to the private sector to do the same? No doubt, circumstances are very trying and there are good arguments to be made about the larger societal benefit in demanding that private schools temporarily stop or delay in collecting fees.

Yet, the diktat defies logic. Consider the issue of how institutions are expected to pay their teaching and non-teaching staff. Can the state government afford to not pay its public school teachers? Given the strong unionised nature of government-run schools, this is well nigh impossible and even risky for the ruling party even to contemplate. If that is the case for teaching staff in government schools, the same logic applies to teachers in private schools.

Also read: Lockdown Schooling Is No Substitute for Education

But they can be paid only if these unaided schools collect fees from their students. In Tamil Nadu, for instance, various estimates say that a significant number of private schools were able to pay only 50% salary to their staff over the last few months due to a cash crunch.

A workable way out of this dilemma should be within the realm of possibility even in these times. Often, political bosses take extreme positions in their game of one-upmanship, ignoring the consequences of such hasty actions on the overall education ecosystem. In recent years, this has become the norm with the Tamil Nadu government. It has the uncanny knack of getting into a Chakravyuh-like situations, but less experience on getting out of them.

K.T. Jagannathan is a senior business journalist based out of Chennai.