Patna High Court: A writ petition was filed by petitioner, Association of Independent Schools, Bihar, being aggrieved with the fee regulatory measure attempted by the State through a legislation, Bihar Private Schools (Fee Regulation) Act, 2019 (‘the Act’) and petitioner also sought to declare some provisions of the Act ultravires. The Division Bench of K. Vinod Chandran, CJ.*, and Rajiv Roy, J., rejected the writ petition and upheld the validity of the Act subject to certain directions. Further, the Court opined that there were no guidelines prescribed insofar for determination of reasonable fees and thus the absence of such guidelines could not result in invalidation of the Act.
Background
Petitioner sought to declare Sections 3, 4 and 5 of the Act as ultravires and prayed to set aside the letter dated 08-11-2019, issued by the Regional Deputy Director, Education Department, Patna which had directed private schools within Patna division to ensure the increase not more than 7% in the fee amount, applicable from last academic year.
With regard to the direction issued by the Regional Deputy Director, a status quo was directed to be maintained by another Division Bench by order dated 19-12-2019. The Act remained defunct and the challenge against the Regional Deputy Director’s communication could not survive as the direction itself had worked itself out. The Court thus dealt with the issue of the provisions being ultravires.
Petitioner submitted that restricting the increase of fees to 7% was arbitrary and hough there was a Fee Regulatory Committee (‘FRC’) constituted, there were no guidelines as to how the requests made by the private schools were to be considered. It was further submitted that there could be various factors regulating the quantum of fees that would be payable, such as rural and urban setting in which the school might be situated. The FRC in absence of guidelines on the method of fixing the fees had unbridled power, which could be exercised prejudicing the private schools, thus putting into jeopardy education of children, even when parents were willing to pay the fixed fees. It was further submitted that there was no rationale in confining the increase in every subsequent year to 7%. Sections 4(4) and 4(5) of the Act resulted in inconsistency by militating against each other. It was further submitted that the regulation was violative of Article 19(1)(g) of the Constitution. It was submitted that there was no appellate remedy provided in absence of guidelines prescribed for the FRC to follow.
Analysis, Law, and Decision
The Court opined that the issue was squarely covered by Indian School v. State of Rajasthan, (2021) 10 SCC 517, (‘Indian School case’), and if compared with the instant legislation, it would resolve the grounds raised in the instant case. The Court noted the argument that autonomy regarding administration, including decision on the quantum of fees to be charged by the private unaided schools was in public interest for establishment of good quality of school. The Court further noted the submission made by respondent that the setting up of an external regulatory committee would not fall foul of Articles 19(1)(g) or 30 of the Constitution.
The Court opined that in the impugned legislation there was no School Level Fee Committee as had been constituted in Rajasthan, under the Rajasthan Schools (Regulation of Fee) Act, 2016 (‘the Rajasthan Act’) which was an internal committee within the school. The Court opined that in the impugned legislation by virtue of Section 4(2) of the Act, the schools were granted a freedom to increase fees up to 7% and only when the increase was to be done beyond 7% it had to approach the FRC.
The Court opined that the ground raised that there was no further appeal provided could not be accepted as Section 8 of the Act provided an appeal against the decision of the FRC to be filed before the State Appellate Authority constituted under the Bihar State School Teacher and Employees Dispute Redressal Rules, 2015. The Court further opined that comparing the scheme of the Act with that of the Rajasthan Act, it was evident that there was no arbitrariness vitiating the procedure delineated in the Act.
The Court opined that with regard to the submission made for inconsistency in Sections 4(4) and 4(5) of the Act, there was no inconsistency discerned as Section 4(4) of the Act provided power on the State Government to revise the 7% limit from time to time and Section 4(5) of the Act mandated that an increase of more than 7% should be subject to due approval of the FRC. The Court opined that the provisions only further the regulatory measure and did not fetter the autonomy of the management to increase the fees within the limit provided.
The Court opined that there were no guidelines prescribed insofar for determination of reasonable fees and thus, held that the absence of such guidelines could not result in invalidation of the Act.
The Court opined that the State Government had been granted sufficient power to make rules under the Act and to direct the State Government to make rules would be sufficient.
The Court rejected the writ petition and after following the Indian School case, upheld the validity of the Act, subject to following directions:
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The nomination of two guardian representatives by the Divisional Commissioner to the FRC should be only parents of the children not entitled to the benefits of the provisions of
Right to Education Act, 2009 . Further the guardian representative would not be allowed to continue if the ward was not studying in any private unaided schools. -
One of the representatives of the managements nominated by the Divisional Commissioner should be from a minority institution.
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The FRC and the appellate committee should consider the factors as coming out from the Rajasthan Act.
[Association of Independent Schools, Bihar v. State of Bihar, 2024 SCC OnLine Pat 326, decided on: 25-01-2024]
*Judgment Authored by: Chief Justice K. Vinod Chandran
Advocates who appeared in this case:
For the Petitioners: Bindhyachal Singh, Senior Advocate; Prashant Sinha and Sanchit Singh, Advocates
For the Respondents: Binay Kr. Pandey, AC to GA-2
