Uttaranchal High Court: In a writ petition filed by private unaided residential schools to challenge Government Orders (‘GO’) dated 15-01-2021 and 22-03-2021 issued by the Uttarakhand government, a Single Judge Bench of Manoj Kumar Tiwari, J. held that the State was justified in issuing necessary directions to the private unaided residential schools not to charge fee for the services which were not availed by the students during the period when classes were conducted online.
Background
The impugned GOs in the present matter were issued in the backdrop of the pandemic caused by Covid-19 and the lockdown that was imposed. GO dated 15-01-2021 mentioned that permission for resuming classes for students of 10th and 12th standard in physical mode had been granted and full fee for the same would be charged from the date the classes resumed in physical mode. However, it was also mentioned that when the classes were not conducted in physical mode, students would only be liable to pay the tuition fee.
In the second para of said GO, it was provided that permission for physical classes had not been given for students other than those studying the 10th and 12th standard. Therefore, schools should only charge tuition fee from them.
GO dated 22-03-2021 provided that since permission for conducting physical classes for the 6th,7th, 8th, 9th and 11th standard had been given, the students studying in these standards would be liable to pay full fee from the date that the physical classes are resumed. However, for the period that the classes were conducted online, they would only be liable to pay tuition fee.
The petitioners contended that the impugned orders were unsustainable as the State Government could not determine the amount which a private unaided residential school could charge as fee from its students and the interference by the State was without any authority of law as there was no such power available to the State under the Disaster Management Act, 2005 and Epidemic Diseases Act, 1987.
The petitioner further submitted that the amount payable as fee for education of a child was determined by a contract between the school and the parents of the child. Since the State is not a party to the contract, it cannot decide the amount chargeable as fee from the students.
The State submitted that Article 162 of the Constitution provides that the executive power of a State shall extend to the matters in respect of which the State Legislature has power to make laws. It was also submitted that State can make law with respect to any manner enumerated in List III of the Constitution.
Analysis and Decision
The Court stated that there could be no argument on the fact that the executive power of the State extended to matters in respect to which the State Legislature had the power to make laws, however, the Court said that the power is not unfettered.
The Court referred to a list of judgments and found it apparent that profiteering and commercialization of education by private educational institutions was impermissible and that the State has been assigned the task of preventing exploitation of students/parents for commercial gains by private educational institutions. Thus, it was stated that the contention raised by the petitioners contending that the State has no authority intermeddle in the internal affairs of petitioner schools could not be accepted.
The Court said that the interference by the State could not be said to be unjust or illegal. It was also said that without providing services, the school management was not justified in demanding fee for services which are provided only when the school runs in physical mode and students reside in the hostel.
Further, the Court stated that the challenge to the GOs dated 15-01-2021 and 23-03-2021 was without any force as the State was well within its rights to issue the orders in exercise of its powers under Article 162. It was also said that the State was justified in issuing necessary directions to the private unaided residential.
Thus, the Court dismissed the petition.
[Welham Boys’ School Society v. State of Uttarakhand, W.P(M/S) No. 1656 of 2021, Decided on 02-01-2025]
Judgment authored by Justice Manoj Kumar Tiwari
Advocates who appeared in this case :
For Petitioners — Advocate Kanwaljeet Singh, Advocate Akshay Singh, Advocate Anjali Rana
For Respondents — Addl. C.S.C P.C. Bisht
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