Delhi High Court
Action Committee Unaided Recognized ... vs Directorate Of Education on 29 April, 2024
Author: C.Hari Shankar
Bench: C. Hari Shankar
$~168
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5743/2024 & CM APPL. 23712/2024, CM APPL.
23713/2024
ACTION COMMITTEE UNAIDED RECOGNIZED
PRIVATE SCHOOLS ..... Petitioner
Through: Mr. Kamal Gupta, Mrs. Tripti
Gupta, Mr. Sparsh Aggarwal, Mr. Karan
Chaudhary, Ms. Yosha Dutt, Mr. S.L.
Bansal and Mr. Nikhil Kukreja, Advs.
versus
DIRECTORATE OF EDUCATION ..... Respondent
Through: Mr. Santosh Kumar Tripathi,
SC (Civil) for GNCTD/DoE with Ms.
Prashansa Sharma and Mr. Rishabh
Srivastava, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER (ORAL)
% 29.04.2024
CM APPL. 23713/2024 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application is disposed of.
W.P.(C) 5743/2024 & CM APPL. 23712/2024 (Stay)
3. The grievance of the petitioner in this case is directed against
the following order dated 27 March 2024, passed by the Directorate of
Education (DoE):
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 1 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
DIRECTORATE OF EDUCATION
OLD SECRETARIAT, CIVIL LINES, DELHI-110054
(PRIVATE SCHOOL BRANCH)
No.F.DE-15(40)/PSB/2019/1433-1440 DATED 27/03/24
ORDER
Whereas as per Section 17 of DSEAR, 1973, it is clear that
no private unaided school in Delhi which has been allotted land by
the Govt. Agencies shall enhance fee without the prior sanction of
the Director of Education.
Now, therefore, all the Head of Schools/Managers of
Private Recognized Unaided Schools, allotted land by the land
owning agencies on the condition of seeking prior sanction of
Director of Education for increase in fee, are directed to submit
their proposals, if any, for prior sanction of the Director of
Education for increase in tuition fee/fee for the academic session
2024-25, online from 01.04.2024 through website of Directorate
and upload the returns and documents mentioned therein latest by
15.04.2024. Any incomplete proposal shall be summarily rejected.
The proposals submitted by the schools shall be scrutinized
by the Director through any officer or teams authorized on this
behalf. In case, no proposal is submitted by the school in terms of
this order, the school shall not increase tuition fee/fee, Such
schools are strictly directed not to increase any fee until the
sanction is conveyed to their proposal by Director of Education. In
case of any complaint regarding increase of any fee without such
prior approval will be viewed seriously and will make the school
liable for action against itself as per the statutory provisions.
The link of module for submitting the proposals online and
uploading the returns and documents shall be uploaded soon on the
website of the Directorate at the link school plant->fee structure-
>proposal for fee hike 2024-25 accessible through school login and
password.
This issues with the prior approval of the Competent
Authority."
(DAVENDRA MOHAN)
Deputy Director of Education (PSB)"
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 2 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
The decision in Action Committee Unaided Recognized Private
Schools, rival submissions in that regard, and analysis thereof
4. Mr. Kamal Gupta, learned Counsel for the petitioner, submits
that the impugned order is in the teeth of the judgment of this Court in
Action Committee Unaided Recognized Private Schools v. DoE1 and
Mt. Carmel School v. DoE2 both of which were decided by a common
judgment dated 15 March 2019, reported as 2019 SCC OnLine Del
7591.
5. He has drawn my attention to paras 95, 96, 125, 132, 182, 184,
187, 196 and 207 of the decision in Action Committee Unaided
Recognized Private Schools which read thus:
"95. The emphasis, by the Supreme Court, in paragraph 27 of
the Modern School judgment3, on compliance with the provisions
of the DSE Act and the DSE Rules, makes it clear that the Supreme
Court intended compliance, with its directions, to be in tandem
with the provisions thereof, and not blind thereto. How, then, is
that possible, if at all? The answer, quite obviously, is that, if the
provisions of the DSE Act and/or the DSE Rules contain anything
which harmonizes with paragraphs 16 and 17 of the terms of
allotment of the land, those provisions have to be borne in mind
while examining whether compliance, with the "land clause", has,
or has not, taken place.
96. The submission of Mr. Sunil Gupta, learned Senior Counsel
appearing for the petitioner, is that such harmonization is possible
only if the requirement of "prior approval", contemplated by
Clause 16 of the terms of allotment of the land, is dovetailed into
Section 17(3)4 of the DSE Act. Thus viewed, Mr. Gupta would
1 WP (C) 4374/2018
2 WP (C) 13546/2018
3 Modern School v. U.O.I., (2004) 5 SCC 583
4 (3) The manager of every recognised school shall, before the commencement of each academic session,
file with the Director a full statement of the fees to be levied by such school during the ensuing academic
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 3 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
submit, the directions issued by the Supreme Court required the
schools to furnish their statement of fee, to the DoE, before the
commencement of the academic session, and the DoE to examine
the same and take a decision thereon before such commencement.
The directions contained in Modern School (supra), Mr. Gupta
would exhort us to hold, do not afford a carte blanche to the DoE
to sit, as it were, over the statement of fees submitted by the
schools, thereby preventing them from increasing their fees, and, as
a result, trespassing on their right to establish and administer the
schools, as guaranteed by Article 26(a) of the Constitution of India.
Mr. Gupta would also emphasize, repeatedly, the position - which,
he submits, is practically gilt-edged - that, so long as the schools do
not charge capitation fee, and do not indulge in profiteering, their
decision, qua the fees to be charged by them, cannot brook
interference at the hands of any governmental authority, including
the DoE.
*****
125. Delhi Abhibhavak Mahasangh-II5 (supra) is significant,
as, for the first time, it signalled a breakaway from the Pai6-Islamic
Academy7-Inamdar8-Modern School regime, in the case of the
Order, dated 11 February, 2009 supra, even while otherwise
reiterating the principles contained in the said decisions which
may, justifiably, be regarded, by now, as fossilised in education
jurisprudence. The following principles, as contained in the earlier
decisions, of the Supreme Court, to which reference has already
been made hereinabove, find iteration in Delhi Abhibhavak
Mahasangh-II:
(i) Schools could not indulge in commercialisation of
education. "Commercialisation of education" was equated,
by this Court, to "indulging in profiteering".
(ii) For this purpose, the fee structures of schools had to
remain within bounds.
(iii) At the same time, a "reasonable surplus" was
permissible, for development of the school and for the
benefit of the students.
session, and except with the prior approval of the Director, no such school shall charge, during that academic
session, any fee in excess of the fee specified by its manager in the said statement.
5 Delhi Abhibhavak Mahasangh v. G.N.C.T.D., ILR (2011) 4 Del 247
6 T. M. A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
7 Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697
8 P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 4 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
(iv) In the ultimate eventuate, a balance was required to
be struck between the autonomy of the institution and the
measures to be taken in order to avoid commercialisation of
education.
(v) The first right, to fix the fee or increase the fee, was
with the schools.
(vi) The DoE could step in and interfere, if the fee was
found to be excessive and amounted to "indulging in
profiteering". This exercise would be relatable to Section
17(3) of the DSE Act.
(vii) The situation that arose, consequent to their
requirement of compliance with the recommendations of
the Pay Commission was, however, required to be "judged
in a different hue altogether". This was a pan-school
phenomenon, covering all aided and unaided recognised
schools in Delhi. Conflicting interests came into being, with
the schools claiming that the additional burden, which had
fallen on their shoulders, could be borne only if they were
permitted to increase their fees, and the parents contending,
on the other hand, that the financial health of the schools
was robust enough to bear the burden, without fee increase
- or, at least, without increase to the extent to which it had
been effected. Examination of the merits of these rival
contentions required going into the financial condition of
each school, which would be a time consuming exercise. In
such circumstances, it was permissible to allow an "interim
fee hike", as was done by the Order dated 11 February,
2009 supra, which would temporarily still the waters, with a
cap on the upper limit of fees chargeable. The
circumstances being exceptional, it could not be said that
the order, allowing such interim fee hike, trespassed on the
autonomy of the schools to fix their fees.
(viii) In the normal course, however, the position that, at
the time of fixation of fees, by the school at the start of the
academic session, no prior permission of the DoE was
required, continued to operate. Justice for All v.
G.N.C.T.D.9"
*****
132. Specifically in the matter of charging of fees, and the
9 2016 SCC OnLine Del 355
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 5 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
fixation and determination of the quantum thereof, all decisions, at
least of the Supreme Court, have been uniform in asserting that
maximum autonomy, to unaided educational institutions, whether
minority or non -minority, was guaranteed by the Constitution, the
only curbs, thereon, being in relation to commercialisation of
education, i.e., profiteering and charging of capitation fee. So long
as the fees charged by the concerned educational institution(s) did
not amount to "commercialisation of education", thus understood,
the Constitution clearly advocates a "hands off" approach by the
Government, insofar as the establishment and administration of the
institution, including the fixation of fees by it, was concerned. This
would also immunise the institution from the requirement of being
called upon to explain its receipts and expenses, as before a
Chartered Accountant.
*****
182. There is no reference, in the said judgment, to Section 24, and
Mr. Ramesh Singh does not dispute this fact. It is a well settled
proposition of law that no more can be read into a judgment than is
expressly stated therein. Equally well-settled is the ancillary
proposition that the judgment is an authority only for what it states,
and not for what may be read into the judgment by implication.
(Refer: Union of India v. Chajju Ram (dead) by LRs10.)
*****
184. I am of the opinion that the attempt, of Mr. Ramesh Singh,
to trace the authority of the DoE, in the present case, to withdraw
the recognition granted to the petitioner, to Section 24(4) of the
DSE Act, is completely misguided. Section 24 constitutes a self-
contained scheme, dealing with "Inspection of schools". At the cost
of reiteration, the said Section may be reproduced, thus:
"24. Inspection of schools.-
(1) Every recognised school shall be inspected
at least once in each financial year in such manner
as may be prescribed.
(2) The Director may also arrange special
inspection of any school on such aspects of its
working as may, from time to time, be considered
necessary by him.
10 (2003) 5 SCC 568: AIR 2003 SC 2339
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 6 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
(3) The Director may give directions to the
manager to rectify any defects or deficiency found
at the time of inspection or otherwise in the working
of the school.
(4) If the manager fails to comply with the
direction given under sub -section (3), the Director
may, after considering the explanation or report, if
any, given or made by the manager, take such action
as he may think fit, including--
(a) stoppage of aid,
(b) withdrawal of recognition, or
(c) except in the case of minority school taking over
of the school under section 20."
*****
187. In the present case, however, it is not necessary for this
Court to proceed to that stage as, in my view, sub-section (4) of
Section 24 was totally inapplicable. The impugned Order of
withdrawal of recognition does not purport to have been passed as
a sequel to non-compliance, by the petitioner, which any directions
issued under subsection (3) of the DSE Act, following upon an
inspection of the School, in accordance with the scheme of Section
*****
196. The power to make rules conferred by Section 28 of the
DSE Act. Sub-section (1) thereof empowers the Administrator to,
with the previous approval of the Central Government, and by
previous publication by notification, "make rules to carry out the
provisions of the Act". This, by itself, indicates that the DSE Rules
cannot be so interpreted as to permit something which the DSE Act
does not. I have already opined, hereinabove, that the withdrawal
of recognition of the petitioner, by the DoE, and the manner in
which the said withdrawal was effected, was not in accordance
with any provision of the DSE Act, and could not be stated to be
authorised thereby. The inevitable corollary would be that the said
decision could not be authorised by any provisions of the DSE
Rules, either, as, then, the Rules would be infracting Section 28(1)
of the DSE Act and would, to that extent, be ultra vires.
*****
207. Proceeding, now, to the merits of the impugned Order, i.e.,
to the validity of the objection, by the DoE, regarding non-
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 7 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
obtaining, by the petitioner, of "prior approval" of the DoE,
before enhancing its fees, it would become apparent, from a
reading of the discussion hereinabove, and the law laid down by
the various decisions cited in that regard, that, in the matter of
fixation of fees, the distinction, between the rights of unaided non-
minority schools, and unaided minority schools, is practically
chimerical. In both cases, the schools are entitled to complete
autonomy in the matter of fixation of their fees and management of
their accounts, subject only to the condition that they do not
indulge in profiteering, and do not charge capitation fee, thereby
"commercialising" education. There is no requirement for the
school to take "prior approval", of the DoE, before enhancing its
fees. The only responsibility, on the School, is to submit its
statement of fee, as required by Section 17(3) of the DSE Act. Mr.
Gupta is right in his submission that, having done so, the schools
could not be expected to wait ad infinitum, before the said
statement of fees, submitted by them, was examined and verified
by the DoE. Any such examination and verification, too, it is
clarified, would have to be limited to the issue of whether, by
fixing its fees, or enhancing the same, the school was
"commercialising" education, either by charging capitation fee or
by indulging in profiteering. If, therefore, pending the decision of
the DoE on its Statement of Fee, the school decided to commence
charging the enhanced fee from the beginning of the next academic
session, it cannot be said that the school had, in any manner,
infracted the provisions of the DSE Act or the DSE Rules."
(Underscoring supplied)
6. Mr. Santosh Kumar Tripathi, learned Standing Counsel for
DoE, relies, on the other hand, on paras 139 and 140 of the decision in
Action Committee Unaided Recognized Private Schools, which read
thus:
"139. The "land clause" read thus:
"The school shall not increase the rates of tuition fee
without the prior sanction of the Directorate of Education,
Delhi Administration..."
140. The afore-extracted clause, quite clearly, operates as a
proscription on the school(s). Schools, the allotment documents in
respect where of contained this clause were, by operation thereof,
not permitted to increase the rates of tuition fee without the prior
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 8 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
sanction of the DoE. Even for this simple reason, the entire
argument, of Mr. Ramesh Singh, that the issuance of the impugned
Order, dated 13 April, 2018, was necessitated as the provision for
"interim fee hike", as contained in the Order dated 17 October,
2017, infracted the "land clause", has necessarily to fail. The
"interim fee hike", permitted by the Order dated 17 October, 2017,
was a dispensation by the DoE itself, which had the imprimatur of
the Delhi Abhibhavak Mahasangh-II decision. It was not an act
of increase of fees by the schools. The "land clause", as contained
in the allotment documents of the DDA, did not, at any point of
time, inhibit the DoE from allowing an interim fee hike."
7. Predicated on the opening sentences in para 140 of Action
Committee Unaided Recognized Private Schools, Mr. Tripathi sought
to contend that this Court has accorded its imprimatur to the principle
that schools which are situated on land, to which the land clause
applies, could not increase their fees without prior approval.
8. The primary challenge in Action Committee Unaided
Recognized Private Schools was against the withdrawal, by the DoE,
of a Circular dated 17 October 2017, by which unaided private schools
were permitted an interim fee hike to cater to the additional expense
which they had to incur consequent on the recommendations of the
VII Central Pay Commission, which required them to increase the
salaries of their teachers and staff. The said circular was withdrawn by
the DoE on 13 April 2018, to the extent it applied to schools which
were situated on land provided to the schools at concessional rates by
public bodies, including a clause, in the lease deed, requiring the
school to take prior approval of the DoE before increasing its fees. As
such, the issue of whether a school covered by the "land clause" was
required to take prior approval before increasing its fees was directly
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 9 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
in issue in Action Committee Unaided Recognized Private Schools.
9. The challenges in the writ petition filed by the Action
Committee Unaided Recognized Private Schools ("Action
Committee" hereinafter) and Mt. Carmel School ("Mt Carmel"
hereinafter) were slightly different on facts.
10. Action Committee challenged the circular dated 13 April 2018
itself, contending that the liability of an unaided recognised school
under the Delhi School Education Act, 1973 ("the DSE Act") and the
Delhi School Education Rules 1973 ("the DSE Rules"), was only to
submit its statement of fee before every financial year under Section
17(3). There was no proscription, in the statue, preventing it from
increasing fees without prior approval of the DoE.
11. Mt Carmel, on the other hand, actually increased its fees
without the prior approval of the DoE, following which the DoE took
action against the school seeking to de-recognise it. Said decision was
challenged by Mt Carmel in its writ petition, which also came to be
decided by the same judgment.
12. Mr. Gupta is correct in his submission that the running thread,
in Action Committee Unaided Recognized Private Schools, is that an
unaided recognized school is not required to take prior approval of
the DoE before increasing its fees, irrespective of whether it is
situated on land to which the "land clause" does, or does not, apply.
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 10 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
13. Mr. Tripathi's reading of para 140 of Action Committee
Unaided Recognized Private Schools is flawed. Para 140 only
observes that the submission of Mr. Ramesh Singh, who appeared for
the DoE in that case, that the withdrawal, of the 17 October 2017
circular by the DoE, by the circular dated 13 April 2018 in the case of
"land clause" schools was justified by the land clause itself, was
incorrect. This Bench held, dealing with the said argument, that the
land clause could not be pressed into service by the DoE to justify the
withdrawal of the 17 October 2017 circular by the 13 April 2018
circular, as the land clause only applied to rights of school to increase
fees without prior sanction of the DoE, whereas the interim fee hike
granted by the circular dated 17 October 2017 was a hike which was
suo motu granted by the DoE. The withdrawal of the said interim fee
hike could not, therefore, be sought to be justified on the basis of the
land clause, which had nothing to do with it.
14. Quite clearly, therefore, para 140 of the judgment in Action
Committee Unaided Recognized Private Schools does not accord any
judicial imprimatur to the land clause, or to the principle, so
assiduously canvassed by Mr. Tripathi that schools which were
situated on land to which land clause applies, cannot possibly increase
their fees without prior approval of the DoE.
15. The decision in Action Committee Unaided Recognized Private
Schools rules precisely to the contrary.
16. I may observe, here, that the decision in Action Committee
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 11 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
Unaided Recognized Private Schools was taken by this Bench after
going through the entire gamut of case law on the subject, including
Delhi Abhibhavak Mahasangh v. U.O.I.11, Modern
School v. U.O.I.12, Justice for All v. G.N.C.T.D.13, Islamic Academy
of Education v. State of Karnataka14, P.A. Inamdar v. State of
Maharashtra15, T.M.A. Pai Foundation v. State of Karnataka16 and
Abhibhavak Mahasangh v. G.N.C.T.D.17.
17. Mr. Tripathi requests the Court to note the fact that, in answer
to the decision in Action Committee Unaided Recognized Private
Schools, he places reliance on the judgment of the Supreme Court in
Modern School. According to him, Modern School specifically holds
that schools which are subject to the "land clause" have to take prior
approval of the DoE before enhancing their fees.
18. This amounts to an attempt to re-argue what was argued, ad
nauseam, in Action Committee Unaided Recognized Private Schools,
and discussed at length. Apropos the judgment of the Supreme Court
in Modern School, the following passages from Action Committee
Unaided Recognized Private Schools are relevant:
"Modern School v. U.O.I., (2004) 5 SCC 583, rendered by a bench
of 3 Hon'ble Judges on 27th April, 2004
11 AIR 1999 Del 124
12 (2004) 5 SCC 583
13 (2016) 227 DLT 354 (DB)
14 (2003) 6 SCC 697
15 (2005) 6 SCC 537
16 (2002) 8 SCC 481
17 ILR (2011) 4 Del 247
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 12 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
76. This judgment, or, more particularly, paragraph 27 thereof,
constitutes the sheet-anchor to employ a time-worn cliché of the
respondents' case.
77. Modern School (supra), as already noted hereinabove, was
an appeal from Delhi Abhibhavak Mahasangh-I (supra).
78. The constitution of the bench which decided Modern
School (supra) is significant, constituting, as it did, of V.N. Khare,
the Hon'ble Chief Justice, S. B. Sinha, J. and S. H. Kapadia, J. (as
he then was). The judgment was authored by Kapadia, J., for
himself and Khare, C. J., with Sinha, J., penning a dissent. This is
significant because Khare, C. J., was also part of the bench which
decided T.M.A. Pai (supra) and Islamic Academy of
Education (supra) and was, in fact, the author of the majority
judgment in Islamic Academy (supra). It would be reasonable,
therefore, to presume that Modern School (supra) could not be
interpreted as breaking away from the legal position as enunciated
in T.M.A. Pai (supra) and Islamic Academy (supra). The attempt
has, at all times, therefore, to be to harmonize these decisions, and
read them as a cohesive whole, representing the law on the issue.
79. The Supreme Court, in this case, framed the following
questions, as arising for its consideration:
"(1) Whether the Director of Education has the authority
to regulate the quantum of fees charged by unaided schools
under Section 17(3) of the Delhi School Education Act,
1973?
(2) Whether the direction issued on 15-12-1999 by the
Director of Education under Section 24(3) of the Act
stating inter alia that no fees/funds collected from
parents/students shall be transferred from the Recognised
Unaided School Fund to the society or trust or any other
institution, is in conflict with Rule 177 of the Delhi School
Education Rules, 1973 ("The Rules")?
(3) Whether managements of recognised unaided
schools are entitled to set up a Development Fund Account
under the provisions of the Delhi School Education Act,
1973?"
80. Of these, only Issue (a) concerns the present controversy.
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 13 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
81. The Supreme Court distilled the judgment of this Court
in Delhi Abhibhavak Mahasangh-I (supra) thus (in paragraphs 7
and 8 of the report):
"7. Delhi Abibhavak Mahasangh, a federation of
parents' association moved the Delhi High Court by Writ
Petition No. 3723 of 1997 challenging the fee hike in
various schools in Delhi. It was a public interest writ
petition filed on 8-9-1997 impleading thirty unaided
recognised public schools. The grievance of the Mahasangh
was that recognised private unaided schools in Delhi are
indulging in large-scale commercialisation of education
which was against public interest. That commercialisation
has reached an alarming situation on account of failure of
the Government to perform its statutory functions under
the Delhi School Education Act, 1973 (hereinafter for the
sake of brevity referred to as "the Act"). One of the serious
charges in the writ petition against the said unaided
recognised schools was transfer of funds by the said
schools to the society/trust and/or to other schools run by
the same society/trust. In this connection, it was alleged
that there was excess of income over expenditure under the
head "Tuition fee" and further interest-free loans of huge
amount have been taken from parents for giving admissions
to the children. It was also alleged that huge amounts
collected remained unspent under the head "Building
fund". On the other hand, before the High Court, it was
submitted on behalf of the schools that the above increase
in fees, annual charges, admission fees and security deposit
was justified on account of increase in the expenses and in
particular, salaries of teachers in compliance with
recommendations of the Fifth Pay Commission.
8. The key issue before the High Court, therefore, was
whether unaided recognised schools were indulging in
commercialisation of education. The High Court found
from the reports submitted by the inspection teams
appointed by the Government that there were irregularities
in the management of the accounts. Therefore, by the
impugned judgment, directions were given regarding
utilisation of tuition fees for payment of salaries of teachers
and employees and also for utilisation of the surplus under
the specific head of tuition fees. By the impugned
judgment, the High Court declared that the said Act and the
Rules framed thereunder prohibited transfer of funds from
the schools to the society/trust or to other schools run by
the same society/trust. By the impugned judgment, the
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 14 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
High Court appointed a committee headed by Ms. Justice
Santosh Duggal (hereinafter referred to as "the Duggal
Committee") to examine the economics of each of the
recognised unaided schools in Delhi. Being aggrieved, the
unaided recognised schools and the Action Committee of
Unaided Private Schools have come by way of appeal to
this Court. During the pendency of the civil appeals, the
Duggal Committee submitted its report which has been
accepted by the Government of National Capital Territory
of Delhi (Directorate of Education), consequent upon
which the Director of Education has issued directions to the
Managing Committees of all recognised unaided schools in
Delhi under Section 24(3) read with Sections 18(4) and (5)
of the Act, which directions are the subject-matter of the
civil appeals herein."
82. The dispute which engaged this Court in Delhi Abhibhavak
Mahasangh (supra) - and, consequently, the Supreme Court
in Modern School (supra) - was whether schools were indulging
in "commercialisation of education" by charging fees which were
excessive and disproportionate in comparison to their requirement,
and whether, therefore, the DoE had acted within, or in excess of,
the jurisdiction vested in it, by issuing directives to control the
same.
83. The appellant, before the Supreme Court, is a well known
private unaided recognized school. It sought to fault the judgment,
of this Court in Delhi Abhibhavak Mahasangh-I (supra), and the
contention advanced, in this regard, stands precisely distilled, in
paragraph 12 of the report, thus:
"It was urged on behalf of the management that in the
impugned judgment the High Court had erred in holding
that tuition fees should be ordinarily utilised for payment of
salaries and if incidental surplus remained, it could be used
for other educational purposes but that would not empower
the management to levy higher tuition fees. It was
submitted on behalf of the management that the
Government has no authority to regulate the fees payable
by the students of unaided schools as indicated by Section
17(3) of the Act which required the management only to
submit to the Director a full statement of fees leviable
during the ensuing academic session. In this connection,
Section 17(3) was contrasted with Section 17(1) and
Section 17(2) of the Act, which empower the Government
to regulate the fees payable by the students of aided
schools."
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 15 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
84. "The first point for determination", says the judgment in
paragraph 13, "is whether the Director of Education has the
authority to regulate the fees of unaided schools". Having thus got,
straightaway as it were, to the meat of the matter, the judgment
proceeds, in paragraph 14, to hold thus:
"At the outset, before analysing the provisions of the 1973
Act, we may state that it is now well settled by a catena of
decisions of this Court that in the matter of determination
of the fee structure unaided educational institutions
exercise a great autonomy as they, like any other citizen
carrying on an occupation, are entitled to a reasonable
surplus for development of education and expansion of the
institution. Such institutions, it has been held, have to plan
their investment and expenditure so as to generate
profit. What is, however, prohibited is commercialisation
of education. Hence, we have to strike a balance between
autonomy of such institutions and measures to be taken to
prevent commercialisation of education. However, in none
of the earlier cases, this Court has defined the concept of
reasonable surplus, profit, income and yield, which are the
terms used in the various provisions of the 1973 Act."
(Emphasis supplied)
85. The emphasis, in these opening words of the Supreme
Court, on "commercialisation of education", is of paramount
significance. The balance that is required to be struck - as
postulated in the above-extracted passage - is not between the
autonomy of the institutions and the power of the DoE to regulate,
but between the autonomy of the institutions and measures to be
taken to prevent commercialization of education. In so
holding, Modern School (supra) reiterates what T.M.A.
Pai (supra) so painstakingly clarified - viz., that the regulatory
power of the DoE was to be directed at preventing
commercialization of education. It was not, therefore, a regulatory
power to be exercised in such a manner as to take over the
autonomy of the schools in the matter of fixation of their fees, or
even appropriation of their financial resources. Paragraph 15 of the
report, in fact, goes on to note that, in T.M.A. Pai (supra), the
Supreme Court "observed ... that the right to establish and
administer an institution included the right to admit students; right
to set up a reasonable fee structure; right to constitute a governing
body, right to appoint staff and right to take disciplinary action."
86. What falls for consideration is, therefore, the extent to
which, given the right of the unaided educational institution to "set
up a reasonable fee structure", and, for the said purpose, to fix its
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 16 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
fees, the DoE could exercise its regulatory jurisdiction, and the
point at which the exercise of such jurisdiction overstepped its
legitimate boundaries and transgressed into the domain of the
discretion vested in the institution.
87. In this context, paragraph 15 of the report goes on to note
thus:
"However, the right to establish an institution under Article
19(1)(g) is subject to reasonable restriction in terms of
clause (6) thereof. Similarly, the right conferred on
minorities, religious or linguistic, to establish and
administer educational institution of their own choice under
Article 30(1) is held to be subject to reasonable regulations
which inter alia may be framed having regard to public
interest and national interest. In the said judgment, it was
observed (vide paragraph 56) that economic forces have a
role to play in the matter of fee fixation. The institutions
should be permitted to make reasonable profits after
providing for investment and expenditure. However,
capitation fee and profiteering were held to be forbidden.
Subject to the above two prohibitory parameters, this Court
in T.M.A. Pai Foundation case held that fees to be charged
by the unaided educational institutions cannot be regulated.
Therefore, the issue before us is as to what constitutes
reasonable surplus in the context of the provisions of the
1973 Act."
(Emphasis supplied)
88. The above extracted passage clarifies two important
aspects, which have necessarily to be borne in mind while
appreciating the judgment in Modern School (supra), viz. that (i)
the position, in law, emanating from T.M.A. Pai (supra), that
private unaided educational institutions should be permitted
reasonable profits after providing for investment and expenditure,
subject to a proscription against charging of capitation fee and
profiteering, was noted and, needless to say, approved, and (ii) the
issue, with which the Supreme Court engaged itself, was "as to
what constitutes reasonable surplus", in the context of the DSE
Act.
89. Proceeding, thereafter, to deal with the judgment in Islamic
Academy (supra) in the light of the provisions of the DSE Act and
the DSE Rules, the Supreme Court held, in paragraph 17 of the
report, thus:
"Therefore, reading Section 18(4) with Rules 172, 173,
174, 175 and 177 on one hand and Section 17(3) on the
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 17 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
other hand, it is clear that under the Act, the Director is
authorised to regulate the fees and other charges to
prevent commercialisation of education. Under Section
17(3), the school has to furnish a full statement of fees in
advance before the commencement of the academic
session. Reading Section 17(3) with Sections 18(3) and (4)
of the Act and the Rules quoted above, it is clear that the
Director has the authority to regulate the fees under Section
17(3) of the Act."
(Emphasis supplied)
90. Here, again, the Supreme Court is at pains to emphasize
that the authority of the DoE, to regulate fees and other charges, is
"to prevent commercialisation of education". "Commercialisation
of education", and the necessity of preventing it at all costs, for
which regulatory power vests in the DoE, therefore, runs as the
constant undercurrent behind the surface of the DSE Act and the
DSE Rules, and the rights and powers conferred on various entities
thereby and thereunder. It is also significant that the Supreme
Court localizes this regulatory power and authority, of the DoE, to
Section 17(3) of the DSE Act. The parameters and peripheries of
Section 17(3) must, therefore, necessarily inform any examination
of the balance of powers conferred by the said provision.
91. Paragraphs 18 to 26 of the report, thereafter, go on to
discuss the second and third issues framed by the Supreme Court,
as extracted hereinabove. Inasmuch as these issues do not concern
the controversy in the present petition, these paragraphs need not
detain us.
92. Then follows the "Conclusion", as set out in paragraph 27
of the judgment, which constitutes the essential basis of the
submissions of Mr. Ramesh Singh, and would, as he would seek to
contend, provide sublime justification for all subsequent actions of
the DoE, including the issuance of the impugned order dated
13th April, 2018. The said paragraph reads thus:
"27. In addition to the directions given by the Director of
Education vide Order No. DE.15/Act/Duggal.
Com/203/99/23989-24938 dated 15-12-1999, we give
further directions as mentioned hereinbelow:
(a) Every recognised unaided school covered by
the Act shall maintain the accounts on the principles
of accounting applicable to non-business
organisation/not-for-profit organisation.
In this connection, we inter alia direct every
such school to prepare their financial statement
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 18 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
consisting of the balance sheet, profit-and-loss
account, and receipt-and-payment account.
(b) Every school is required to file a statement
of fees every year before the ensuing academic
session under Section 17(3) of the said Act with the
Director. Such statement will indicate estimated
income of the school derived from fees, estimated
current operational expenses towards salaries and
allowances payable to employees in terms of Rule
177(1). Such estimate will also indicate provision
for donation, gratuity, reserve fund and other items
under Rule 177(2) and savings thereafter, if any, in
terms of the proviso to Rule 177(1).
(c) It shall be the duty of the Director of
Education to ascertain whether terms of allotment
of land by the Government to the schools have been
complied with. We are shown a sample letter of
allotment issued by the Delhi Development
Authority issued to some of the schools which are
recognised unaided schools. We reproduce herein
clauses 16 and 17 of the sample letter of allotment:
"16. The school shall not increase the
rates of tuition fee without the prior sanction
of the Directorate of Education, Delhi
Administration and shall follow the
provisions of the Delhi School Education
Act/Rules, 1973 and other instructions
issued from time to time.
17. The Delhi Public School Society
shall ensure that percentage of freeship from
the tuition fee, as laid down under the rules
by the Delhi Administration, is from time to
time strictly complied with. They will
ensure admission to the student belonging to
weaker sections to the extent of 25% and
grant freeship to them."
28. We are directing the Director of Education to look
into letters of allotment issued by the Government and
ascertain whether they have been complied with by the
schools. This exercise shall be complied with within a
period of three months from the date of communication of
this judgment to the Director of Education. If in a given
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 19 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
case, the Director finds non-compliance with the above
terms, the Director shall take appropriate steps in this
regard."
(Emphasis supplied)
93. The above extracted paragraphs 27 and 28 of the report
direct the DoE to ascertain whether the terms of allotment of land
by the Government to the schools have been complied with, and
to look into the letters of allotment for the said purpose. Among the
conditions of allotment, as extracted verbatim by the Supreme
Court, is the proscription on increasing the rates of tuition fee
without the prior sanction of the DoE.
94. A holistic and conjoint reading of the above directions,
with the earlier decision in T.M.A. Pai (supra), would make it
clear that the Supreme Court could not have intended the
implementation of its directions to have been undertaken either de
hors the provisions of the DSE Act and the DSE Rules, or in the
teeth of the Pai pronouncement. T.M.A. Pai (supra) conferred
complete autonomy, on private unaided schools, in the matter of
fixation of their fees. The only limitation - if one may call it that -
to the sweep of this right is in the stipulation that the fees fixed
should not be in the form of capitation, or amount to profiteering.
Absent these interdictions, it is clearly not open to the DoE to
entrench on the territory of the schools, insofar as the matter of
fixation of their fees is concerned.
95. The emphasis, by the Supreme Court, in paragraph 27 of
the Modern School judgment, on compliance with the provisions
of the DSE Act and the DSE Rules, makes it clear that the
Supreme Court intended compliance, with its directions, to be in
tandem with the provisions thereof, and not blind thereto. How,
then, is that possible, if at all? The answer, quite obviously, is that,
if the provisions of the DSE Act and/or the DSE Rules contain
anything which harmonizes with paragraphs 16 and 17 of the terms
of allotment of the land, those provisions have to be borne in mind
while examining whether compliance, with the "land clause", has,
or has not, taken place.
96. The submission of Mr. Sunil Gupta, learned Senior Counsel
appearing for the petitioner, is that such harmonization is possible
only if the requirement of "prior approval", contemplated by
Clause 16 of the terms of allotment of the land, is dovetailed into
Section 17(3) of the DSE Act. Thus viewed, Mr. Gupta would
submit, the directions issued by the Supreme Court required the
schools to furnish their statement of fee, to the DoE, before the
commencement of the academic session, and the DoE to examine
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 20 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
the same and take a decision thereon before such commencement.
The directions contained in Modern School (supra), Mr. Gupta
would exhort us to hold, do not afford a carte blanche to the DoE
to sit, as it were, over the statement of fees submitted by the
schools, thereby preventing them from increasing their fees, and,
as a result, trespassing on their right to establish and administer the
schools, as guaranteed by Article 26(a) of the Constitution of India.
Mr. Gupta would also emphasize, repeatedly, the position - which,
he submits, is practically gilt-edged - that, so long as the schools
do not charge capitation fee, and do not indulge in profiteering,
their decision, qua the fees to be charged by them, cannot brook
interference at the hands of any governmental authority, including
the DoE.
The takeaway from Modern School (supra)
97. From Modern School (supra), the following propositions
emerge:
(i) The issue for consideration, before the Supreme
Court, was whether schools were indulging in
"commercialisation of education", by charging excessive
and disproportionate fees and whether, therefore, the DoE
had acted within its jurisdiction in issuing directives to
control the same.
(ii) Unaided educational institutions enjoyed greater
autonomy, in the matter of determination fee structure, and
were also entitled to a reasonable surplus for development
of education and expansion of the institution. Such
institutions are to be allowed to plan their investment and
expenditure, so as to generate profit. Reasonable profit,
after providing for investment and expenditure, was
permissible.
(iii) In the garb thereof, however, these institutions
could not be permitted to engage or indulge in
"commercialisation of education". Charging of capitation
fees, and profiteering, could not be allowed. The
Government was, therefore, justified in taking measures to
prevent this malady.
(iv) A balance, therefore, was required to be struck
between autonomy of the institutions and measures to be
taken to prevent commercialisation of education. The
prevalent undercurrent of the discussion and conclusion,
in Modern School (supra) was, therefore, that
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 21 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
"commercialisation of education" had, at all costs, to be
prevented. It is this "commercialisation of education"
which, according to the Supreme Court, had to be curbed,
and for the curbing whereof, regulatory measures could
legitimately be put in place by the Government. These
regulatory measures have, however, to operate, and be
operated, within the parameters and peripheries of Section
17(3) of the DSE Act.
(v) These regulatory measures could not, however, be
permitted to trespass on the autonomy of the unaided
educational institutions, or take it over, in the matter of
fixation of fees, or even appropriation of financial
resources. The right to set up a reasonable fee structure,
therefore, transcendentally remained with the unaided
educational institution concerned.
(vi) The right to establish and administer minority
educational institutions, while independently conferred, on
such institutions, by Article 30(1) of the Constitution, was
subject to reasonable regulations, in public and national
interest.
(vii) Subject to the prohibitory parameters, regarding
charging of capitation fee and profiteering, fees chargeable
by unaided educational institutions could not be regulated.
(viii) The "issue before it", as encapsulated by the
Supreme Court, was "as to what constitutes reasonable
surplus in the context of the provisions of the 1973 Act".
(ix) Among the directions, issued to the DoE at the
conclusion of the judgment, was the direction to "ascertain
whether terms of allotment of land by the Government to
the schools have been complied with, by the schools". In
the event of non-compliance being detected, the DoE was
directed to take "appropriate steps in that regard".
These findings completely answer the reliance, placed by Mr.
Tripathi, on Modern School.
Order of Division Bench in LPA in Action Committee Unaided
Recognized Private Schools
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 22 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
19. The decision in Action Committee Unaided Recognized Private
Schools was carried in appeal to the Division Bench in LPA 230/2019
(Directorate of Education v. Action Committee Unaided Recognised
Private Schools).
20. On 3 April 2019, notice was issued by the Division Bench on
the said LPA. The only interim order which was passed was that land
clause schools would not collect the amount constituting interim fee
hike in terms of the 17 October 2017 order issued by the DoE.
21. There was, therefore, no interference, interlocutory or
otherwise, with the decision, in the judgment in Action Committee
Unaided Recognized Private Schools that, before hiking fees, unaided
recognised school is not required to obtain prior approval of the DoE.
Circular dated 27 March 2019 and decision in WP (C) 4897/2019
22. Mr. Gupta also points out that, on 27 March 2019, an identical
circular had been issued by the DoE, which was challenged by Action
Committee before this Court by way of WP (C) 4897/2019 in which,
in para 6, the DoE made a specific statement to the effect that the said
Circular would not apply to schools who have filed statement of fees
within the prescribed period in terms of Section 17(3) of the Act for
the Academic Session 2018-2019 and 2019-2020 whether offline or
online.
23. The circular dated 27 March 2019 and the order dated 9 May
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 23 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
2019 may be reproduced thus:
Circular dated 27 March 2019
"GOVERNMENT OF NATIONAL CAPITAL OF TERRITORY
DIRECTORATE OF EDUCATION
OLD SECRETARIAT, CIVIL LINES, DELHI-110054
(PRIVATE SCHOOL BRANCH)
No.F.DE-15(40)/PS8/2019/2698-2707 Dated: 27/03/2019
ORDER
Whereas Hon'ble High Court of Delhi vide judgment dated
19.01.2016 in the writ Petition No 4109/2013 in the matter of
"Justice for All versus GNCTD and others" has directed the
Director of Education to ensure the compliance of the terms, if any,
in the letter of allotment regarding the increase of the fee by all the
Private Recognized Unaided Schools which are allotted land by
DDA/Other land owning agencies.
Now, therefore, all the Head of Schools/Managers of
Private Recognized Unaided Schools, allotted land by the land
owning agencies on the condition of seeking prior sanction of
Director of Education for increase in fee, are directed to submit
their proposals, if any, for prior sanction of the Director of
Education for increase in tuition fee/fee for the academic session
2018-19 and 2019-20 (through the separate link on the online
module), online from 30.03.2019 through website of Directorate
and upload the returns and documents mentioned therein latest by
30.04.2019. Any incomplete proposal shall be summarily rejected.
Further, the schools are directed to submit complete set of
documents/financial records as well as subsequent clarifications
timely, in one go, so that the fee hike proposals of the schools can
be disposed in time bound manner.
The proposals submitted by the schools shall be scrutinized
by the Director of Education through any officer or teams
authorized in this behalf. In case, no proposal is submitted by the
school in terms of this order, the school shall not increase the
tuition fee. All Such schools are strictly directed not to increase any
fee until the sanction is conveyed to their proposal by Director of
Education. Any complaint regarding increase of any fee without
such prior approval will be viewed seriously and will make the
school liable for action as per the statutory provisions and
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 24 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
directions of Hon'ble Court.
The link of module for submitting the proposals online and
uploading the returns and documents shall be uploaded soon on the
website of the Directorate at the link school plant->Proposal for fee
hike for DDA Land Schools, through school login and password.
This issues with prior approval of the Competent Authority.
(Yogesh Pratap)
Deputy Director of Education
Private School Branch"
Order dated 9 May 2019
"W.P.(C) 4897/2019
3. This writ petition is directed against the orders dated 15th
February, 2019 and 27th March, 2019, which have been issued by
the Directorate of Education (DOE).
4. Mr. Sunil Gupta, learned Senior Counsel appearing for the
petitioner had concluded his submissions. Mr. Ramesh Singh in
response, submits that the impugned orders are intended to apply
only to those schools who have not filed their statement of fees for
the academic session 2018-19 and 2019-20, even offline till date.
5. The petitioners in this case submits that they have filed
their statement of fees in accordance with Section 17(3) of the
Delhi School Education Act, 1973, within the period prescribed
therefor.
6. In this view of the matter, it is not necessary for any interim
orders to be passed at this point of time, in view of the statement
made by Mr. Ramesh Singh, to the effect that the impugned orders
dated 15th February, 2019 and 27th March, 2019 would not apply
to schools who have filed their statement of fees, within the
prescribed period, in terms of Section 17(3) of the Act for the
academic session 2018-19 and 2019-20 whether offline or online.
7. Accordingly, let notice issue to the respondents on the writ
petition as well as the application for interim directions.
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 25 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
8. Mr. Santosh Kr. Tripathi accepts notice on behalf of the
respondent.
9. Counter affidavit be filed by the respondent within four
weeks with advance copies to the petitioner who may file rejoinder
thereto, if any, within two weeks thereof.
10. Renotify on 9th July, 2019."
(Emphasis supplied)
24. The reliance, by Mr. Gupta, on the above order dated 9 May
2019 is also, prima facie, well placed. The DoE cannot be permitted
to adopt contrasting stances in similar cases. Having conceded, in WP
(C) 4897/2019, that the operation of the Circular 27 March 2019 -
which is identical to the impugned Circular - would not apply to
schools which had filed their statement of fees within the period
prescribed in Section 17(3), it is difficult to understand how they
could have issued the impugned Circular dated 27 March 2024 at all,
much less sought to defend it in these proceedings.
Yashvir Singh Chauhan and order passed therein
25. Mr. Gupta also places reliance on order dated 7 September 2020
passed by a coordinate Bench in Master Yashvir Singh Chauhan v.
Bal Bharti Public School18. It was sought to be contended by the
petitioners in that case, who were students, that the respondent-school
had been increasing its fees every year without prior approval of the
DoE, which was mandatory.
26. The Coordinate Bench has placed reliance, in para 7 of the
18 Order dated 7 September 2020 in WP (C) 6053/2020
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 26 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
order, on the judgment of this Bench in Action Committee Unaided
Recognized Private Schools, specifically on para 207 thereof (which,
in the copy of the judgment as uploaded on the website of this Court,
was numbered as "para 192")
27. Para 8 of the order in Master Yashvir Singh Chauhan, after
quoting the aforesaid para, observed that, in the said paragraph, the
responsibility of respondent school was to file an appropriate
application for fee enhancement prior to the academic year and further
observed that if the GNCTD was unable to deal with the said
application for some reason, the school was free to increase its fees.
The principle that no requirement of prior approval was required
before an unaided recognised increased its fee was, therefore,
impliedly recognised by the interim order in Master Yashvir Singh
Chauhan as well.
28. The aforesaid interim order dated 7 September 2020 in Master
Yashvir Singh Chauhan was carried in appeal to the Division Bench
by way of LPA 260/2020, which was also dismissed by order dated 21
September 2020.
Extant legal position
29. The resultant legal position, as it exists today, following Action
Committee Unaided Recognized Private Schools, is that an unaided
recognized private school is not required to take prior approval of the
DoE before increasing its fees, irrespective of whether the land clause
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 27 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
does, or does not, apply to it.
30. I am constrained, at this stage, to enter a somewhat unhappy
comment.
31. Respect for judicial pronouncements is one of the pillars of the
edifice of the rule of law. The principle that private unaided schools
do not have to seek prior approval before enhancing their fees, so long
as they do not indulge in profiteering or commercialization of
education by charging capitation fees, as well as the proposition that
there is a distinction between "commercialization of education" and
making of profits, as enunciated in Action Committee Unaided
Recognized Private Schools, remains undisturbed till date, though the
decision is under challenge before the Division Bench. The only
interim direction that has been passed, in order dated 3 April 2019 of
the Division Bench in LPA 230/2019 (DOE v. Action Committee
Unaided Recognised Public Schools) is against collection, by the
school, of the interim fee hike as allowed by the DoE Circular dated
17 October 2017. On the prayer for stay of the decision in Action
Committee Unaided Recognized Private Schools, the Division Bench,
in its order dated 8 April 2019 in LPA 230/2019, has observed that the
matter would need detailed consideration, and proceeded to fix a
series of dates for hearing the issue. That hearing, however, has not
taken place, and no interim stay of the operation of the judgement in
Action Committee Unaided Recognized Private Schools has,
therefore, been granted.
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 28 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
32. The DoE, howsoever, dissatisfied it may be with the judgment
of this Court in Action Committee Unaided Recognized Private
Schools has to respect it, so long as it stands. The attitude of the DoE
in continuously issuing Circulars threatening recognized unaided
schools with action in the event of their increasing their fees without
obtaining prior approval of the DoE is objectionable, and cannot be
allowed.
33. Nor can the DoE issue such Circulars, in the teeth of the
decision in Action Committee Unaided Recognized Private Schools
and, when they are challenged, seek to re-argue the points which were
canvassed and considered in Action Committee Unaided Recognized
Private Schools. Schools cannot be driven to litigation thus. The
grievances against the decision in Action Committee Unaided
Recognized Private Schools have, if at all, to be ventilated before the
Division Bench before which the appeal is pending. So long as there
is no interdiction, interlocutory or otherwise, by the Division Bench,
with the principle in Action Committee Unaided Recognized Private
Schools that no prior approval of the DoE is required before an
unaided recognised school increases in its fees, even if situated on
land to which "land clause" applies, it is the decision in Action
Committee Unaided Recognized Private Schools that would apply,
and the DoE is required to respect that position.
34. There can be no gainsaying the fact that the impugned order is
directly contrary to the law laid down in Action Committee Unaided
Recognized Private Schools.
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 29 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
35. In that view of the matter, issue notice on the writ petition to
show cause as to why rule nisi be not issued as well as issue notice on
the application for interim relief.
36. Notice is accepted on behalf of respondent by Mr. Santosh
Kumar Tripathi, learned Standing Counsel.
37. Counter-affidavit, if any, be filed within four weeks with an
advance copy to learned counsel for the petitioner who may file
rejoinder thereto within four weeks thereof.
38. Till the next date of hearing, the operation of the impugned
circular dated 27 March 2024 issued by the DoE shall stand stayed.
39. Re-notify on 31 July 2024.
C.HARI SHANKAR, J
APRIL 29, 2024
dsn
Click here to check corrigendum, if any
Digitally Signed By:AJIT Digitally Signed
KUMAR WP(C) 5743/2024 Page 30 of 30 By:CHANDRASHEKHARAN
HARI SHANKAR
Signing Date:01.05.2024 Signing Date:01.05.2024
13:32:32 13:31:40
