Madras High Court
The Federation Of Association Of ... vs The Chief Secretary To Government on 30 July, 2021
W.P.Nos.8490 of 2020 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.07.2021
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.Nos.8490, 8491, 8492, 8665, 8732, 8733, 8789, 8825, 8829, 8836, 8840,
8841, 8850, 8951, 9017, 9049, 9052, 9055, 9063, 9066, 9067, 9070, 9071,
9073, 9089, 9091, 9092, 9093, 9144, 9148, 9152, 9182, 9274, 9295, 9301,
9331, 9388, 9422, 9423, 9426, 9452, 9518, 9822, 9978 of 2020 and
W.P.Nos.12049 and 13588 of 2021
and
W.M.P.No.10247, 10248, 10250, 10251, 10254, 10497, 10586, 10587,
10588, 10590, 10591, 10601, 10668, 10717, 10725, 10728, 10733,
10737, 10739, 10752, 10966, 11008, 11015, 11019, 11034, 11040,
11042, 11046, 11050, 11053, 11075, 11078, 11080, 11082, 11152,
11160, 11161, 11165, 11200, 11305, 11332, 11349, 11417, 11475,
11511, 11513, 11519, 11552, 11630, 11632, 11938, 12125, 12126, &
19045, 10884, 11358, 10757 of 2020 and
WMP.Nos.15728, 15729 & 6398 of 2021
W.P.No.8490 of 2020
1.The Federation of Association of Private
Schools in Tamil Nadu (FAPSIT),
Rep. By its State Secretary Mr.D.C.Elangovan,
No.6A, P.T.Rajan Salai,
20th Avenue, K.K.Nagar,
Chennai-78 ..Petitioner
Vs
1.The Chief Secretary to Government,
The Office of Revenue and Disaster Management
Department,
Disaster Management Wing, DM II Section,
Fort St.George, Chennai-600 009.
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1
W.P.Nos.8490 of 2020 etc., batch
2.The Secretary,
Collegiate Education Department,
Fort St.George, Chennai-9.
3.The Secretary,
School Education Department,
Fort St.George, Chennai-9.
4.The Director,
The Directorate of School Education,
DPI Campus, Chennai.
5.The Director,
The Directorate of Matriculation Education,
DPI Campus, Chennai.
6.The Director,
The Directorate of Elementary Education,
DPI Campus, Chennai.
7.G.Bharani ..Respondents
(7th respondent impleaded as per the order
dated 22.07.2021 made in WMP.No.14646 of 2020)
Prayer: Writ Petitions filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records of the impugned Government Order passed by the 1st respondent in
G.O.(MS)No.199 dated 24.04.2020 and quash the same as ultra vires, illegal
and consequently directing the respondents to permit the petitioner
Association affiliated institutions to collect the fees fixed by the Fee Fixation
Committee taking into consideration the expenses incurred by the Education
Institution towards payment of salary to teaching and non-teaching staffs
along with other charges, bills, fees payable by the institutions.
For Petitioners:
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W.P.Nos.8490 of 2020 etc., batch
Dr.Father A.Xavier Arulraj,
Senior Counsel
for M/s. Father Xavier Associates : W.P.Nos.8825, 8836, 8665,
8840, 8841,8850, 9049, 9052,
9055, 9063, 9066, 9067, 9070,
9071, 9073, 9089, 9091, 9093,
9144, 9152, 9182, 9274, 9295,
9301, 9331, 9388, 9422, 9423,
9426, 9452, 9822 of 2020
Mr.Silambanan, Senior Counsel
for M/s.Kaavya Silambanan Associates : W.P.No.8829 of 2020
Mr.Godson Swaminath
for M/s.Issaac Chambers : W.P.No.9518 of 2020
Mr.T.Gowthaman : W.P.No.9017 of 2020
M/s.L.Murali Krishnan : W.P.Nos.8789 of 2020
Mr.E.Vijay Anand : W.P.Nos.8490, 8491, 8492,
8732, 8733 of 2020
Mr.G.Sankaran : W.P.Nos.9148, 9978 of 2020
Mr.P.Ebenezer Paul : W.P.No.8951 of 2020
Mr.S.Manuraj : W.P.No.9092 of 2020
Mrs.U.K.Kalaiarasi : W.P.Nos.12049 and 13588 of 2021
Mr.M.Purushothaman : WMP.Nos.14710 and 14646 of 2020
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For Respondents : Mr.R.Shunmugasundaram,
Advocate General, assisted by
Mr.A.Selvendran, Government Advocate
for the State of Tamil Nadu
Mr.Nagarajan,
Standing Counsel for CBSE
COMMON ORDER
These writ petitions (except W.P.Nos.13588 and 12049 of 2021) have
been filed by private educational institutions, challenging the Government
Order in G.O.(Ms)No.199, Revenue and Disaster Management Department
dated 20.04.2020, directing all the Private Schools and Colleges (unaided) in
the State not to compel the students or parents to pay the fee for the academic
year 2020-2021 and the pending dues during the lock down period.
W.P.Nos.12049 and 13588 of 2021 have been filed by parents directing the
fourth respondent therein to consider the petitioner's representation dated
17.06.2021 to take necessary action against the respondents 7 to 9 therein for
collecting 100% fees without conducting online classes and services and may
direct the seventh respondent School to waiver of the school fees for the
academic year 2020-2021 and to direct the seventh respondent to implement
the order of the Government for all pass to the 1st to 9th standards and to
promote their children to the next class.
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2. This Court, vide detailed interim order dated 17.07.2020, has taken
into consideration the situation prevalent at the time and in order to find out
an interim solution to clear the logjam and in order to balance the interest of
all the stakeholders, issued the following directions:
“16..(a)This interim order passed by this Court will
apply to all unaided private institutions across the State of
Tamil Nadu.
(b) The unaided private institutions shall collect 40% of
the tuition fees as an advance fees based on the tuition fees
collected during the academic year 2019-2020. This advance
fee shall be paid by the students on or before 31.08.2020.
(c) The unaided private institutions shall also collect the
arrears of fees payable for the academic year 2019-2020 and
this arrears fees shall be paid on or before 30.09.2020.
(d) If any student already paid the entire fees including
arrears, the same shall not be a ground to claim for refund of
the fees.
(e) The balance of 35% of the fees based on the tuition
fees collected for the academic year 2019-2020, shall be
collected within a period of two months from the date on which
the institution is reopened and physical classes commences.
(f) The fee Committee shall immediately start the process
of determining the tuition fees for the respective institutions
and make an attempt to complete the process within a period of
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eight months starting from August 2020 onwards.
(g) The payment of balance if any, shall be determined
after the final decision of the fee Committee.
(h) The directions given to the Fee Committee will not in
any way prejudice to the rights of the institutions which have
already challenged the jurisdiction of the determination of the
fees and which are pending before this Court and the Hon'ble
Supreme Court.
(i) The teaching and non teaching staff shall not insist
for any increment in salary and/or DA, until the restoration of
normalcy and further orders of this Court.
(j) The State Government is directed to immediately take
into consideration the request made by the institutions to
supply text books and note books to the students either free of
cost or at some nominal rates. For this purpose, the State
Government can also get the particulars from the respective
schools regarding the students who are in dire straits and it can
also be confined to those students who should not be deprived
of education due to their inability to purchase text books and
note books. This Court is confident that the State Government
will come up with a positive response in this regard.
(k) The above directions are issued without prejudice to
the rights of the petitioners to argue the writ petitions on all the
grounds raised by them in their respective writ petitions.”
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3. Subsequently, this Court expected the situation to improve and
thought that the physical classes will commence atleast from November or
December, 2020. However, the situation has not improved and the reopening
of schools and commencing physical classes is not a possibility in the near
future. In the meantime, the institutions have started imparting education
through online classes and even examination have been conducted through
online mode. It was also brought to the notice of this Court that some of the
students have not been paid 40% fees and the arrears fees payable for
academic year 2019-2020. However, the institutions are accommodating
even such students considering the present situation. It was argued that this
Court should consider giving further directions for the payment of the
balance 35% of fees, since the institutions will have to meet various
expenses such as payment of salary, payment of statutory dues etc., and it
will not be possible for the institutions to continue their operations without
collecting the balance fees. Therefore, this Court, vide interim order dated
18.11.2020, has issued the following directions:
“ 7.In view of the above, the unaided private institutions
are permitted to collect the balance of 35% of the fees as per
Clause (e) extracted supra and this fees shall be paid by the
students on or before 28.02.2021. It is left open to the
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institutions to collect this 35% fees in instalments by issuing an
appropriate circular. It is also made clear that any student who
has not paid the initial 40% fees and/or the arrears of fees
payable for the academic year 2019-2020, shall pay this fees
also apart from the balance of 35% of the fees.
8. This Court received various complaints from the
parents and students against certain institutions, who had
collected or asked the students to pay the entire fees in
violation of the orders passed by this Court on 17.07.2020.
Those cases are heard separately and already directions have
been given to the District Educational Officers (DEOs) and
Chief Educational Officers (CEOs) to identify such institutions
and ensure that the directions given by this Court is strictly
complied with by the private institutions. The directions issued
by this Court in the present order shall also be complied with
by the private institutions in letter and spirit and the same shall
be ensured by the DEOs and CEOs within whose jurisdiction
the institution falls. Any complaint received for violation of the
orders passed by this Court shall be enquired and a report
shall be filed before this Court to enable this Court to initiate
action against the concerned institutions.
9. Post this case for further hearing on 01.03.2021”
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4. The Commissioner of School Education, Chennai-6, vide
proceedings in Rc.No.32673/G2/2021 dated 05.07.2021 has directed all the
unaided private schools in Tamil Nadu to collect 75% of the tuition fees
alone and the first instalment of 40% of fee may be collected on 31.08.2021
and the remaining 35% may be collected within a period of two months of
the commencement of physical classes for the academic year 2021-2022 and
with regard to the collection of balance 25% of fee, it will be decided in due
course considering the pandemic situation.
5. Mr.Silambanan, learned Senior Counsel for the petitioner in
W.P.No.8829 of 2020 has submitted that already the schools are under
financial stress, as most of them collected only 75% of the fee in the last
academic year 2020-2021 as per the interim order of this Court and nearly
40% of parents in many schools did not fully pay the fees and though this
Court, vide interim orders dated 17.07.2020 and 18.11.2020, has permitted
the private unaided institutions to collect 75% of the fees, based on the
tuition fees collected during the academic year 2019-2020, in two instalments
of 40% and 35%, the schools are unable to receive the fees and as such, they
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are put to grave financial loss and finding it extremely difficult to run the
schools. The learned Senior Counsel suggested that the students/parents may
be classified into three categories viz., (a) those who are able to pay the full
fees where there is no loss of income during the pandemic period; (b) those
who can pay 75% of the fees in instalments, where there is loss of income
during the pandemic period and (c) those who are unable to pay the fees due
to unemployment, or loss of income due to shutdown of business owing to
lockdown, they may approach the school Management for concession of fees.
The learned Senior Counsel would submit that they are seeking modification
of the present circular issued by the School Education Department directing
them to collect only 75% of the fees in two stages for the academic year
2021-2022, as done in the case of last year and would further add that if the
present circular of the Commissioner of School Education is allowed to
continue, almost all the private unaided institutions will definitely suffer and
many schools will come to a close and therefore, prays for suitable orders.
6. Dr.Father A.Xavier Arulraj, learned Senior Counsel for
W.P.Nos.8825 of 2020 etc., has submitted that the question of survival of
private schools needs to be considered in these writ petitions, as nearly 40%
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of the people were unemployed for the last one year and therefore, the
schools are unable to collect even the 50% of the fees due for the academic
year 2020-21. The learned Senior Counsel has drawn the attention of this
Court to the list of expenses incurred by schools which have been enclosed in
the additional typed set of papers, wherein expenses have been categorized as
avoidable expenses, unavoidable expenses and other additional expenses and
therefore, it cannot be easily said that schools are profiteered in running
online classes rather than running physical classes and would further add that
schools in rural areas are very much affected, as they are unable to pay salary
to staffs and in many schools, staff strength were considerably reduced and
therefore, prays for appropriate orders.
7. Mr.Godson Swaminathan, learned counsel for the petitioner in
W.P.No.9518 of 2020 has submitted that the impugned Government Order
infringes on the right of administration of the institutions (non-minority and
minority) under Articles 19(g)(1) and 30(1) of the Constitution of India and
the right to collect fee is a part of administration of educational institutions
and neither under the Disaster Management Act, 2005 nor under any law, the
Government can impose such prohibition on collection of fees. The learned
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counsel would further submit that all the issues raised herein were already
considered and answered by the Hon'ble Apex Court in the decision in
Indian School, Jodhpur and Another v. State of Rajasthan and Others
[2021 SCC Online SC 359] and drawn the attention of this Court to the
various portions of the said judgment and submitted that the Hon'ble
Supreme Court, in the concluding portions of the said judgment at Paras
Nos.124 to 128, has directed private school managements to collect 85% of
the fees for the academic year 2020-2021, based on the fee fixed for the
academic year 2019-2020 in six equal instalments, by deducting 15% of the
fees in lieu of unutilized facilities by the students during the relevant
academic year and also directed that the school management shall not debar
any student from attending either online classes or physical classes on
account of non-payment of fees, arrears/outstanding fees including the
instalments and shall not withhold the results of the examinations of any
student on that account. It is the further contention of the learned counsel
that the institutions under the petitioner Association would agree for the
directions of the Hon'ble Supreme Court in the aforesaid judgment and
similar orders may be passed in these batch of cases also.
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8. Mr.T.Gowthaman, learned counsel appearing for the petitioner in
W.P.No.9017 of 2020 has reiterated the submission of Mr.Godwon
Swaminathan, learned counsel for the petitioner in W.P.No.9518 of 2020 and
submitted that in many cases, the schools have considered concession/waiver
of fees for deserving students and the Hon'ble Supreme Court in the aforesaid
judgment held that individual representation of the parents should be looked
into by the management.
9. Mr.M.Purushothaman, learned counsel appearing for the impleading
petitioners and on behalf of the students contended that the prayer in the writ
petition are verbatim the same, wherein they have stated that the schools will
abide by the fee fixed by the Fee Determination Committee. He would
further add that the decision in Indian School, Jodhpur and Another v. State
of Rajasthan and Others [2021 SCC Online SC 359] will not be applicable
to the cases on hand for the reason that fee fixed by the Fee Determination
Committee was challenged in the said judgment and whereas in the case on
hand, Fee Determination Committee did not finish the process of determining
the tuition fees for the respective institutions, inspite of specific directions
given by this Court vide interim order dated 17.07.2020. The learned
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counsel further submitted that CBSE schools are not governed by the Fee
fixed by the Committee constituted by the State Government and the details
of fees have not been published in the website of the CBSE schools and
would further add that some concession in the form of funds/subsidy/loan
can be given to the parents by the Government for making arrangements to
pay the school fees.
10. It is clarified by all the learned Senior Counsel appearing for the
CBSE Schools that the circulars / notifications / instructions issued by the
State Government will apply to all the schools including CBSE schools and
therefore, common order may be passed in these writ petitions.
11. Mr.Nagarajan, learned Standing Counsel for CBSE has submitted
that as per Clause 7.2 of the Affiliation Bye-Laws 2018 of the Central Board
of Secondary Education, “admission fee and fee charged under any other
head are to be charged only as per the regulations of the Appropriate
Government” and therefore, the circulars /notifications/orders issued by the
State Government will bind upon the respective CBSE schools within the
jurisdiction and this Court may pass suitable orders in the interest of justice.
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12. Mr.R.Shunmugasundaram, learned Advocate General, assisted by
Mr.A.Selvendran, learned Government Advocate appearing for the State of
Tamilnadu has drawn the attention of this Court to the typed of papers and
submitted that consistency is being maintained by the State of Tamil Nadu in
the fixation of fees and the Commissioner of School Education has issued the
Circular dated 05.07.2021 for the academic year 2021-2022, based on the
interim order passed by this Court. The learned Advocate General further
submitted that the Hon'ble Supreme Court in the judgment in Indian School,
Jodhpur and Another v. State of Rajasthan and Others [2021 SCC Online
SC 359] has broadly considered in detail and issued various directions and
however, the said judgment will not apply to the case on hand and would
further add that in pursuant to the interim order passes by this Court, the
Circular dated 05.07.2021 has been issued by the State Government and
therefore, this Court may pass suitable orders in the interest of justice by
following the aforesaid judgment of the Hon'ble Supreme Court. The
learned Advocate General has further submitted that insofar as unfilled
vacancies in the Fee Determination Committee is concerned, those vacancies
will be filled up by the State Government at the earliest, so as to enable the
Committee to function effectively for deciding the disputes in respect of
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determination of fees and would further add that if there is any dispute
between the School Management and the parents for redressal of their
grievances, it would evolve a heavy burden on the authorities concerned.
13. This Court has anxiously considered the rival submissions and also
perused the entire materials placed before it.
14. It is to be noted that schools being closed for more than a year now
due to COVID-19 pandemic and classes being held virtually, education
activities have taken a massive hit across the country and it's not the students
alone who are suffering. Private schools are particularly affected, with many
finding it difficult to even pay their staff and some have also had to
temporarily terminate the services of their faculty for co-curricular and extra
curricular activities such as sports and arts, besides other staff members.
Orders have been passed directing the schools to collect only the tuition fees
from parents and not to charge transportation fees, development fees etc. It is
the grievance of many schools that collecting just the tuition fees too has
become a challenge, especially in the second year of the pandemic. Virtual
classes have also thrown up fresh costs for some schools, with authorities
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having to buy laptops and pay for internet connectivity, for teachers who did
not have the required infrastructure to conduct online classes, getting
subscription for various web services for webinars, online assessment tools
etc. Needless to state that schools with moderate funds are finding it
extremely difficult to survive.
15. The Covid-19 pandemic has been financially challenging for
parents, since they have not been able to make fee payments on the due dates
owing to lockdown or on account of other reasons such as loss of income,
unemployment, closure of businesses due to lockdown restrictions and the
parents demand concession of fees since the classes are conducted online.
This aspect is also to be considered and interest of students should also be
protected in respect of those categories and therefore, this Court requires
detail discussion on this issue to take appropriate decision for payment of
fees.
16. The learned Senior Counsel and the learned counsel appearing for
the petitioners emphasized before this Court that the petitioners have
challenged the impugned Government Order in G.O.Ms.No.199, Revenue
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Disaster Management Department dated 20.04.2020, which has been issued
by invoking the Disaster Management Act, 2005 and since, the said issue has
already been decided by the Hon'ble Supreme Court in the decision in Indian
School, Jodhpur and Another v. State of Rajasthan and Others [2021 SCC
Online SC 359], they are not insisting upon to challenge the said
Government Order. The primordial submission made by the learned Senior
Counsel and respective learned counsel appearing for the petitioners is that
by virtue of the interim order passed by this Court for the last academic year,
the Commissioner of School Education Department has passed a proceedings
in RC.No.32673/G2/2021 dated 05.07.2021 for the present academic year
2021-2022, permitting the private schools to collect only 75% of the tuition
fees and if the said circular is allowed to continue, almost all the private
institutions will face severe financial crunch and many schools will come to a
close, since nearly 40% of the students did not pay the fees for the last
academic year and therefore, prays for modification of the Government
Order/Circular in the light of the aforesaid judgment of the Hon'ble Supreme
Court.
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17. Similar identical issues have already been raised before the Hon'ble
Supreme Court in the decision in Indian School, Jodhpur and Another v.
State of Rajasthan and Others [2021 SCC Online SC 359], wherein the
Hon'ble Apex Court after considering the contentions/submissions made on
behalf of school authorities as well as the plight of the students, has passed a
detailed order and it is useful to refer to the operative portions of the said
judgment:
"125. Accordingly, the appellants are justified in assailing
the order dated 28.10.2020 issued by the Director, Secondary
Education and must succeed. However, that that does not give
licence to the appellants to be rigid and not be sensitive about
aftermath of pandemic. The school Management supposedly
engaged in doing charitable activity of imparting education, is
expected to be responsive and alive to that situation and take
necessary remedial measures to mitigate the hardship suffered
by the students and their parents. It is for the school
Management to reschedule payment of school fee in such a
away that not even a single student is left out or denied
opportunity of pursuing his/her education, so as to effectuate
the adage “live and let live”.
126. In law, the school Management cannot be heard to
collect fees in respect of activities and facilities which are, in
fact, not provided to or availed by its students due to
circumstances beyond their control. Demanding fees even in
respect of overheads on such activities would be nothing short
of indulging in profiteering and commercialization. It is a well-
known fact and judicial notice can also be taken that, due to
complete lockdown the schools were not allowed to open for
substantially long period during the academic year 2020-21.
Resultantly, the school Management must have saved overheads
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and recurring cost on various items such as petrol/diesel,
electricity, maintenance cost, water charges, stationery charges,
etc. Indeed, overheads and operational cost so saved would be
nothing, but an amount undeservedly earned by the school
without offering such facilities to the students during the
relevant period. Being fee, the principle of quid pro quo must
come into play. However, no accurate (factual) empirical data
has been furnished by either side about the extent to which such
saying has been or could have been made or benefit derived by
the school Management. Without insisting for mathematical
exactitude approach, we would assume that the school
Managements (s) must have saved around 15 per cent of the
annual school fees fixed by the school/adjudicated by the
Statutory Regulatory Authorities for the relevant period.
127. At this stage, we must advert to the stand taken by
the learned counsel for the appellants that the appellants would
be content with the interim order passed by this Court on
08.02.2021, being confirmed as a final order. This suggestion is
indeed attractive, but that arrangement does not provision for
the amounts saved by the school Management towards unspent
overheads/expenses in respect of facilities not utilised or could
not be offered by the school Management to the students due to
lockdown situation. As aforesaid, we would assume that at least
15 per cent of the annual school fees would be towards
overheads/expenses saved by the school Management.
Arguendo, this assumption is on the higher side than the actual
savings by the school Management of private unaided schools,
yet we are inclined to fix that percentage because the
educational institutions are engaged in doing charitable activity
of imparting and spreading education and not make money. That
they must willingly and proactively do. Hence, collection of
commensurate amount (15 per cent of the annual school fees for
academic year 2020-2021), would be a case of profiteering and
commercialisation by the school Management.
128. Ordinarily, we would have thought it appropriate to
relegate the parties before the Regulatory Authority to refix the
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school fees for the academic year 2020-21 after taking into
account all aspects of the matter including the advantages
gained by the school management due to unspent
overhead/expenses in respect of facilities not availed by the
students. However, that course can be achieved by the
arrangement that we propose to direct in terms of this judgment.
To avoid multiciplicy of proceedings (as school fee structure is
linked to school – school wise) including uncertainity of legal
processes by over 36,000 schools in determination of annual fee
structure for the academic year 2020-21, as a one-time measure
to do complete justice between the parties, we propose to issue
the following directions:
i.The appellants (school management of the concerned
private unaided school) shall collect annual school fees
from their students as fixed under the Act of 2016 for the
academic year 2019-20, but by providing deduction of 15
per cent of that amount in lieu of unutilised facilities by
the students during the relevant period of academic year
2020-21.
ii.The amount so payable by the concerned students be
paid in six equal monthly instalments before 05.08.2021
as noted in our order dated 08.02.2021.
iii.Regardless of the above, it will be open to the
appellants (concerned schools) to give further
concession to their students or to evolve a different
pattern for giving concession over and above those noted
in clauses (i) and (ii) above.
iv.The school Management shall not debar any student
from attending either online classes or physical classes
on account of non-payment of fees, arrears/outstanding
fees including the instalments, referred to above, and
shall not withhold the results of the examinations of any
student on that ground.
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v.If any individual request is made by the parent / ward
finding it difficult to remit annual fees for the academic
year 2020-21 in the above terms, the school Management
to consider such representation on case-to-case basis
sympathetically.
vi.The above arrangement will not affect collection of
fees for the academic year 2021-22, as is payable by the
students of the concerned school as and when it becomes
due and payable.
vii.The school Management shall not withhold the name
of any student/candidate for the ensuing Board
examinations for Classes X and XII on the ground of
non-payment of fee/arrears for the academic year 2020-
21, if any, on obtaining undertaking of the concerned
parents/students.
129. We are conscious of the fact that we are issuing
general uniform direction of deduction of 15 per cent of the
annual school fees in lieu of unutilised facilities/activities and
not on the basis of actual data school-wise. As aforesaid, we
have chosen to do so with a view to obviate avoidable litigation
and to give finality to the issue of determination and collection
of school fees for the academic year 2020-21, as a one-time
measure which is the subject matter of these appeals. We have
consciously limited the quantum of deduction from annual
school fees to 15 per cent although the school Management had
mentioned about its willingness to provide 25 per cent
scholarship to deserving students, as we have compelled the
school Management to collect annual school fees for the
academic year 2020-21 as was fixed for the academic year
2019-20 on which some of the school Management(s) could
have legitimately asked for increase of at least 10 per cent in
terms of Section 6(5) of the Act of 2016.”
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W.P.Nos.8490 of 2020 etc., batch
The Hon'ble Apex Court in the said decision also held that State Authorities
do not have any power under the Disaster Management Act, 2005 to order
reduction in fees of private unaided schools.
18. The learned Senior Counsel and learned counsel for the petitioners
submitted that all the petitioners' school management are agreeable to
follow/abide by the directions of the Hon'ble Supreme Court in the aforesaid
judgment and this Court may pass suitable orders by following the said
judgment of the Hon'ble Supreme Court. In the light of the judgment of the
Hon'ble Supreme Court, the respective learned counsel for the parties has
agreed for the following terms:
(i) The petitioners school management can collect 85% of
the fees [fee fixed for previous years by the Fee
Determination Committee] for the academic year 2021-2022
in six instalments from those students/parents, who have not
suffered loss of income during the pandemic period.
(ii) In case of loss of income during this pandemic period,
the concerned students/parents can make a request to the
School Management and the Management will consider for
collection of 75% of fees [fee fixed for previous years by the
Fee Determination Committee] for the academic year 2021-
2022 in six instalments.
(iii) If students/parents seek any concession for payment of
fees, they have to make a representation to the School
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W.P.Nos.8490 of 2020 etc., batch
Management and it will be considered on case-to-case basis
sympathetically;
(iv) The students will not be removed from the school under
any circumstances for this academic year 2021-2022 in view
of the present academic situation;
(v) No student will be restrained from attending online
classes for this academic year 2021-2022 under any
circumstances.
19. The common submission of the learned counsel for the petitioners
is that order passed by this Court on 17.07.2021 is only an interim order,
wherein the learned Judge has reserved the rights of the petitioners to argue
the writ petitions at the time of final disposal and therefore, the said writ
petitions can be decided on merits and revised Circular may be issued by the
Government in the light of the directions issued in these writ petitions. The
learned Senior Counsel for the petitioners and the learned counsel for the
petitioners made a submission that (i) the students who can afford to pay the
fees, in the light of the Supreme Court Judgment, shall pay 85% of fees for
the academic year 2021-2022, where there is no loss of income during the
pandemic situation; (ii) students/parents who have suffered loss of income
during this pandemic period, shall make an request to the school
management, who shall consider their request and collect 75% of the fees
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W.P.Nos.8490 of 2020 etc., batch
(based on the fee fixed for the academic year 2019-2020) as per the Circular
issued by the Commissioner of School Education and (iii) those who are
unable to pay the fees due to unemployment, close down of business on
account of lockdown, shall make a representation to the School Management
and it will be considered on case-to-case basis. Therefore, the learned
counsel for the petitioners prays for modification of the earlier interim order
passed by this Court as well as the circular issued by the Commissioner of
School Education, Chennai issued in pursuant to the interim order, permitting
the private schools to collect 75% of the fee for the academic year 2021-
2022.
20. The learned counsel appearing for the students suggested that the
Government shall consider for grant of subsidy/grant/loan to the
parents/students for making arrangements to pay the fees and however, this
Court cannot issue any specific direction to the Government, since it involves
financial implications to the State. He further submitted that appropriate
directions may be issued to the Fee Determination Committee and the State
Government has to provide necessary staff for the effective functioning and
determination of fees by the Fee Determination Committee and would further
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W.P.Nos.8490 of 2020 etc., batch
add that under Right to Education Act, CBSE Schools are under the control
of the appropriate State Government and further seeks that CBSE schools has
to display their structure of fees in their respective website and to that extent,
CBSE has sent circulars, but they have not complied with the same and
therefore, seeks necessary directions in this regard.
21. In view of the above discussions and following the judgment of the
Hon'ble Supreme Court in Indian School, Jodhpur and Another v. State of
Rajasthan and Others [2021 SCC Online SC 359], and in order to protect
the interest of students as well as the School Management during this
extraordinary situation, this Court is of the view that it would be appropriate
to issue the following directions:
(1) The petitioners (school management of the concerned
private unaided school) shall collect 85% of the annual school
fees (based on the fee fixed for the academic year 2019-2020)
for the academic year 2021-2022 in six instalments, from those
students/parents such as State and Central Government
Employees, Public Sector Undertakings, Professionals and
Business People etc., who have not suffered loss of income
during this pandemic period, provided if they have conducted
online classes; If the students had already paid first instalment
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W.P.Nos.8490 of 2020 etc., batch
for this academic year, the balance amount shall be paid by way
of instalments and the last instalment be paid on or before
01.02.2022.
(2) Students/parents who have suffered loss of income
during this pandemic period, shall make an application to the
school management, who shall consider their request and
collect 75% of the fees (based on the fee fixed for the academic
year 2019-2020) as per the Circular issued by the Commissioner
of School Education, Chennai-6, for the academic year 2021-
2022, in six instalments. If the students had already paid first
instalment for this academic year, the balance amount shall be
paid by way of instalments and the last instalment be paid on or
before 01.02.2022.
(3) If any parents / wards seek further concession for
payment of annual fees for the academic year 2021-22, apart
from (1) and (2) stated above, on account of unemployment,
close down of business due to lockdown, they shall make a
representation to the School Management, who shall consider
such representation on case-to-case basis sympathetically.
(4) The unaided private institutions shall also collect the
arrears of fees payable for the academic year 2020-2021 in
instalments.
(5) If any student has already paid the entire fees
including arrears, the same shall not be a ground to claim for
refund of the fees.
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W.P.Nos.8490 of 2020 etc., batch
(6) The school Management shall not debar any student
from attending either online classes or physical classes on
account of non-payment of fees, arrears/outstanding fees
including the instalments, referred to above, and shall not
withhold the results of the examinations of any student on that
ground. If any such action is brought to the notice of the
educational authorities, it shall be viewed seriously and suitable
action shall be taken against the institutions concerned.
(7) Regardless of the above, it will be open to the
petitioners (concerned schools) to give further concession to
their students or to evolve a different pattern for giving
concession over and above those noted in clauses (1) to (3)
above.
(8) If any dispute arises between the parents/wards and
the School Management in respect of concession in fees, either
on the reference by the School Management or on the
application by the students / parents, the District Educational
Officer of the Districts concerned shall consider and take
appropriate decision within a period of 30 days from the date of
receipt of the application.
(9) The students shall not be removed / dropped out from
the institutions under any circumstances during this academic
year 2021-22 and it is the responsibility of the jurisdictional
Educational Authorities to monitor the same.
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W.P.Nos.8490 of 2020 etc., batch
(10) If any difficulty faced by the students to continue in
a particular school, they can approach the jurisdictional
Educational Authorities, who shall make necessary
arrangements to accommodate the said students in nearby
Government / Corporation/ Municipal / Panchayat schools.
(11) As a special case under extraordinary situation, the
State Government may also consider to sanction amount for the
fees, if there is any unfilled seats available under 25% quota
under the Right of Children to Free and Compulsory Education
Act, 2009, for the academic year 2021-22, subject to eligibility
criteria.
(12) The management of CBSE Schools shall publish the
details of fees to be collected for the academic year 2021-2022
in their respective website, within a period of four weeks from
the date of receipt of a copy of this order.
(13) In case of dispute in respect of determination of
fees, the school Management or students/parents concerned can
approach the Fee Determination Committee for redressal of
their grievances.
(14) Students who seek to leave the school may inform to
the schools concerned. It is made clear that the Education
Department has already issued a circular that schools cannot
insist upon production of Transfer Certificate for admission of
students in schools. It is only an information to the school
management for admitting new students in the said vacancies.
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W.P.Nos.8490 of 2020 etc., batch
(15) The State Government shall take all necessary steps
to fill up the vacancies in the cadre of staff and ensure effective
functioning of the Fee Determination Committee. The said
exercise shall be completed by the Secretary to Government,
School Education Department, Government of Tamil Nadu,
within a period of eight weeks from the date of receipt of a copy
of this order.
(16) In view of the above directions, the State
Government shall issue revised Circular and the same shall be
communicated to all the Schools within a period of two weeks
from the date of receipt of a copy of this order.
22. With the above directions, these writ petitions are disposed of.
No costs. Consequently, connected miscellaneous petitions are closed.
30.07.2021
Index : Yes / No
Internet : Yes / No
Jvm
To
1.The Chief Secretary to Government,
The Office of Revenue and Disaster Management Department,
Disaster Management Wing, DM II Section,
Fort St.George, Chennai-600 009.
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W.P.Nos.8490 of 2020 etc., batch
2.The Secretary,
Collegiate Education Department,
Fort St.George, Chennai-9.
3.The Secretary,
School Education Department,
Fort St.George, Chennai-9.
4.The Director,
The Directorate of School Education,
DPI Campus, Chennai.
5.The Director,
The Directorate of Matriculation Education,
DPI Campus, Chennai.
6.The Director,
The Directorate of Elementary Education,
DPI Campus, Chennai.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.8490 of 2020 etc., batch
D.KRISHNAKUMAR. J
Jvm
W.P.Nos.8490, 8491, 8492, 8665, 8732, 8733, 8789,
8825, 8829, 8836, 8840, 8841, 8850, 8951, 9017, 9049, 9052,
9055, 9063, 9066, 9067, 9070, 9071, 9073, 9089, 9091, 9092,
9093, 9144, 9148, 9152, 9182, 9274, 9295, 9301, 9331,
9388, 9422, 9423, 9426, 9452, 9518, 9822, 9978 of 2020
and W.P.Nos.12049 and 13588 of 2021
30.07.2021
https://www.mhc.tn.gov.in/judis/
