Orissa High Court
Mohammed Mustaq Ansari vs State Of Odisha & Another on 7 January, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No. 11299 OF 2020
WRIT PETITION (CIVIL) No. 11514 OF 2020
WRIT PETITION (CIVIL) No. 32259 OF 2020
(Applications under Articles 226 & 227 of the Constitution of India.)
In W.P.(C) No.11299 of 2020
Mohammed Mustaq Ansari ...... Petitioner
Versus
State of Odisha & Another ....... Opposite Parties
In W.P.(C) No.11514 of 2020
Odisha Abhibhabak Mahasangha ...... Petitioner
Versus
Union of India & Othes ....... Opposite Parties
In W.P.(C) No.32259 of 2020
Sai International School Parents Forum ...... Petitioner
Versus
State of Odisha & Others ....... Opposite Parties
Advocate(s) who appeared in these cases by Video Conferencing
mode:-
For Petitioner : In W.P.(C) No.11299 of 2020
Mr. Mohammed Mustaq Ansari
(in person)
In W.P.(C) No.11514 of 2020
Mr. V. Narasingh, Adocate
In W.P.(C) No.32259 of 2020
Mr. Goutam Mukherjee,
Senior Advocate along with
W.P.(C)No.11299 of 2020 and connected matters Page 1 of 19
Mr. B.B. Mohanty
For Opposite Parties : Mr. Ashok Kumar Parija,
Advocate General along with
Mr. M.S. Sahoo,
Additional Government Advocate
[For State-Opposite Parties in all
the matters)
Mr. P.K. Parhi,
Assistant Solicitor General
For Opposite Party-Union of India
Mr. Tarananda Pattanayak, Advocate
For Opposite Party-CBSE
Mr. Budhadeb Routray,
Senior Advocate for Confederation
of Public Schools
Mr. Asok Mohanty
Senior Advocate
Mr. Patitapaban Panda, Advocate
Mr. Dayananda Mohapatra, Advocate
Mr. Sameer Kumar Das, Advocate
Mr. B.D. Das, Advocate
Mr. Alok Ku. Mohapatra, Advocate
Mr. N.K. Sahu, Advocate
For respective Intervenors
CORAM : THE CHIEF JUSTICE
DR. JUSTICE B. R. SARANGI
JUDGMENT
7th January, 2021
Dr. S. Muralidhar, CJ.
1. The central issue in the present batch of writ petitions concerns the
charging of fees by private unaided schools in the State of Odisha in
the wake of COVID-19 pandemic from March, 2020 onwards.
The petitions
2. The lead petition in the present batch is Writ Petition (Civil) PIL
No.11299 of 2020 filed by Mr. Mohammed Mustaq Ansari, who
appears in person. The prayer in this petition inter alia is for
directions to the Government of Odisha to issue necessary orders
directing both the private unaided and aided schools not to collect
tuition fees for the lockdown period till actual commencement of
classes in physical mode; not to increase in fees in the academic
session 2020-21; "not to put extra financial burden on the parents or
creating any new head of the fees for the academic session 2020-21"
and for a direction to strictly enforce the provisions of law against
the Managing Committee of those institutions who fail to strictly
comply with the directions of the Government. The further prayer of
the Petitioner is for a direction to the Government of Odisha to
provide funds to all the private schools, who are unable to bear the
basic liability of payment of payment of salaries to their staffs both
the teaching and the non-teaching staff to meet the situation arising
out of the COVID-19 pandemic. In this lead petition, notice was
issued by this Court on 24th April, 2020.
3. One of the connected petitions is Writ Petition (Civil) No.11514 of
2020 filed by the Odisha Abhibhabak Mahasangha. The Opposite
Parties in this writ petition include the Department of School and
Mass Education (DSME), the Central Board of Secondary Education
(CBSE), Stuarts School, Cuttack (Opposite Party No.3), the
Confederation of Odisha Public Schools (Opposite Party No.7), the
Association of Odisha ICSE Schools, the S.K. International School
and DAV Public School.
4. The prayer in Writ Petition (Civil) No.11514 of 2020 which
projects the point of view of the students seeking a direction to the
Opposite Parties to issue circular/order to the private/public school
across the State of Odisha to waive off the school fees /tuition
fees/development fees/re-admission fees etc. for two quarters from
March-June and July-September, 2020 and for a direction to the
schools not to enhance the fees or any other ancillary charges for the
academic year 2020-21.
5. The 3rd petition i.e. W.P.(C) No.32259 of 2020 has been filed by
Sai International School Parents Forum. It projects the point of view
of the parents of the students. The prayers here are again broad and
sweeping. They seek a direction to the Opposite Parties to roll back
the enhancement of fees for the academic session 2020-21. A
direction is sought to the Sai International School to reconsider the
matter by adopting the fees structure prevailing in the previous
academic year 2019-20 and grant waiver of some portion thereof
during the period of the COVID-19 pandemic. A direction is sought
to the State to take steps for meticulous compliance of the terms and
conditions of the Resolution dated 23rd September, 1996 of the
Department of School and Mass Education (S & ME) on the basis of
No Objection Certificate (NOC) which was issued in favour of the
private unaided schools including Sai International School,
Bhubaneswar. In the batch of petitions, some interveners have
entered by filing their intervention applications.
6. It may be mentioned at the outset that the pleadings in the lead
matter i.e. Writ Petition (Civil) (PIL) No.11299 of 2020 including the
counter affidavit and other affidavits filed therein have been relied
upon by the parties in all the matters.
Orders of this Court
7. As noted earlier after the initial order passed in the lead petition on
24th April 2020, an interim order was passed by this Court on 26th
May, 2020 to the effect that during the pendency of the matter "the
students of any private school shall not be deprived of participation
in the e-classes and shall be provided with password and ID". A
detailed order was thereafter passed on 1st September, 2020 as under:
"Heard Mr. Mohammed Mustaq Ansari, learned
Advocate, who appears in person in W.P.(C)
No.11299 of 2020, Mr. Ranjan Kumar Rout,
learned counsel for the petitioner in W.P.(C)
No.11263 of 2020, Mr. V. Narasingh, learned
counsel for the petitioner in W.P.(C) No.11514 of
2020 and Mr. Ashok Kumar Parija, learned
Advocate General for the State-opposite parties,
Mr. B. Routray, learned Senior Advocate for the
opposite party-Confederation of Odisha Public
Schools and Sri Asok Mohanty, learned Senior
Advocate for the opposite party-Odisha Private
Schools Teachers Association, by Video
Conferencing mode.
Mr. Ashok Kumar Parija, learned Advocate
General was on the earlier date requested to assist
this Court in the matter and explore the possibility
of the amicable resolution of the dispute by way
of mediation between the parties whether the
private educational institutions can be persuaded
to grant waiver of a portion of fees due to the
ongoing pandemic COVID-19 to the W.P.(C) No.
11299 of 2020 students/parents, especially the fee
demanded on certain heads, like Development,
Uniform, Conveyance, etc. which the petitioners
are terming unreasonable. Learned Advocate
General informed the Court that the Secretary,
School & Mass Education Department, Odisha,
Bhubaneswar is prepared to convene a meeting of
the representatives of the Private Un-Aided and
Aided Educational Institutions and
representatives of the parents and teachers'
association. He however submitted that for a
meaningful discussion in an orderly manner, not
more than five representatives from each of the
three grounds, should be allowed to attend such
deliberations but they should be required to give
their choice to participate in such meeting either
physically or by virtual mode.
Having regard to the aforementioned
submissions, it is directed that five representatives
from Confederation of Odisha Public Schools,
five representatives from parents, three of whom
shall be the President, the Vice-President and the
Secretary respectively of Odisha Abhibhabak
Mahasangha, and one parent each as 3 nominated
by the petitioner in W.P.(C) No.11299 of 2020
and the petitioner in W.P.(C) No.11263 of 2020
and five representatives of teachers' to be
nominated by Odisha Private Schools Teachers
Association, shall participate in such
deliberations. Their names shall be conveyed to
the Secretary, School and Mass Education
Department positively by 2.00 P.M. on
03.09.2020, along with their preference whether
they would like to attend such meeting physically
or by video conferencing.
The Secretary, School & Mass Education
Department shall make an endeavour in the
proposed meeting whether the private educational
institutions can be persuaded for waiver of a
portion of fees payable by the students or accept
part of the fees by deferring remaining part or
whether any other kind of consensus can be
arrived at on such terms that may be agreed upon
between the parties, in view of the ongoing
pandemic COVID-19 and also examine whether
any unreasonable and excessive fees is being
demanded by any of the private educational
institutions on unreasonable head such as
development 4 fee, uniform charges, conveyance
charges, or other charges of the like nature.
The Secretary, S & ME Department may convene
the meeting preferably at 12 Noon on 04.09.2020
and if the same remains inconclusive, on any
other date and time within a week (next seven
days). Report of the deliberations may be
produced before the Court on the next date.
The matter to come up on 14.09.2020.
Learned counsel for the parties may in the
meantime file their written note of submissions."
8. At the hearing of the case on 29th September, 2020 the Court took
on record the report of the Principal Secretary to Government, S &
ME Department which had been prepared pursuant to the order dated
1st September, 2020.
Report of the Principal Secretary, S&ME Dept.
9. At this stage a reference ought to be made to the report of the
Principal Secretary, S & ME Department which recorded the MoU. It
must be noticed that 14 of the private unaided schools agreed to
waiver of fees at a flat rate in different slabs as set out in para 8 of
the report, which is Annexure-C/2 to the affidavit dated 1st
December, 2020 filed by the Additional Secretary to Government, S
& ME Department. The position as set out in a tabular form is as
under:
Sl.No. School Type School Fees (Per
annum) either as
tuition fees or
Composite Fees
Waiver %
1 All Schools fees upto Rs.6,000/- Nil
2 All Schools fees > Rs.6,001/- to 7.5%
Rs.12,000/- p.a.
3 All Schools fees & Rs 12,001/- 12%
to Rs.24,000/- p.a.
4 All Schools fees > Rs.24,001/- 15%
to 48,000/- p.a.
5 All Schools fees > Rs.48,001/- 20%
to Rs.72,000/- p.a.
6 All Schools fees > Rs.72,001/- 25%
to Rs.1,00,000/- p.a.
7 All Schools fees above 26%
1,00,000/- p.a.
8 Transport and Food Charges As per actual
9 i. Transport and Food Charges
as per actual
ii. Hostel fees : Flat 30%
waiver to be given.
iii. The Other Optional Fees as
per para 3 and 4 of MoU
shall not be charged during
pandemic period till Schools
re-open.
10 Any School which has not increased School Fees
consecutively in the last two years will not be covered
in this School Fees Waiver understanding subject to
proper certification from SMC (School Management
Committee) (2018-19 & 2019-20).
10. The Report further noted as under:
"From the deliberations, it could be noticed that
near unanimity was achieved except one member
i.e. Shri Baikuntha Prasad Das, representative of
members signed the Memorandum of
Understanding and also authenticated their
signatures on 10th Sept., 2020 before my
authorized representative. It is a fact that due to
the unprecedented COVID-19 pandemic situation,
all stakeholders in the education system like the
Schools, Teachers, Parents as well as the Students
have been affected beyond the control of any
individual entity despite the best efforts taken by
the State, in providing education through online
and offline modes as per the extant guidelines of
Government of India and State Government issued
under COVID-19 pandemic. As directed by the
Hon'ble Court, maximum effort has been taken to
persuade all the stakeholders present during the
discussions to reach a unanimous decision in this
unique situation which has occurred for the first
time."
Stand of the State Government
11. A counter affidavit was filed on 21st May, 2020 by the Director
of Elementary Education of Odisha mentioning inter alia that:
(i) no tuition fees are collected from students in Government
Schools or from old Grant-In-Aid (GIA)/Fully Aided schools
or even from new GIA Schools that receive partial funding
from the Government;
(ii) the other category of schools are the Unaided Private
Schools which include English Medium schools as well as
Odia Medium schools affiliated to Board of Secondary
Education, Odisha.
(iii) In the private unaided schools, 25% seats are reserved for
the weaker sections and disadvantage groups under Section
12-C of the Right to Education Act, 2009 in respect of which
the cost of education was borne by the Government of Odisha
at a uniform rate arrived at every year.
12. This was followed by another affidavit dated 4th November, 2020
i.e. after the report submitted by the Principal Secretary to
Government, S & ME Department. The stand of the State
Government as stated in para 10 of the affidavit was that there is no
provision under the Orissa Education Act, 1969 ('OE Act') and the
Rules framed thereunder for fixation of fee structure of different
unaided schools. A reference has been made to the order dated 22nd
March, 2013 of the Supreme Court in Civil Appeal No.4556 of 2014
(D.A.V. College Managing Committee through Regional Director
v. Laxminarayan Mishra) whereby the DAV School authorities
were directed to make an application for fixation of fees structure of
the school before the Fee Structure Committee (FSC), Odisha headed
by Justice K.P. Mohapatra, a former judge of this Court.
13. It was further stated in the final judgment dated 16th April, 2014
in the aforementioned Civil Appeal No.4556 of 2014, the Supreme
Court accepted the recommendations of the of the Committee and
directed the concerned educational institutions to revise their fee
structure with immediate effect. It is further pointed out in the
affidavit that this Court in W.A. No.89 of 2015 (Buxi Jagabandhu
English Medium School Parents Association v. State of Odisha) by
an order dated 8th September, 2016 directed that the fees structure of
the concerned schools as per the recommendation of Justice K.P.
Mohapatra Committee be effective from the beginning of the
financial year 2014-15.
14. As regards the report submitted by the Principal Secretary to
Government, S & ME Department pursuant to the direction of this
Court in the present batch of writ petitions, the stand of the State
Government is that the Court may accept the Memorandum of
Understanding (MoU) signed by all the stakeholders, as recorded by
the report and pass appropriate directions.
15. In its affidavit dated 1st December, 2020 the S & ME Department
stated as under:
"....it is humbly submitted that besides the
decision taken by the different stakeholders in the
meeting held under the Chairmanship of Principal
Secretary as set out in the MOU dated 10.09.2020,
there is no policy decision of the Government as
regards waiver or reduction of school fees during
Lock Down period caused due to COVID-19
pandemic. However, the contents of the MOU is in
the knowledge of Government and if the same is
given effect to, it will also assuage the difficulties
being faced by the parents whose income has been
adversely affected during this pandemic."
16. Mr. Ashok Kumar Parija, learned Advocate General appearing
for the State of Odisha, while placing the contents of the
aforementioned report, which incorporates MOU, has made a
categorical statement that notwithstanding the statements made in
para 4 of the affidavit dated 1st December, 2020 of the S & ME
Department that there is no provision under the OE Act or the Rules
framed thereunder to regulate the fees structure of those private
unaided schools affiliated either to the Board of Secondary
Education, Odisha or the CBSE and the ICSE, the Government of
Odisha would strictly enforce the terms and conditions set out in the
Resolution dated 23rd September, 1996 concerning grant of NOCs to
such private unaided schools.
The Resolution dated 23rd September, 1996
17. At this stage, reference be made to the relevant portion of the said
resolution. The said resolution was issued by the S & ME
Department, Government of Odisha drawing attention to Section 6
(5) of the OE Act and the fact that it had become imperative to
prescribe certain guidelines before according NOC/Recognition to
the institutions and to withdraw such recognition in the event of
violation of any of the instructions issued in the Resolution. The
Resolution deals with several matters including 'Accommodation',
'Recruitment and Service Condition of the staff' 'Medium of
instruction' and so on. Para 4 of the Resolution deals with fees, and
reads as under:
"4.(1) Fees- Fees and charges should be common with
the facilities provided by the institution. Fees should
normally be charged under the heads prescribed by the
Department of School and Mass Education. No capitation
fees or voluntary donations for gaining admission in the
school or for any other purpose should be
charged/collected in the name of the school. In case of
such malpractices, the Government may take drastic
action leading to withdrawal of No Objection Certificate
of the school.
(ii) In case a student leaves the school for such
compulsion as transfer of parents or for health reason or
in case of death of the student before completion of the
session, pro rata return of quarterly/term/annual fees
should be made.
(iii) The schools should consult parents through parents,
representatives before revising the fees. The fee should
not be revised during the mid-session."
18. Further paras 9 and 10 of the resolution read as under:
"9. The N.O.C. issue in favour of any school shall always
be subject to the terms and conditions prescribed in this
Resolution.
10. All Schools who have been issued N.O.C. shall fulfill
the terms and conditions provided herein before and
satisfy the requirements prescribed in this Resolution
within a period of she months from the date of issue of
this Resolution failing which proceedings for withdrawal
of N.O.C./Recognition shall be notified by the
Government."
19. That the Government of Odisha is prepared to implement the
aforementioned resolution is clear from the categorical stand of the
learned Advocate General, as taken on record by this Court, that
notwithstanding what may have been stated in the affidavit filed in
these matters, appropriate action would be taken against the schools
who do not fulfill the terms and conditions set out in the
aforementioned Resolution. This stand is consistent with Section 6
(5) of the OE Act read with Sections 6-A and 6-B thereof. In this
context, a reference may also be made to Section 5 of the OE Act
which sets out the requirement for establishment of an educational
institution.
20. This should allay the apprehension expressed by Mr. Goutam
Mukherjee, learned Senior Advocate appearing for Sai International
School Parents Forum that the State Government may not strictly
enforce the above Resolution against the defaulting private unaided
institutions.
21. The Court now truns to the submission of the learned counsel
appearing for some of the intervenors like the Association of Orissa
ICSE and the DAV School Association and the Odisha Abhibhaka
Mahasangha, who have expressed reservations as reagrd some of the
terms of the MoU. There are also certain apprehensions expressed on
behalf of minority institutions.
Scope of judicial review
22. In the context of the above submissions, it might be useful to
recapitualte the legal position on the scope of the powers of judcial
review inof this Court in matters of the present nature, with particular
reference to the issue of fixation of fees chargeable by private
unaided educational institutions.
23. In T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC
481, the Constitution Bench of the Supreme Court explained that
with regard to core components of the rights under Articles 19 and
26 (a) of the Constitution of India, while the State has the right to
prescribe qualifications necessary for admission, private unaided
colleges have the right to admit students of their choice, subject to an
objective and rational procedure of selection and the compliance with
conditions, if any, requiring admission of a small percentage of
students belonging to weaker sections of the society by granting
them freeships or scholarships, if not granted by the Government. It
was further observed that in setting up a reasonable fee structure, the
element of profiteering is not as yet accepted in Indian conditions.
The fee structure must take into consideration the need to generate
funds to be utilized for the betterment and growth of the educational
institution, the betterment of education in that institution and to
provide facilities necessary for the benefit of the students. In the
same decision it was noted that the fixing of a rigid fee structure,
dictating the formation and composition of a government body,
compulsory nomination of teachers and staff for appointment or
nominating students for admissions would be unacceptable
restrictions.
24. Specific to the issue of fixation of fees, the Supreme Court in
T.M.A. Pai Foundation (supra) observed as under:
"56. An educational institution is established for the
purpose of imparting education of the type made
available by the institution. Different courses of study
are usually taught by teachers who have to be recruited
as per qualifications that may be prescribed. It is no
secret that better working conditions will attract better
teachers. More amenities will ensure that better students
seek admission to that institution. One cannot lose sight
of the fact that providing good amenities to the students
in the form of competent teaching faculty and other
infrastructure costs money. It has, therefore, to be left to
the institution, if it chooses not to seek any aid from the
government, to determine the scale of fee that it can
charge from the students. One also cannot lose sight of
the fact that we live in a competitive world today, where
professional education is in demand. We have been
given to understand that a large number of professional
and other institutions have been started by private
parties who do not seek any governmental aid. In a sense
a prospective students has various options open to
him/her where, therefore, normally economic forces
have a role to play. The decision on the fee to be
charged must necessarily be left to the private
educational institution that does not seek or is not
dependent upon any funds from the government."
25. The Supreme Court however pointed out that Government could
make regulations to ensure excellence in education while forbidding
the charging of capitation fee and profiteering by the institution. It
was observed in this context that in the establishment of an
educational institution, the object should not be to make a profit,
inasmuch as education is essentially charitable in nature. There can,
however, be a reasonable revenue surplus, which may be generated
by the educational institution for the purpose of development of
education and expansion of the institution.
26. In Islamic Academy of Education v. State of Karnataka (2003)
6 SCC 697 directions were issued to the respective State
Government/Public Authorities to set up a Committee headed by a
retired High Court Judge nominated by the Chief Justice of the
concerned State. This was in the nature of a follow up on the
directions issued in T.M.A. Pai Foundation (supra) to ensure that
the institutions are not profiteering or charging capitation fee. In the
considered view of the Court the spirit of Resolution dated 23rd
September, 1996 issued by the S & ME Department is consistent
with these decisions of the Supreme Court.
27. In Modern School v. Union of India (2004) 5 SCC 583, the
above observations of the Supreme Court in T.M.A. Pai Foundation
(supra)were reiterated. Likewise, in PA Inamdar v. State of
Maharashtra (2005) 6 SCC 537 on the aspect of fee regulation, the
Supreme Court concluded thus:
"140. To set up a reasonable fee structure is also a
component of "the right to establish and administer an
institution" within the meaning of Article 30(1) of the
Constitution, as per the law declared in Pai Foundation.
Every institution is free to devise its own fee structure
subject to the limitation that there can be no profiteering
and no capitation fee can be charged directly or indirectly,
or in any form (Paras 56 to 58 and 161 [Answer to Q.5(c)]
of Pai Foundation are relevant in this regard)".
28. Given the limited scope of interference in the matters of this
nature, consistent with the legal position explained in the above
decisions, this Court is not persuaded to further issue directions in
the matter in light of the MOU arrived at between 14 educational
institutions in Odisha on the question of fee waiver during the
period of the Covid-19 pandemic. The problems faced by any of the
parties in relation to any of the terms of the MOU will have to be
agitated in other separate proceedings and examined on a case by
case basis. No omnibus directions in that regard can possibly be
issued at this stage.
Decisions of the High Courts
29. Counsel for the parties have referred to certain decisions of other
High Courts which dealt with the issues faced by the students,
parents, teachers and the educational institutions themselves arising
out of the COVID-19 pandemic. These included the decision dated
20th April, 2020 of the learned Single Judge of Delhi High Court in
W.P.(C) No.2977/2020 & C.M. No.10327-28/2020 (Rajat Vats v.
Govt. of NCT of Delhi); the judgment dated 13th October, 2020 of
the High Court of Calcutta in WPA 5890 of 2020 (Vineet Ruia v.
Principal Secretary, Department of School Education,
Government of West Bengal), the decision dated 30th June, 2020 of
the learned Single Judge of the High Court of Punjab and Haryana in
CWP 7409 of 2020 (Independent Schools Association Chandigarh
(Regd.) v. State of Punjab), and the decision dated 12th May, 2020 of
the Division Bench of Uttarakhand High Court in WP (PIL) No.59 of
2020 (Japinder Singh v. Union of India).
30. The Court does not propose to discuss these decisions at length
because of the peculiar situation obtaining in each of the
aforementioned States, which may not be comparable with the
situation present here. For instance, there is no indication in any of
the above decisions that there was any MOU arrived at between the
private institutions, with the mediation of the State, agreeing to
waiver of fees in a graded manner. Nevertheless, it must be clarified
that while this Court has recorded the fact of the MOU having been
entered into, this will not preclude individual institutions or parties,
who may be aggrieved or who may have a different point of view
than that recorded in the MOU, or seek strict enforcement of the
terms and conditions of recognition or grant of NOC as set out in the
Resolution dated 23rd September 1996, from seeking appropriate
reliefs in separate proceedings as are permissible to them in
accordance with law.
Conclusions
31. In the result the writ petitions and all pending applications are
disposed of in the above terms. The interim orders are vacated.
However, there shall be no order as to costs.
32. As the restrictions due to the COVID-19 situation are continuing,
learned counsel for the parties may utilize a soft copy of this
order/judgment available in the High Court's website or print out
thereof at par with certified copy in the manner prescribed, vide
Court's Notice No.4587 dated 25th March, 2020.
............................
S. Muralidhar
Chief Justice
......................
B.R. Sarangi
Judge
7th January, 2021
//S.K. Jena, P.A.//
