Uttarakhand High Court
Welham Boys' School Societ Y & Ot Hers ... ... vs St At E Of Ut T Arakhand & Anot Her on 2 January, 2025
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Ju dgm e n t r e se r ve d on 1 1 .1 2 .2 0 2 4
Ju dgm e n t de live r e d on 0 2 .0 1 .2 0 2 5
I N TH E H I GH COURT OF UTTARAKH AN D
AT N AI N I TAL
H ON 'BLE SH RI JUSTI CE M AN OJ KUM AR TI W ARI ,
AN D
H ON 'BLE SH RI JUSTI CE PAN KAJ PUROH I T
W r it Pe t it ion ( M / S) N o. 1 6 5 6 of 2 0 2 1
Welham Boys' School Societ y & ot hers ... Pet it ioners
Versus
St at e of Ut t arakhand & anot her ...Respondent s
Wit h
W r it Pe t it ion ( M / S) N o. 1 6 6 4 of 2 0 2 1
Pr e sen t :-
Mr. Kanwalj eet Singh, Mr. Akshay Singh, Ms. Anj ali Rana, Advocat es
for t he pet it ioners.
Mr. P.C. Bisht , learned Addit ional C.S.C. for t he St at e of Ut t arakhand
D a t e d: 0 2 .0 1 .2 0 2 5
The Cour t m a de t he follow ing:
JUDGMENT:
( pe r H on'ble M a noj Kum a r Tiw a r i, J.)
JUD GM EN T
1. Pet it ioners are Privat e Unaided Resident ial
Schools. They have challenged Governm ent Orders
dat ed 15.01.2021 and 22.03.2021 issued by
Ut t arakhand Governm ent .
2. Since com m on quest ion of law and fact are
involved in t hese pet it ions, t herefore, t hey are being
heard and decided t oget her. However, for brevit y, fact s
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of Writ Pet it ion ( M/ S) No.1656 of 2021 alone are being
considered and discussed.
3. I n Writ Pet it ion ( M/ S) No.1656 of 2021,
pet it ioners have sought t he following relief: -
a. I ssue writ of Cert iorari quashing t he
governm ent order dat ed 15.01.2021 ( Annexure
1) & Governm ent Order dat ed 22.03.2021
( Annexure 2) wit h t he writ pet it ion and m ay
furt her be pleased t o order t hat t he
Respondent s have no aut horit y or power t o
issue any order relat ing t o school fees of
privat e unaided resident ial schools.
4. The im pugned Governm ent Orders are
enclosed as Annexure Nos.1 & 2 t o t he writ pet it ion,
which were issued in t he backdrop of Pandem ic caused
by Covid- 19 and t he lockdown im posed in consequence
t hereof. The Governm ent Order dat ed 15.01.2021
refers t o order passed by t his Court in Writ Pet it ion
( M/ S) No. 1627 of 2020 and goes on t o st at e t hat
perm ission for resum ing classes for st udent s of 10 t h
and 12 t h st andard in physical m ode has now been
grant ed and full Fee shall be chargeable from st udent s
of t hese t wo classes from t he dat e classes are opened
in physical m ode, however, for t he period of Lockdown,
when physical classes were not running, st udent s
would be liable t o pay Tuit ion Fee only. I n paragraph
no.2 of said Governm ent Order, it is provided t hat , for
st udent s ot her t han t hose st udying in 10 t h and 12 t h
st andard, perm ission for physical classes is not given
and educat ion is t o be im part ed t hrough online m ode,
t herefore, Schools shall charge only Tuit ion Fee from
st udent s, who are get t ing inst ruct ions t hrough online
m ode.
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5. Subsequent Governm ent Order issued on
22.03.2021, also challenged in t hese writ pet it ions,
refers t o direct ions issued by t his Court in Writ Pet it ion
( M/ S) No.1627 of 2020 and Writ Pet it ion ( M/ S) No.
1824 of 2020 and provides t hat since perm ission for
running physical classes for st udent s of 6 t h , 7 t h , 8 t h , 9 t h
& 11 t h st andard is grant ed vide Governm ent Order
dat ed 08.02.2021, t herefore, st udent s st udying in
t hese classes will be liable t o pay full Fee only from t he
dat e classes are resum ed in physical m ode and, for t he
period, when inst ruct ions were im part ed t hrough online
m ode, st udent s would be liable t o pay Tuit ion Fee only.
6. According t o pet it ioners, t he im pugned orders
are unsust ainable, as St at e Governm ent cannot
det erm ine t he am ount which a Privat e Unaided
Resident ial School can charge as Fee from it s st udent s
and int erference m ade by t he St at e Governm ent is not
only unwarrant ed; but , also wit hout any aut horit y of
law. According t o pet it ioners, t here is no power
available to St at e Governm ent under Disast er
Managem ent Act , 2005 and Epidem ic Diseases Act ,
1897 t o regulat e t he Fee st ruct ure of Privat e Unaided
Educat ional I nst it ut ions.
7. Learned counsel for t he pet it ioners subm it s
t hat , in t he absence of any source of power, St at e
Governm ent cannot im pose rest rict ions, as are im posed
by t he im pugned Governm ent Orders. He furt her
subm it s t hat t he am ount payable as Fee for educat ion
of a child is det erm ined by cont ract bet ween t he School
and t he parent s of t he child and St at e Governm ent is
not a part y to t he cont ract , t herefore, St at e
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Governm ent cannot decide t he am ount chargeable as
Fee from t he st udent s.
8. Per cont ra, learned St at e Counsel subm it s
t hat our Const it ut ion has envisioned concept of Welfare
St at e, in which a Governm ent plays key role in t he
prot ect ion and prom ot ion of t he econom ic and social
well being of it s cit izens. He furt her subm it s t hat
Covid- 19 Pandem ic posed not only exist ent ial crises for
m ankind; but , also unprecedent ed sit uat ion, in which
m aj orit y of households were left wit h lit t le or no
incom e. He subm it s t hat econom ic act ivit y in m any
sect ions of t he econom y cam e t o a st andst ill during
Lockdown; while, in ot her sect ors, it was reduced t o
fragm ent of what it was earlier, consequent ly, paying
capacit y of m aj orit y of households suffered a m aj or
j olt . He subm it s t hat , during t hose difficult t im es, St at e
Governm ent had t o st ep- in in keeping wit h it s role as
cust odian of public good. He subm it s t hat concern of
t he St at e Governm ent was t hat educat ion of children is
not disrupt ed, due t o reduct ion in paying capacit y of
t heir guardians/ parent s. He subm it s t hat Art icle 162 of
t he Const it ut ion of I ndia provides t hat execut ive power
of a St at e shall ext end t o t he m at t ers in respect of
which St at e Legislat ure has power t o m ake laws. He
furt her subm it s t hat Educat ion is covered by Ent ry 25
of List I I I of Sevent h Schedule and by virt ue of Art icle
246( 2) of t he Const it ut ion; St at e can also m ake law
wit h respect t o any m at t er enum erat ed in List I I I of t he
Const it ut ion. He subm it s t hat t he im pugned
Governm ent Order is not in conflict wit h any law or
policy m ade by t he Union Governm ent . Thus, he
subm it s t hat St at e Governm ent was well wit hin it s right
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t o t ake policy decision in respect of m at t ers on which
St at e Legislat ure can m ake law. He subm it s t hat
powers available t o t he St at e Governm ent under Art icle
162 of Const it ut ion are plenary in nat ure and t he only
lim it at ion is t hat a policy decision t aken by t he St at e
Governm ent should not be in breach of a Const it ut ional
or St at ut ory provision.
9. Regarding t he cont ent ion t hat St at e
Governm ent cannot int erfere when fee is det erm ined
by cont ract bet ween st udent / parent and t he school,
learned St at e Counsel subm it s t hat im part ing educat ion
is a public funct ion and held t o be a charit able act ivit y,
as held in t he case of St at e of Bom bay v. R.M.D.
Cham arbaugwala ( AI R 1957 SC 699) and due t o t his
reason, a num ber of benefit s, concessions and
exem pt ions are m ade available to schools under
different legislat ions. He subm it s t hat Right to
Educat ion has now been elevat ed t o t he st at us of
fundam ent al right and Union Parliam ent enact ed Right
of Children t o Free and Com pulsory Educat ion Act ,
2009 t o ensure t hat every child bet ween t he ages of 6
t o 14 years get s qualit y educat ion. Thus, learned St at e
Counsel subm it s t hat , during difficult t im es, when t he
ent ire count ry was reeling under t he im pact of Covid-
19 Pandem ic and Educat ional I nst it ut ions were shut ,
Privat e Unaided Resident ial Schools were charging from
st udent s not only Tuit ion Fee, but Fee under various
ot her heads like Host el Fee, Mess and Laundry
Charges, Fee for Horse Riding, Developm ent Charges,
Swim m ing Charges et c. He subm it s t hat , in keeping
wit hin it s role as cust odian of public good, St at e
Governm ent had t o int erfere so t hat Privat e Resident ial
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Schools, due t o t heir dom inant posit ion, are not able t o
fleece t he parent s/ guardians of st udent s. Thus, he
subm it s t hat St at e Governm ent was under
const it ut ional dut y to int ervene for ensuring t hat
educat ion of children do not suffer a set back due t o t he
financial crisis suffered by t heir parent s during t he
Pandem ic. Learned St at e Counsel has referred t o t he
order passed by t his Court in different writ pet it ions
and he subm it s t hat t his Hon'ble Court had also asked
t he St at e Governm ent t o t ake necessary st eps in view
of t he sit uat ion prevailing at t hat t im e.
10. There can be no quarrel wit h t he proposit ion
t hat execut ive power of t he St at e ext ends t o m at t ers in
respect t o which t he St at e Legislat ure has t he power t o
m ake laws, however, t hat power is not unfet t ered.
Hon'ble Suprem e Court in t he case of " P.H.
Paul Manoj Pandian Vs. P. Veldurai" , report ed in ( 2011)
5 SCC 214, has considered and discussed cont ours of
execut ive power of St at e as provided in Art icle 162 of
t he Const it ut ion. Paragraph nos.47 & 48 of t he said
j udgm ent are ext ract ed below:
" 4 7 . Once a law occupies t he field, it will not
be open t o t he St at e Governm ent in exercise of
it s execut ive power under Art icle 162 of t he
Const it ut ion t o prescribe in t he sam e field by
an execut ive order. However, it is well
recognised t hat in m at t ers relat ing t o a
part icular subj ect in absence of any
parliam ent ary legislat ion on t he said subj ect ,
t he St at e Governm ent has t he j urisdict ion t o
act and t o m ake execut ive orders. The
execut ive power of t he St at e would, in t he
absence of legislat ion, ext end t o m aking rules
or orders regulat ing t he act ion of t he
execut ive. But , such orders cannot offend t he
provisions of t he Const it ut ion and should not
be repugnant t o any enact m ent of t he
appropriat e legislat ure. Subj ect t o t hese
lim it at ions, such rules or orders m ay relat e t o
m at t ers of policy, m ay m ake classificat ion and
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m ay det erm ine t he condit ions of eligibilit y for
receiving any advant age, privilege or aid from
t he St at e.
4 8 . The powers of t he execut ive are not lim it ed
m erely t o t he carrying out of t he laws. I n a
welfare St at e t he funct ions of t he execut ive are
ever widening, which cover wit hin t heir am bit
various aspect s of social and econom ic
act ivit ies. Therefore, t he execut ive exercises
power t o fill gaps by issuing various
depart m ent al orders. The execut ive power of
t he St at e is cot erm inous wit h t he legislat ive
power of t he St at e Legislat ure. I n ot her words,
if t he St at e Legislat ure has j ur isdict ion t o m ake
law wit h respect t o a subj ect , t he St at e
execut ive can m ake regulat ions and issue
governm ent orders wit h respect t o it , subj ect ,
however, t o t he const it ut ional lim it at ions. Such
adm inist rat ive rules and/ or orders shall be
inoperat ive if t he legislat ure has enact ed a law
wit h respect t o t he subj ect . Thus, t he High
Court was not j ust ified in brushing aside t he
Governm ent Order dat ed 16- 11- 1951 on t he
ground t hat it cont ained adm inist rat ive
inst ruct ions."
11. A Const it ut ion Bench of Hon'ble Suprem e
Court in t he case of " Rai Sahib Ram Jawaya Kapur &
ot hers Vs. St at e of Punj ab" , report ed in AI R 1955 SC
549, while considering t he scope of execut ive power
under Art icle 162 of t he Const it ut ion, has observed as
under:
" 1 3 . The lim it s wit hin which t he execut ive
Governm ent can funct ion under t he I ndian
Const it ut ion can be ascert ained wit hout m uch
difficult y by reference t o t he form of t he
execut ive which our Const it ut ion has set up.
Our Const it ut ion, t hough federal in it s
st ruct ure, is m odelled on t he Brit ish
parliam ent ary syst em where t he execut ive is
deem ed t o have t he prim ary responsibilit y for
t he form ulat ion of governm ent al policy and it s
t ransm ission int o law t hough t he condit ion
precedent t o t he exercise of t his responsibilit y
is it s ret aining t he confidence of t he legislat ive
branch of t he St at e.
The execut ive funct ion com prises bot h t he
det erm inat ion of t he policy as well as carrying
it int o execut ion. This evident ly includes t he
init iat ion of legislat ion, t he m aint enance of
order, t he prom ot ion of social and econom ic
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welfare, t he direct ion of foreign policy, in fact
t he carrying on or supervision of t he general
adm inist rat ion of t he St at e."
12. Hon'ble Suprem e Court in t he case of " Unni
Krishnan, J.P. & ot hers Vs. St at e of Andhra Pradesh,
report ed in ( 1993) 1 SCC 645, held t hat
com m ercializat ion of educat ion is not perm issible and is
opposed t o public policy and I ndian t radit ion.
13. I n t he case of " T.M.A. Pai Foundat ion &
ot hers Vs. St at e of Karnat aka & ot hers, report ed in
( 2002) 8 SCC 481, a Eleven Judges Bench of Hon'ble
Suprem e Court considered & discussed t he view t aken
by Hon'ble Suprem e Court in t he case of Unni Krishnan,
J.P. & ot hers ( Supra) and reit erat ed t he principle t hat
t here should be no capit at ion fee or profit eering by
privat e educat ional inst it ut ions.
14. I n t he case of " I slam ic Academ y of Educat ion
& anot her Vs. St at e of Karnat aka & ot hers" , report ed in
( 2003) 6 SCC 697, anot her Const it ut ion Bench of
Hon'ble Suprem e Court held t hat wit h a view t o ensure
t hat educat ional inst it ut ions do not indulge in
profit eering or ot herwise exploit ing it s st udent s
financially; it shall be open t o t he st at ut ory aut horit ies
and, in t heir absence by t he St at e t o const it ut e an
appropriat e body, t ill appropriat e st at ut ory regulat ions
are m ade in t hat behalf. Paragraph nos.158 & 159 of
t he said j udgm ent are reproduced below:
" 1 5 8 . Profit eering has been defined in Black's
Law Dict ionary, 5t h Edn. as:
" Taking advant age of unusual or
except ional circum st ances t o m ake excessive
profit s; "
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1 5 9 . Wit h a view t o ensure t hat an educat ional
inst it ut ion is kept wit hin it s bounds and does
not indulge in profit eering or ot herwise
exploit ing it s st udent s financially, it will be
open t o t he st at ut ory aut horit ies and in t heir
absence by t he St at e t o const it ut e an
appropriat e body, t ill appropriat e st at ut ory
regulat ions are m ade in t hat behalf."
15. I n t he case of " Modern Dent al College &
Research Cent re & ot hers Vs. St at e of Madhya Pradesh
& ot hers, report ed in ( 2016) 7 SCC 353, Hon'ble
Suprem e Court reit erat ed t he earlier view t hat
profit eering and com m ercializat ion of educat ion is
im perm issible. Paragraph nos.71, 72, 78 & 86 of t he
said j udgm ent are ext ract ed below:
" 7 1 . We m ay again rem ind ourselves t hat
t hough right t o est ablish and m anage
educat ional inst it ut ion is t reat ed as a right t o
carry on " occupat ion" , which is t he
fundam ent al r ight under Art icle 19( 1) ( g) , t he
Court in T.M.A. Pai Foundat ion [ T.M.A. Pai
Foundat ion v. St at e of Karnat aka, ( 2002) 8
SCC 481 : 2 SCEC 1] had also caut ioned such
educat ional inst it ut ion not t o indulge in
profit eering or com m ercialisat ion. That
j udgm ent also com plet ely bars t hese
educat ional inst it ut ions from charging
capit at ion fee. This is considered by t he
appellant s t hem selves t hat com m ercialisat ion
and exploit at ion is not perm issible and t he
educat ional inst it ut ions are supposed t o run on
" no profit , no loss basis" . No doubt , it was also
recognised t hat t he cost of educat ion m ay vary
from inst it ut ion t o inst it ut ion and in t his
respect m any variable fact ors m ay have t o be
t aken int o account while fixing t he fee. I t is
also recognised t hat t he educat ional inst it ut ions
m ay charge t he fee t hat would t ake care of
various expenses incurred by t hese educat ional
inst it ut ions plus pr ovision for t he expansion of
educat ion for fut ur e generat ion. At t he sam e
t im e, unreasonable dem and cannot be m ade
from t he present st udent s and t heir parent s.
For t his purpose, only a " reasonable surplus"
can be generat ed.
7 2 . Thus, in T.M.A. Pai Foundat ion [ T.M.A. Pai
Foundat ion v. St at e of Karnat aka, ( 2002) 8
SCC 481 : 2 SCEC 1] , P.A. I nam dar [ P.A.
I nam dar v. St at e of Maharasht ra, ( 2005) 6 SCC
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537 : 2 SCEC 745] and Unni Krishnan [ Unni
Krishnan, J.P. v. St at e of A.P., ( 1993) 1 SCC
645 : 1 SCEC 523] , profit eering and
com m ercialisat ion of educat ion has been
abhorred. The basic t hread of reasoning in t he
above j udgm ent s is t hat educat ional act ivit y is
essent ially charit able in nat ure and t hat
com m ercialisat ion or profit eering t hrough it is
im perm issible. The said act ivit y subserves t he
loom ing larger public int erest of ensuring t hat
t he nat ion develops and progresses on t he
st rengt h of it s highly educat ed cit izenry. As
such, t his Court has been of t he view t hat while
balancing t he fundam ent al right s of bot h
m inorit y and non- m inorit y inst it ut ions, it is
im perat ive t hat high st andard of educat ion is
available t o all m erit orious candidat es. I t has
also been felt t hat t he only way t o achieve t his
goal, recognising t he privat e part icipat ion in
t his welfare goal, is t o ensure t hat t here is no
com m ercialisat ion or profit eering by
educat ional inst it ut ions.
7 8 . As can be seen in T.M.A. Pai Foundat ion
case [ T.M.A. Pai Foundat ion v. St at e of
Karnat aka, ( 2002) 8 SCC 481 : 2 SCEC 1]
it self, t his Court has observed t hat t he
Governm ent can pr ovide regulat ions t o cont rol
t he charging of capit at ion fee and profit eering.
Quest ion 3 before t he Court was as t o whet her
t here can be governm ent regulat ions, and if so,
t o what ext ent in case of privat e inst it ut ions?
What t he Court has observed in para 57 of t he
j udgm ent is inst ruct ive for our purposes and
t he sam e is reproduced below: ( SCC p. 545)
" 57. We, however, wish t o em phasise
one point , and t hat is t hat inasm uch as t he
occupat ion of educat ion is, in a sense,
regarded as charit able, t he Governm ent can
provide regulat ions t hat will ensure
excellence in educat ion, w hile forbidding t he
charging of capit at ion fee and profit eering
by t he inst it ut ion. Since t he obj ect of set t ing
up an educat ional inst it ut ion is by definit ion
" charit able" , it is clear t hat an educat ional
inst it ut ion cannot charge such a fee as is not
required for t he purpose of fulfilling t hat
obj ect . To put it different ly , in t he
est ablishm ent of an educat ional inst it ut ion,
t he obj ect should not be t o m ake a profit ,
inasm uch as educat ion is essent ially
charit able in nat ure. There can, however, be
a reasonable revenue surplus, which m ay be
generat ed by t he educat ional inst it ut ion for
t he purpose of developm ent of educat ion
and expansion of t he inst it ut ion."
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I n para 69 of t he j udgm ent , while dealing wit h
t his issue, t his Court again observed t hat an
appropriat e m achinery can be devised by t he
St at e or universit y t o ensure t hat no capit at ion
fee is charged and t hat t here is no profit eering,
t hough a reasonable surplus for t he
furt herance of educat ion is perm issible.
Alt hough t he Court overruled t he earlier
j udgm ent in Unni Krishnan [ Unni Krishnan,
J.P. v. St at e of A.P., ( 1993) 1 SCC 645 : 1
SCEC 523] , which was t o t he ext ent of t he
schem e fram ed t herein and t he direct ions t o
im pose t he sam e, part of t he j udgm ent holding
t hat prim ary educat ion is a fundam ent al right
was held t o be valid. Sim ilarly, t he principle
t hat t here should not be capit at ion fee or
profit eering was also held t o be correct .
8 6 . I t is, t herefore, t o be borne in m ind t hat
t he occupat ion of educat ion cannot be t reat ed
on a par wit h ot her econom ic act ivit ies. I n t his
field, t he St at e cannot rem ain a m ut e spect at or
and has t o necessarily st ep in in order t o
prevent exploit at ion, privat isat ion and
com m ercialisat ion by t he privat e sect or. I t
would be pert inent t o m ent ion t hat even in
respect of t hose econom ic act ivit ies w hich are
undert aken by t he privat e sect or essent ially
wit h t he obj ect ive of profit - m aking ( and t here
is not hing bad about it ) , while t hrowing open
such kind of business act ivit ies in t he hands of
privat e sect or, t he St at e has int roduced
regulat ory regim e as well by providing
regulat ions under t he relevant st at ut es."
16. From t he j udgm ent s referred t o above, m ore
part icularly para 86 of t he j udgm ent in Modern Dent al
College ( supra) , it is apparent t hat profit eering and
com m ercialisat ion of educat ion by privat e educat ional
inst it ut ions is im perm issible and St at e has been
assigned t he t ask of prevent ing exploit at ion of
st udent s/ parent s for com m ercial gain by privat e
educat ional inst it ut ions. Thus, t he cont ent ion raised on
behalf of pet it ioners t hat St at e has no aut horit y t o
int erm eddle in t he int ernal affairs of pet it ioner- schools,
cannot be accept ed. The source of power for issuing
im pugned Governm ent Orders can be t raced t o Art icle
162 of t he Const it ut ion. During Lockdown, when
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Schools were com plet ely closed or during t he period,
when inst ruct ions were im part ed virt ually t o st udent s
residing at t heir hom es wit h parent s or guardian, as t he
case m ay be, and no facilit y was provided t o t hem by
t he schools, yet fee was charged from t hem under
various heads, St at e Governm ent int ervened by
providing t hat Schools can dem and Tuit ion Fee and no
ot her Fee from t he st udent s. The int erference by t he
St at e Governm ent cannot be said t o be unj ust or
illegal. Schools can charge Fee/ charges only in lieu of
services like Host el, Cat ering, Laundry et c. provided t o
t he st udent s. Wit hout providing t hese services, School
Managem ent was not j ust ified in dem anding Fee for
services, which are provided only when t he School runs
in physical m ode and st udent s reside in t he host el. The
execut ive power of t he St at e under Art icle 162 of t he
Const it ut ion ext ends t o fram ing policy and issuing
direct ions in public int erest . The im pugned
Governm ent Orders are referable t o Art icle 162 of t he
Const it ut ion, which is t he source of power, t herefore,
t he cont ent ion raised t hat t hese Governm ent Orders
are wit hout any aut horit y of law, cannot be accept ed.
17. Learned counsel for t he pet it ioners placed
heavy reliance upon t he j udgm ent rendered by Hon'ble
Suprem e Court in t he case of " I ndian Schools, Jodhpur
& anot her Vs. St at e of Raj ast han & ot hers" , report ed in
( 2021) 10 SCC 517. I n t he said case, privat e unaided
schools of St at e of Raj ast han had challenged t he
int erference m ade by Raj ast han Governm ent in t heir
fee st ruct ure. St at e of Raj ast han had enact ed a Law,
nam ely, Raj ast han School ( Regulat ion of Fee) Act ,
2016, which enabled t he St at e Governm ent t o regulat e
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fee st ruct ure of privat e unaided schools. Validit y of t he
said Act was unsuccessfully challenged by cert ain
schools before High Court of Raj ast han and t he m at t er
was t hen t aken up before Hon'ble Suprem e Court .
Hon'ble Suprem e Court held t hat High Court right ly
concluded t hat provisions of 2016 Act as well as 2017
Rules are int ra vires t he Const it ut ion of I ndia and not
violat ive of Art icle 13 t o 19( 1) ( g) of t he Const it ut ion.
18. Since t he execut ive power available t o a
St at e ext ends t o t he field of Legislat ion provided t o t he
St at e Legislat ure by I ndian Const it ut ion, t herefore,
view t aken in t he case of I ndian School Jodhpur ( supra)
is a com plet e answer t o t he challenge t hrown by
pet it ioner t o t he com pet ence of St at e Governm ent t o
issue t he im pugned governm ent orders. I n paragraph
no. 20 of t he aforesaid j udgm ent rendered in t he case
of I ndian School Jodhpur ( supra) , Hon'ble Suprem e
Court aft er considering t he view expressed in t he case
of T.M.A. Pai Foundat ion ( supra) has held t hat t hough
t he fee can be fixed by educat ional inst it ut ions and it
m ay vary from inst it ut ion t o inst it ut ion, depending
upon t he qualit y of educat ion provided, however,
com m ercialisat ion is not perm issible; and in order t o
ensure t hat t he educat ional inst it ut ions are not
indulging in com m ercialisat ion and exploit at ion, t he
Governm ent is equipped wit h necessary powers t o t ake
regulat ory m easures and t o ensure t hat t he privat e
unaided schools play vit al and pivot al role in spreading
educat ion and not in m aking m oney. I t was furt her held
t hat when it com es t o t he not ice of t he Governm ent
t hat t he inst it ut ion was charging fee or ot her charges
which are excessive, it has com plet e aut horit y coupled
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wit h a dut y t o issue direct ions t o such an inst it ut ion t o
reduce t he sam e so as t o avoid profit eering and
com m ercialisat ion. Paragraph no.137 of t he j udgm ent
rendered in t he case of I ndian School Jodhpur ( supra)
is ext ract ed below: -
"1 3 7 . I n law, t he school m anagem ent cannot be
heard t o collect fees in respect of act ivit ies and
facilit ies which are, in fact , not provided t o or
availed by it s st udent s due t o circum st ances
beyond t heir cont r ol. Dem anding fees even in
respect of overheads on such act ivit ies would be
not hing short of indulging in profit eering and
com m ercialisat ion. I t is a well- known fact and
j udicial not ice can also be t aken t hat , due t o
com plet e lockdown t he schools were not allowed
t o open for subst ant ially long period during t he
academ ic year 2020- 21. Result ant ly, t he school
m anagem ent m ust have saved overheads and
recurring cost on various it em s such as
pet rol/ diesel, elect ricit y, m aint enance cost , wat er
charges, st at ionery charges, et c. I ndeed,
overheads and operat ional cost so saved would be
not hing, but an am ount undeservedly earned by
t he school wit hout offering such facilit ies t o t he
st udent s dur ing t he relevant period. Being fee, t he
principle of quid pro quo m ust com e int o play.
However, no accurat e ( fact ual) em pir ical dat a has
been furnished by eit her side about t he ext ent t o
which such saving has been or could have been
m ade or benefit derived by t he school
m anagem ent . Wit hout insist ing for m at hem at ical
exact it ude approach, we would assum e t hat t he
school m anagem ent ( s) m ust have saved around
15% of t he annual school fees fixed by t he
school/ adj udicat ed by t he st at ut or y regulat ory
aut horit ies for t he relevant period."
19. The reliance by pet it ioner on t he j udgm ent
rendered in t he case of I ndian School Jodhpur ( supra)
is m isplaced for yet anot her reason, nam ely, in t he said
case Hon'ble Suprem e Court was dealing wit h t he
orders issued by St at e of Raj ast han regarding
deferm ent of collect ion of school fee, including
reduct ion of fee. The observat ions m ade by Hon'ble
Suprem e Court in paragraph no. 117 are in t he fact s
and circum st ances of t hat case, as is apparent from
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paragraph nos. 99 and 104 of t he said j udgm ent , which
are reproduced below: -
" 9 9 . Anot her writ t en subm ission filed for t he
int ervener, Mr Charanpal Singh Bagri, claim ing
t o be parent in a pr ivat e school in t he St at e of
Punj ab. He has raised several issues including
t he quest ions pert aining t o t he m at t ers
concerning t he schools in t he St at e of Punj ab
which are sub j udice. I n our opinion, it is not
necessary t o dilat e on t his writ t en subm ission
as t he present appeals pert ain t o t he issues
concerning t he privat e unaided schools in t he
St at e of Raj ast han governed by t he 2016 Act
and t he Rules fram ed t hereunder. I t will be
open t o t he int ervener t o pursue all t he point s
raised in t he w rit t en subm ission in t he
proceedings pending in t he High Court or t his
Court concerning t he privat e schools in t he
St at e of Punj ab. We m ay not be underst ood t o
have expressed any opinion in t hat regard.
1 0 4 . At t he out set , in t his j udgm ent we
consciously opt t o lim it our analysis t o t he
challenge/ grounds concerning t he legalit y and
j ust ness of t he order dat ed 28- 10- 2020 issued
by t he Direct or, Secondary Educat ion
concerning pr ivat e unaided schools in t he St at e
of Raj ast han and as applicable t o t he academ ic
year 2020- 21 only. We do not wish t o advert t o
or analyse any ot her issue raised by t he part ies
and we m ay not be underst ood t o have
expressed any opinion eit her way in t hat
regard."
20. From t he aforesaid discussion, it is apparent
t hat challenge by pet it ioners t o t he Governm ent Orders
dat ed 15.01.2021 and 23.03.2021 is wit hout any force.
St at e Governm ent was well wit hin it s right t o issue t he
orders, in exercise of it s power under Art icle 162 of t he
Const it ut ion. I n view of t he em ergent sit uat ion, which
had arisen due t o Covid- 19 Pandem ic and t he lockdown
im posed consequent t heret o, St at e Governm ent was
j ust ified in issuing necessary direct ions t o t he privat e
unaided resident ial schools not t o charge fee for
services, which were not availed of by t he st udent s
during t he period when t he school/ host el were closed
and classes were conduct ed online.
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21. I n such view of t he m at t er, t he writ pet it ions
fail and are dism issed. No order as t o cost s.
___________________
M AN OJ KUM AR TI W ARI , J.
___________________
PAN KAJ PUROH I T, J.
Aswal
