Sunil Samdaria And Ors vs State Government Of Rajasthan And Ors

The brief facts given rise to these matters are that the State Government of Rajasthan in the wake of COVID-19 pandemic, vide its order dated

09.04.2020, deferred the collection of school fees for 3 months by the private schools recognized by Primary and Secondary Education Departments.

Subsequently, vide order dated 07.07.2020, the above deferment of collection of fees was extended till the opening of the schools with the stipulation

that the name of any student shall not be struck off for non-payment of school fees.

Above orders of the State Government were challenged by way of S.B. Civil Writ Petition No. 7564/2020; Society of Catholic Education Rajasthan

Vs. State Government of Rajasthan And Anr., SBCWP No. 8835/2020; NISA Education And Anr. Vs. State of Rajasthan And Anr., SBCWP No.

8826/2020; School Shiksha Pariwar Sanstha and Anr. Vs. The State Government of Rajasthan and Anr., SBCWP No. 7609/2020; Progressive

Schools Association vs. State of Rajasthan And Anr. S.B. Civil Misc. Stay applications filed in the above SB Civil Writ Petitions were disposed of

vide order dated 07.09.2020 with the directions to the schools' management to allow the students to continue their studies online and allow them to

deposit 70% of the tuition fees element from the total fees being charged for the year. This 70% of the tuition fees was to be deposited for the period

from March 2020 in three installments with the condition that on non-payment of the said fees, student(s) may not be allowed to join online classes but

they shall not be expelled from the school.

Above mentioned Special Appeal Writs came to be filed, challenging above order dated 07.09.2020.

During the course of hearing, on 23.10.2020, Mr. Rajesh Maharshi, Learned Additional Advocate General submitted before the Court that a

committee has been constituted by the State Government for determination of fees to be charged by the private schools for the period of lockdown

imposed due to COVID-19 pandemic and the recommendations of the committee shall be filed on 02.11.2020. On the objections raised on behalf of

the private schools, the State Government was directed to issue necessary directions by 28.10.2020 positively, regarding interim fees which the private

schools shall be allowed to charge subject to final decision in this regard.

In compliance of order dated 23.10.2020, the State Government vide order dated 28.10.2020 issued directions for collection of school fees after

opening of the schools to the tune of 70% of tuition fees by the schools affiliated with the Central Board of Secondary Education and 60% from the

schools affiliated with Rajasthan Board of Secondary Education on the basis of reduction of syllabus by the respective Boards. Before opening of the

schools, it has been directed that the private schools which are conducting online classes shall be entitled to collect 60% of the tuition fees as

Capacity Building Fees"" from the students who are availing the facility of online classes and that too after taking consent of the guardians. Such

Capacity Building Fees shall be collected in equal monthly installments. The order dated 28.10.2020 also contains the process of determination of

tuition fees in terms of Rajasthan Schools (Regulation of Fee) Act, 2016 and under the Rules of 2017 which envisage that separate heads of fees such

as tuition fees, library fees, etc. It has also been directed that the fees prescribed for the last academic session will not be enhanced. The private

schools shall not recover the fees for the facilities which have not been provided by them such as laboratory facilities, sports facilities, extra co-

curricular facilities etc.

On 07.12.2020 in the course of hearing, learned counsel for all the parties arrived at the consensus that looking at the urgency and importance of the

matters and in order for final and expeditious disposal of the same, all the petitions filed regarding collection of school fees by the private schools for

the lockdown period imposed due to COVID-19 pandemic should be decided by the Division Bench and the pleadings in all these petitions may be

taken as complete and all the matters may be posted for final disposal. In view of this consensus, all such pending matters were directed to be listed

before this Bench for final disposal. Learned counsel were required to submit brief written submissions. The applicants who submitted applications for

impleadment were also allowed to file their written submissions.

Contempt petition no. CCP 773/2020, CCP 847/2020, and CCP 864/2020 have been listed but contempt petitions are to be dealt with separately.

Therefore, the contempt petition no. CCP 773/2020 filed for the non-compliance of order dated 07.09.2020 by learned Single Bench be listed before

the Single Bench. Other two contempt petitions no. CCP 847/2020, and CCP 864/2020 be listed before this bench separately.

DBCWP (PIL) 6114/2020, DBCWP (PIL) 8163/2020, DBCWP (PIL) 9263/2020 and DBCWP (PIL) 9857/2020 involve other issues of public

importance also which are to be dealt with separately, therefore, these CWP (PILs) be listed separately.

Learned senior counsel, Mr. A. K. Sharma, appearing on behalf of the respondents in the S.B. Civil Writ petition 11026/2020; Mrinal Singh & ors. Vs.

The State of Rajasthan & ors. submits that this petition has been filed on an entirely different subject matter and the same has been wrongly listed

before this Bench and this petition is to be heard by the Single Bench. Learned counsel appearing on behalf of the petitioner is also in agreement with

the submissions of learned senior counsel. Therefore, this petition be listed before Single Bench.

IA No. 4/2020 has been presented by Mr. M.S. Rathore but at the time of call, none appeared on behalf of the applicant. However, the issues raised

in the application are being considered in the matter. With this observation, the application stands disposed of.

IA No. 3/2020 has been filed by Mr. Muneesh Bhardwaj, who has been allowed to submit his arguments, therefore, his application stands disposed of.

We have heard learned counsel appearing on both the sides in rest of the petitions involving the issue of collection of fees by the private schools, and

perused their written submissions as well as the material available on record.

Mr. Kamlakar Sharma, Senior Advocate assisted by Ms. Alankrita Sharma and other counsel appearing on behalf of the schools' management have

contended that the State Government has no authority to issue directions regarding collection of fees by the private schools. Article 162 of the

Constitution of India does not empower the State Government without making any law on the subject matter. None of the provisions of the Disaster

Management Act, 2005 or the Rajasthan Epidemic Diseases Act, 2020 authorizes the State Government to reduce the quantum of fees to be collected

by the private schools. Section 43 of the Rajasthan Non-Government Educational Institution Act, 1989 provides for making rules regarding school fees

but no provision regarding collection of fees has been made under the Rajasthan Non-Government Educational Institutions (Recognition, Grant in- aid,

and Service Conditions Etc.) Rules, 1993. Thus, all the orders issued by the State Government are without any authority, therefore, liable to be

quashed.

As per Section 22 of the Act of 2005, all orders under Disaster Management Act, 2005 are to be necessarily issued by the Executive Committee and

if such orders are issued by the authority other than the Executive Committee, the same should essentially be authenticated by the State Executive

Committee headed by the Chief Secretary to the State Government under Section 68. In this matter initial order dated 09.04.2020 has been issued

under the directions of the Hon'ble Chief Minister by the Director, Education. Further, orders dated 07.07.2020 and 28.10.2020 have also been issued

by the Director, Education who has no authority to issue such orders under the Disaster Management Act, 2005, and the same have not been duly

authenticated by the State Executive Committee. Thus, without such authentication, these orders are not executable.

It has been further contended that even if for the sake of arguments, all these orders are taken to be issued under the legal authority as a policy

decision, the same are open for judicial review under Article 226 of the Constitution of India. Being arbitrary, unreasonable and violative of the legal

rights available to the private schools, the impugned orders are not tenable.

The State Government has not considered practical situation of most of the schools that they have taken a huge amount of loan to build their

infrastructure, they have to pay regular EMIs to repay the loan amount. They have to maintain their infrastructure and the staff so that the same may

be available on reopening of the schools. The only source to meet out the expenses is by the collection of school fees. All the private schools have to

pay regular salary to their teaching and non-teaching staff. The State Government has prevented the schools' management from expelling any of the

staff during COVID-19 pandemic era or from reducing their salary. Rule 7(f) of the Rajasthan Non-Government Educational Institutions (Recognition,

Grant in-aid, and Service Conditions Etc.) Rules, 1993 also provides for withdrawal of recognition in case the institution fails to make regular payment

of full pay and allowances through an account payee cheque to its employees before 15th of every next month. All the private schools have incurred

extra expenditure for online classes. The State Government vide order dated 28.10.2020 substantially reduced the school fees without considering

above aspects. All the private schools are facing great financial hardship. The only source of income of the private schools is the school fees and due

to substantial reduction in fees it has become impossible for them to meet out the minimum expenditure required for above purposes. Thus, the orders

of the State Government are quite arbitrary, unreasonable and without any sound reasoning.

Though under Right of Children to Free and Compulsory Education Act 2009, the State Government has to reimburse the fees of 25% of such

students who have been admitted to the school under Right of Children to Free and Compulsory Education Act 2009, but in such unprecedented

situation, the State Government should bear all the expenses to be incurred on online education of all the students studying in private schools.

It has been further submitted that in 7 states, the respective High Courts allowed the private schools to collect 100% of tuition fees and in the State of

West Bengal, 80% of the fee amount was allowed. The orders of all the High Courts were challenged before the Hon'ble Supreme Court but Hon'ble

Supreme Court did not grant stay on collection of fees. Thus, the impugned order dated 28.10.2020 is not sustainable which has reduced the school

fees drastically.

The directions issued by the State Government reducing the school fees is in utter violation of the verdict of Hon'ble Supreme Court in the case of

TMA Pai Foundation and Ors. v. State of Karnataka and Ors. [(2002) 8 SCC 481].

It has been further contended that in most of the schools, school fees has been determined in terms of Rajasthan Schools (Regulation of Fee) Act,

2016. There may be a few schools wherein formal determination could not be made strictly in terms of the Act of 2016 but it is with the consent of the

parents otherwise they could have challenged the determination of fees under the Act of 2016.

It has been further submitted that almost all the private schools are running on no profit, no loss basis. They are committed to the cause of society by

imparting quality education. Generally, they do not deprive any student from education for non-payment of fees due to financial crunch. Therefore, if

any student, whose parents are not able to pay the school fees, the concerned private school shall consider his plight sympathetically by full waiver of

fees or by giving due concession in the fees.

This allegation is not correct that the private schools have shown all the fees components as tuition fees. However, the tuition fees can be segregated

or identified from the components published by the schools in previous years.

The private schools are well aware of their duties. They maintain the standard of education, therefore, immediately after imposition of lockdown, they

had no option but to start online education to their students and it could not be a wise step to wait for any formal direction from any authority for such

distance learning.

The restrictions imposed by the State Government for collection of fees are also violative of the fundamental rights enshrined under Article 14 and

19(1)(g) of the Constitution of India.

In view of the above, all the impugned orders issued by the State Government are liable to be quashed and set aside and the private schools should be

allowed to collect the school fees as already determined by them for the previous session of 2019-20. The counsel appearing on behalf of the schools'

management have relied on the following judgments: 2020 SCC Online CAL 1841: Vineet Ruia Vs. Principle Secretary, Department of School

Education, Government of West Bengal & Ors.; SLP (c) Diary No.(S).22811/2020: Association of Schools for the Indian School Certificate West

Bengal Chapter Vs. Vineet Ruia & Ors.: CLP No.2202/2020: Independent Schools' Association Vs. State of Himanchal Pradesh & Anr. decided on

24.08.2020; R/WP (PIL) No.64/2020: Nareshbhai Kanubhai Shah Vs. State of Gujarat & Ors; W.P. No.9293/2020: Nagrik Upbhokyata Margdarshak

Munch & Ors. Vs. State of Madhya Pradesh & Ors.;( 2006) 2 SCC 545: State of Bihar & Ors. Vs. Project Uchcha Vidya Sikshak Sangh & Or;s .;

AIR 1967 SC 1170: State of Madhya Pradesh & Anr. Vs. Thakur Bharat Singh A; . Muthyala and Ors. vs. State of Andhra Pradesh and Ors.

(20.02.2018 - HYHC); Writ Petition (c) No.1040/2020: Bilaspur Private School Management Association Society Vs. State of Chhattisgarh & Ors.;

W.P. (c) No.10867/2020: Sreelekshmi S. Vs. The State of Kerala; WP-ASDB-LD-VC-100/2020: Association of Indian School & Anr. Vs. State of

Maharashtra & Ors.; Writ Petition No.8025/2020: Association of Unaided CBSE Schools Vs. The State of Madhya Pradesh & Ors.; C.W.P.

No.7409/2020(O&M): Independent Schools Association Chandigarh (Regd.) & Ors. Vs. State of Punjab & Ors.2;0 20 SCC Online Delhi 568: Rajat

Vats Vs. Gov. of NCT of Delhi; W.P. (C) No.2993/2020: Naresh Kumar Vs. Director of Education & Anr.; AIR 1951 SC 118: Chintaman Rao Vs.

State of Madhya Pradesh; AIR 1952 SC 1961: State of Madras Vs. V.G. Row; WP No. 14032/2020: Gopinath vs. State of Tamil Nadu (Madras High

Court); ; (2007) 2 SCC 230: Raghunath Rai Bareja & Anr. Vs. Punjab National Bank & Or;s (2011) 4 SCC 266: B. Premanand & Ors. Vs. Mohan

Koikal & Ors; DB.C.W.P. No.5080/2017: Mayur Public Secondary School Vs. State of Rajasthan & Ors; DB.C.W.P. No.8907/2016: Society for Un-

aided Private Schools of Rajasthan, Jaipur Vs. State of Rajasthan & Ors.;( 2012) 6 SCC 1: Society for Unaided Private Schools of Rajasthan Vs.

Union of India & Anr, ., (2014) 8 SCC 1: Parmati Educational and Cultural Trust (Regd.) & Ors. Vs. Union of India & Ors., (2002) 8 SCC 481; TMA

Pai Foundation & Ors. Vs. State of Karnataka & Ors,. (2005)6 SCC 537: P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors; .(2004)5 SCC 583:

Modern School Vs. Union of India & Ors. Mr. Rajesh Maharsh, iLearned AAG has submitted that initially in the wake of COVID-19 pandemic, the

State Government vide order dated 09.04.2020, deferred collection of school fees for 3 months which was further extended till opening of the schools

vide subsequent order dated 07.07.2020. Afterwards, in compliance of directions of this Hon'ble Court, a committee was constituted and on due

consideration of all the aspects, order dated 28.10.2020 has been issued for collection of school fees. He further submits that if the directions

contained in the order dated 28.10.2020 are not acceptable either to the schools' management or to the parents, they may take recourse to the

mechanism of determination of school fees as per provisions of Rajasthan Schools (Regulation of Fee) Act, 2016 and Rajasthan Schools (Regulation

of Fee) Rules, 2017.

Above directions have been issued under the powers conferred on the State Government under Sections 38, 39, 72 and 73 of the Disaster

Management Act, 2005. The act of 2005 has an overriding effect on all other statutes. In addition, Section 4(2)(g) of the Rajasthan Epidemic Diseases

Act 2020, empowers the State Government to regulate functioning of the educational institutions which obviously covers the aspect of collection of

fees during the pandemic. Further, Article 162 of the Constitution of India also empowers the State Government to use its executive power for issuing

directions regarding collection of school fees during the period of COVID-19 pandemic. Therefore, it is not correct to say that the orders issued by the

State Government are without any authority.

While issuing above directions regarding collection of school fees in the wake of COVID-19 pandemic, the State Government has tried to strike out a

balance between the hardships of schools' managements and parents. Moreover, in case any of the party is not satisfied with the directions of the

State Government, an alternative mechanism has been suggested for determination of fees in terms of the Act of 2016 and the Rules of 2017. In this

alternative process either party shall be free to adopt the directions of the State Government or they may vary the fee as per provisions of the Act of

2016. He has placed reliance on AIR 1955 SC 54: Rai Sahib Ram Jawaya Kapoor & Ors. Vs. State of Punja; b(1999) 6 SCC 247: Indian Drugs &

Pharma & Ors. Vs. Punjab Drugs Manufactures Association & Ors;. ; 2007 (2) CTC 207: S. Bagavathy Vs. State of Tamil Nadu & Ors;. (2011) 3

SCC 73: K.K. Baskaran Vs. State Rep. by its Secretary, Tamil Nadu & Ors.; (2001) 2 GLR 1394: Bipinchandra J. Divan & Ors. Vs. State of Gujarat

& Ors.; W.P. No.11168/2010: Ka. Kalai Kottu Thaya Vs. State of Tamil Nadu & Ors.; ; (2002) 8 SCC 481: TMA Pai Foundation & Ors. Vs. State

of Karnataka & Ors..

Learned counsel appearing on behalf of the parents have submitted that the State Government has got every power to mitigate the hardships of its

citizens under various legal provisions referred to by the Learned AAG. It has been further submitted that during this period, the students are not

physically appearing in the school. Only with the object to collect money from the students and for undue enrichment thereby, the schools'

management have adopted via media of online education without any guidelines of any competent authority. Most of these schools began online

education only after three to four months from the complete lockdown. Most of the schools of rural areas have not started online education so far for

want of broadband facility. In most of the schools, the school fees has not been determined by following the procedure as envisaged under Rajasthan

Schools (Regulation of Fee) Act 2016 and Rajasthan Schools (Regulation of Fee) Rules 2017.

In order to collect more and more money the Schools' Management have not separately specified the tuition fees and they have included the fees of

all heads in one head and thus, they are collecting the fees in violation of directions of the State Government which is not fair on their part.

Most of the schools have expelled their teaching and non- teaching staff and they are not paying salary in full. In online education, the staff is not

required to remain present for the whole day and they are working from home, that too for limited hours. Nothing substantial has been incurred by the

schools' management for such online classes, on the other hand, the parents have to provide technological infrastructure vis laptops, broadband facility,

smartphones, etc. separately for each of their wards.

The financial condition of schools' management and the parents cannot be equated with each other. It has great difference. Majority of the parents

have become jobless in the lockdown period and even thereafter.

Thus, in view of unfair steps on the part of schools' management by not bifurcating the element of tuition fees and adapting via media of online classes

without any authority, they are not entitled for any tuition fees. At the most, in case they are imparting online education, they may be allowed to collect

only 30% of tuition fees. The learned counsel for the parents have relied on the following judgments: W.P. No.24310-24315/19:P. Sridhanya & Ors.

Vs. State of Karnataka & Ors.; J.T. 2001 (1) SC 287: Rajasthan High Courts Advocates Association Vs. Union of India & Anr;. (2004) 2 SCC 76:

Ram Rao & Ors. Vs. All India Backward Class Bank Employees Welfare Associatio;n (2010) 12 SCC 204: Public Service Commission Uttaranchal

Vs. Mamta Bisht & Ors.; DB C.W.P. No.5080/2017: Mayur Public Secondary School Vs. State of Rajasthan & Ors.(;2 005) 6 SCC 53: P.A.

Inamdar & Ors. Vs. State of Maharashtra & Ors.; W.P. (c) No.500/2020: Ficus Pax Private Ltd. & Ors. Vs. Union of India & Ors.;

The submissions put forth of individual applicants that is parents, schools, teachers are covered in the above submissions therefore need not to repeat

the same.

We have considered rival submissions of respective parties and perused the record and the judgments cited above.

Before adverting to the legal aspects of the matter it is appropriate to note that an unforeseen and unprecedented situation arose due to COVID-19

pandemic across the world. For containment of the pandemic so many restrictions have been imposed including complete lockdown. In such a

situation, the business of the public at large has been badly affected. Almost all the citizens have been facing acute financial hardships. In such

peculiar circumstances the Central Government as well as the State Government have issued necessary directions for mitigating the plight of the

citizens including parents who are finding it difficult to pay the school fees of their ward in such a great financial hardship being faced by them.

It is well settled legal position that if a policy decision is taken by the state government in exercise of the powers conferred upon it by the Constitution

of India or under any statue, the same shouldn't be interfered by the courts by replacing its own decision as an appellate body unless in judicial review

such policy decision is found to be arbitrary, unreasonable or violative of the fundamental rights of the citizens.

In view of the rival contentions regarding authority of the state government the provisions of Article 162 of the Constitution of India are relevant,

which reads as under:

Extent of executive power of State: Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with

respect to which the Legislature of the State has power to make laws. Provided that in any matter with respect to which the Legislature of a State

and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly

conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof Council of Ministers.

The scope of the executive powers of the State Government was challenged before the Hon'ble Supreme Court on various occasions and in the case

of Union of India vs. Mool Chand Khairati Ram Trust [(2018) 8 SCC 321], it was held that:-

We are of the considered opinion that there was no necessity (Downloadedof enacting on 18/12/2020 a PM) at 10:40:20 law, as the policy/rules under

which the land has been obtained, the hospitals were obligated to render free treatment as the land was allotted to them for earning no profit and held

in trust for public good. Similar is the provision in the 1981 rules and apart from that the regulations framed by the Medical Council of India also

enjoins upon the medical profession to extend such help and in view of the object of the hospitals, trust and missionaries it is apparent that there was

no necessity of any legislation and the Government was competent to enforce in the circumstances, the contractual and statutory liability and on

common law basis.

In The Secretary, A.P.D. Jain Pathshala and Ors. vs. Shivaji Bhagwat More and Ors. [(2011) 13 SCC 99, ]it was held that the scope of Article 162 is

wide enough to allow the State to issue administrative directions even if there was no enactment covering a particular aspect, until the legislation

makes law on a particular subject.

In view of the above legal position, it is not correct to say that the State Government has got no power under Article 162 to issue directions in such

unforeseen and unprecedented situation that has arisen due to outbreak of COVID-19 pandemic.

Admittedly, COVID-19 pandemic has been notified to be a disaster and under the Disaster Management Act, 2005, the State Government has power

to mitigate the risk, impact or effects of a disaster. Accordingly, the Central Government as well as the State Government have taken necessary steps

for the containment of COVID-19 pandemic by imposing lockdown and various restrictions in exercising the powers vested in them.

The Learned counsel appearing on behalf of Schools' management have themselves referred to the judgments of various High Courts allowing the

states to collect the fees in restricted manner and the collection of fees has not been stayed by Hon'ble Supreme Court. All these concerned states

have imposed restrictions on school fees in the wake of COVID-19 pandemic. Thus, the power of the State Government has been approved in above

cases.

In view of the above, the contention of the Schools' management regarding authority of the State Government is not tenable.

Though all the orders dated 09.04.2020, 07.07.2020 and 28.10.2020 have been issued by the Director, Education and not by the State Executive

Committee as prescribed under Section 22 of the Disaster Management Act, 2005 and the same have not been formally authenticated by the State

Executive Committee but all the impugned orders have been filed before the Court on behalf of the State Government and it is not so that the Chief

Secretary or the State Government has not approved the impugned orders or the same have been issued by the Director, Education in this regard to

the authority of the State Government, therefore, only for want of such formal authentication, the orders cannot be termed as in-executable or invalid.

Though the relevant provisions of law, have not been mentioned in the impugned orders but as discussed above the state government has been found

to be empowered to issue the impugned orders, therefore, the same would not become invalid Learned counsel appearing on behalf of the Schools'

management have also challenged the impugned orders on the ground that the same are arbitrary, unreasonable and violating the fundamental rights of

the private schools.

Initially, the State Government deferred the collection of school fees for 3 months vide order dated 09.04.2020. Since in the beginning of pandemic,

complete lockdown was imposed resulting the business and other economic activities at halt, this step for deferment of collection of school fees for 3

months appears to be need of the hour, thinking that the crisis will be over by then but the crisis persisted and accordingly the deferment was further

extended till opening of the schools.

Though the State Government could utilize the initial period of three months for issuing appropriate directions for collection of school fees for the

period in which the schools had to remain closed due to COVID-19 pandemic but in above critical situation it cannot be inferred that the State

Government willfully did not perform its duties.

On bare perusal of order dated 28.10.2020, it is apparent that the State Government has taken care of all the ground realities and has tried to strike a

balance between the interests of private schools as well as of parents and students. After opening of the schools, the fees has been reduced to 70%

and 60% of the tuition fees on the basis of reduction in syllabus by respective Education Boards. Before opening of the schools i.e. for the period in

which the schools remained closed, 60% of tuition fees has been directed to be collected as ""Capacity Building Fees"" only from those students who

have availed the facility of online classes.

It is true that in normal situation the private schools are entitled for collection of school fees as per the provisions of the act of 2016 but as discussed

above provisions of the Disaster Management Act, 2005 have overriding effect on all other statues and the impugned orders have been found to be

issued under the act of 2005 for mitigating the plight of the citizens in unprecedented crises of the COVID-19 Pandemic. Therefore, the impugned

orders can't be termed as invalid or inexecutable.

As indicated above, the State Government has prohibited the private schools from increasing the fees from the previous session and from collecting

the fees for the facilities which they have not provided.

Obviously, the Schools' management are not required to incur same expenditure on upkeep of the school building, electricity charges and on other

facilities. The teachers are also working from home for lesser period than physical classes. In these peculiar circumstances, it cannot be said that the

directions issued vide order dated 28.10.2020 are arbitrary, unreasonable or biased in nature, more particularly when the State Government has itself

suggested alternative mechanism to the private schools and the parents to adopt the recourse as envisaged under the Rajasthan Schools (Regulation of

Fee) Act, 2016 and under the Rules of 2017.

It is true that the private schools have to maintain their infrastructure and to keep their teaching and non-teaching staff intact to run the institution after

opening of the schools but it is also equally considerable fact that during complete lockdown period and afterwards most of the parents have lost their

jobs and they are also finding it very difficult to run their family. Therefore, the directions issued vide order dated 28.10.2020 appears to be a bonafide

step taken by the State Government by making balance between the school management and the parents.

A well-defined mechanism is in place in the Act of 2016 and the Rules of 2017 for determination of the school fees and in case the parents or the

schools' management are aggrieved to such determination, they may take recourse of appeal/reference before the Divisional Level Committee and

before the State Level Revision Committee thereafter. Thus, the interest of both the sides are well protected as per the policy decision taken by the

State Government in this regard.

During the course of hearing, the territorial jurisdiction of this Court was challenged by saying that the Progressive School Association consists only

the schools situated in the territorial jurisdiction of the Principal Seat, Jodhpur but it has gone un- rebutted that some of the schools of this association

are also situated in the territorial jurisdiction of this bench hence, this objection is not maintainable.

Though the allegation of merging all the heads of school fees into one head of ""School Fee"" has been denied but if it is so then it is unfair on the part of

the school management, therefore, they are being directed to publish on their website the components of the fees that will be charged from the

parents.

If some schools have expelled the staff or they have reduced their salary during the period of pandemic, they are being directed to publish the strength

and salary paid to the staff during the pandemic period in the process of special determination of the fees in terms of the Act of 2016 which takes care

of the apprehension of staff.

It has been submitted by learned counsel Mr. Mahendra Shandilya and Mr. Anshuman Saxena that the students of the pre- primary classes have not

been included for the purpose of concession in school fees by the State Government but as clearly indicated in the orders issued by the State

Government that these directions are applicable on all the private schools recognized by the primary and secondary education department of the State

Government. Primary education necessarily includes pre-primary classes which are conducted in the schools recognized by the primary education

department. Therefore, all these directions are mutatis-mutandis applicable for the students of pre-primary classes also.

It has also been contented by the schools' management and the parents that the impugned order dated 28.10.2020 has been issued without giving

opportunity of hearing to them. That the impugned directions have been issued for all the schools situated in the state but they have not been given

opportunity to put forth their stand and therefore the order is liable to be quashed for violation of the principles of natural justice.

It is sufficed to say for the above contention that the state government is empowered to take policy decision and issue necessary executive directions

for mitigation of the plight of the citizens under Disaster Management Act, 2005 and it is not obliged to consult the affected parties before issuing such

directions and while issuing impugned directions, it is not feasible to give opportunity of hearing to all the schools and parents. Thus, the above

contention is not tenable in law.

During the period of complete lockdown and afterwards the employees of state government and private sector have to work from home, therefore, it

is not correct to say that the private schools have committed some wrong in imparting online education without any formal guideline particularly when

the same education is being imparted online which was to be imparted in physical presence.

It is true that the Article 21-A of India, guarantees compulsory and free education for the children till the age of 14 years and accordingly under Right

of Children to Free and Compulsory Education Act, 2009, the state government is obliged to reimburse 25% of school fees of the students whose

parents are not able to pay the school fees. The validity of the Right of Children to Free and Compulsory Education Act, 2009, is not in question in

these matters therefore, it cannot be held that the state government is obliged to bear the financial burden of school fee of all the students irrespective

of the fact that parents are capable of paying the school fee or not.

It has been contented by parents and staff members that some schools have expelled their staff and they have released their salary but Rule 7(f) of

the Rajasthan Non-Government Educational Institutions (Recognition, Grant in-aid, and Service Conditions Etc.) Rules, 1993 is in place to protect the

services of staff and the impugned direction takes care of their services and payment of the salaries. Besides this, the important directions of the state

government also covers all aspects related to schools and parents.

The State Government has issued directions of reducing the school fees in unprecedented situation of COVID-19 pandemic, therefore, it cannot be

said that such directions are violative to the verdict of Hon'ble Supreme Court in T.M.A Pai case (supra) in as much as in view of the T.M.A Pai's

case Hon'ble Supreme Court has not prohibited the appropriate Government from issuing any directions regarding collection of school fees in such

unprecedented situation particularly when such directions are issued in exercise of the powers given under Disaster Management Act 2005.

The legal position as expounded in the above cited judgments cannot be questioned but in none of the judgments it has been held that the Central

Government or the State Government have no power to issue necessary directions to mitigate the plight of the citizens in such an unprecedented crisis.

It is true that different amount of fees has been allowed to be collected in different states and the State Government of Rajasthan has substantially

reduced the school fees in comparison to other states but as indicated above the State of Rajasthan has also suggested alternative mechanism for

collection of fees and accordingly the private schools and parents are being given opportunity for determination of the fees in terms of the provisions

of Rajasthan (Regulation of Fees) Act, 2016 and Rajasthan (Regulation of Fees) Rules of 2017 and in case the school management or the parents are

not satisfied with the directions of the State Government they would be at liberty to adopt the mechanism of determination of fees as envisaged under

Rajasthan (Regulation of Fees) Act, 2016 and in this process both the school management and the parents association may agree to the directions of

the State Government or they may increase or decrease the school fees to be levied in the current session of 2020-21. Thus, in view of the

unprecedented and peculiar situation, the directions issued by the State Government and the suggested alternative mechanism for collection of fees

cannot be held as violative to the judgments cited above.

Thus, as discussed above, all the impugned orders and the alternative mechanism suggested by the State Government during the course of hearing

have not been found to be without competence and authority. In the wake of unprecedented situation of COVID-19 pandemic, the State Government

has taken necessary steps in due exercise of its powers in order to mitigate plights of the citizens. No bias or any sort of partiality or unfairness can be

imputed on the part of the State Government as it has tried to strike the balance between the schools' management and the parents, thus, no case is

made out for interference by this Court into the above policy decisions of the State Government.

In view of the above discussion, the rest of the petitions are disposed of as under:-

I. All the private schools recognized by the Primary and Secondary Education Department shall be entitled to collect school fees from the parents of

their students including the students of pre-primary classes in terms of the order dated 28.10.2020 issued by the State Government subject to special

determination of fees as being directed hereunder.

II. All the private schools are directed to form necessary bodies required for special determination of fees within 15 days, if such bodies have not been

constituted so far in terms of Rajasthan Schools (Regulation of Fee) Act 2016, and Rajasthan Schools (Regulation of Fee) Rules 2017.

III. In order to safeguard the interests of the schools' management and the parents, it is further directed that all the private schools recognized by the

Primary and Secondary School Education Department shall specially determine the school fees for the period in which schools remained closed due to

COVID-19 pandemic and after opening of the schools in the Session 2020- 2021 in terms of the provisions of Section 8 of Rajasthan Schools

(Regulation of Fee) Act, 2016 and for this purpose all the schools shall publish necessary details including the strength and salary paid to the staff

during the period in which the schools remained closed for such special determination on their notice boards as well as on their websites. This special

determination of school fees shall be completed within two months from the date of order positively.

IV. With the object to prevent any unfair practice of collection of fees in the process of this special determination of fees the component of tuition

fees shall be specifically determined and for that purpose, all heads of the school fees shall be bifurcated as mandated under Section 6 (4) of the Act

of 2016.

V. Besides this, the schools' management or the parents may take recourse of the provision of appeal/reference before Divisional Fee Regulatory

Committee/Revision Committee, as the case may be in case any of them are aggrieved of such special determination.

Needless to say, that in the process of above special determination of school fees, it will be open for the schools' management and the parents to

determine the fees in consonance with the directions contained in order dated 28.10.2020 or they may increase or decrease the fees to be collected

for the current session.

VI. The interim order dated 07.09.2020 passed by learned Single Judge stands vacated.