[Covid-19] State empowered under Disaster Management Act to reduce school fees: Rajasthan High Court [Read Order]

The Rajasthan High Court on Friday upheld the State Government's October 28 order on the issue of levy of partial school fees for the period of the COVID-19 pandemic, opining that the same appeared to be a bonafide step taken by the State Government by making a balance between the school management and the parents..Pertinently, the October 28 Government Order had provided for the following aspects:.CBSE schools may collect 70% of the tuition feels after reopeningSchools affiiliated to the Rajasthan Board of Secondary Education may collect 60% of the fee after reopening. Before reopening, private schools conducting online classes would be entitled to collect 60% of the tuition fee as capacity building fee from students availing the online classes, after taking the consent of the guardians.The capacity building fee should be collected in equal monthly installments. The process of determination of tuition fees would be in terms of the Rajasthan Schools (Regulation of Fee) Act, 2016 and under the Rules of 2017 which envisage separate heads of fees such as tuition fees, library fees, etc. The fee 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..A Division Bench of Chief Justice Indrajit Mahanty and Justice Satish Kumar Sharma upheld this order, dismissing contentions by various schools that the State was not authorised to reduce the fee in this manner. The Bench held that the State is empowered under Article 162 to issue such directions amid the unforeseen and unprecedented COVID-19 situation. .Such powers are also traceable to the Disaster Management Act, 2005 which clothes the State with powers to mitigate the risk, impact of effects of a disaster, the Court said.."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 ... 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", reads the order..Furthermore, it was also noted that various High Courts have also allowed States to collect fees in a restricted manner in the wake of the pandemic, thereby approving the State's power in such matters. .An objection that the State's orders in the matter were not formally authenticated by the State's Executive Committee was also overruled, with the Court observing that "only for want of such formal authentication, the orders cannot be termed as in-executable or invalid.".The Bench proceeded to express that the State's October 28 order shows that the 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. Therefore, the same was upheld. .A challenge to holding online classes without there being any formal guidelines, was also rejected by the Court."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," the Court said. .In view of certain other concerns raised during the hearing, the Court also issued the following directions:Schools are directed to publish on their website the components of the fees that will be charged from the parents.If schools have expelled staff or reduced their salary during the period of pandemic, they are 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.Primary education necessarily includes pre-primary classes which are conducted in the schools recognized by the primary education department. Therefore, all directions are also applicable for the students of pre-primary classes.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 October 28 issued by the State Government.The validity of the Right of Children to Free and Compulsory Education Act, 2009, is not in question. 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.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..On how the fees payable upon re-opening may be determined, the Court clarified: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, after the opening of such schools in the session 2020- 2021, in terms of the provisions of Section 8 of Rajasthan Schools (Regulation of Fee) Act, 2016. 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 on their notice boards as well as on their websites. This special determination of school fees shall be completed within two months.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 the Rajasthan Schools (Regulation of Fee) Rules 2017.With the object of preventing 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. All heads of the school fees shall be bifurcated as mandated under Section 6 (4) of the Act of 2016.The schools’ management or the parents may take recourse to the provision of appeal/reference before Divisional Fee Regulatory Committee/Revision Committee, as the case may be, in case any of them are aggrieved by such special determination.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 October 28 order or they may increase or decrease the fees to be collected for the current session..[Read order]