Del HC | Schools imparting online education cannot be treated as “closed”: Petition for directing private unaided schools to not charge tuition fee rejected

Delhi High Court: A Division Bench of D.N. Patel, CJ and C. Hari Shankar, J. dismissed a writ petition that sought modification of the Order dated 17-4-2020 issued by the Directorate of Education, Delhi (“DoE”), and direction to the schools not to charge the tuition fees from the students keeping in view the present situation of COVID 19 at least for the lockdown period in the interest of justice.

Backdrop & issue

Notably, in its Order dated 17-4-2020, the DoE took stock of the emergent situation that has arisen as a result of the COVID-19 pandemic, as well as of the precautionary and restrictive measures imposed, by the Central and State government, to contain its spread, including the imposition of lockdown. While appreciating the efforts of private unaided schools in providing online education to students, the DoE took note of certain malpractices indulged in by some schools and it issued certain directions. Of these, the petitioner claimed to be aggrieved by the first direction whereby schools have been interdicted from charging any fee, except tuition fee, from parents. The petitioner complains against this exception. The writ petition, therefore, prayed that this exception be done away with, and the impugned Order dated 17-4-2020, be consequently modified, by granting complete exemption from payment of any fee, including tuition fee, at least for the period during which the presently existing lockdown continues to be in place. In the alternative, the writ petition prayed that the impugned Order dated 17-4-2020, be modified to the extent that tuition fees be charged “after an appropriate and reasonable time from the reopening of the schools”.

Decision & discussion

Rule 165 of Delhi School Education Rules

Dr N. Pradeep Sharma, Advocate for the petitioner, relied on the first proviso of Rule 165 of the Delhi School Education Rules, 1973, which, in a case in which the school is closed on the 10th day of the month (by which date fees are payable), defers the requirement of payment of fees to the date following the 10th day on which the school reopens. Schools, being presently closed, the petitioner sought to rely on this proviso to submit that tuition fees cannot be charged by schools, during the period of such closure.

Disagreeing, the High Court was of the opinion that so long as education is being imparted online, and students are availing the benefit thereof, schools cannot be treated as “closed”, so as to disentitle them from charging tuition fees. It was observed that ex facie, the first proviso merely defers the stage of payment, of school fees, in such cases, to the appropriate time, when such payment would become possible, and no more. Rule 165 does not deal with the chargeability of tuition fees, but only with the payability thereof. The Court held:

“Rule 165 cannot be pressed into service to seek exemption, from the requirement of payment of tuition fees, for the period during which the schools remain physically closed, and are imparting education through online platforms. Students would be mandatorily required to pay tuition fees during this period, and, in so requiring, we do not find the impugned Order, dated 17th April, 2020, of the DoE, deserving of interference in any manner.” 

Direction re financial hardship clause

Refuting the contention of the petitioner concerning the grounds of financial hardship, Ramesh Singh, Senior Standing Counsel for DoE, submitted that the impugned Order dated 17-4-2020, itself prohibits schools from denying ID and password, to students, for obtaining access to online learning platforms, merely because, “owing to financial crisis arising out of closure of business activities in the ongoing lockdown condition”, the parents of such students are unable to pay school fees. 

As per the High Court this is a wholesome provision. However, its misuse is to be checked. The Court directed that:

“It would be necessary for parents, seeking the benefit of this relief, to establish, to the satisfaction of the school, or the DoE, that, owing to the lockdown, they are, in fact, financially incapacitated from paying school fees.”

Policy decision & ambit of issuing mandamus

Dr Sharma, for the petitioner, then relied on the residual clause of the guidelines framed by the Central Government under the Disaster Management Act and submitted that “necessary relief” in the form of exemption from payment of tuition fees may be directed to be provided. According to the Court, the contention was totally misconceived. It is not for the High Court to arrive at a policy decision, regarding the relief that is to be provided to persons affected by any disaster including the COVID-19 epidemic.

Dr. Sharma further submitted that unaided schools were, in all cases, run by trusts or societies, and, instead of charging fees from students, schools should, during the period of COVID lockdown, source their expenses from the monies available with their parent trusts, or societies. Outrightly rejecting the submission, the Court said:

“It is not possible for this Court to issue any mandamus, directing unaided schools – who, it is trite, received no financial aid from the executive and are, therefore, dependent on fees for their expenses – to delve into the monies available with their parent trusts, or societies, for defraying the expenses involved in payment of salaries, maintenance of their establishment and imparting of online curricular education.”

The Court was of the opinion that the impugned Order dated 17-4-2020 issued by the DoE strikes correct balance between the legitimate concerns of the institutions, and of parents/students, even while safeguarding the interests of parents who may find themselves in impecunious circumstances, owing to the lockdown presently in place, or due to closure of their businesses/establishments. The writ petition was accordingly dismissed. [Naresh Kumar v. Director of Education, WP(C) No. 2993, decided on 24-4-2020] 

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