Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ., stayed the Government Resolution issued by the State of Maharashtra on 8th May, 2020 wherein non-increase of fees for the academic year of 2020-21 was declared in the educational institutions.
Challenge in the present petition
Government Resolution No. Misc-2020/CR33/SM-6 dated 8th May, 2020 issued by the Principal Secretary to the Government of Maharashtra, School Education and Sports Department has been challenged which was in regard to non-increase of fees for the academic year 2020-21 in the educational institutions in the State of Maharashtra.
Further, petitioners have also challenged consequential letters issued by different Education Inspectors and Education Officers of Zilla Parishads calling upon the different schools to comply with the above-mentioned resolution and threatening coercive action in case of non-compliance.
Who are the petitioners?
Petitioners represent private unaided and private unaided minority schools in the State of Maharashtra. Being private educational institutions, they are not dependent on any kind of grant or assistance from the government. The expenses of the respective schools are met from the funds primarily collected from fees.
Government has received complaints that some institutions / schools are compelling the students and parents to pay the fees though as per the above-mentioned Circular, institutions/schools were instructed to collect fees after the lockdown period.
Petitioners contended that according to Section 21 of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 State Government does not confer any power to tamper with the fee neither such power is traceable to Section 26 of the Disaster Management Act, 2005.
Impugned resolution is without jurisdiction.
Court on considering the contentions, was of the view that an issue of considerable significance has been raised by the petitioners and petitioners have made a good case for stay of the impugned government Resolution.
The above-was stated by the bench for the following reasons:
- The 2011 Act has been enacted to provide for the regulation of collection of fee by educational institutions in the State of Maharashtra and for matters connected therewith and incidental thereto.
“Section 21 of the 2011 Act provides general power on the government to issue directions to any educational institution consistent with the provisions of the 2011 Act and the Rules framed thereunder for carrying out the purposes of the 2011 Act or for giving effect to any of the provisions contained therein.”
- Prima facie having regard to the scheme of Section 6, Court was of the view that Section 21 could not have been invoked by the State Government to have issued the impugned Government Resolution.
- Even on perusal of Epidemic Diseases Act, 1897 and the Epidemic Diseases (Amendment) Ordinance, 2020 Court found no such enabling provision empowering the State Government to issue a resolution like the impugned one.
If no source of statutory power for issuance of such a government resolution is discernible or traceable, can it be construed to have been issued in exercise of the executive power of the State under Article 162 of the Constitution?
Referring to Supreme Court’s decision in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, it was held that,
“…right to establish educational institution is a fundamental right guaranteed by Article 19(1)(g) of the Constitution. This right comprises of amongst others the right to set up a reasonable fee structure.”
“…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.”
Thus, Court stays the impugned Government Resolution and having said so, bench also stated that the management of the private unaided schools may consider providing option to the students/ parents to pay the fee in such installments as is considered reasonable and also allow them the parents to pay the fee online.
Matter was listed over to 11-08-2020.[Association of Indian School v. State of Maharashtra, 2020 SCC OnLine Bom 736 , decided on 26-06-2020]