Case BriefsCOVID 19High Courts

“Education is the passport to the future.”

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., while addressing the issue with regard to digital education observed that

“…tuition fee was payable towards imparting education and “not for a lien on a seat”

Schools imparting Synchronous Face-to-face Real-Time Online Education, not as a voluntary service but as a part of their responsibility under the RTE Act, 2009.

DIGITAL DIVIDE

Inequality in education has been around long before Covid-19, but the pandemic has exacerbated the same by adding another strand/element to it, namely, the digital divide.

Reopening of physical classroom

Unparalleled education disruption from the Covid-19 pandemic is far from over, as, despite lapse of nearly six months, the Union of India and the Government of NCT of Delhi are yet to announce a date for reopening of the physical classroom for elementary schools.

Concern in the present petition

The instant Public Interest Litigation was filed seeking a direction to respondents to supply free laptops/android mobile phones/electronic tablets with high-speed internet to children belonging to the Economically Weaker Section (EWS) so that they could attend their classes by way of video conferencing just like fee-paying students in their classes.

During the pendency of the present petition, some other schools also started online classes, the petitioner sought modification in the prayer clause to include children studying in these schools, so that comprehensive orders could be passed under Article 21A of the Constitution of India for all the children other than fee-paying students.

Analysis and Decision

Article 21A of the Constitution imposes an enforceable/justiciable obligation upon the State to provide free and compulsory elementary education to each and every child between the age of six and fourteen in a manner as determined by law.

In pursuance of the above stated constitutional obligation, the Centre enacted the RTE Act, 2009.

Court cited the Supreme Court decision in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, wherein it was held that,

Universal elementary education as a constitutional goal and obligation is a salutary principle and while interpreting the provisions of the RTE Act, 2009, Article 21A has to be the guiding principle.

Supreme Court in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 held that,

“…the Constitution being a living and dynamic document ought to receive a dynamic and pragmatic interpretation that harmonizes and balances competing aims and objectives and promotes attainment of natural goods and objections.”

RTE Act, 2009 is not a historical Act but an ‘always speaking statute’ which intends to achieve social, economic and political equity and human progress over a period of time.

Court observed that,

RTE Act, 2009 is not a static but a living and a dynamic document and it ought to receive a pragmatic interpretation.

Consistent with the legislative intent, an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a drastically changed situation, like Covid-19 pandemic, even if it was not known or visualized by Parliament when the Act was enacted.

Adding to its’ analysis, Court stated that the new National Education Policy, 2020 prepared by the Government of India states that education is fundamental for achieving full human potential, developing an equitable and just society, and promoting national development.

Why the RTE Act, 2009 does not define the word ‘Education’?

Bench in the present matter was of the view that the RTE Act, 2009 intentionally does not define the word Education as it needs to deal with changes in society as well as technological advances, outbreak of diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in advance.

Concept of synchronous face-to-face real-time online education

The concept of Synchronous Face-to-Face Real Time Online Education like any other alternate means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009.

The teaching through online means is in accordance with the RTE Act, 2009 requirements.

Adding to the above, the Court stated that at the present, the neighborhood schools are still open but the physical classrooms are closed and the mode of providing education has changed.

Court is of the view that tuition fees are payable towards imparting education and not for a lien on a seat. Accordingly, the word Education includes Synchronous Face-to-Face Real Time Online Education and respondent schools are estopped from contending to the contrary.

Differential Fee Structure

Section 12(2) of the RTE Act, 2009 unequivocally proves the existence of a differential fee structure amongst private unaided schools and consequently, differential methods/means of dissemination of instructions amongst the private schools.

Further, the Court added that just as private schools are free to adopt the mode of the method of imparting education they feel the most appropriate, the government schools also have similar freedom and flexibility.

There is neither any statutory obligation under the RTE Act, 2009 nor any recommendation by any statutory authority like State Academic Authority that the Synchronous Face-to-Face Real Time Online Education is the only suitable option during a pandemic.

High Court also opined that in view of the geographical location of a school or non-availability of technologically savvy teachers or poor availability of electricity or lack of internet penetration in the neighbourhood, it may also not be appropriate for a school to opt for Synchronous Face-to-Face Real Time Online Education.

There has to be one common minimum level/standard of impartation of education for all schools. Further, the said school has to then ensure that the same is uniformly adopted and followed sans any discrimination.

Bench opined that

Synchronous Face-to- Face Real Time Online Education is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the RTE Act, 2009.

High Court was of the view that it cannot be said that the education being provided by GNCTD schools does not satisfy the basic minimum required level of impartation of education in the present extraordinary scenario.

Private Unaided Schools

The tuition fee charged by the private unaided schools is governed and regulated by the DSE Act and the same does not include expenses on devices such as laptops, phones, high-speed internet at children‟s homes, etc.

Even though the cost of such gadget/digital equipment which enables access to online learning facilities is not a part of tuition fee, yet it has to be provided free of cost to the EWS / DG students in terms of Section 12(1)(c) read with Section 3(2) of the Act, 2009 as cost of such equipment would be covered under Rule 11 of the Central RTE Rules, 2010 as well as Rule 10 of the Delhi RTE Rules, 2011 and Section 3(2) of the RTE Act, 2009 inasmuch as absence of such equipment ‘will prevent the child from pursuing his or her elementary education‘ at par with other students in the same class in the present scenario.

DIGITAL DIVIDE

To ensure a level playing field and to remedy this digital divide or digital gap or ̳digital apartheid‟ in addition to segregation, if the private unaided school has to bear any additional cost, it must bear it in the first instance with a right to claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.

GNCTD must consider rewarding the schools that innovate.

Intra-class discrimination, especially inter-se 75% fee paying students viz-a-viz 25% EWS/DG students‟ upsets the ̳level playing field‘ and amounts to discrimination as well as creates a vertical division, digital divide or digital gap or „digital apartheid‘ in addition to segregation in a classroom which is violative of RTE Act, 2009 and Articles 14, 20 and 21 of the Constitution.

High Court directs constitution of a three-member committee within a week comprising Secretary, Education, Ministry of Education, Central Government or his nominee, Secretary Education, GNCTD or his nominee and a representative of respondent No.18 to frame a Standard Operating Procedure (SOP) for identification of standard gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG students can access elementary education through digital online means.

Further, the private unaided schools shall file their claims for reimbursement under Section 12(2) to the GNCTD within eight weeks from the date of supply of such gadget(s)/equipment(s).

“To achieve education for all, Digital Education is a major component of the solution, though not a replacement for formal classroom schooling, provided digital- divide is erased from Indian Society.”

Creating a better and resilient elementary education system is increasingly important as a child’s starting point in life determines his/her future.

Concurring with the above view, Sanjeev Narula, J. stated that,

In the present pandemic situation, the shift towards online education has taken place literally overnight, and without much deliberation. One could argue that the unprecedented situation warranted such a drastic switch over. Therefore, I do not find any fault with the approach of the schools that have adopted digital technology for imparting education. However, it is necessary to issue a note of caution here so that the modes and methods adapted during this extraordinary time are not seen as the quintessential purpose of the Act.

The scheme of Article 21A and the RTE Act rests on a twofold premise: to prevent financial and psychological barriers from hindering access to primary education of children, and, non-discrimination in the imparting of education.

Reservation for EWS
Children of the socially and economically weaker sections are normally unable to secure an admission in private schools due to their unaffordable fees. The RTE Act seeks to address this gap via section 12(1)(c) which mandates all private schools to reserve 25 per cent of their seats for children belonging to economically weaker sections and disadvantaged group.

DIGITAL ENABLEMENT

Imbalance in the imparting of education due to the non- availability of gadgets, internet connectivity and modes of access, has the potential of pushing the less-fortunate children outside the education system altogether. The digital enablement of EWS students, is thus, in my opinion, absolutely necessary.

The precious right guaranteed by the Constitution of India and the RTE Act has to be replicated in the online environment.

It is the responsibility of the schools and obligation of the State to assist EWS students to overcome all constraints that deprive them of meaningful education.

[Justice for All v. GNCTD, 2020 SCC OnLine Del 1217, decided on 18-09-2020]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., passed directions regarding payment of fees to unaided private institutions. The present interim order will apply on all the unaided private institutions across the State of T.N.

“COVID-19  Pandemic has posed huge challenges to entire human kind.”

Bench observed that all the governments are grappling to handle the situation and every day new challenges stare at the face of the State and Central Government. Many decisions which seem to be right at the time when it is taken goes completely wrong at a later point of time.

The savings and contingency funds are dwindling every day due to the non availability of income. The economic breakdown has virtually come to a stage where the livelihood of many persons is under challenge.

Government order under challenge had virtually put a  lid on the institutions from collecting tuition fees and therefore aggrieved by the same, the unaided institutions have filed writ petitions  challenging the G.O.

The Bench, while taking into consideration the interest of all stakeholders, requested the State Government to take into consideration the same for which the State Government managed to come up with an interim arrangement.

Institutions must kick start their functioning

The unaided institutions depend upon only fees collected from the students which ultimately pays the salary of the teachers and non teaching staff without whom the institutions cannot function. Whereas, the other end of the spectrum is that many of the parents are also in the receiving end either because of no income or with a reduced income.

“…managements have managed to pay the salaries to the teachers and the

non teaching staff from their available reserve funds till date. This

the process cannot go on endlessly. “

Court in order to clear the logjam and strike a balance of interest of all the stakeholders, issued the following directions:

  • an interim order passed by this Court will apply to all unaided private institutions across the State of Tamil Nadu.
  • unaided private institutions shall collect 40% of the tuition fees as an advance fee based on the tuition fees collected during the academic year 2019-2020. This advance fee shall be paid by the students on or before 31-08-2020.
  • Arrears fees shall be paid before 30-09-2020.
  • If the students have already paid the entire fees including arrears, it cannot be a ground to claim refund.
  • balance of 35% of the fees based on the tuition fees collected for the academic year 2019-2020, shall be collected within a period of two months from the date on which the institution is reopened and physical classes commences
  • Fee Committee shall immediately start the process of the determining the tuition fees for the respective institutions and make an attempt to complete the process within a period of eight months starting from August 2020 onwards.
  • Teaching or non-teaching staff shall not insist for any increment in salary and/or DA until restoration of normalcy.
  • The State Government is directed to immediately take into consideration the request made by the institutions to supply textbooks and note books to the students either free of cost or at some nominal rates.

Matter to be posted on 05-10-2020. [Arockia Madha Matriculation Higher Secondary School v. Chief secretary to Government, 2020 SCC OnLine Mad 1442  , decided on 17-07-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Jayant Nath, J., while hearing a matter with regard to parents defaulting in payment of tuition fees to schools, held that Schools can decline to provide Online Education facility to the students whose parents fail to explain the reason for the default.

Petition filed sought an appropriate writ to quash the Circular dated 18th April, 2020 and to allow the School to charge the actual expenditure incurred during the lockdown period in the form of fees from the students.

Petitioner submits that the Circular is ultra-vires the Delhi School Education Act.

Contentions

Petitioner’s counsel pointed out from the Circular that no fee except tuition fee would be charged during the lockdown period, another thing that was extracted from the Circular was that in no case, the ID and password shall be denied to getting online access of educational facilities to those students who were unable to pay school fee due to financial crisis.

Due to the above-stated clauses, 40 % of the students defaulted in paying fees which resulted in struggle to pay salaries of the staff and teachers.

Standing Counsel for GNCTD submitted that petitioner was free to take steps including issuing of notice to the parents who defaulted in paying tuition fees.

Decision

Bench held that in view of the above circumstances, if the parents defaulted in payment of tuition fees for more than 2 months, petitioner is free to issue appropriate notice to explain the reason of such default and in case they fail to do so, the petitioner is free to so communicate the same to the parents and decline to provide them ID and Password for online education facility for the students. 

Matter to be listed on 5-08-2020.[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]

Case BriefsCOVID 19High Courts

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] 

COVID 19Hot Off The PressNews

In a letter written to all Heads/Managers of private unaided recognised schools, Binay Bhushan, Director of Education, NCT of Delhi, reminded them that in accordance with provisions of Delhi School Education Act and Rules, 1973, they are under direct control of Charitable Society/Trusts. Being Charitable Societies/Trusts, they are supposed to indulge in charity, especially when they are engaged in the noble field of providing education to the society ? without indulging in profiteering. Accordingly, they are also supposed to extend their maxim support (to those parents who are in financial distress at this time and unable to pay the school fee) by providing learning material online to all students without any discrimination and hindrance and also by not charging any increased tuition fee or any other fee by creating any new head.        

The Director of Education has written a letter to all Heads/Managers of private unaided recognised schools and gave them various directions regarding charging of and/or increase in fee from students, access to online education facilities for students, as well as payment of salary to teaching and non-teaching staff.

The letter stated that it has been noticed that some private unaided schools have been violating the provisions of Delhi School Education Act and Rules, 1973 and other guidelines issued by Department of Education, as also the provisions of Disaster Management Act, 2005 and Delhi Epidemic Diseases, COVID-19 Regulations, 2020 under the Epidemic Diseases Act, 1897 for prevention and containment o fCOVID-19 presently in force.

It was noticed that some schools have increased the fee in academic session 2020-2021; some schools are charging fee under new heads; some schools are indulging in malpractices while making available online courses/material; some schools are not paying salary to teaching and non-teaching staff.

In view of the above, the Director of Education directed all Heads/Managers of private unaided recognised schools as follows:

(i) No fee, except Tuition fee, shall be charged from the parents, till further orders.

(ii) Heads of schools shall not demand and collect the Tuition fee from the parents/students on quarterly basis. The fee shall be collected on monthly basis only.

(iii) Not to increase any fee in the academic session 2020-2021 till further directions irrespective of the fact whether or not the school is running on private land or the land allotted by DDA/other Government land owning agencies.

(iv) Schools running on the land allotted by DDA/other Government land owning agencies with the condition to seek approval of Director (Education) before any fee increase, shall collect the Tuition fee on the basis of last fee structure approved by Director (Education) or as per fee statement filed by them under Section 17(3) of DSEAR, 1973 during academic session 2015-2016.

(v) Shall ensure to provide thee access of online education/material/classes to all students, without any discrimination, by providing them ID and password immediately to get them online education facility.

(vi) Heads of schools shall, in no case, deny ID and password to those students/parents for getting online access of education facilities/classes/materials, etc., to those students who are unable to pay the school fee due to financial crises arising out of closure of business activities in the ongoing lockdown condition.

(vii) Managing Committee of the schools/Heads of the schools shall not put extra financial burden by creating any new head of fee.

(viii) Shall neither stop payment of monthly salary nor reduce the existing total emolument to the teaching and non-teaching staff of their schools in the name of non-availability of funds and arrange the funds in case of any shortfalls from the Society/Trust running the school.

It was also made clear that failure to comply with the above directions shall incite action under Delhi School Education Act and Rules, 1973 and Penal Code, 1860 as also punishment of imprisonment and/or fine under Section 51(b) of the Disaster Management Act, 2005.


Directorate of Education

Govt. of NCT of Delhi

[F.No. PS/DE/2020/54]

[Order dt. 17-04-2020]

COVID 19Fact ChecksNews

A social media message has been doing the rounds that as per a High Court order (the message does not specify which High Court), private schools cannot charge any fee for the summer vacation months. These could be any months between April to July when the school is closed. The petition number mentioned is CP No. 5812 of 2015 and the decision of the order as per is 5th March, 2018. Let us first read the message in its entirety and then check its veracity.

High Court Order

Cp. no 5812 of 2015_so(G-111) SE 2L/PS/HC/3-859/18

Date 05-03-2018

No private school can charge any fee (including transportation fees) for the holiday months that is April or May or June or July after the final exams. Some School charges monthly or annual fees for 12 months, when schools are closed for vacation for 1 or 2 mnths.

If any school charges fee then there will be action taken against that school to the extent that it may lose its licence. Parents can complain to the police. If fee has been paid in advance then one may ask for refund or adjust with the next month/s fee.

In case the school does not refund or adjust the parents may lodge a complaint with the police. If police does not listen then complaint at the CM window.

Wake up citizens. Wake up, don’t allow School Management’s to loot Parents.

Share this information with all your friends and family, Groups, Pl fwd as much as possible till it reaches all Pvt School Managements..

As per this message, any private school that does not comply with the order can lose their licence. The message also exhorts parents to complain to the police and even to the Chief Minister  if school authorities do not refund or adjust such fees.

We investigated this “Whatsapp” forward and found out that this order is not from India. A judgment with the same petition number and judgment date can be traced to our neighbour Pakistan. This case was filed at the Karachi Bench of the Sindh High Court in 2015. Many orders came in this case and final judgment was delivered in 2018.

A link to the judgment under the title ‘Judgment in CP 5812-2015 School Fees Case’ is listed on the official website of the Sindh High Court under the News and Notifications tab but on clicking on the link, the pdf of the judgment is not available, probably due to the non-maintenance of the website. However, copies of the judgment with the same petition number are available online on some educational websites and news websites as well.

Therefore, we can safely conclude that the above message is fake and does not apply to Indian schools and students. There is no bar on Indian schools for charging fees even for the months when the schools are closed for summer vacations.