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Case title: Action committee unaided recognized private schools v. Directorate of Education.

Case no: W.P. (C) 5743/2024 and CM APPL. 23712/2024, CM APPL.23713/2024

Dated on: April 29th, 2024

Quorum: Hon’ble Mr. Justice C. Hari Shankar.

Facts of the case: 

Directorate of Education (DoE) issued Order dated 27.03.2024 that as per Section 17 of DSEAR, 1973 no private unaided school in Delhi which has been allotted land by the Govt. Agencies shall enhance fee without prior sanction of the Director of Education. All the Head of Schools/Managers of Private Recognized Unaided Schools, seeking prior sanction for increase in fee, to submit their proposals, for the academic session 2024-25, online from 01.04.2024 through website of Directorate latest by 15.04.2024. The proposals submitted by the schools shall be scrutinized by the Director and in case, no proposal is submitted, the school shall not increase tuition fee/fee. In case of complaint regarding increase of any fee without prior approval will be viewed seriously and will make the school liable for action against itself as per the statutory provisions. The said Notification was challenged by the Action Committee Unaided Recognized Private Schools and which has come up for hearing.

Contentions of the appellant: 

Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2. Both were decided by a common judgment dated 15 March 2019. The The impugned order is in the teeth of the judgment of this Court in Action Court to rely on the judgment of the Supreme Court in Modern School wherein was held that schools which are subject to the “land clause” have to take prior approval of the DoE before enhancing their fees.   
Contentions of the respondent: 

Upon reference in para 140 of Action Committee Unaided Recognized Private Schools case, this Court has accorded license to the principle that schools which are situated on land, to which the land clause applies, could not increase their fees without prior approval. From Modern School the propositions emerged was; (i) The issue for consideration, before the Supreme Court, was whether schools were charging excessive and disproportionate fees and whether, the DoE acted within its jurisdiction in issuing directives (ii) Unaided educational institutions enjoyed greater autonomy, in the matter of determination fee structure. Such institutions to be allowed to plan their investment and expenditure, to generate reasonable profit. (iii) Charging of capitation fees, and profiteering, could not be allowed. (iv) Balance, to be struck between autonomy of the institutions and measures to be taken to prevent commercialization of education. (v) These regulatory measures could not, trespass on the autonomy of the unaided educational institutions. (vi) The right to establish and administer minority educational institutions, conferred, by Article 30(1) of the Constitution, was subject to reasonable regulations. (vii) Subject to the prohibitory parameters, regarding charging of capitation fee and profiteering, fees chargeable by unaided educational institutions could not be regulated. (viii) The “issue”, condensed by the Supreme Court, was “as to what constitutes reasonable surplus”. (ix) The directions, issued to the DoE is to “ascertain whether terms of allotment of land by the Government to the schools have been complied with, by the schools”. In the event of non-compliance being detected, the DoE was directed to take “appropriate steps in that regard”.  

Issue: 

Whether unaided recognized private school is required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause? 

Legal provision: 

Section 8(2) of the Delhi School Education Act, 1973- which mandates prior approval for dismissal orders.  

Courts analysis and Judgement: 

 Action Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2 the Court observed that “the schools are entitled to complete autonomy in the matter of fixation of their fees and management of their accounts, subject only to the condition that they do not indulge in profiteering, and do not charge capitation fee, thereby “commercializing” education. There is no requirement for the school to take “prior approval”, of the DoE, before enhancing its fees”. The resultant legal position, following Action Committee Unaided Recognized Private Schools, is that an unaided recognized private school is not required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause. The principle that private unaided schools do not have to seek prior approval before enhancing their fees, so long as they do not indulge in profiteering or commercialization of education by charging capitation fees and making of profits, is undisturbed till date though it is subject to decision of the Division Bench. The DoE, even if dissatisfied with the judgment of this Court in Action Committee Unaided Recognized Private Schools has to respect the verdict so long as it stands. The attitude of the DoE in continuously issuing Circulars threatening recognized unaided schools is objectionable and cannot be allowed. The grievances are to be ventilated before Division Bench where the Appeal is pending, and not issue continuous circular thereby driving the schools to drive to litigations and repeatedly re-arguing the same points which were considered in Action Committee Unaided Recognized Private Schools. As long as there is no prohibition by the Division Bench, with the principle in Action Committee Unaided Recognized Private Schools the DoE is required to respect that position. In view of the aforesaid reasons, why rule nisi should not be issued? And until next hearing DoE Circular dated 27.03.2024 shall stand stayed.    

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Judgement reviewed by- Parvathy P.V.

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