Private schools free to decide on fee

Private unaided schools can go ahead and decide their fee structure. The Bombay High Court on Wednesday quashed and set aside two government resolutions (GR) which sought to regulate them.

The Division Bench was hearing a petition filed by the Forum of Unaided Schools and others challenging the July 15, 2010, GR under which private unaided schools are barred from charging fees unless approved by specified committees headed by the divisional deputy director of education.

This was challenged by Unaided Schools Forum and others on the ground that in the wake of Supreme Court’s decision in the TMA Pai case, the state had no power to regulate the fees of unaided schools. Petitioner associations also contended that under the garb of fee regulation, state government’s decision of July 15 curtails autonomy of private unaided schools and violates their fundamental right to administer educational institutes as per their own vision.

The state, however, argued that Prohibition of Capitation Act 1987 gave it this power. But on Wednesday the division bench of justices D K Deshmukh and N D Deshpande said the present government resolution, as well as an old 1999 resolution on which it was modelled, “ cannot be related to the 1987 Act”. As per 1987 Act, the state itself has the power to regulate fees, but this power can not be delegated to a committee, the high court observed.

`` In our opinion, the State should not have issued the GRs,’’ the judges said. The judges upheld the submission made by the Forum’s counsel Aspi Chinoy that the right to establish an education institute is a fundamental right under Article 19( 1) ( g) of the Constitution. Also, Chinoy argued, by another judgement, the SC had ruled that fundamental rights of citizen could not be curtailed by means of administrative instructions like GRs and circulars; only reasonable restrictions could be placed on fundamental rights and that too by legislation.

In December 2009, following a clutch of petitions, the court put the onus on the government to take a decision related to fee structure well before the academic year commences.

Last year the government froze fee hikes in private schools after some parents’ organisations protested. This was challenged and the High Court stayed this order. Later the government appointed the Kumud Bansal Committee to study the issue. The Bansal Committee report held that private schools have full autonomy to decide their fees. The court was earlier told that the government gave the schools a hearing but did not take into consideration the committee report.

The High Court last year allowed the schools to hike their fees subject to final decision on the petition.