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Judgment
WP (C) No. 9228/2009, WP (C) No. 7777/2009, WP (C) No. 8147/2009
WP (C) No. 8610/2009 and WP (C) No. 8614/2009
Rule DB.
Having regard to the urgency in these matters, list for final
hearing at the end of After Notice Misc. Matter on 14th July, 2009.
CM No. 6909/2009 in W.P.(C) No. 9228/2009
CM Nos. 4815, 5261/2009 in W.P.(C) No. 8147/2009
CM No. 5705/2009 in W.P.(C) No. 8610/2009 and
CM No. 5709/2009 in W.P.(C) No. 8614/2009
The matter regarding hike in the fees and other charges, which can be fixed by the private unaided schools, has been engaging judicial attention from time to time. It is not necessary to refer to the judgment of this Court as well as of the Supreme Court on this aspect. At this stage, suffice is to state that a fresh controversy has triggered after the Government of India issued Notification dated 29.02.2008 giving effect to the recommendations of VIth Central Pay Commission, making them applicable with effect from 01.01.2006. These recommendations were accepted in respect of employees of the Government schools in Delhi as well and Circular dated 12.09.2008 was issued revising their pay-scales. Section 10 of Delhi School Act, 1973 stipulates that the scales of pay and allowances, medical facilities, pension, gratuity, provident funds and other prescribed benefits of the employees of recognized private schools shall not be less than those of the employees of the corresponding status in school run by the appropriate authority. Because of this provision, it becomes the obligation of the private unaided schools as well to revise the pay scales of the teachers and other staff employed by them so as to bring them at par with the pay scales and allowances enjoyed by their counterparts in the Government schools. In view thereof, respondent No. 1 gave directions on 15.10.2008 to all unaided recognized schools in Delhi to implement the Vth Central Pay Commission s recommendations. While these private unaided schools carried out those orders, at the same time they demanded hike in the school fee to be charged from the students to enable to bear the additional burden created because of upward revision of the pay scales. In order to determine as to how much hike is warranted, Government of NCT of Delhi constituted a Committee under the Chairmanship of Mr. S.L. Bansal, IAS (Retd.). The Committee submitted its report making various recommendations. Without discussing the finer aspects of the said report, we may only mention that this Report became the basis of the orders dated 11.02.2009, which was issued by the Govt. of NCT Delhi. As per these orders, all schools have been placed in five categories, based on their present monthly tuition fee and they have been permitted to increase the tuition fee with effect from 01.09.2008 in the following manner:
Category Existing Tuition Proposed Increase in Fee (per month) Tuition Fee (maximum limit per month)
Upto Rs.500/- Rs.100/-
Rs. 501/- to Rs.1000/- Rs.200/-
Rs.1001/- to Rs.1,500/- Rs.300/-
Rs. 1,501/- to Rs.2000/- Rs.400/-
Above Rs.2000/- Rs.500/-
Para 5 of this Order mandates that there shall not be further increase in the tuition fee beyond the aforesaid limit till March, 2010. Para 7 of the said order also provides the manner in which arrears are to be paid by the parents.
This Order also provides for redressal of grievances by a Grievance Redressal Committee, which has been constituted with the Director (Education) as the Chairperson, two other members and one Chartered Accountant.
Any school or parent(s) aggrieved from this order could approach the said Grievance Redressal Committee within 30 days from the issuance of that order. In such an eventuality, schools are required to present the accounts before the Committee on the basis of which Committee was to resolve each grievance brought before it.
Consequent thereto the respondent No. 1, i.e., Directorate of Education issued a public notice, which appeared in the newspapers on 16.04.2009. The aforesaid Order dated 11.02.2009 as well as public notice have led to filing of these writ petitions.
W.P.(C) No. 7777/2009 is filed by Delhi Abhibhavak Mahasangh and others, in public interest, and purports to represent parents of the children studying in schools in Delhi. The main contention in this petition is that fee hike as permitted vide orders dated 11.02.2009 is not justified. This fee hike has been challenged on various grounds. In nutshell, the submission is that there should not have been increase to the extent permitted by the aforesaid orders and that the hike, if required, could be only on case to case basis, wherever found justified in respect of a particular school. Thus, the petitioners in this petition, feel aggrieved by the hike in fee.
Other writ petitions are filed by various schools/association of schools, etc. They are also aggrieved by the Order dated 11.02.2009 and the public notice issued by the respondent No. 1. Their submission is that hike in fee, as allowed, is not sufficient to take care of the impact of the pay revision and implementation of VIth CPC s Report. They want hike in fee almost to the extent of 50%.
These two opposite views canvassed by the parties would be gone into and considered at the time of final hearing of the writ petitions. The learned Counsel appearing for the schools have pointed out that some of the clauses in the public notice may adversely affect them and the position would be irreversible even if they ultimately succeed in the writ petitions filed by them. Submissions made today specifically relate to Para 6 of the public notice, which reads as under:
(6) It has also been directed that the Report Card of any child should not be withheld at any cost. Further, no school management shall force any child to leave the school.
It is their submission that the aforesaid Para is contrary to Rule 167 of the Delhi Education Rules which permits the school to strike off the name of a child who does not pay the school fee. Various apprehensions are expressed in case this para is allowed to operate. Mr. Ashok Agarwal, leaned counsel appearing for the petitioner in W.P.(C) No. 7777/2009 on the other hand submits that for non-payment of enhanced fee, the schools cannot be allowed to take coercive step and force the child to leave the school and, therefore, this para of public notice is perfectly justified. His submission was that the interest of the child should be paramount and in the dispute between schools and parents over the hike of fee, their studies cannot be affected, more so when Right to Education is treated as a fundamental right.
We have given our due consideration to the respective submissions.
In view of the narration of the facts and issues involved, as mentioned above, the outcome of these writ petitions may result in any of the following situations:
a) Fee as increased vide orders dated 11.02.2009 is found to be justified and is maintained; or
b) Accepting of the plea of the schools and permitting them to charge higher fee than allowed vide orders dated 11.02.2009; or
c) Plea of the parents as advanced in their writ petition No. 7777/2009 is found to be justified and is maintained.
In the first and second eventualities mentioned above, the parents will have to pay at least the fee as per orders dated 11.02.2009. However, they may even have to pay higher fee if the schools succeed. In the 3rd eventuality, the fee payable by them can be lesser than what is stipulated in orders dated 11.02.2009. In this scenario, when orders dated 11.02.2009 are issued by the Government after considering the recommendations of Ms. S.L. Bansal Committee, we are of the opinion that the schools should be allowed to charge the fee as per the rates mentioned in orders dated 11.02.2009. This would be subject to the final outcome of these writ petitions.
Next question that arises for consideration is as to what should be the consequences for non-payment of the fee in terms of orders dated 11.02.2009. As per Para 6 of public notice, the report card of such a child is not to be withheld. We find nothing wrong with this provision. Insofar as the second part of para 6 is concerned whereby school managements are not permitted to force any child to leave the school, in case enhanced fee is not paid, we are of the opinion that this provision needs some modifications and according to us, the following arrangements, during the pendency of these writ petitions, would be fair and equitable and shall take care of interest of all the sides:
a) The parents would pay the fee at the rates specified in orders dated 11.02.2009 with effect from the issuance of this order. This is subject to the condition that in case it is ultimately found that the fee payable was less than what is actually paid, the schools shall refund excess amount paid by those students along with interest @ 9% per annum. The school management shall file an affidavit of undertaking in the Court to abide by the condition. Parents shall also pay arrears for the period with effect from 01.09.2008 as provided in para 6.
b) In case there is a default in payment of fee in terms of (a) above, schools shall be at liberty to take recourse of Rule 167 of the Delhi Education Rules.
c) Insofar as arrears in terms of Para 7 are concerned, the school managements shall not neither force the child to leave school nor take any coercive steps against any child for non-payment thereof.
d) In respect of those students, who are leaving the schools after completing their education or even pre-maturely of their own, the school managements shall be permitted to recover the arrears of fee as well. After giving adjustment of security or other deposits lying with schools. However, this is subject to the condition that in case it is ultimately found that fee payable was less than what is actually paid, schools shall refund excess amount paid by those students, along with interest @ 9% per annum. The school managements shall file an affidavit of undertaking in this Court to abide by this condition of refund.
Ms. Avnish Ahlawat, learned Counsel appearing on behalf of the respondents, clarifies that the development fee as stipulated in Para 14 of the orders dated 11.02.2009 is payable with prospective effect, i.e., 01.09.2008 wherever it is payable in terms of this para.
With the aforesaid observations, CMs stand disposed of.