A division bench of justices DK Deshmukh and ND Deshpande held that the government resolutions violate the right to set up an educational institution.
The Bombay high court on Wednesday set aside the government resolutions (GRs) formed to regulate fees charged by private unaided schools, stating that they were unconstitutional. As a result, private unaided schools can decide their own fees.
A division bench of justices DK Deshmukh and ND Deshpande held that the GRs violate the right to set up an educational institution.
The Unaided School’s Forum and the Association of International Schools and Principals Foundation had moved court challenging the state government’s resolve to regulate fees of private schools. The associations said the government’s decision of July 1999 and July 2010 curtails an institution’s autonomy.
The state had issued a GR in July, stating that a committee headed by the deputy divisional director of education will scrutinise the fee structure of private unaided schools. The court held that the fundamental right to establish educational institutes as per the constitution cannot be curtailed by means of administrative instructions like GRs and circulars. It can happen only through legislations, the court observed.
“In our opinion, the GR cannot be allowed to continue because undoubtedly it places restrictions on the rights of schools,” the court said.
The state had contended that the GR was formed as per provisions of the Prohibition of Capitation Fee Act, 1984. The court rejected this contention saying that the act doesn’t empower the state to delegate its powers to anybody else, in this case, the deputy director of education. The GR, it said, is contrary to the Prohibition of Capitation Fee Act.
Following numerous petitions related to fee hikes, the court in December 2009 had put the onus on the government. “It would be appropriate that the government and the competent authority take decisions related to the fee structure well in advance, so that prior to the commencement of the academic session, all schools, students, parents and the Parent Teacher Association know the fees they have to pay and if the students can take admissions in a given school,” the court had said.
Last year, the government had frozen fee hikes in private schools after protests by parents. The high court stayed the order after it was challenged and the Bansal committee was later appointed to study the issue. The Bansal committee report was in favour of private schools. It said they have the full autonomy to decide their fees.
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