No stay on order allowing schools to levy annual fees

“How the state is aggrieved in a matter between private schools and (parents of) students…State is not concerned according to us,” a three-judge bench of the Supreme Court led by Justice AM Khanwilkar said on the appeal by the city government’s education department against orders passed by the Delhi high court.

The Supreme Court on Monday refused to stay the Delhi high court order that allows private schools in Delhi to collect annual charges and development fee for 2021-22, ruling that the state cannot be aggrieved with an arrangement between the schools and parents.

Around 450 private schools, who secured the order from the Delhi high court under the banner Action Committee for Unaided Recognized Private Schools, argued against a stay order. (Arun Mondhe/HT file photo. Representative image)

“How the state is aggrieved in a matter between private schools and (parents of) students…State is not concerned according to us,” a three-judge bench of the top court led by Justice AM Khanwilkar said on the appeal by the city government’s education department against orders passed by the Delhi high court.

A single judge of the Delhi high court on May 31 set aside the Directorate of Education’s (DoE) orders on April 18, 2020 and August 28, 2020 that sought to restrict private, unaided schools from collecting annual charges and development fees due to the Covid-19 situation.

The DoE rushed to the division bench of the high court in appeal against the May 31 ruling and asked the two-judge bench to stay the court order but the judges declined the request and posted the case for further hearing on July 12.

Since the high court order enabled schools to collect annual charges (subject to deduction of 15 per cent) to be payable in six monthly instalments beginning June this year, the DoE filed a special leave petition in the Supreme Court to seek a stay.

At Monday’s hearing, senior advocate Vikas Singh, who was representing the Delhi government, reasoned that parents were being harassed on account of the high court stay on its orders. “I (state) am the repository of students. Who will represent the innocent children? Do you want lakhs of parents to be in court? There should be a stay on the (HC) judgment. Parents are being subjected to harassment.”

Around 450 private schools, who secured the order from the Delhi high court under the banner Action Committee for Unaided Recognized Private Schools, argued against a stay order.

Senior advocate Shyam Divan, who represented the schools’ body, said the high court was yet to form a conclusive view of the matter.

The June 7 order of the high court had emphasised that staying the single judge’s order “without a deeper examination of the facts would only compromise with the ability of these schools to continue serving this critical function.” The schools agreed to continue charging the fees collected by them during the past year. The Delhi Public School Society, also represented by senior advocate Neeraj Kishan Kaul, supported this submission of private schools.

While declining any immediate relief to the Delhi government, the Supreme Court noted that the government can argue its appeal before the high court which was slated to hear the plea on July 12.

“The dismissal of the special leave petition (SLP) is not to be treated as an opinion on the correctness of the high court order or the contentions raised by the parties,” Justice Khanwilkar said.

The high court’s May 31 order was a blow to the powers of the DoE to direct schools not to collect annual and development fees. This power was vested under the Delhi School Education Act, 1973 and the accompanying Rules. The Delhi government argued that if schools were collecting full tuition fees, there was no need to collect annual and development fees as only 40-60% of the tuition fee component was getting utilized to pay salary to teachers and staff.

The high court, however, relied on a Supreme Court order in May 2021 where the top court allowed private schools in Rajasthan to collect annual fees in six monthly instalments after deducting 15% and applied it as it is to the context of Delhi schools.

Senior advocate Vikas Singh argued that the high court got it wrong as the top court’s judgment related to schools which had partially reopened and were stopped from charging even tuition fees by the Rajasthan government which invoked its powers under the Disaster Management Act. Further, the Supreme Court order in this case was passed under Article 142 of the Constitution, a power exclusively reserved for the Supreme Court and not the high courts, Singh added.

In the May 31 order, the high court judge, however, pointed out that even when schools were physically shut, they incurred expenses like rents, taxes, travelling, conveyance, insurance charges, remuneration of auditors, repair and maintenance of building and maintenance of equipment, furniture and fixtures. This became the basis to set aside the DoE orders of April 2020 and August 2020.

Delhi government officials did not respond to requests for comment.

SK Bhattacharya, president of the action committee unaided recognised private schools-- an umbrella body of over 400 private schools in Delhi-- that had challenged the Delhi government order in the high court said, “Its a big relief for schools. The recent Covid situation has brought schools to the verge of closure as they were finding it difficult to meet essential expenditure such as salaries. Several schools can now pay salary to their staff only by charging the annual fee and development funds.”