Karnataka High Court Strikes Down State Govt's Power To Regulate Fees For Unaided Private Schools

The Karnataka High Court has held that state government cannot interfere and control the fee structure of private unaided educational institutions. It thus declared as ultra vires Section 48 of the Karnataka Education Act 1983 which prohibits private unaided schools from collecting fee in any manner except as prescribed by the State governmentA single judge bench of Justice E S Indiresh referred to TMA Pai Foundation case and agreed that the decision on the fee structure must be left to the private unaided educational institutions, as those educational institutions do not seek or are not dependent upon any funds from the Government. It also agreed that their financial affairs are affected by giving admissions to students through RTE.The bench thus observed that interference by the respondent-State insofar as fixing of fee by the private unaided educational institutions violates Article 14 of the Constitution.The bench also declared Sections 2(11-A) and 124-A of the Act to be contrary to Article 14 of the Constitution Section 124-A is regarding the penalty for contravention of Section 48. Section 2(11-A) pertains to the constitution of the District Education Regulatory Authority to monitor these institutions.The court also declared Sections 5-A (pertaining to Safety and security of students) and 112-A (Penalty for contravention of Section 5-A) of the Act to be contrary to Articles 14 and 19(1)(g) of the Constitution of India. Further it declared that any notifications issued by the state government under the said sections and rules are held unconstitutional and they are not applicable to private unaided educational institutions.The Court however cautioned the institutions to not cross the 'Lakshman Rekha'. “The cardinal rule would be to act just, fair and reasonable while formulating the fee structure, so that, no child would be deprived of elementary education in this welfare State, to fulfil the dreams of founding fathers of the Constitution of India. Dreams of children shall run in reality of their blood and heart.”Petitioners Arguments:The petitioners, private unaided educational institutions, primarily argued that they are different from the aided educational institutions insofar as financial aspects and therefore, the fee structure of these private unaided educational institutions should be distinct and cannot be controlled by the Fee structure imposed by the respondent-State.Further, relying upon the judgment in the case of TMA Pai, it was urged that these private educational institutions have a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, particularly in respect of admissions to the Institutions, and therefore, these institutions have an autonomy and independence to have their own fee structure.Moreover, these institutions are not aided or funded by the State-Government and the fee structure of the StateGovernment is lesser than what has been prescribed by the institutions coming under the purview of RTE Act and therefore, Rule 10 of the Rules 1995, which provides for collection of fees, cannot be made applicable to the unaided private educational institutions and accordingly, sought for invalidating Rule 10 of Rules 1995 and Rule 4 of Rules 1999, as ultra vires the Constitution of India, so also, contrary to the law declared in T.M.A. PAI FOUNDATION case.State opposed the pleasThe State government sought to justify the Notification dated 18th May, 2018, by which it sought to regulate fees in private unaided institutes. It submitted that the notification was issued taking into account the interest of Children and to control the educational institutions from charging capitation fee and becoming profit motive.”Findings:The bench relied heavily on Karnataka Unaided Schools V/S State Of Karnataka, whereby a Division bench of the High Court last year quashed Sections 5, 7(5)(b), 7(1)(e) and 38(1)(a) of the Act and Rule 18(2 & 3), Rule 19(3) of the Rules 1995, and Rule 4 of Rules 1999 as ultra vires the Constitution of India and contrary to the decision of TMA Pai.The bench said “The same is binding on the petitioners, for in some of these writ petitions those provisions are impugned.”Further the court said “Section 48 of the Act provides for Fees and Donations and Section 51 of the Act provides for Monies Received from sources other than grant shall be accounted. These two provisions run contrary to each other. Therefore, the right to levy, collect and charge fees, donations and other payments as provided under Section 48 of the Act, is to be held unconstitutional, as there is direct interference of the Government authorities with the administration of the private unaided educational institutions.”It also said “When enabling provisions itself are unconstitutional and ultra vires, the penal provision flowing therefrom for violation of provisions, cannot be sustained. In that view of the matter, amending provision, i.e. Section 1(2)(iiia) of the Act, extending the Act...

Karnataka High Court Strikes Down State Govt's Power To Regulate Fees For Unaided Private Schools

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