'It Is Obvious That Schools Have Incurred Less Expenditure Over A Prolonged Period Of Time': Calcutta HC Orders Min 20% Reduction In Private School Fees [Read Order]

The Calcutta High Court on Tuesday slashed the fees charged by private schools in the State by 20%. "From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board," the Bench comprising of Justice Sanjib Banerjee and Justice Moushumi Bhattacharya ordered. The Bench further said that collection of non-essential charges for use of facilities, such as laboratory, extracurricular activities, etc., shall not be permissible during the months that the schools have not functioned in the physical mode. It has also directed: "There will no increase in fees during financial year 2020-21…Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 per cent of the quantum charged for the corresponding period in the financial year 2019-20." (Further directions may be read at the end of this report) The order was passed in a batch of writ petitions filed by the parents whose children are students at 145 private schools in the State, aggrieved by charging of full fees despite suspension of physical classes. While allowing the petition, the Court observed that as a consequence of physical classes not being conducted over the last six months and more, though schools incur the fixed costs, but the variable costs must have come down. It thus observed, "When it is obvious that the schools have incurred less expenditure over such a prolonged period of time and may continue to do so for some time longer, allowing the schools to charge at the usual rate would be to give a licence to unjust enrichment beyond the judicially demarcated limits." During the course of hearing, the private schools had questioned the maintainability of a writ petition against them, while claiming that they are not a public authority under Article 12 of the Constitution. Certain minority institutions had also argued that present proceedings amount to interreference with their Rights under Article 19 and Article 30(1) of the Constitution. They had further agitated an interim direction seeking furnishing of their audited books of accounts, as an infringement of privacy. Dismissing these arguments, Justice Banerjee clarified that performance of a "public function" is a self-imposed restriction, which cannot preclude it from passing directions in an unprecedented situation, such as the present pandemic. Justice Banerjee observed, "In the ordinary, everyday situation, the remedy under Article 226 of the Constitution is confined to the public law domain and the words used in the provision must be read in the context of the company that they keep. In a breakdown scenario, however, the words in the provision give ample authority to travel beyond the public law domain, though extreme caution and circumspection must be exercised in treading into hitherto uncharted territories. …The reading down of the several limbs of the provision in everyday use does not imply that in an unprecedented situation, or in a breakdown scenario, the full meaning of the width of the authority conferred by the provision may not be realised and injustice allowed to prosper with a superior court as a High Court folding its arms in impotent obeisance to the doctrine of self-restraint." Having said that, he added, "When a private body or person or any form of juristic entity takes upon itself the burden of imparting education it takes up a public duty and such public duty aspect of its functioning is open to judicial review in the usual course without even considering the much broader authority available under Article 226 of the Constitution." In her concurring verdict, Justice Moushumi said, "Writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under Part III of the Constitution." She recalled the wide berth of the writ jurisdiction contemplated by the Supreme Court in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81, as an enabler for tailoring the reliefs to fit the shape and peculiarities of the case and stretching the parameters of the power "to reach injustice wherever it is found". These "striking words", Justice Moushumi said, "have resonated in recent decisions of the Supreme Court which held that the powers of the High Courts in exercise of its writ jurisdiction cannot be constricted by strict legal principles so as to immobilise the Court in upholding the rule of law." Coming to the protection granted to minority institutions under Article 30(1), Justice Banerjee said, "Without detracting from the extent of the right of religious and linguistic minorities reserved in respect of educational institutions under Article...

'It Is Obvious That Schools Have Incurred Less Expenditure Over A Prolonged Period Of Time': Calcutta HC Orders Min 20% Reduction In Private School Fees [Read Order]

Akshita Saxena

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