SC Keeps Calcutta HC Order Regulating Fees Of Private Unaided Minority Educational Institutions In Abeyance; Directs Petitioners To Seek Recall [Read Order]

A 3-Judge Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah has directed the Petitioners to approach the High Court seeking recall of the order.

In the meanwhile, the Bench has put the impugned order in abeyance, until deciding of the recall application.

The order states thus:

"We are of the view that no interference is called for by this Court in these special leave petitions. In so far as order dated 18.08.2020 is concerned, we grant liberty to the petitioners to make an application before the High Court for recall/modification of the order dated 18.08.2020. Until orders are passed on such application of petitioner, the order dated 18.08.2020 shall not be given effect to; and the same is ordered to be kept in abeyance. We, however, are of the view that looking to the issues, which are involved in the writ petition, the High Court may decide all issues at an early date."

The Petitioners, represented by Senior Sdvocate Shyam Divan, Advocates Rohit Amit Sthalekar and Sankalp Narain, had approached the Top Court stating that the impugned order impinges upon their right to establish and administer educational institution of their choice under Article 30(1) of the Constitution and it should therefore be set aside.

The impugned order was passed in a writ petition filed on behalf of parents of over 15,000 students who are enrolled in more than 110 private, unaided schools in and around the city.

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The Petitioners had submitted that the aforesaid writ petition was not maintainable in terms of Committee of management, La Martiniere College, Lucknow v. Vatsal Gupta & Ors., 2016 SCC OnLine SC 743, whereby the Supreme Court categorically observed that a writ petition is not maintainable against a Private Unaided Minority Institution

Further they submitted that the direction to submit the audited books of accounts with income / expenditure statements of the schools causes "grave hardship and prejudice" to the Minority Rights of the Petitioners who are private unaided minority schools managed and controlled exclusively by the Diocese of Calcutta, Church of North India and affiliated to the CBSE and ISC Boards.

Other arguments put forth by the Petitioners include:

• Petitioner is Private Unaided Minority Educational Institution and as such, insofar as the issue of discretion in fixation of fees is concerned, the interference of 'State' is minimal only to the extent of preventing profiteering and charging of capitation fee (TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481)
• There was no occasion for the Hon'ble High Court to delve into the issue pertaining to the Fixation of Fees in a Unaided Private Minority Institution and to step into the shoes of the Legislature by passing the impugned orders.
• Respondent has failed to demonstrate the capacity in which the Petitioner Schools, who do not receive any grant-in-aid from the State Government, have been arraigned in the writ petition without there being any grievance raised by any parent and without disclosing any increment in the fees as is allegedly claimed in the writ petition.
• Petitioners are admittedly paying all its staff, teaching and non-teaching, their salaries during the Pandemic and are also incurring continuing fixed and recurring expenditures in maintenance of its Fixed Assets like land and building and also the running cost of maintaining the institutions.

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