A 3-Judge Bench of the Supreme Court comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah, will hear a SLP tomorrow preferred by a bunch of private unaided minority educational institutions against an order of the Calcutta High Court restricting them from prohibiting students from participating in the online examinations, for non-payment of fees.
Advocate Rohit Amit Sthalekar for the Petitioners has submitted 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 Petitioners are also represented by Senior Sdvocate Shyam Divan and Advocate Sankalp Narain.
Vide order dated July 21, 2020 the Calcutta High Court had issued the following interim directions:
- For the moment, none of the 112 schools involved should discontinue making online courses available to any of its students, unconditionally till August 15, 2020.
- Further, none of the 112 schools will prohibit any of the students from participating in the online examinations, if any, till August 15, 2020.
- By August 15, 2020, the outstanding dues of each student, as at July 31, 2020, have to be cleared to the extent of 80 per cent.
- Those already debarred from online courses or online examinations will be restored to their previous status.
- All the schools concerned shall submit their respective audited accounts for the period January to July, 2020, pertaining to the income and expenditure statements, to a two member Committee to be appointed by the Court, so as to suggest as to what ought to be the fees to be charged to meet the expenditure of the schools.
The 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.
The Petitioners have submitted that the aforesaid writ petition was not maintainable as they are private bodies, not performing any statutory functions. Reliance is placed on Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303 where it was held,
"Before an organization can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity."
In Committee of management, La Martiniere College, Lucknow v. Vatsal Gupta & Ors., 2016 SCC OnLine SC 743, Supreme Court categorically observed that a writ petition is not maintainable against a Private Unaided Minority Institution
Further it is 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.