Indian Express, New Delhi October 30, 2008 carried a news report of Aneesha Mathur amongst others saying, “ A Group of schools in East Delhi are opposing the fee hike proposed for private, unaided schools across the Capital. They fear a large number of students will drop out if the fees are raised.” Through its box, the news report highlights as to who says what, “What Trans-Yamuna schools say-Students in most smaller private schools come from families not that economically well-off and might pull out if fees go up, Parents say cannot afford raised fees since they might go as high as Rs.3, 000 per month, Schools say fee hike would mean raise in tax to MCD. Result: Many would be forced to down shutters What opponents say-Hike is necessary to pay teachers as per 6th Pay Commission recommendations, Parents who can’t afford private schooling should opt for govt schools What education department says-Formed a committee to look into issue, Will look at issues of all concerned and out report in month’s time”.
This press report gives rise to several vital questions. (i) Are some schools seriously opposing the move of some other schools to hike the fees? (ii) Are unaided private schools entitled to levy fee on the parents/students? (iii) How fees are required to be determined? (iv) What are the remedies available to aggrieved parents? (v) What are the dangers of fee hike?
It looks very fine that some schools claiming them to be smaller schools are opposing the move of some other schools to hike the fees. In reality, it is nothing but a gimmick. It is well known that all the unaided private schools have been indulging in commercialization of education despite the fact that commercialization of education is legally prohibited. It is totally irrelevant whether it is a small school or a big one. All are sailing in the same boat. All these schools are getting benefit of income tax exemptions. Most of these schools are on public lands allotted to them on highly concessional rates. It is shocking to read the comments of one of such schools’ management saying “Those who can’t afford private schooling will have to shift their children to a government school”. These comments are enough to understand the real intention of these schools.
Establishment of an unaided private school is based on four legal pillars, (i) Philanthropy (ii) Community service (iii) No-profit and (iv) No commercialization. It is interesting to note that every child up to the age of 14 years has a fundamental right to free education. The private schools being the extended hands of the State are equally obliged to provide free education to all the students at least up to the age of 14 years. In fact, this should have happened. However, keeping in view the fact that unaided private schools need finances to meet their expenses on the salaries of the employees and other day-to-day expenses, law permits them to levy fees on the parents/students.
The unaided schools are entitled to levy fees on the parents/students, but the question is what would be the amount of fees. Are they entitled to levy fee exorbitantly, arbitrarily and unjustly. It is well settled law that unaided schools are not entitled to levy fee exorbitantly, arbitrarily and unjustly. If they do so, it would amount to indulging in commercialization of education, which is legally impermissible. A Division Bench of Hon’ble Delhi High Court way back on 31.10.1998 in Delhi Abhibhavak Mahasangh case (AIR 1999 Delhi 124) summarized the conclusions as under: -
“i) It is the obligation of the Administrator and/or Director of Education to prevent commercialization and exploitation in private unaided schools including schools run by minorities.
ii) The tuition fee and other charges are required to be fixed in a validly constituted meeting giving opportuinity to the representatives of Parent Teacher Association and Nominee of Director of Education to place their view points.
iii) No permission from Director of Education is necessary before or after fixing tuition fee. In case, however, such fixation is found to be irrational and arbitrary there are ample power under the Act and the Rules to issue directions to school to rectify it before resorting to harsh measures. The question of commercialization of education and exploitation of parents by individual schools can be authoritatively determined on thorough examination of accounts and other records of each school.
iv) The Act and the Rules prohibit transfer of funds from the school to society or from one school to another.
v) The tuition fee cannot be fixed to recover capital expenditure to be incurred on the properties of the society.
vi) The inspection of the schools, audit of the accounts and compliance of the provisions of the Act and the Rules by private recognized unaided schools could have prevented the present state of affairs.
vii) The authorities /Director of Education has failed in its obligation to get the accounts of private recognized unaided schools audited from time to time.
viii) The schools/society can take voluntary donations not connected with the admission of the ward.
ix) On the peculiar facts of these petitions there is no per se illegality in issue of the impugned circular dated 10th September 1997.
x) An independent statutory Committee, by amendment of law, if necessary, deserves to be constituted to go into factual matters and adjudicate disputes which may arise in future in the matter of fixation of tuition fee and other charges.
xi) The Government should consider extending Act and Rules with or without modifications to all schools from Nursery onward.”
The Hon’ble Supreme Court in Modern School case (2004) 5 SCC 583 upheld the validity of the above decision of the Delhi High Court. In simple words, it can be said that there are parameters for determining just and reasonable fee. The parents are entitled to know from the school as to how and in what way the school has spent the fee charged from them. As an illustration, if a school charges towards purchase of computers and depreciation on computers, the same would be illegal. No school is entitled to charge on account of capital expenditure. School is entitled to charge only fee for use of the computers. No school is entitled to accumulate surpluses. Accumulation of surpluses would be a strong indicator of commercialization of education.
As indicated above, the government is not only empowered but also has a duty to check commercialization in education. An aggrieved parent can make a complaint to the government against the school and the government is obliged to look into the complaint and take appropriate action against the school. If government fails to do so, the aggrieved parent can approach the Civil Court or the High Court seeking directions against the government to take appropriate action in the matter of their complaint against the school. The aggrieved parent may also simultaneously make use of the right to information seeking information from the government as to what action has been taken on their complaint against the school. The parents can also make such complaint jointly.
No body can dispute that both teaching and non-teaching staff must get their due benefits and emoluments. However, under the guise of revision of the 6th pay commission recommendations, schools should not be allowed to exploit the hapless parents/students. It would be wrong to think that all those children attending these unaided private schools are the children of the rich. Dissatisfied with the standard of education in the government schools, the middle class and even lower middle class parents are compelled to send their wards to these fee charging private schools. Not less than 25% of their income is spent to meet the basic educational needs of their wards. Against the constitutional right of free education, the parents have to shell out a major part of their hard earned money to provide education to their wards through these unaided private schools. Every year thousands of parents unwillingly shift their wards from these schools to government schools, as they were unable to afford school fee any more. These schools are already charging exorbitant fee and other charges from the parents/students. The present fee hike proposals, if materialized, would inevitably lead to pushing out at least 15 to 20 percent students from these schools. This is nothing but malpractice on the part of these so-called charitable educational institutions. Their sole philosophy behind running these schools is to earn maximum profits. The government must by law ensure that once a child is admitted in an unaided private school, the school shall not push such child out on the ground that his/her parents are no longer capable to afford the school fee. If a school is unable to adhere to such condition, it has no right to exist. The government must rise to the occasion to implement common school system in the entire country that alone can lead to equality of status and of opportunity to all the citizens of this country and would also save the hapless parents/students from being exploited by these unaided schools.
By Ashok Agarwal, Advocate
(author can be contacted at ashokagarwal1952@hotmail.com)
This press report gives rise to several vital questions. (i) Are some schools seriously opposing the move of some other schools to hike the fees? (ii) Are unaided private schools entitled to levy fee on the parents/students? (iii) How fees are required to be determined? (iv) What are the remedies available to aggrieved parents? (v) What are the dangers of fee hike?
It looks very fine that some schools claiming them to be smaller schools are opposing the move of some other schools to hike the fees. In reality, it is nothing but a gimmick. It is well known that all the unaided private schools have been indulging in commercialization of education despite the fact that commercialization of education is legally prohibited. It is totally irrelevant whether it is a small school or a big one. All are sailing in the same boat. All these schools are getting benefit of income tax exemptions. Most of these schools are on public lands allotted to them on highly concessional rates. It is shocking to read the comments of one of such schools’ management saying “Those who can’t afford private schooling will have to shift their children to a government school”. These comments are enough to understand the real intention of these schools.
Establishment of an unaided private school is based on four legal pillars, (i) Philanthropy (ii) Community service (iii) No-profit and (iv) No commercialization. It is interesting to note that every child up to the age of 14 years has a fundamental right to free education. The private schools being the extended hands of the State are equally obliged to provide free education to all the students at least up to the age of 14 years. In fact, this should have happened. However, keeping in view the fact that unaided private schools need finances to meet their expenses on the salaries of the employees and other day-to-day expenses, law permits them to levy fees on the parents/students.
The unaided schools are entitled to levy fees on the parents/students, but the question is what would be the amount of fees. Are they entitled to levy fee exorbitantly, arbitrarily and unjustly. It is well settled law that unaided schools are not entitled to levy fee exorbitantly, arbitrarily and unjustly. If they do so, it would amount to indulging in commercialization of education, which is legally impermissible. A Division Bench of Hon’ble Delhi High Court way back on 31.10.1998 in Delhi Abhibhavak Mahasangh case (AIR 1999 Delhi 124) summarized the conclusions as under: -
“i) It is the obligation of the Administrator and/or Director of Education to prevent commercialization and exploitation in private unaided schools including schools run by minorities.
ii) The tuition fee and other charges are required to be fixed in a validly constituted meeting giving opportuinity to the representatives of Parent Teacher Association and Nominee of Director of Education to place their view points.
iii) No permission from Director of Education is necessary before or after fixing tuition fee. In case, however, such fixation is found to be irrational and arbitrary there are ample power under the Act and the Rules to issue directions to school to rectify it before resorting to harsh measures. The question of commercialization of education and exploitation of parents by individual schools can be authoritatively determined on thorough examination of accounts and other records of each school.
iv) The Act and the Rules prohibit transfer of funds from the school to society or from one school to another.
v) The tuition fee cannot be fixed to recover capital expenditure to be incurred on the properties of the society.
vi) The inspection of the schools, audit of the accounts and compliance of the provisions of the Act and the Rules by private recognized unaided schools could have prevented the present state of affairs.
vii) The authorities /Director of Education has failed in its obligation to get the accounts of private recognized unaided schools audited from time to time.
viii) The schools/society can take voluntary donations not connected with the admission of the ward.
ix) On the peculiar facts of these petitions there is no per se illegality in issue of the impugned circular dated 10th September 1997.
x) An independent statutory Committee, by amendment of law, if necessary, deserves to be constituted to go into factual matters and adjudicate disputes which may arise in future in the matter of fixation of tuition fee and other charges.
xi) The Government should consider extending Act and Rules with or without modifications to all schools from Nursery onward.”
The Hon’ble Supreme Court in Modern School case (2004) 5 SCC 583 upheld the validity of the above decision of the Delhi High Court. In simple words, it can be said that there are parameters for determining just and reasonable fee. The parents are entitled to know from the school as to how and in what way the school has spent the fee charged from them. As an illustration, if a school charges towards purchase of computers and depreciation on computers, the same would be illegal. No school is entitled to charge on account of capital expenditure. School is entitled to charge only fee for use of the computers. No school is entitled to accumulate surpluses. Accumulation of surpluses would be a strong indicator of commercialization of education.
As indicated above, the government is not only empowered but also has a duty to check commercialization in education. An aggrieved parent can make a complaint to the government against the school and the government is obliged to look into the complaint and take appropriate action against the school. If government fails to do so, the aggrieved parent can approach the Civil Court or the High Court seeking directions against the government to take appropriate action in the matter of their complaint against the school. The aggrieved parent may also simultaneously make use of the right to information seeking information from the government as to what action has been taken on their complaint against the school. The parents can also make such complaint jointly.
No body can dispute that both teaching and non-teaching staff must get their due benefits and emoluments. However, under the guise of revision of the 6th pay commission recommendations, schools should not be allowed to exploit the hapless parents/students. It would be wrong to think that all those children attending these unaided private schools are the children of the rich. Dissatisfied with the standard of education in the government schools, the middle class and even lower middle class parents are compelled to send their wards to these fee charging private schools. Not less than 25% of their income is spent to meet the basic educational needs of their wards. Against the constitutional right of free education, the parents have to shell out a major part of their hard earned money to provide education to their wards through these unaided private schools. Every year thousands of parents unwillingly shift their wards from these schools to government schools, as they were unable to afford school fee any more. These schools are already charging exorbitant fee and other charges from the parents/students. The present fee hike proposals, if materialized, would inevitably lead to pushing out at least 15 to 20 percent students from these schools. This is nothing but malpractice on the part of these so-called charitable educational institutions. Their sole philosophy behind running these schools is to earn maximum profits. The government must by law ensure that once a child is admitted in an unaided private school, the school shall not push such child out on the ground that his/her parents are no longer capable to afford the school fee. If a school is unable to adhere to such condition, it has no right to exist. The government must rise to the occasion to implement common school system in the entire country that alone can lead to equality of status and of opportunity to all the citizens of this country and would also save the hapless parents/students from being exploited by these unaided schools.
By Ashok Agarwal, Advocate
(author can be contacted at ashokagarwal1952@hotmail.com)
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