Photo used for indicative purpose only. Source: Internet

Shimla, December 24

The Himachal Pradesh High Court has stayed levying of lodging fee by boarding schools in Himachal Pradesh and stayed notification of Education Department with respect to levying of boarding fees during vacation period from the students at boarding Educational Institutions.

The order has been passed by a Division Bench comprising Justice Sureshwar Thakur and Justice CB Barowalia on Thursday. The Division Bench has listed the CWP for January 5 next for disposal at admission stage and asked to complete the pleadings within a week.

The Division Bench of High Court in its order has said, “The operation of the impugned notification is stayed, only with respect to the levying of the boarding fees, during vacation period, with respect to those institutions, Which have boarding house (es), attached to their respective educational institutions.”

Deepak Gupta a resident of Kachighati in Shimla filed Civil Writ Petition on Dec 8 this year under Article 226 of the Constitution of India for issuing appropriate writ, orders or directions to the respondents and by issuing writ of certiorari for quashing the letter of 30 Oct 2020 issued by the Joint Secretary (Education) to the Government of H.P.

The background

Another bench of the State high court in the matter had earlier made observation in para 5 stating,” ’’Whereas concept of ‘Tuition fee’ can be held to be applicable to a complete residential school which does not compartmentalize the fee/charges under different heads is a question which need consideration of the state. The notification dated 27.5.20 as it stands, cannot be applied in its abstract form to the responding school. However we direct the respondent state to examine the issue difference between residential/ non residential /partially residential schools,” had stated Justice Tirlok Chauhan and Justice Jyotsna Rewal Dua.

The court further had ordered the State government to submit compliance in a stipulated period. Part of compliance the respondent state informed court through a letter on 30.10.20 that since the lock-down is being gradually lifted therefore the state has decided to withdraw its earlier notification dated May 27 pertaining to fees. Subsequently the director education also issued an order on November 10.

Challenging the order

Challenging the order by the State government, the petitioner has stated that “ The perusal of the aforesaid letters and notifications clearly shows that the same are without  application of mind and without any authority contrary to the directions issued by this court vide judgment dated 24.8.20. Adding,” the respondent has merely issued the orders to help private schools, so that they may charge fees as per their own convenience. “Despite the fact that there has been no physical activity in the school for the entire year, the private schools are arbitrarily charging entire fee including boarding charges, stated the petition.

No reasoning was given by respondents while withdrawing the may 27 directives and even the directions issued by High court in the operating part of the judgment as well as para 5 of the same have been completely overlooked and not considered.

The petition further reads that as per information taken under RTI by one parent, in a proposal drafted by education directorate, it was specifically proposed that NO fee except ‘Tuition fee ‘is to be charged by all schools, (residential and day). The only amendment in respect to May 27 order proposed here was that schools were now allowed permission to collect the same, in a stipulated period of time. Besides, clear-cut waiver of all other funds had been mentioned in the proposed State government’s compliance report. Talking about residential schools, the proposal read that ‘ as per record residential/semi residential school is not categorically mention in the H.P. Private educational institutions (Regulation) act, 1997’. Adding,” as per representation given by a private school, tuition fee’ does not apply to them, where there is an on existing composite fee. The Lawrence school Sanawer has already granted an 11% waiver in fee. Therefore directions may be issued to residential schools to waive off atleast 15 to 20% during lockdown period, reads the government report.

“However it was matter of utter surprise that nothing was done about this proposal and rather joint secretary education decided to withdraw the May 27 order instead, stated the petition further.

Here is it pertinent to mention that though the government via public statements on Nov 12 stated that they are withdrawing the Nov 10 order, but the same was never notified. Therefore as a result of a lot of agitations were raised by aggrieved parents across the state against the Nov 10 order. Hereafter the education department had again directed private schools to look into the fees issue in consultation with parent teachers associations. The schools were to comply the same in period of 15 days which expired on Dec 23. Then on Dec 23 the cabinet decided to make committees statewide under the chairmanship of respective Deputy commissioners to look into the matter. However the agitating parents’ forums are not satisfied with these two latest directives and so they continue to agitate in front of the Education directorate, demanding waiver of all other charges except tuition fee.

Demand in the petition

“ the respondents have exceeded the jurisdiction vested in them under law and have acted malifide, arbitrary without authority, which has caused grave prejudice to the legally vested rights of petitioner and other similarly placed, as such the petitioner is left with no other alternative, except to file the present petition on the grounds mentioned herein,” plead the writ petition.

Demanding setting aside order dated Nov 10 by Director Education, the petitioner has also pleaded for relief in matter of school fee. All schools including residential should be directed to charge only tuition fee during the period schools have remained closed during lock-down, concludes the petition.

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