High Court upholds Fee Regulation Amendment

Srinagar, Jan 28: The High Court of J&K and Ladakh on Wednesday upheld the constitutional validity of amendments to the Jammu and Kashmir School Education Act, 2002, whereby regulation of fee charged by private unaided schools was introduced, and simultaneously limits were laid down on the functioning of the Fee Fixation and Regulation Committee (FFRC).

In a batch of pleas, seven unaided private schools had called in question the amendments introduced by the government through S O 3466(E) of 2020 and the Jammu and Kashmir Private Schools (Fixation, Determination and Regulation of Fee) Rules, 2022, with the contention that the statutory framework and the functioning of the FFRC violated the autonomy of private unaided educational institutions in keeping with the Supreme Court decision in T M A Pai Foundation versus State of Karnataka.

Moreover, the aggrieved schoolsí argument was that the committee had been acting arbitrarily by unilaterally fixing school fees without proposals from institutions failing to carry out physical verification of infrastructure and expenditure, and imposing unreasonable caps on tuition and transport fees, thereby undermining their ability to maintain quality education.

Citing Supreme Court decisions including the verdicts in T M A Pai Foundation, Islamic Academy of Education and P A Inamdar, a Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that Sections 20A to 20J of the act do not per se violate Article 19(1)(g) of the constitution, saying the object of the amendments was to prevent commercialisation and profiteering in education.

However, the bench underscored that the FFRC could not act as a price-fixing authority for every private school.

The court observed that unaided private schools enjoy substantial autonomy in fee fixation and that regulatory scrutiny must be confined to cases of alleged profiteering or commercialisation, preferably based on complaints or where the proposed fee structure shocks the conscience of the Committee.

At the same time, the court struck down Section 20A (2) of the act to the extent it permitted appointment of a retired Financial Commissioner or senior government officer as chairperson of the FFRC.

In consonance with the Supreme Court directions, the committee must be headed only by a retired High Court Judge nominated by the Chief Justice, the bench said.

In response to the challenge by aggrieved schools to the order of the FFRC dated October 6, 2022, which provides for a hike of transport fee by 14 percent, the court left it for FFRC to take a call on the issue.

The court also criticised blanket scrutiny of all private schools, noting that with over 5000 private institutions in J&K, such an approach was neither feasible nor legally justified.

The court said that fee structures should be examined individually, keeping in view factors like location, infrastructure, investment, and future expansion plans.

The court asked the J&K government to revisit the Fee Fixation Rules, 2022, and lay down clear parameters to ensure uniformity, transparency, and fairness, while protecting genuine private schools, particularly in rural areas, from excessive interference.

ìBefore parting, we wish to implore the J&K government to give a fresh look to the Fee Fixation Regulations, 2022, to bring them in tune with the observations made in this judgment,î the court said, noting that it would be highly appreciated if proper parameters and adequate guidelines are laid down to ensure that a uniform yardstick is applied by the FFRC to determine the school fee of private schools, undue profiteering is put on a bridle, and at the same time genuine private schools, particularly those established by uneducated youth in rural areas, are not stifled by undue and uncalled-for interference on the pretext of fee determination.

ìIt is high time to hold and clarify that the jurisdiction of all authorities of the state or UT with respect to matters which squarely fall within the jurisdiction of the FFRC is completely excluded,î the court said and emphasised that complaints of overcharging of school fee, including transport fee, should be left to be decided by the FFRC.