Excelsior Correspondent
SRINAGAR, Mar 18: The High Court has said that any citizen has a right to establish a private educational institution but the recognition or grant in aid is the prerogative of the Government.
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The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar said establishing a private educational institution is a fundamental right but simultaneously no citizen or institution can claim recognition, affiliation, or grant-in-aid from the Government as a matter of right as such recognition remains subject to statutory conditions imposed by the State.
“The recognition and affiliation are to be granted by the State, subject to conditions laid down by law, and that the right to establish an educational institution under Article 19(1)(g) is amenable to reasonable statutory regulation”, the DB said.
These observations were passed by the court in a petition filed by a group of private un-aided schools challenging the amendments made to the Jammu and Kashmir School Education Act, the constitution of the Fee Fixation and Regulation Committee for Private Schools (FFRC), the J&K Private Schools (Fixation, Determination and Regulation of Fee) Rules, 2022, and orders issued by the FFRC regulating transport fee.
The petitioners are private unaided schools in Jammu and Kashmir challenged Government Order No. S.O. 3466(E) dated 05.10.2020, by which Sections 20A to 20J were inserted into the J&K School Education Act, 2002, creating a statutory framework for the constitution of the FFRC and regulation of fees in private schools.
The S.O. No. 177 of 2022, S.O. No. 233 of 2022 has also been challenged in which the Fee Fixation Rules, 2022 have been framed, and the FFRC orders dated 09.03.2022 and 06.10.2022 relating to the transport fee.
These unaided institutions contended that they enjoyed autonomy in fixing fees, and that the amended provisions conferred sweeping powers on the FFRC to fix, determine, and regulate fees in a contrary manner and also questioned the legality of appointing a government officer of the rank of Financial Commissioner or above as Chairperson of the Committee.
The Court observed it is now settled that the establishment of a private educational institution is not a trade or business but an occupation within the meaning of Article 19(1)(g). At the same time, the Court held that such a right is not absolute and is subject to reasonable statutory restrictions.
“The obligations flowing from Articles 21, 41 and 45 of the Constitution can be discharged by the State either by establishing institutions of its own or by recognizing and affiliating private institutions”, read the judgment.
The Court further added that though a citizen may have a right to establish an educational institution, there is no corresponding right to demand recognition or grant-in-aid from the Government.
The Court also discussed the growth of private schools in Jammu and Kashmir and recorded that private schooling had come to play a major role in the Union Territory, particularly because of the perceived failure of the public education system. It noted that private schools in the Union Territory had become a robust alternative to Government schools and that the Government should avoid unnecessary interference in their functioning.
On the issue of profiteering and commercialisation, the Court held that these expressions cannot be read to mean that private educational institutions must function on a strict no-profit-no-loss basis. The Bench observed that what is prohibited is excessive or unfair profit and treating education purely as a business activity. It added that allowing private institutions to derive reasonable profit on investments made in establishing and maintaining school infrastructure would not be wholly unjustified, and said such profit should not exceed the commercial rate of interest at the relevant time.
The High Court did not accept the broad challenge to the statutory framework. It held that the Act of 2002 and the Rules of 2022 provide sufficient guidelines for the FFRC to determine whether a particular school is indulging in commercialization and undue profiteering.
At the same time, the Court cautioned that the FFRC should not enter into extensive scrutiny of every school’s proposed fee structure and should ordinarily accept the fee proposed by a private institution unless the conscience of the Committee is shocked by its nature and magnitude. The Court said the FFRC should devise a rational method of selecting only some cases for in-depth scrutiny, particularly bigger institutions in urban areas or schools against which specific complaints are received.
The Court further urged the Government of the Union Territory to revisit the Fee Fixation Regulations, 2022 to bring them in tune with the observations made in the judgment and to lay down proper parameters and adequate guidelines to ensure a uniform yardstick in fee determination, to curb undue profiteering without stifling genuine private schools, especially in rural areas.
The High Court disposed of the writ petition. It held that the FFRC must keep in view the conclusions recorded by the Court while approving, disapproving, or suggesting the fee structure of particular institutions.
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