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Wednesday, May 20, 2020

निजी स्कूलों ने फीस न बढ़ाने के आदेश को दी चुनौती, हाईकोर्ट ने प्रदेश सरकार से तीन सप्ताह में मांगा जवाब

निजी स्कूलों ने फीस न बढ़ाने के आदेश को दी चुनौती, हाईकोर्ट ने प्रदेश सरकार से तीन सप्ताह में मांगा जवाब


लखनऊ। निजी स्कूलों ने प्रदेश सरकार के फीस न बढ़ाने के आदेश को चुनौती देते हुए इलाहाबाद हाईकोर्ट की लखनऊ खंडपीठ में याचिका दाखिल की है। इसमें उत्तर प्रदेश आपदा प्रबंधन अधिनियम 2005 को असांविधानिक घोषित करने की मांग भी की गई है।


 कोर्ट ने महाधिवक्ता को नोटिस जारी कर प्रदेश सरकार से तीन सप्ताह में जवाब तलब किया है। इस मामले में अदालत ने अभी कोई अंतरिम राहत नहीं दी है। न्यायमूर्ति अनिल कुमार और न्यायमूर्ति सौरभ लवानिया की पीठ ने एसोसिएशन ऑफ प्राइवेट स्कूल्स ऑफ यूपी की ओर से दाखिल याचिका पर यह आदेश दिया है।


 याचिका में माध्यमिक शिक्षा विभाग के प्रमुख सचिव के 27 अप्रैल व अपर मुख्य सचिव के एक मई 2020 के आदेशों को चुनौती देते हुए दलील दी है कि इन आदेशों के जरिए गैर सहायता प्राप्त स्कूलों में इस वर्ष फीस वृद्धि पर रोक लगा दी गई है। याचियों की तरफ से वरिष्ठ अधिवक्ता कपिल सिब्बल ने उत्तर प्रदेश सेल्फ फिनान्स इंडिपेंडेंट स्कूल्स (फी रेगुलेशन) एक्ट 2018 का हवाला देते हुए दलील दी कि इस एक्ट के तहत फीस वृद्धि की जा सकती है।


 अगर फीस वृद्धि से कोई शिकायत होती है तो अभिभावक फी रेग्युलेट्री समिति के समक्ष जा सकते है। याचिका में यूपी आपदा प्रबंधन अधिनियम को केंद्रीय अधिनियम का अतिक्रमण करने वाला बताते हुए, इसे भी असांविधानिक घोषित करने की मांग की गई है। 

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

In Chamber

Case :- MISC. BENCH No. - 8010 of 2020
Petitioner :- Association Of Pvt. Schools Of U.P. Thru President & Anr.
Respondent :- State Of U.P. Thru Addl. Chief Secretary & Others
Counsel for Petitioner :- Siddharth Lal Vaish,Manish Vaish
Counsel for Respondent :- C.S.C.

Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Shri Kapil Sibal, learned Senior Advocate assisted by Shri Manish Vaishya, learned counsel for the petitioners and Shri Amitabha Roy, learned counsel for the respondent.
The present writ petition has been filed with the following main prayers :-
"a. Issue any appropriate writ, order or direction quashing impugned order dated 27.04.2020 issued vide Letter No.756/15-7-2020 by Principal Secretary, Secondary Education, U.P. (Respondent no.2) and Additional Chief Secretary, Govt. of UP (Respondent No.1) for being violating of Articles 14, 19 (1) (g), 162 & 254 of the Constitution and/ or
b. Issue any appropriate writ, order or direction quashing impugned order dated 01.05.2020 issued by Additional Chief Secretary, Govt. of U.P. (Respondent No.1) vide Letter No.304/08-5-2020.
c. Issue any appropriate writ, order or direction declaring U.P. Disaster Management Act, 2005 passed by State of Uttar Pradesh as Ultra Virus for being superseded by similar Central Enactment namely Disaster Management Act, 2005 passed by Parliament violating Article 254 of the Constitution."
Learned counsel for the petitioners submitted that Disaster Management Act, 2005 does not allow any of the State or Central Authority to act as super power to supersede any law passed by the Parliament. It does not permit to rob pocket of any one in the name of disaster management. Even during financial emergency declared under Article 360 there is no provision for affecting finances of private entities. It is only under Article 360 (4) (a) (i) and (b), the Govt. can reduce salary of employees connected to state. The impugned order is therefore arbitrary violative of Articles 14-19-(1)-g) (right to impart education), 162 (executive power) and 254 (repugnancy) of the constitution.
He further argued that the impugned orders dated 27.04.2020 & 01.05.2020 violative Article 14 of the Constitution on three counts. (a) First, in the broad spectrum of various private occupations in the State economy, the State Government has discriminated against unaided schools by unreasonably classifying them as a special category for restricting and confiscating their operations and revenue. Revenue or operations of no other private occupations have been restricted by the State Government in this manner.
(b) Secondly, from the economic point of view, considering the amount of employment unaided schools generate and the livelihood of millions they maintain, it is manifestly arbitrary to single-handedly restrict its revenue which would have a domino effect on the livelihood of millions of people eventually defeating the whole object sought to be achieved.
(c) Thirdly, the impugned letters have been arbitrarily passed as executive orders without any authority in law or any statutory backing. The impugned orders have been passed simply on the ground that Covid-19 has been declared as a 'disaster' under the Disaster Management Act, 2005 read with UP Disaster Management Act, 2005. This lack of authority itself makes the impugned orders utterly arbitrary and violative of Article 14.
Learned Senior Advocate, Sri Kapil Sibal argued that the central enactment namely "The Disaster Management Act, 2005" has superseded UP Disaster Management Act, 2005 is clear from Section 14 wherein it has been provided that there shall be State Disaster Management Authority and Section 20 also provide for constitution of UP State Disaster Management Authority. U.P. State Committee is in 'occupied field' under Entry 29. The U.P. State Disaster Management Act, 2005 is repugnant to the extent the field is occupied by Central Enactment and the executive power of the State under Article 162, shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament. In the present case, the order impugned is derogatory to Central Enactment namely Disaster Management Act, 2005 and Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018.
Learned counsel for the petitioners further argued that the impugned orders have been passed on the premise that this pandemic might have affected the parents of students and while passing the impugned orders the concerned authority has failed to appreciate that in every district there is District Fee Regulatory Committee constituted under Section 8 of the Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018 where any parent could make complaint against any fee hike and there is no complaint from any parent to any of the District Fee Regulatory Committee in this regard, and hence, to make it the basis in the impugned is totally baseless and unfounded. In the absence of any grievance of any parent against enhancement of fees, the Principal Secretary, Secondary Education U.P. and Additional Chief Secretary cannot suo moto that too without authority of law restrain the schools from releasing the fees already enhanced.
Impugned orders have been passed at the fag end of April when all the private schools have made up their budgets for whole academic year and appointed staff accordingly. As per Section 3 & 7 they have already determined the school fees two months prior to starting of academic year and uploaded the same on school websites. The school fees so determined have already been uploaded as required under Section 3 (4) to (7) and 7 (1) (c) of The Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018. The State Government has, thus, failed to consider that the statutorily permissible increase in fee had already been announced by schools on 31.12.2019 as per Section 3 of the Fee-regulation Act and the impugned orders seek to retrospectively reduce the fee of the current year. According to Section 3 of the Fee-regulation Act, every school is required to announce its annual fee 60 days prior to the start of the academic year. Keeping this in mind the increased annual fee had already been announced on 31.12.2019, which created a vested right in the unaided schools. The State Government without any authority in law has reduced the fee retrospectively. It is settled law that vested rights cannot be taken away by executive orders. Therefore, the impugned orders are liable to be quashed for being confiscatory, arbitrary and utterly unreasonable.
Private school fees and annual fees increase is already strictly controlled under the U.P. Fees Regulation Act, 2018 which lays down the permissible maximum fee increase and lays down a legal frame work to monitor annuala fee increases, to ensure that fee increase is modest and commensurate with the increase in teachers' salary. These impugned orders banning enhancement of school fees have been passed without authority of law that too by an executive order. It is settled law that an executive order cannot override an Act. Under Section 4 of Act of 2018, a school is permitted to enhance fees under certain circumstances-like increase in the Consumer Price Index etc. and for which it is not required to take permission from District Fee Regulatory Committee constituted under Section 8. Apart from restriction on enhancement of fees, the schools have also been restrained from fixing new fees for new students who are to be admitted for the first time in the school. As per Section 4 (2) of The Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018, all schools have liberty to fix fees for new students. If it does not suit him then he can get admission in a lower-fee school or get free education in any govt. aided school.
It is further submitted that there are two types of enhancement of fees contemplated under Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018- firstly, enhancement as per increase in the Consumer Prince Index which has to be borne out by school on compulsory payment of annual increment and DA to teachers permissible under Section 4 of the Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018 and secondly, enhancement for some other purposes like raising of additional infrastructure for which permission is required from District Fee Regulatory Committee constituted under Section 8. Complete ban of enhancement of fees is wholly arbitrary as the schools is entitled to minimum enhancement of fees on the basis of increase in the Consumer Price Index which has to be borne out by the school on payment of annual increment and DA to teachers.
Accordingly, learned counsel for the petitioners submitted that the impugned orders dated 27.04.2020 and 01.05.2020 issued by Principal Secretary, Secondary Education, U.P. and Additional Chief Secretary, Govt. of U.P. may be stayed.
Learned Standing Counsel submits that the petitioner has challenged the orders dated 27.04.2020 and 01.05.2020 issued by Principal Secretary, Secondary Education U.P. and Additional Chief Secretary, Govt. of UP (Respondent No.2) for being violating of Articles 14, 19 (1) (g), 162 & 254 of the Constitution and has also sought the relief to the effect that U.P. Disaster Management Act, 2005 be declared Ultra virus, so in view of the law laid down by Hon'ble the Apex Court in the cases of State of H.P. and others vs. Mahendra pal and another, 1995 Supp (2) SCC 731 and Basant Lal vs. State of U.P. and another, (1998) 8 SCC 589, the interim relief as claimed by the petitioner cannot be granted.
We have heard learned counsel for the parties and gone through the material available on records.
As the petitioners have challenged the impugned orders dated 27.04.2020 and 01.05.2020 issued by Principal Secretary, Education U.P. and Additional Chief Secretary, Govt. of UP (Respondent No.2) for being violating of Articles 14, 19 (1) (g), 162 & 254 of the Constitution and has also sought the relief to the effect that U.P. Disaster Management Act, 2005 be declared as Ultra Virus, so keeping in view of the same and the law laid down by Hon'ble the Apex Court in above referred cases, we are of the view that the interim relief claimed by the petitioner cannot be granted at this stage.
Accordingly, issue notice to learned Advocate General, State of U.P.
Petitioners are permitted to serve the notice upon the learned Advocate General, State of U.P. outside the Court and with regard to service of notice, the petitioners shall file the affidavit of service by the next date of listing.
Respondents are directed to file counter affidavit within three weeks.
Rejoinder affidavit, if any, may be filed within a week thereafter.
As prayed by learned counsel for the petitioner, list/put up on 18.06.2020.
Order Dated : 18.05.2020
Mahesh

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