“The question of public and legal importance arises when the hon’ble (high) court stays the fee regulation order of FFRC, can a school be permitted to charge and collect the fee which it has fixed itself and which in view of the mandate of the judgements of the Hon’ble Supreme Court and high court and statute, is impermissible? Can such schools charge and collect such fee from the students?” Justice Attar said in an eight-page order clarifying the FFRC’s stand on ‘Legal position in respect of charging of fee by private schools’.
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“The answer in law is that such types of schools have no authority in law to charge and collect fees fixed by themselves,” he said.
Justice Attar said the High Court of Jammu and Kashmir & Ladakh, in its judgement on June 1, 2015, gave the liberty to managements of unaided private schools to approach the committee to fix the fee structure for each standard. It also provided that till the committee fixes a new fee structure, the managements shall collect all types of fees as on August 2014.
“The hon’ble Supreme Court has mandated that each educational institute must place before the committee, well in advance of the academic year, its proposed fee structure. It is also mandated that the committee will be at liberty to approve the fee structure or propose some other fee which can be charged by the institute.”
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“The latest judgement of the Hon’ble Supreme Court has also ruled that the government can provide for an external regulatory mechanism for determination of school fee or for fixation of just and permissible school fee at the initial stage itself,” he added.
In most cases, in which the high court has stayed the FFRC’s fee-regulation order, the schools had approached the committee for the first time.
“In these schools, in view of non-submission of proposed fee structure and record to FFRC previously, the fee was not determined and regulated by FFRC in respect of previous academic sessions. In violation of judgements of the Supreme Court and the High Court of Jammu and Kashmir & Ladakh, and mandate of the law, such schools have fixed the fee structure themselves,” he observed.
“This act of such school managements is per se illegal and void ab-initio, as fee structure has been fixed in breach of the mandate of the judgements of the Supreme Court and High Court and the statute occupying the field. Such fee structures cannot be recognised in law.”
Justice Attar said such schools shall have to request the high court to decide their writ petitions or seek clarification about the fee, which in law they are entitled to charge and collect from students.
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“Keeping in abeyance of fee regulation order of FFRC by the high court would not and shall not authorise school managements to fix fee structure at their sweet will and charge same from students, same being not permitted by the Supreme Court and the high court and the statutes occupying the field.
“No person can be permitted to abuse and misuse the process of Court to secure a legally impermissible benefit. Court orders protect legal rights and do not protect illegal acts,” he added.