Jharkhand HC Quashes Provisions Of RTE Amendment Rules Levying Inspection Fee, Security Deposit On Private Schools

The Jharkhand High Court has partly allowed a batch of writ petitions challenging the Jharkhand Right of Children to Free and Compulsory Education (First Amendment) Rules, 2019.

The Court struck down as unconstitutional the provisions requiring private schools to pay application and inspection fees and to maintain a security deposit for recognition, holding that the State lacked legal authority under the Right of Children to Free and Compulsory Education Act, 2009. However, the Court upheld the rules relating to land ownership or long-term lease and minimum land area requirements for private schools.

A division bench of Chief Justice M.S. Ramachandra Rao and Justice Deepak Roshan stated that the amendments introduced through the Jharkhand Right of Children to Free and Compulsory Education (First Amendment) Rules, 2019, which required private schools to pay ₹12,500–₹25,000 as a non-refundable application/inspection fee and deposit ₹1,00,000 as a fixed security, violated Article 265 of the Constitution of India.

The bench held, “In the absence of any power conferred under the Act to levy such inspection/application fee or security deposit, the prescription of the same by the State Government by way of amendment in 2019 to 2011 Rules cannot be sustained. It would in effect amount to levy of a 'tax' imposed by the State which cannot be traced to the statute, and so its levy would violate Article 265 of the Constitution of India.”

The writ petition was filed by the Apex Association of Private Schools - the Jharkhand Private School Association - registered under the Societies Registration Act, 1860. These schools are run by private school managements in various districts of Jharkhand.

The Court noted that the Right of Children to Free and Compulsory Education Act, 2009 was enacted by Parliament to provide free and compulsory education to all children of age groups of 6–14 years and to treat it as a fundamental right under Article 21A of the Constitution.

It was further noted that under Section 18 of the Act, all schools are required to obtain recognition from the appropriate Government or local authority. This recognition is granted only if the school fulfills the norms and standards listed in the Schedule to the Act. Section 38 gives power to the State Government to make rules for carrying out the provisions of the Act.

However, the 2019 amendment to Rule 12 of the Jharkhand Right of Children to Free and Compulsory Education Rules, 2011 introduced new conditions. These included an application/inspection fee of ₹12,500 for Classes 1 to 5 and ₹25,000 for Classes 1 to 8, which was to be non-refundable, and a mandatory fixed deposit of ₹1,00,000 in the name of the school as a permanent security fund.

It was contended by the petitioners that the Act did not empower or authorize the State to realize any application fee or inspection fee from a schools for processing application of such school for grant of recognition; and in the absence of such enabling power contained under the Act for demanding such levy or fee, the said provision compelling the private school managements to pay the amount of Rs. 12,500/- or Rs. 25,000/- along with a fixed deposit of Rs. 1,00,000/- would be wholly without jurisdiction.

It was also contended that the requirement prescribed under the 2019 Amendment is beyond the delegated power being exercised by the State under the Act and is ultra vires to the provisions of Section 18 to 20 of the Act.

It was further contended by the petitioners that only the private schools were being compelled to follow the above norms. They pointed out that the norms prescribed in the 2019 Rules are being fulfilled by only 17983 Government Schools out of 32741 Schools in State of Jharkhand in 2018-2019, and the respondents cannot be permitted to discriminate in the application of the 2019 Rules by enforcing them only against the private schools and not applying them to the Government schools which have not fulfilled the norms. Reference is made to Annexure-10 in W.P.(C) No. 5455 of 2019 wherein the above information was furnished under the Right to Information Act to the petitioner on 24.9.2019.

The Court finding merit in these arguments, stated, “The work of inspection being done by the respondents is only to see that the private schools fulfill the requirements provided in the Rules and in the schedule to the Act. It is not a service being rendered to the applicants for recognition to run the schools and so a 'fee' cannot be collected for that purpose.”

The Court observed, “According to the first supplementary counter affidavit filed by the State Government there are more than 34850 schools within the State of Jharkhand. If the levy at the rates referred to above both for inspection fee and for security deposit for each school is taken into account, since it is not denied by the State that recognition process has to be undertaken every year, it would result in a great windfall to the State which was certainly not the intention of the Parliament when it enacted the law or Right of Children to Free and Compulsory Education Act, 2009.”

On this basis, the Court struck down Clause (g) in Rule 12(1) and Clause (g) introducing the fixed deposit requirement of ₹1,00,000.

The Court further upheld the validity of Clauses (a) to (d) of Sub Rule (7) of Rule 12, which relate to land ownership or lease and minimum land area requirements for schools. It said these are not arbitrary or unreasonable and are within the powers of the State Government under the Act. In para 86, the Court said, “We do not see anything unreasonable on the part of the State in introducing these requirements by way of amendment in 2019 in the 2011 Rules since the same do not appear to be arbitrary or unreasonable and the State Government is empowered to prescribe such norms under Sub Section (2) of Section 18 read with Section 38(2)(h) of the Act.”

Furthermore, looking at the new structure of the District Elementary Education Committee, which had been expanded to include many members, including MPs and MLAs, the Court expressed concern that such a large committee with no quorum could delay the recognition process. The Court directed, “The respondents shall consider within 8 weeks amending Sub-Rule (8) of Rule 12 (as amended in 2019) by either reducing the members of the District Elementary Education Committee or prescribing a quorum of 5 or 6 members for it's meetings, as deemed advisable.”

Accordingly, the Court partly allowed the writ petitions while quashing the fee and fixed deposit provisions but upheld the rest.

The Court gave private schools six months' time from the date of the order to comply with the valid rules, stating, “This is because the academic year has already started and several students who joined such private schools will suffer if the recognition is now abruptly withdrawn on account of non-fulfilment of the norms under the 2019 amended Rules.”

Case Title: Jharkhand Private School Association vs. The State of Jharkhand

Case Number: W.P. (C) No. 5455 of 2019

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