Non-payment of school fee is not ground for denying permission to students for appearing in exams

In the High Court of Delhi at New Delhi
W.P.(C) 584/2023 / Neutral Citation: 2023/DHC/000380

MASTER PRABHNOOR SINGH VIRDI (MINOR SON)
THROUGH FATHER KARAMJEET SINGH VIRDI       ………. Petitioner

Vs

THE INDIAN SCHOOL & ANOTHER …………. Respondent

In January 2023, the Delhi HC held that not allowing student to appear for Board exams due to non-payment of school fee is violative of the fundamental right to education enshrined in the Constitution of India.
A look at the highlights of the case:

Facts of the case

• Prabhnoor Singh Virdi (‘Prabhnoor’) was a class 10 student in the Indian School (‘school’) CBSE school in Delhi. His school fee was entirely paid until the onset of the Covid-19 pandemic. Due to financial losses suffered by Prabhnoor’s father, he was unable to make regular fee payments thereafter.
• In August 2022, the school sent a letter as well as an e-mail to his father asking for payment of pending fee, else recommending striking off Prabhnoor’s name from the rolls of the school.
• Consequently, the father approached the Department of Education (‘DOE’) seeking relief. But the school removed Prabhnoor’s name from its rolls. When the father approached the DOE again, the department sent a letter to the school requesting the school to reinstate the student to enable the child to appear for class 10 CBSE examination.
  Simultaneously, the father filed a complaint with the Delhi Commission for Protection of Child Rights (‘DCPCR’). The Commission directed the school to reinstate the child stating that it should not bar any student from appearing from ongoing exams pending inquiry by the Commission. Subsequently, in September 2022, the school sent a mail permitting Prabhnoor to attend classes and appear for the half yearly exams.
• However, in November 2022 the school struck off Prabhnoor’s name from its rolls. Despite numerous requests from the father, the school did not reinstate the child.
• Aggrieved, the father filed a writ petition before the Delhi HC.

Contention

1. The advocate appearing for the school submitted that a sum of Rs. 3,14,000 was pending payment not only by Prabhnoor but also his sister who studied and passed out from the school in the previous year.
2. Since the school is a private unaided school, it is not possible for the school to impart education if such large sums of money are not paid by students.
3. The father stated in an e-mail in August 2022, that the pending fee would be paid at the earliest. Since it was not done, the school was constrained to file a recovery suit against the father.
4. The Delhi School Education Rules (‘DSER’) envisages that the name of a student may be struck off the rolls on account of non-payment of school fees and other dues. The advocate further contended that the DSER does not adversely affect the operation of the Right to Education Act (RTE) as the student to is free to take admission in any government school if he /she cannot afford the payment of school fee in private unaided school.
5. There were judgments from other co-ordinate Benches of this Court that directed parents to make payment to school either in instalments or lump sum amount(s).

Analysis & Judgment

While passing the judgment, the HC considered:            

• The judgment of the Supreme Court in the case T.M.A. Pai Foundation vs. State of Karnataka, 2002 SCC OnLine SC 1036 held that Article 19 (1)(g) employs four expressions – ‘profession’, ‘occupation’, ‘trade’ and ‘business’. Education is per se regarded as an activity that is charitable in nature. Education has so far not been regarded as a ‘trade’ or ‘business’ where profit is the motive. It cannot be regarded as ‘occupation’. Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6).
  Education is the foundation which shapes the future of a child, which in turn shapes the future of society in general. Therefore, not allowing a student to take examinations, especially the Board Examinations, would be infringement of the rights of a child akin to Right to Life as guaranteed under Article 21 of the Constitution of India.
• Article 21A of the Constitution of India provides for Right to Education, wherein the State has been ordained to provide free and compulsory education to all children of the age of 6 to 14 years.
• In the context of Indian Society, Class 10th and 12th Board Examinations are vitally important and critical, having decisive repercussions and bearing on the future of a student.
• The HC was also of the view that a school which is run as a private unaided school cannot be forced to continue with a child who is unable to pay fees, having taken admission in the general quota and not under the Economically Weaker Section (EWS) or Disadvantaged Group (DG) quota. The constitutionality and validity of Delhi School Education Rules (DSER) 1973 which authorizes the Head of the school to strike off the name of a student from the rolls of the school on account of non-payment of fees, has not been struck down by any Court of law.
• The RTE Act guarantees the right to education. However, the HC observed that it nowhere provides that the said right can be unconditionally enforced against a private unaided school. The petitioner is free to take admission in a government school if he cannot afford to pay the fee of the private unaided school. If he is entitled to admission in the EWS category, he may apply under that category to seek waiver of the school fee. If the claim of the petitioner were to be allowed, it would mean that even a private unaided school would not be able to charge any fee even though they have to meet all their expenses from their own resources and accretions. This is completely untenable.
• The HC was of the view that the rights of a child to education has to be balanced with the rights of the school. If the petitioner is unable to pay the fees of the school, the petitioner certainly does not have a right to continue education in the school in question. However, the petitioner cannot be tormented in this manner in the middle of the academic session. His academic year cannot be wasted neither can he be directed to take admission in another school especially in a crucial 10th std Board examination year.
• The HC also observed that the petitioner approached the Court at a belated stage when the child was a day or so away from the practical Board examination. The Court berates the petitioner for the same.
• Nevertheless, taking a compassionate / sympathetic view the HC directed the school to reinstate the student on its rolls and allow the student to take the practical exams and 10th std Board examination along with special classes for the same. This direction is with the objective to not waste a student’s academic year. At the same time, to balance the equities, the HC directed the petitioner to pay to the school, a sum of Rs. 30,000 towards school fees within the stipulated time period.

For full text of the Judgment:

https://delhihighcourt.nic.in/
http://164.100.69.66/jsearch/