Srinagar: The J&K High Court on Wednesday upheld the constitutional legitimacy of amendments in the J&K School Education Act, 2002 (effected post-2019) that created and empowered the Fee Fixation and Regulation Committee (FFRC) to put a brake on the “exploitation” by private schools in the erstwhile state.
The petitioner private schools had challenged Government Order No. SO 3466(E) dated 05.10.2020 and SO 177 of 2022 dated 15.04.2022, issued by the Ministry of Home Affairs, which introduced major amendments to the Jammu and Kashmir School Education Act, 2002.
By inserting Sections 20-A to 20-J, the amendments created the FFRC for J&K and subsequently prescribed the powers and functions of the Committee under Rules 5, 6, and 7 of the Rules of 2022.
According to the petitioners, although the Committee was intended to curb commercialisation and profiteering, the amended provisions conferred sweeping powers enabling it to fix, determine, and regulate the fee structure of private schools.
The petitioners contended that the functioning of the Committee has been inconsistent and arbitrary, sometimes requiring schools to submit proposed fee structures for approval, and at other times unilaterally fixing the fee without any proposal from the schools.
Justices Kumar and Parihar, after an exhaustive examination of Supreme Court precedents including T.M.A. Pai Foundation, Islamic Academy of Education, and P.A. Inamdar, held that “Sections 20A to 20J of the Act do not per se violate Article 19(1)(g) of the Constitution, as the object of the amendments is to prevent commercialisation and profiteering in education”.
However, the Bench made it clear that the FFRC cannot act as a price-fixing authority for every private school. It held that unaided private schools enjoy substantial autonomy in fee fixation and that regulatory scrutiny must be confined to cases of alleged profiteering or commercialisation, preferably based on complaints or where the proposed fee structure shocks the conscience of the Committee.
Significantly, the Court struck down Section 20A(2) of the Act to the extent it permitted the appointment of a retired Financial Commissioner or senior government officer as Chairperson of the FFRC. The Court held that, in line with Supreme Court directions, the Committee must be headed only by a retired High Court Judge nominated by the Chief Justice.
On the issue of transport fees, the Court observed that providing transport is not a mandatory requirement for schools and should ordinarily remain outside the ambit of fee regulation. Nonetheless, since transport fee is included within the statutory definition of “fee”, the Court directed the FFRC to constitute a committee involving the Transport and Consumer Affairs Departments to frame scientific and realistic guidelines linked to fuel prices and other operational costs.
The Court also criticised blanket scrutiny of all private schools, noting that with over 5,000 private institutions in J&K, such an approach was neither feasible nor legally justified. It stressed that fee structures should be examined individually, keeping in view factors like location, infrastructure, investment, and future expansion plans.
The Court asked the Government of J&K to revisit the Fee Fixation Rules, 2022 and lay down clear parameters to ensure uniformity, transparency, and fairness, while protecting genuine private schools, particularly in rural areas, from excessive interference.
The Court held that private unaided schools are entitled to generate reasonable surplus and returns on investment, and cannot be forced to operate on a “no-profit, no-loss” basis.
It implored the Government of the Union Territory of Jammu and Kashmir to give a fresh look to the Fee Fixation Regulations, 2022 so as to bring them in tune with the observations made in today’s judgment.
It said, “It would be highly appreciated if proper parameters and adequate guidelines are laid down to ensure that a uniform yardstick is applied by the FFRC to determine the school fee of private schools, undue profiteering is put on a bridle, and at the same time genuine private schools, particularly those established by uneducated youth in rural areas, are not stifled by undue and uncalled-for interference on the pretext of fee determination.”
The Court said it is high time to hold and clarify that the jurisdiction of all authorities of the State/UT with respect to matters which squarely fall within the jurisdiction of the FFRC is completely excluded.
The judges recorded, “We have no hesitation in holding that the FFRC, though empowered to ensure that private educational institutions do not indulge in commercialisation and profiteering of school education, should not enter into extensive scrutiny of the fee structure proposed by every educational institution.”
They said, “The Act of 2002 and the Fee Fixation Rules framed thereunder provide sufficient guidelines for the FFRC to determine whether a particular fee structure proposed by a school amounts to commercialisation and undue profiteering of education.”
“Although we do not find any clear guidelines or yardstick put in place in the statutory framework which would enable the FFRC to come to a just conclusion as to whether a particular fee structure proposed by a private educational institution amounts to commercialisation and profiteering of education, yet a leeway must be given to private educational institutions in the matter of proposing their fee structure,” the Court said.
