Quashing a Sindh rule that restricts private educational institutions to increasing their fee by only up to 5 per cent, the Sindh High Court on Monday directed the Sindh government to frame the relevant rules within 90 days, if it wishes to regulate private school fee hikes.
Issuing a detailed judgement on the petitions filed by parents against the increase in tuition fees of private schools in violation of laws, an SHC division bench headed by Justice Munib Akhtar said that Rule 7(3) of the Sindh Private Educational Institutions (regulation and control) Rules 2005, which limits schools to 5 per cent fee hike, imposes a one-step system with the onus always being on the schools which is constitutionally impermissible.
The court observed that the manner in which any increase in school fees is to be treated, in terms of Rule 7(3), is ultra vires under Article 18 of the Constitution, which deals with freedom of trade and business.
The bench directed the provincial government to frame constitutionally permissible rules within 90 days whether by suitable amendments to the 2005 Rules or otherwise, if it wishes to regulate the increase in school fees. It, however, observed that till the time the proper regulatory framework is put in place, Rule 7(3) shall continue to remain in force for the interim period.
If the rules cannot be framed within the stipulated 90 days, the provincial government or any stakeholder (e.g., a parent) may file an application seeking a suitable extension in time, the bench stated, adding that then the provincial government shall have to explain and give reasons for the delay.
The court may make such orders and give such directions on the application as it deems appropriate, including extending the period for which Rule 7(3) is to continue, the bench stated.
However, as per the court order, if no such application is filed, then the interim continuance of Rule 7(3) shall come to an end on the expiry of the 90-day period. The court also observed that regulation of salaries and terms and conditions of the staff, including teachers, is permissible and no exception can be taken to the relevant provisions of the 2001 Ordinance and the 2005 Rules in this regard.
As per the court’s order, while placing a framework to regulate the increase in tuition fees, the provincial government must ensure that all stakeholders, including parents and guardians, must be given proper notice of any move to increase school fees and an adequate opportunity of register objections or make any suggestions in relation thereto.
The court further observed that the acceptance or rejection of any proposed fee increase must be done by a reasoned order and a proper and detailed procedure for this purpose must be clearly articulated, and applicable timeframes and deadlines clearly set out by the government in its drafted rules.
The bench added that since the number of schools that come within the scope of the 2001 private institutions’ regulation ordinance is very large and the administrative capacity of the concerned department of the provincial government appears to be limited, there must be proper provisions to deal with a large number of applications as well as any delays and backlogs in processing the same and there should also be some provision for interim measures while the proposed increase is being considered and/or finalised.
The court also paid tribute to the late veteran lawyer Asma Jahangir, who had argued the case on behalf of some private schools. It observed that she was an indomitable spirit and an indefatigable defender and champion of the rule of law and her absence will be long felt in the public arena and in courts all over the country, including the SHC.
It is pertinent to mention that on October 8, 2016, parents and students had won a legal battle against a private school management’s decision to increase tuition fees up to 14 per cent when the SHC court had ordered that schools shall only increase fees by not more than five per cent per annum from the date of their registration, which is supposed to be renewed every three years.
However, the Supreme Court had set aside the judgment and remanded the petitions back to the SHC for hearing afresh an appeal of the school management, which had submitted that implications, vires and application of Rule 7 (3) of the Sindh Private Education Institutions (Regulation and Control) Rules 2005, were not examined in the SHC judgment.
The Supreme Court had directed the high court to hear the petition afresh prior to the summer vacations and in the meantime ordered the schools not to expel any student or take any action against any students over the non-payment of the enhanced fees.
Mixed reactions
Meanwhile, the SHC’s order received mixed reactions from the Directorate of Inspection and Registration of Private Institutions Sindh, private schools association and parents association, but they all agreed to honour the court’s judgement.
Rafia Mallah, the registrar of the Directorate of Inspection and Registration of Private Institutions, said that her office would implement the court’s decision “word by word”. According to her, parents had filed complaints at the directorate against the illegal fee hike, but its officials were unable to take action against such school owners because they had approached the SHC and the matter was subjudice.
“When we took action against those schools, their legal advisers would send us contempt of court notices, therefore no tangible actions were made by the directorate back then,” she said. She added that if private schools defied the recent court verdict, their registrations would be cancelled as per Sindh Private Educational Institutions Regulation and Control Act.
On the other hand, Syed Khalid Shah, the chairman of All Private Schools Management Association Sindh, said that owners of private schools are bound to accept the court’s decision. He added that the education department will, however, convene a meeting to take on board owners of private schools to fix the issue of fee structure with mutual understanding.
“If we are not heard by authorities then it is our legal right to challenge them in the apex court” he said. Hamoodur Rub Jaffry, the secretary general of All Sindh Parents Association, said parents are satisfied with the court’s decision, but it was expected that owners of private schools will challenge it in the apex court.
“Every issue has a solution,” said Jaffry. “The parents had started their campaign on roads against illegal fee hike. As a result, their struggle reached the court and they got relief finally.”
— Additional reporting by Arshad Yousafzai