SHC again suspends 20pc fee concession directives for educational institutions

The Sindh High Court on Tuesday again suspended the provincial education department’s directives to the private educational institutions for a mandatory 20-per cent concession in the tuition fee of April and May due to the COVID-19 emergency situation, as private schools challenged the Sindh government’s newly introduced amendments in the rules relating to the private education institutions by the provincial government.

The private schools challenged the Sindh government’s notification with regard to the newly introduced amendments whereby Rule 19-A to Rule19-E have been inserted after Rule 19 of the Sindh Private Educational Institutions (Regulation & Control) Rules, 2005, and subsequently, a notification issued by the education department directed the private schools to give 20-per cent tuition-fee concession to students.

It is pertinent to mention here that the Sindh government had on April 27 made certain amendments in the Sindh Private Educational Institutions (Regulations & Control) Rules, 2005, by inserting Rules 19-A to 19-E in place of the original Rule 19, by giving powers to the registering authority defined under the rules. The education department’s registration authority of the private education institutions, by exercising power under Rule 19-A, had issued a special order on April 28, regarding 20-per cent mandatory concession in the fee of the students for the months of April and May 2020 in respect of the privately-managed schools.

Being aggrieved with the newly introduced amendment and special order of registration authority of the private schools for 20-per cent fee concession in the tuition fees, petitioners’ counsels Arshad Tayebaly and Omar Memon submitted in the petition that the rules were framed purportedly under Section 15 of the Sindh Private Educational Institutions (Regulations & Control) Ordinance, 2001, which was purportedly amendment by the Sindh Private Educational Institutions (Regulation & Control) (Amendment) Act, 2003.

They said an ordinance could not be amended by an act nor could any rules be framed under an ordinance, and therefore the above rules of 2005 and the impugned amendments were of no legal effect.

They submitted that if it was assumed that the ordinance was the parent statute, even then the impugned amendment and special order of registration authority being beyond the scope of the ordinance were ultra vires to the ordinance, the rules and the constitution.

They submitted that the provincial government could only issue guidelines under the Rule 19 of the Rules of 2005 for effective and transparent institutional management etc and the government had no power under the ordinance or the rules to pass any order or to direct the private schools to grant mandatory concession in tuition fees to the students under any circumstances.

They submitted that the impugned action was discriminatory inasmuch as on the one hand the schools had been directed to pay full salary to their teaching and non-teaching staff for the period in question and on the other hand they had arbitrarily directed to grant concession at the rate of 20-per cent in the tuition fees.

They submitted that the impugned directives were biased and one-sided as all the so-called concessions/relief granted therein were against the schools and that too without notice to any of the schools and or the association managing their affairs and without affording any opportunity of hearing to any of them which made the impugned action violative of the well-settled principles of natural justice.

They argued that the impugned action was discriminatory and biased and also on the ground that no other profession, business or sector had been compelled by the government to reduce its income mandatorily on the ground of the COVID-19 pandemic. They said the matters of engagements/appointments of teachers by the schools and admission of the students were contractual matters subject to certain terms and conditions which could not be modified or interfered with by the government under any circumstances.

The SHC’s division bench, headed by Justice Nadeem Akhtar, after the preliminary hearing of the petition issued notices to provincial law officers, the secretary education and others and called their comments on May 14.

The court in meantime ordered that the operation of registration authority’s special order to the private educational institution regarding mandatory 20-per cent tuition fees concession in the tuition fees of students for the months of April and May 2020 and refund the same if collected shall remain suspended till further order.

The private schools had earlier challenged the education department’s directives to the private educational institutions for a mandatory 20-per cent concession in tuition fee of April and May due to the COVID-19 pandemic and the lockdown, but the court dismissed their petitions as infructuous following amendments in the rules relating to the private education institutions by the provincial government.