Please note that the below article on ‘Legal Remedies against an Educational Institute to an aggrieved student or Parent’ is a work of our guest author Advocate Sh. Piyush Singh, Partner, PSP Legal, who has been extensively working in Commercial and Corporate dispute resolution and Consumer awareness space since last 7 to 8 years. We felt that its important to enlighten the parents and students alike on various legal remedies available to them against an Educational Institute like a School or a College, should such a situation arise. We look forward to hearing from you in case of any questions or in case you need any help:
Education is not a commodity which sells in an open market, but a pious service rendered to the humanity. Thus, commercialization and profiteering of education shall not be allowed in any form. However, in the past few years, the educational institutions, mostly driven by their rapacity than performance of this pious service, take advantage of their dominant position and refuse to refund the fees that they have collected even if the student decides to leave the institution due to deficiency in quality of education or other reasons. Also, the students and parents under the undue influence of the educational institutions are made to sign agreements containing no-refund clause and other such one-sided clauses. The parents and students in such cases have a legal recourse in the form of a consumer complaint which can be filed against the “deficiency of service” and “unfair trade practise” of the educational institutions as the students are “consumers” and educational institutions are providing “service” by imparting education under the Consumer Protection Act, 1986.
In 2009 in Bihar School Examination Board vs. Suresh Prasad Sinha¹, the Hon’ble Supreme Court held that the Board did not render any “service” under Section 2(o) of the Consumer Protection Act in the course of conducting the examinations. However, this decision was misinterpreted and most consumer fora began dismissing complaints for refund of fees by the educational institutions. Finally, in Mody University of Sciences and Technology & Anr. vs. Megha Gupta², the National Commission for Consumer Dispute clarified that the Supreme Court in the Bihar School Examination Board case³ held that the students are not “consumers” with respect to the Boards or universities in conducting of examinations or declaration of result. But in the instant case the complaint was against the alleged deficiency of service by the educational institution for refusal to refund the fees. One, Medha Gupta had withdrawn her admission and requested the refund of the fees. However, the institution forfeited the fees and thus, the Commission termed this as “deficiency in service” and “unfair trade practise” and thus directed it to refund the fees.
Therefore, this judgement has made it crystal clear that the educational institutions whileimparting education render “service” and are thus amendable under the Consumer Protection Act. Also, the educational institutions can only charge prescribed fees for one semester/year.4 In FIT JEE Ltd. vs. Minathi Rath5, the National Commission held that an advance fee for two years collected by the petitioner coaching centre is not correct. In the instant case, the coaching centre collected advance fees for two years and the student left after attending the course for one year. But the centre refused to refund the fees for the unattended period taking the guise of the non-refund clause that the students are made to sign at the time of admission. It was observed that the students have no bargaining power to negotiate or refuse to sign any particular clause in the admission form. Hence, these clauses should not be held against the student as same is unconscionable and is hit by Section 23 of the Indian Contract Act, 1872 and also is in clear violation of principles of public policy. As the Centre could not provide the proof that they suffered as the seat remained vacant, it was directed to refund the fees for the unattended period.
In case the parents and students want the refund of the fees paid by them to the educational institutions, it is advised to:
- Preserve the proof of the fees paid i.e. a copy of the bank details, cash receipt, photocopy of the cheque or any other relevant proof of payment.
- Send a formal written complaint to the educational institution for refund of fees and preserve the institution’s response to such a request, as it may help to establish the
case in the consumer forum.
- If the withdrawal of admission is due to lack of quality in the academic content offered, save details of course curriculum, pamphlets etc. mentioning the details of the education imparted.
Another major issue faced by the parents and the students are the whimsical fee hike by the schools all over the country on one pretext or another. The Higher Judiciary has time and again chided the Government for failing to comply with the mandate of the Right to Education Act, 2009 (hereinafter referred to as the “RTE Act”) and also Article 21A of the
Constitution of India to provide free and compulsory education to all the children between the age of six to fourteen years in a neighbourhood school. Section 3(2) of the RTE Act further states that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. Section 13 of the RTE Act envisages that no capitation fee shall be charged by the school while admitting a child and further the child or his parents or guardian are not subjected to any screening procedure. Despite these unambiguous provisions of the RTE Act, the schools constantly hike the fees on arbitrary grounds and the parents and students have to bear the brunt of this arbitrary hike.
However, there are certain rights in this aspect available with the aggrieved parents and the students. For instance, a writ petition can be filed under Article 226 or Article 32 of the
Constitution of India before the High Court or the Supreme Court respectively as the State Government has the legislative and constitutional mandate to provide free and compulsory elementary education, without financial or other barriers. Further, no school is allowed to take coercive step or force the child to leave the school for non-payment of enhanced fee even if the school has been permitted to recover the arrears of fee.6
The Apex Court and various High Courts have in a plethora of judgements restricted various educational institutions from burgeoning the fees in an unreasonable and unlawful manner. A reasonable hike in fees is considered permissible as fund from hike could be used for development of various activities in schools for benefit of students themselves and also for improving the quality and infrastructure facilities. But, profiteering and commercialisation of6 Forum of Minority School and Ors. vs. Director of Education and Ors. MANU/DE/0858/2009 school education is not allowed under any circumstances. In Modern School v. Union of India7 the Supreme Court laid down guidelines to prevent profiteering by private unaided schools in Delhi and blatant commercialisation of education. Huge sums of money sometimes even to the tune of Rs. 8000 per month have been collected as tuition fee and other annual fees by schools towards ‘development’ which often meant constructing more buildings, financing other schools run by the management and even creating and maintaining swimming pools. The Supreme Court ruled on the following main points:
(a) It empowered government to check private schools in Delhi from charging excessive fees;
(b) Directed schools to file accounts to Director of Education. It was held that the Director is authorized to regulate the fees and other charges to prevent the commercialization of education; to analyse the statements of fees of the schools;
(c) Private (unaided) schools would have to fulfill their statutory obligation to admit students (25% of the students) from the economically lower strata to comply with one of the conditions on which they had been allotted land at concessional rates.
Pursuant to the above guidelines of the Supreme Court, the High Courts also have been vigilant in providing relief to the parents and students aggrieved by the fee hike. In Delhi Abhibhavak Mahasang and Ors. vs. Government of NCT of Delhi8, the Delhi High Court held that Section 17(3) of Delhi School Act, 1973 is intra vires the Constitution of India as the schools have the requisite autonomy to fix the fees at the commencement of the academic session, but they have to submit to the Director of Education the full statement of fees levied by it and they are not permitted to increase the fees during the academic session without the prior approval of the Director. Further, the Court directed the constitution of Justice Anil Dev Committee for examining whether the claim of various schools that they increased the fees to comply with the VIth Pay Commission was genuine or not. The Justice Anil Dev Committee Report disclosed that many schools had hiked the fees unjustly and unreasonably.
In Ritesh Pandey vs. Union of India9, a writ petition was filed in the Punjab and Haryana High Court against the irrational and whimsical school fee hike resorted to by the private unaided schools (affiliated with CBSE) in Chandigarh. Pursuant to the case, the Government extended the Punjab Regulation of Fee of Unaided Educational Institutions Act, 2016 to Union Territory of Chandigarh under which the cap of 8% has been imposed on increasing the fees as compared to the previous year. Further the Delhi High Court in a recent writ petition10, has held that expenses for running Air Conditioning Plant cannot be recovered as part of Tuition Fess but can only be recovered as Annual Charges as the School is not permitted to recover expense of a capital nature in the garb of Revenue Expenditure.
Thus, the parents and students have legal remedies in the form of consumer complaints, writ petitions, civil suits etc. against the insatiable and illegal demands of the educational institutions in the noble duty to impart education.
Piyush Singh (Partner)
PSP Legal, Advocates & Solicitors
2 Revision Petition 3288 of 2016.
3 Supra, note 1.
4 Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 696.
5 Revision Petition No. 3365 of 2006
6 Forum of Minority School and Ors. vs. Director of Education and Ors. MANU/DE/0858/2009
7 AIR 2004 SC 2236
10 St. Marks Sr. Secondary Public School & Ors. vs. Director of Education MANU/DE/1791/2018.
We look forward to hearing from you in case of any related questions or in case you need help.
Last updated: February 23, 2019 at 17:34 pm