JAMMU: The High Court of Jammu and Kashmir and Ladakh has observed that the rapid growth of private schools across the country, including the Union Territory, is largely a consequence of the failure of the public education system to meet citizens’ expectations.
A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar made the observation while hearing a batch of petitions that questioned the extent of the government’s power to regulate fees charged by private unaided schools.
“The mushroom growth of private schools in Jammu and Kashmir, like in many States, is largely as a result of the failure of the public-aided education system. The compulsion of citizens to go to private schools is not created by private schools but is the doing of the Government, which has failed to deliver through its public education system,” the Court said.
The Bench noted that despite claims of reform, the public education system in the Union Territory has “virtually collapsed” and continues to fall short of public expectations. It observed that even economically weaker families aspire to send their children to private schools in the hope of better education and improved life prospects.
“Though there may be sincere efforts made by the Government to revamp the public education system, such efforts are not showing any visible results on the ground,” the Court remarked.
The High Court acknowledged that private education, which was initially meant to supplement government schooling, is now close to supplanting it. While stressing that the government must curb commercialisation and profiteering in education, the Court said it was time for the State to strengthen private schools rather than interfere unnecessarily in their functioning.
“It is high time that the Government should change its mindset and promote and strengthen private schools, by forbearing from interfering or causing unnecessary interference in their functioning,” the Bench observed.
At the same time, the Court clarified that it was not advocating privatisation at the cost of public education. It emphasised that both systems are essential in a country as diverse as India and underscored the urgent need for greater investment in government schools so that their quality and infrastructure match those in the private sector.
The judgment was delivered on a writ petition filed by seven unaided private schools challenging a mendment to the Jammu and Kashmir School Education Act, 2002, introduced through Central government orders in 2020 and 2022. These amendments led to the insertion of Sections 20A to 20J and the establishment of the Fee Fixation and Regulation Committee (FFRC).
The petitioners also challenged the Jammu and Kashmir Private Schools (Fixation, Determination and Regulation of Fee) Rules, 2022, and specific FFRC orders regulating tuition and transport fees. They argued that the regulatory framework violated Supreme Court rulings in TMA Pai Foundation and subsequent cases.
A key grievance was the allegedly arbitrary functioning of the FFRC. The schools claimed that while some institutions were asked to submit proposed fee structures for approval, others had fees unilaterally fixed by the committee without being heard. They further contended that fee determination was carried out without mandatory physical verification of factors such as infrastructure, staff strength, location, facilities and administrative expenses.
The petitioners also challenged Section 20A(2) of the Act, which allowed a retired Financial Commissioner or senior government officer to chair the FFRC. This, they argued, was contrary to Supreme Court rulings in Islamic Academy of Education and Modern School, which require such committees to be headed by a retired High Court judge.
In its January 28 verdict, the High Court reaffirmed that running a private school is an occupation protected under Article 19(1)(g) of the Constitution. It held that private schools cannot be treated as purely charitable institutions, as they involve substantial investment of capital, labour and time. Consequently, schools are entitled to earn reasonable surplus, provided there is no commercialisation or undue profiteering.
Upholding the validity of Sections 20A to 20J of the 2002 Act and the Fee Rules of 2022, the Court said the statutory framework offers adequate guidance to the FFRC to assess whether a school is indulging in profiteering. However, it cautioned against subjecting every private school to exhaustive scrutiny.
Striking down a portion of Section 20A(2), the High Court ruled that the FFRC must be headed exclusively by a retired High Court judge nominated by the Chief Justice of the High Court of Jammu and Kashmir and Ladakh.
On the issue of transport fees, the Court noted that providing transport is not mandatory for private schools and that such charges should ordinarily not form part of school fees. However, since the statute includes transport charges within the definition of “fee”, the Court directed the FFRC to constitute a committee with representatives from the Transport and Consumer Affairs Departments to frame broad guidelines for fixing and periodically revising transport charges.
The High Court also urged the Jammu and Kashmir government to revisit the Fee Fixation Regulations, 2022, and prescribe clearer parameters to ensure uniformity and transparency in fee determination. Senior Advocate N.A. Beigh, assisted by Advocate Murshid Rashid, represented the petitioners. Deputy Solicitor General of India T.M. Shamsh, along with Advocate Shagufta Maqbool, appeared for the Central government, while Senior Additional Advocate General Mohsin Qadri, assisted by Advocates Maha Majeed and Mohd Younis Hafiz, represented the Jammu and Kashmir administration.
