J&K High Court Upholds Fee Regulation Amendments, Says Public Education Failure Is Leading To Rise Of Private Schools

Srinagar: The High Court of Jammu and Kashmir and Ladakh recently stated that the 'mushroom growth of private schools in Jammu and Kashmir, and in many States across the country, is a consequence of the failure of the public education system. A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar made the remarks while adjudicating a batch of petitions filed by seven unaided private schools challenging the government’s fee regulation framework under the Jammu and Kashmir School Education Act, 2002.

Court called out failure of public education system

The court acknowledged the efforts put forth by the public education system to revamp schools, but also said that the measures taken have not been adequately effective, and there has been a lack of visible results on the ground. Hence, private education, which was initially intended to only complement the government system, is now close to replacing it in many regions, the court said.

The Bench noted that even economically weaker families are now aspiring to send their children to private schools in the hope of better educational outcomes. “We also cannot remain oblivious of the fact that the public education system in the Union Territory has virtually collapsed and, in any case, is not coming up to the expectations of the citizens. Even the poorest of the poor long to send their children to private schools with the hope that they would get a better education, which may help them come out of poverty. There may be some sincere efforts made by the Government to revamp the public education system, but such efforts are not showing any visible results on the ground," it said.

'Both public and private education necessary'

At the same time, the Court clarified that it was not advocating privatisation at the cost of public education. It is high time that the government works to strengthen the system of public education, beginning from schools, instead of unnecessarily interfering in the functioning of private schools. "Both public and private education systems are necessary to meet the diverse educational needs of a country like India. There is a dire need to invest in the public education system and to ensure that the quality of education and infrastructure provided in Government schools matches the schools in the private sector," it said.

The ruling came from a challenge to amendments introduced through government orders issued in 2020 and 2022, which inserted Sections 20A to 20J into the J&K School Education Act and led to the creation of the Fee Fixation and Regulation Committee (FFRC). The petitioners contested the Jammu and Kashmir Private Schools (Fixation, Determination and Regulation of Fee) Rules, 2022, along with specific FFRC orders which oversee the regulation of tuition and transport fees.

Court ruling against the arbitrary regulation of fees 

The private schools argued that the regulatory mechanism violated Supreme Court precedents laid down in cases such as T.M.A. Pai Foundation and Islamic Academy of Education, particularly on institutional autonomy. They also alleged arbitrary functioning by the FFRC, claiming that fee structures were often fixed without seeking proposals from schools or conducting mandatory physical verification of infrastructure, staff strength, facilities and expenditure.

One of the key challenges was directed at Section 20A(2) of the Act, which allowed a retired Financial Commissioner or senior government officer to chair the FFRC. The petitioners contended that this was contrary to Supreme Court directions requiring such committees to be headed by a retired High Court judge.

The High Court reaffirmed that running a private school is an occupation protected under Article 19(1)(g) of the Constitution, given the significant investments involved. It held that private schools are entitled to generate a reasonable surplus, as long as there is no commercialisation or undue profiteering. Upholding Sections 20A to 20J of the Act and the 2022 Fee Rules, the Court ruled that the statutory framework provides adequate guidance to regulate excessive profiteering. However, it warned the FFRC against subjecting every private school to exhaustive scrutiny. The Bench directed the committee to adopt a rational approach by focusing on large institutions in urban areas or cases where specific complaints are received.

Fee regulating committee to be headed only by a retired High Court judge

Striking down the portion of Section 20A(2) permitting government officers to head the FFRC, the Court directed that the committee must be chaired only 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 said that providing transport facilities is not mandatory for private schools and that such charges should ordinarily remain separate from school fees. However, since transport charges notably fall within the statutory definition of “fee”, it directed the FFRC to set up a committee with representatives from the Transport and Consumer Affairs Departments to frame guidelines for fixation and periodic revision of transport charges.

The High Court also urged the Jammu and Kashmir government to revisit the 2022 fee regulations and prescribe clearer parameters to ensure uniformity and transparency in fee determination.

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