Point of Law:
Digital Education is an evolving area which is primarily concerned with the teaching learning-process using digital medium. This has evolved from activities such as sharing of text resources and students submitting assignments online to availability of various types of content such as audio, video and multimedia resources. The continuous advancement in the field of Information and Communication Technology (ICT) and the internet (with virtually unlimited supply of digital resources) has made multiple modes of digital education possible.

JUDGMENT :

J.B.PARDIWALA, J.

1. As the issues raised in all the captioned petitions are the same, those were heard analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, the Special Civil Application No.8819 of 2020 is treated as the lead matter.

3. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:

“(A) the Hon'ble Court be pleased to issue a writ of mandamus or a writ order or direction in the nature of mandamus and be pleased to quash and set aside the Government Resolution No.BMS/1220/53/FRCCell, dated 16.7.2020 issued by the Education Department, State of Gujarat.

(B) Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to stay the implementation and operation of the Government Resolution No. BMS/1220/53/FRCCell, dated 16.7.2020 issued by the Education Department, State of Gujarat.

(C) Your Lordships may be pleased to pass such other and further order(s) that may be deemed fit and proper in the facts and circumstances of the case.”

4. The facts in brief of the present litigation are as under:

“2.1 The 1st petitioner is an association of unaided schools imparting pre-primary, primary, secondary and higher secondary education within the State of Gujarat. It is registered as a public charítable trust and is concerned with the interest of self financed schools within the State of Gujarat who are its members. The 2nd petitioner is the Secretary in the 1st petitioner’s and is a citizen and national of India. The 2“ Petitioner is also a trustee of a self financed school which is a member of the 1st Petitioner Association.

2.2 The members of the petitioners have established and are managing unaided schools in the State of Gujarat, which schools are affiliated to the State Board, Central Board for Secondary Education, Indian Council for Secondary Education, and international Boards.

2.3 The State of Gujarat has enacted the Gujarat Self Financed School (Regulation of Fees) Act, 2017 (“the Fee Act of 2017”) and the Gujarat Self Financed School (Regulation of Fees) Rules, 2017. The said Act is for fixing of fees in Unaided Schools situated within the State of Gujarat. The validity of the said Act has been upheld by this Hon’ble Court. The said judgment is subject matter of SLP (Civil) No. 314 of 2018 filed by the Petitioner Association which is pending final hearing before the Hon’ble Supreme Court. The Hon’ble Supreme Court has passed several orders from time to time. The proceedings of fixation of fees in terms of the said Act is made subject to the final outcome of the said proceedings pending before the Hon’ble Apex Court.

2.4 The Petitioners state that in view of the Covid-19 pandemic, the Government of India declared a lockdown and in furtherance thereof, all educational institutions were closed down. The Government of India permitted reopening of activities in a phasewise manner. In terms thereof, the schools and other educational institutions have been permitted to operate, however, face-to-face education is not permitted and education can only be imparted online and/or by suitable audio-visual systems.

2.5 The Petitioners state that this Hon’ble Court was seized of a writ petition being Writ Petition (PIL) No.64 of 2020. The Petitioners are not parties to the said proceedings. The Petitioners have noticed an order passed by this Hon’ble Court, wherein the reliefs prayed for in the writ petition have been set out. The said prayers are reproduced hereunder for ready reference:

“(a) Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate Writ directing the respondents to issue respect of fees/hygiene to all the Private Schools across the State as under :

i. No fee such as transportation, sport, term, meat, medical, SMS, IT & other curriculum activity etc., except Tuition fee, shall be charged from the parents for the month of April, May and June, 20