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A Dossier of Case Law Summaries onThe Right of Children to Free and Compulsory

Education Act, 2009

October 2014 to December 2017

Under the Guidance ofDr. Niranjanaradhya. V. P

Compiled byMs. Krithika. B. S and Ms. Shruthi Raman

Ms. Sithara Suresh Babu

Published byCentre for Child and the Law

National Law School of India UniversityNagarbhaviBangalore

ii © Centre for Child and the Law, NLSIU

© Centre for Child and the Law, National Law School of India University, 2018

Any part of this publication maybe freely reproduced with appropriate acknowledgement.

Guidance from : Dr. Niranjanaradhya. V. P.

Compilers : Ms. Krithika. B. S. & Ms. Shruthi Raman Ms. Sithara Suresh Babu

First Edition : 2014

Second Edition : 2018

ISBN : 978-93-83363-26-1

Printed At : National Printing Press, Bengaluru

For any Queries, Please contact

Centre for Child and the LawNational Law School of India UniversityNagarbhaviBangalore - 560 242Phone: +91-80-23160528Email ID: [email protected]: http://www.nls.ac.in/ccl

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Acknowledgement v

Foreword vii

Preface ix

About the Centre for Child and the Law, NLSIU xi

List of Abbreviations xiii

Aiswariya v. Kendriya Vidyalaya Sangathan 1

The Daly College v. State of Madhya Pradesh and Ors. 3

Khirod Ku. Patra and Ors. v. Kendriya Vidyalaya Sangathan and Ors. 9

Uran Education Society and Ors. v. The State of Maharashtra and Ors. 12

Kitty Sanil v. State of Kerala and Ors. 15

Dr. Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune and Ors. v. Union of India and Ors. 17

Master Neelansh Sharma v. Ramjas School and Ors. 20

Master Shourya Thakur v. State of Himachal Pradesh and Ors. 23

Prakash Kapadia v. State of Gujarat and Ors. 27

Abhyutthanam Society v. State of Rajasthan and Anr. 31

Yusufbhai Mamadbhai Dabawala v. Director of PrimaryEducation, Gujarat State and Ors. 35

Sobha George Adolfus v. State of Kerala and Ors. 38

Table of Contents

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Deepak Rana v. State of Uttarakhand and Ors. 41

Sindhi High School and Ors. v. State of Karnataka and Ors. 47

Savari Muthu Micheal Selvan v. State of Maharashtra and Ors. 52

Vikas Motewar v. The State of Maharashtra and Ors. 55

Soujanya Patel Trust and Ors. vs. State of Karnataka and Ors. 58

Nitin Ravindra Bansod and Ors. v. Government of India and Ors. 62

Naz Foundation (India) Trust v. Union of India 66

Dr. Jagannath v. Union of India 68

Akhil Sharma v. Government (NCT) of Delhi 70

St. Ann’s English Medium School v. State of Chattisgarh 72

State of Assam v. All Assam Middle English Teachers’ Association 75

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ACKNOWLEDGEMENT

At the outset, we take this opportunity to acknowledge our organisation Centre for Child and the Law, NLSIU for providing us with the opportunity and necessary support to update the dossier of case laws and put together the various judicial pronouncements relating to the interpretation of the Right of Children to Free and Compulsory Education Act, 2009 and bring out this second volume.

We convey our regards to Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU; Prof. (Dr.) O. V. Nandimath, Registrar, NLSIU and Prof. (Dr.) V. S. Elizabeth, Coordinator, CCL-NLSIU for their continued support. We would like to thank Dr. Niranjanaradhya. V. P., Programme Head, Universalisation of Equitable Quality Education Programme, CCL-NLSIU, for his continued guidance.

Likewise, we convey our regards to Ms. Sithara Suresh Babu from National University of Advanced Legal Studies, Kochi for her ample assistance in compiling the judgments and drafting the summaries.

Last but not the least we thank TATA TRUSTS for providing fi nancial support without which this research would have not been possible.

Krithika. B. S and Shruthi Raman

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PREFACE

India has joined the rest of the world by according education the status of a fundamental right when the Hon’ble Supreme Court of India, for the fi rst time, declared that Right to Education is a fundamental right fl owing from Right to Life guaranteed under Article 21 of the Indian Constitution in the case of Unni Krishnan. J. P. & Others. V. State of Andhra Pradesh & Others in 1993. Consequently, a constitutional status was bestowed upon the Right to Education when the Indian Constitution was amended by the Parliament to include Article 21A through the 86th Constitutional Amendment Act, 2002 in lines with the Apex Court’s judgment in the 1993 Unni Krishnan case.

The 86th Constitutional Amendment necessitated the enactment of a central legislation to operationalise Article 21A and also to describe the mode of implementation of the right to education enshrined under the Article. It is in this backdrop that the Right of Children to Free and Compulsory Education Act, 2009 (widely known as the RTE Act) was enacted in order to give effect to Article 21A of the Indian Constitution. The Act describes the modalities of the importance of free and compulsory education for children between 6 and 14 years in India under Article 21A of the Indian Constitution.

The Right of Children to Free and Compulsory Education Act, 2009, which came into force on 1st April, 2010, faced stiff opposition from private institutions in the very beginning mainly due to its mandatory provision to provide 25% reservation for disadvantaged children in private schools. This wide-spread opposition resulted in the case of Society for Un-aided Private Schools of Rajasthan v. Union of India & Another before the Hon’ble Supreme Court which questioned the constitutional validity of the RTE Act. The Apex Court by deciding the case in 2012 upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 and further held that the Act is applicable to all institutions except un-aided minority institutions.

Subsequent to the 2012 judgment of the Apex Court, a number of efforts are being put in by both the Union and State Governments for the implementation of the RTE Act.

In the process, a number of cases have arisen before both the Supreme Court of India as well as the High Courts of various States which have been decided from time to time by the respective courts. The judgments of these case laws as decided by both the Supreme Court and High Courts will assist the activists and functionaries in the fi eld of education to understand the provisions of the RTE Act and in the interpretation of the judiciary of these provisions and hence, in its effective and meaningful implementation.

It is in this context that the Centre for Child and the Law, NLSIU, which has been working on Right to Education since 1996, has compiled the important case laws on the RTE Act as decided by both the Supreme Court and High Courts and summaries of the same have been prepared to aid the educational activists and functionaries in effi ciently understanding the judicial interpretation of the various provisions of the RTE Act and thereby in its effective implementation.

I express my gratitude to Ms. Krithika. B. S., Ms. Shruthi Raman and Ms. Sithara Suresh Babu for having compiled the judgments of the Supreme Court and various High Courts on the RTE Act and for preparing the summaries of these judgments. Their efforts are appreciated and duly acknowledged.

Niranjanaradhya. V. P.Fellow and Programme Head

Universalisation of Equitable Quality School EducationCentre for Child and the Law

National Law school of India University

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About the Centre for Child and the Law, NLSIU

The Centre for Child and the Law (CCL) was established on 1st April, 1996, as a specialized Research Centre of the National Law School of India University (NLSIU) Bangalore with a view to further the vision of NLSIU to marry legal expertise with the social sciences, to impact legal education and contribute to law, policy and practice on child rights. There are three Programmes - one on Right to Universal Equitable Quality Education (which includes work on addressing issues related to Child Labour) headed by Dr. Niranjanaradhya. V. P., one on Juvenile Justice (which also includes activities on Child Protection, Child Sexual Abuse, Commissions for Protection of Child Rights) headed by Ms. Arlene Manoharan, and the third on Right to Food headed by Dr. Neetu Sharma. Work is also underway on Preventing Child Marriage. Work related to teaching and training on child law involves teaching the Post Graduate Diploma on Child Rights Law, developing and offering optional as well as seminar courses on various child rights issues, informing the building of curriculum on child rights law in other professional courses such as social work, training modules for various functionaries etc. Prof. (Dr.) V. S. Elizabeth is currently the Coordinator of the Centre.

The specifi c aim of CCL is to ensure social justice, human rights and quality of life for all children in India, with special focus on equitable quality education, care, protection and justice for marginalized and excluded children. CCL aims to empower and enable increased assertion from children as right holders at the grass root level, and also to positively impact policy, law, legal education and professional practice on issues concerning children and law at the macro level. CCL’s core functional areas include research, teaching, knowledge generation/dissemination, direct engagement with children and communities, lobbying, advocacy, networking, training.

The Education Programme at the Centre for Child and the Law, NLSIU started at the time of its inception - way back in 1996. In the beginning, the focus was on the abolition of child labour and to ensure education to all children up to the age of 14 years which subsequently imbibed in itself the realisation of equitable quality education to all children. Since then CCL has engaged in some serious research and has also been playing a signifi cant role in the process of enactment of the RTE Act right from the national

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campaign to make right to education a fundamental right leading to the civil society campaign to bring in the 86th Constitutional Amendment Act, 2002 and the subsequent enactment of the Right of Children to Free and Compulsory Education Act, 2009. In the process CCL has effectively associated itself with organisations like CACL, CRY etc., and was also one of the founder members of the National Alliance for Fundamental Peoples’ Right to Education (NAFRE) and the Peoples’ Campaign for Common School System at the national level. Currently, the programme on Universalising Equitable Quality School Education at CCL has been working in close collaboration with the state and the civil society groups including grass root level movements, in order to help realize the fundamental right to equitable quality education. A multi-pronged strategy is adopted by the programme to ensure effective implementation of the RTE Act and CCL believes that the RTE Act should be used as a tool to achieve the larger goal of building a national system of education, based on the principle of accessible neighbourhood schools in order to create a Common Schooling System as envisaged in the earlier national policies of 1968, 1986 and 1992 (revised).

The Juvenile Justice Programme was initiated in 1996 - 1997. It mainly focuses upon child protection and closely works with juveniles in confl ict with law. A special feature of the JJ programme is the multidisciplinary outreach activities undertaken with children and families who are in contact with the law or in need of intervention by the state. This dimension helps to ensure that the research, teaching, training, lobbying and advocacy is grounded in and informed by the team’s close engagement with the realities of children’s lives, as well as in the direct interface with the state and civil society in attempting to access and ensure justice to children.

The Right to Food programme at the Centre for Child and the Law, National Law School of India University focuses on the realisation of right to food of children in the country and believes it to be a fundamental necessity for realising other rights of the children. The programme strives to contribute to law making and reforms on the basis of research and empirical studies that could inform the law and policy. The programme adopts a holistic approach in as much as it looks at the right to food for children within the larger framework of household food security, while also focusing on the right to food for children in diffi cult circumstances and in institutions.

There is one fi eld extension outreach programme as part of CCL. It is part of the Juvenile Justice Programme, and is located in a space provided by the Department of Women and Child Development, Government of Karnataka, at Madiwala, within the campus housing the state run Observation Home under the Juvenile Justice Act.

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LIST OF ABBREVIATIONS

ABR All India Reports-Bombay High Court ReportsAIR All India ReporterALLMR All Maharashtra Law ReporterAnr. AnotherA.S First AppealBom BombayBomCR Bombay Cases ReporterBPL Below the Poverty LineC.B.S.E Central Board of Secondary EducationCCL Centre for Child and the LawCDR All India Reports-Current Diwani ReportsChh ChattisgarhCWP Civil Writ PetitionDB Double BenchDel DelhiDEO District Education Offi cerDLT Delhi Law TimesDPEO District Primary Education Offi cerGau GauhatiGLR Gujarat Law ReporterGovt. GovernmentGuj GujaratHCC High Court CasesHon’ble HonourableHP Himachal Pradeshi.e., That isJLJ Jabalpur Law JournalKA KarnatakaKer KeralaK.G KindergartenKHC Kerala High Court Cases

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KLJ Kerala Law JournalKLT Kerala Law TimesKVS Kendriya Vidyalaya SanghatanLKG Lower KindergartenMANU ManupatraMH MaharashtraMhLJ Maharashtra Law JournalMPLJ Madhya Pradesh Law Journal

NCMEI Act, 2004 National Commission for Minority Educational Institutions Act, 2004NCT National Capital TerritoryNGO Non-Governmental OrganizationNLSIU National Law School of India UniversityNo. NumberOBC Other Backward ClassOrs. OthersO.S Original SidePIL Public Interest LitigationRaj RajasthanRLW Rajasthan Law WeeklyRMSA Rashtriya Madhyamik Shiksha Abhiyan

RTE Act, 2009 Right of Children to Free and Compulsory Education Act, 2009

SBC Special Backward ClassSC Scheduled Caste SC Supreme CourtSCC Supreme Court CasesSec. SectionST Scheduled TribeTV TelevisionUC Uttaranchal CasesUKG Upper Kindergartenv. VersusW.A Writ Appealw.e.f With effect fromW.P Writ PetitionW.P. (C) Writ Petition (Civil)

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CASES

FILED IN

2014

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Case Details

Case Number : W.A. No. 1487 of 2014

Citation : 2015 (1) KHC 407, 2015(1) KLJ 548, 2015 (1) KLT 301

Court : High Court of Kerala

Decided on : October 24, 2014

Appellant : Aiswariya

Respondent : Kendriya Vidyalaya Sangathan

Coram : Hon’ble Justice T.B. Radhakrishnan and Hon’ble Justice Babu Mathew P. Joseph.

Summary of the Case

Facts

The petitioner was challenging the judgment of the learned single Judge for refusing to issue a direction in writ jurisdiction to admit the appellant in any one of the schools under the Kendriya Vidyalaya Sangathan. The appellant aged around seven years had applied for admission to Kendriya Vidyalaya, Cochin Port Trust which was not acceded to.

Issue

Whether the Right of Children to Free and Compulsory Education Act, 2009 permits parents to demand admission to any school of choice?

AISWARIYA V. KENDRIYA VIDYALAYA SANGATHAN

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Arguments

Appellants

According to Article 21A of the Constitution of India and Section 3 of the Right of Children to Free and Compulsory Education Act, 2009, the petitioner ought not to be denied admission in any school of her choice or the parents’ choice. Right to education incorporated as a particular fundamental right through Article 21A of the Constitution of India and Section 3 of the Act, argued the appellants, that if establishments like Kendriya Vidyalaya Sangathan are given freedom to classify children on the basis that it now does, that would amount to permitting a lottery to operate in defi ance of the constitutional provision and the statute.

Respondents

The object sought to be achieved by Section 3 is to effectuate Article 21A of the Constitution of India, thereby ensuring that a school is available in the neighbourhood and free and compulsory education in a neighbourhood school is available to every child of the age group to which the RTE Act applies.

This provision, in no manner, gives a right to the child or parent to pick and choose a particular school which falls under Section 12 of the Act except to the extent provisions are made.

Holding

The right to free education in a neighbourhood school does not include the right to insist anything beyond what is provided for under Section 12 of the Act. The writ petition was dismissed.

Reasoning

In no manner does Section 12 of the RTE Act give a right to the child or parent to pick and choose a particular school except to the extent provisions are made therein.


THE DALY COLLEGE V. STATE OF MADHYA PRADESH AND ORS.

Case Details

Case Number : W. P. No. 10546/2013

Citation : 2015 (2) JLJ 26, 2015 (3) MPLJ 280

Court : High Court of Madhya Pradesh (Indore Bench)

Decided on : December 18, 2014

Petitioner : The Daly College

Respondent : State of Madhya Pradesh and others.

Coram : Hon’ble Justice Prakash Shrivastava

Summary of the Case

Facts

The writ petition was fi led by a registered society running an unaided school which also conducts pre-school classes. The petitioner had submitted the declaration form under Rule 11 of the Right to Education Rules, 2011 in the prescribed Form No. 1 and it was granted recognition under Rule 11 (4). A show-cause notice dated 26.8.2013 was issued to the petitioner to allocate 25% of the strength of children to the weaker sections of society in the pre-school classes, i.e. Nursery (Pre-KG), K.G.1 (LKG), K.G.2 (UKG) and Class 1. Hence the petitioner had fi led this writ petition challenging the Circular dated 16.1.2013 and the show-cause notice dated 26.8.2013.


Issue

Whether the provisions of RTE Act are applicable to pre-school classes also and if the petitioner is required to comply with the same and give admission to the students of weaker section of society to the extent of 25% in pre-school?

Arguments

Petitioners

The Right to Education Act is applicable only to the children of age group of 6 to 14 years and to the schools from Class I and not applicable to pre-schools and children below 6 years. The impugned circular and the show-cause notice cannot be sustained and the petitioners cannot be forced to give admission to students of weaker sections in the pre-school classes. They have also submitted that their liability to give admission in pre-school classes to the extent of 25% has come to an end after expiry of 3 years in terms of Section 6 of the Act.

Counsel for the petitioners had raised the issue that under Section 6 of the Act the appropriate Government and the local authority had the duty to establish a school within such area or limits of neighbourhood where it is not so established, within a period of 3 years from the commencement of the Act and therefore, after expiry of 3 years, the petitioners cannot be asked to enforce the provisions of Section 12(1)(c) of the Act.

Respondents

The Respondents stated that the provisions of RTE Act is applicable to pre-school classes also and the petitioner is required to comply with the same and give admission to students of weaker sections of society to the extent of 25% in pre-school.

Holding

It was held by the Hon’ble Court that by virtue of the proviso to Section 12, the provision contained in Section 12(1)(c) shall apply to all admissions, even to pre-school classes irrespective of the name with which it is called. The school to which Section 12(1)(c) is applicable is required to admit children from disadvantaged and weaker sections to the extent of 25% strength of the class while giving direct admission in any of the pre-school classes.

In respect of grievance of the counsel for the petitioners that no reimbursement of expenditure incurred by them in the previous years on admission to the extent of 25% to


the children of under-privileged and weaker section of society in pre-school classes has been made by the State till now, Counsel for the State fairly stated before the Court that the amount would be reimbursed in accordance with law within a time bound period.

Reasoning

Though the scheme of the Act is to provide full time elementary education, the extent of school's responsibility for free and compulsory education as contemplated under Section 12 is equally applicable to pre-school classes to a school defi ned under Section 2(n) of the Act. Implementation of Section 12(1)(c) of the Act is not dependent upon the establishment of schools by the State under Section 6 of the Act and there is no time limit prescribed up to which the provisions of Section 12 of the Act are to operate, therefore, it is not open to the petitioners to contend that the provisions of Section 12 have ceased to have effect after 3 years.


CASES

FILED IN

2015


KHIROD KU. PATRA AND ORS.V. KENDRIYA VIDYALAYA SANGATHAN AND ORS.

Case Details

Case Number : W.P.(C) Nos. 11298 of 2013, 3792 of 2010, 20148 of 2009, 8558 of 2013, 6153 of 2010, 3802 of 2011, 8931 of 2013, 2311 of 2010, 9614 of 2013, 9520 of 2013, 7823 of 2013, 17495 of 2009, 8097 of 2013, 8032 of 2013, 8726 of 2013, 16210 of 2013, 8137 of 2013, 22228 of 2013, 9927 of 2013, 8468 of 2013, 9864 of 2013, 26503 of 2013, 22546 of 2013, 8557 of 2013, 9436 of 2013, 7898 of 2013, 7924 of 2013, 8858 of 2013, 8556 of 2013 and 9498 of 2013

Citation : Not reported in any law journal

Court : High Court of Orissa at Cuttack

Decided on : April 16, 2015

Petitioners : Khirod Ku. Patra and Others.

Respondents : Kendriya Vidyalaya Sangathan and Others.

Coram : Hon’ble Justice B.R. Sarangi

Summary of the Case

Facts

Present petition was fi led challenging notifi cations whereby, the respondent revised the fee structure and enhanced the fee. In these batch of petitions, the petitioners challenged the notifi cations dated 14.09.2009 and 19.03.2013 issued by Kendriya Vidyalaya regarding revised fee structure by which the pupils of the institution would


have to pay fees at the enhanced rate w.e.f. 01.10.2009 and 01.04.2013 respectively for Computer Fund and Vidyalaya Vikas Nidhi (VVN) contribution. The fee structure applicable in the Kendriya Vidyalayas is decided by the Board of Governors of the Sangathan from time to time. The VVN and Computer Funds are for the development of School and overall welfare of the student community. The previous fi nancial resources were inadequate to meet these activities such as implementation of Right of Children to Free and Compulsory Education Act, 2009 and so the Finance Committee deliberated over the revision of fees and recommended the same to the Board.

Issues

1. Whether the Kendriya Vidyalaya is justifi ed in revising its fee structure in consonance with the provisions of the Kendriya Vidyalaya Code?

2. Whether such revision of fee structure violates Article 21A of the Constitution of India read with provisions contained in the RTE Act, 2009?

Arguments

Petitioners

Such revision of fee structure so far as Computer Fund and Vidyalaya Vikas Nidhi (VVN) contribution are concerned, is in itself violative of the provisions contained in RTE Act, 2009 and the Rules framed thereunder.

Respondents

In view of the provisions contained in Articles 2 to 4 of Chapter-II of the Education code of Kendriya Vidyalaya read with Chapter XV of the Education code containing Articles 117 to 124, it is well within the scope of Kendriya Vidyalaya to revise fee structure and as such, revision of such fee structure neither affects Article 21A of the Constitution of India nor any of the provisions contained under the RTE Act, 2009. Since the revision of the fee structure is well within the domain of the authority, this Court may not interfere with the same.

Holding

Kendriya Vidyalaya is justifi ed in revising its fee structure in consonance with the provisions of the Kendriya Vidyalaya Code and such revision of fees neither violates Article 21A of the Constitution nor any of the provisions of the RTE Act, 2009. K.V.S does not have an obligation to provide free education except to the extent provided in Section 12(1)(c) of the RTE Act, 2009.


Reasoning

There was no case that prescribed fees were such that it would prevent children from pursuing elementary education - As far as Article 21A of Constitution was concerned, fundamental right which declared free education is not an absolute right. Article 21A of the Constitution had been complied with and no violation was found to be made.


URAN EDUCATION SOCIETY AND ORS. V. THE STATE OF MAHARASHTRA AND ORS.

Case Details

Case Number : W. P. No. 2800 of 2015

Citation : 2015 (4) MhLJ 920, 2015 (5) Bom CR 95

Court : High Court of Bombay


Petitioner : Uran Education Society and Others.

Respondent : The State of Maharashtra and Others.

Coram : Hon’ble Justice Anoop V. Mohta Hon’ble Justice K. R. Shriram.

Summary of the Case

Facts

The present petition was fi led by an unaided private school, imparting pre-school and elementary education for seeking relief under the provisions of the Right of Children to Free and Compulsory Education Act that the respondents were bound to reimburse the expenses incurred by it in respect of children admitted under the proviso to section 12(1)(c) of the Act.

In accordance with the provisions of the Act, the petitioner school provided admissions in the pre-school class of Mini-KG in the academic year 2013-14 to 50 students under section 12(1)(c) of the RTE Act which was 25% of the strength of the class. The


School followed the procedures set out in the rules and the Circulars by putting up notices in the School, distributing forms for admission and drawing lots for the selection of children. After the process was completed, the school granted admission to 49 children to the Mini KG section with one seat remaining vacant. The school by its letter dated 18th September 2013 submitted an application claiming reimbursement of expenses as provided under the Act and the approved fee structure of the school. The school also fi led the necessary forms showing compliances by letter dated 20th September 2013.

The respondent in a meeting with school offi cials, on 8th February 2014, informed the school that no reimbursement would be granted for children admitted in pre-primary section and that the school ought to collect fees from these children as per the general category. It was further informed that the reimbursement would be given under the Act only from Standard I onwards. Hence this petition was fi led seeking reimbursement from the respondents.

Issues

Whether the State Government could be directed to reimburse the expenses incurred by the unaided school for providing admission to children to pre-primary education under section 12(1)(c) of the RTE Act?

Arguments

Petitioners

The total strength of the school was 2220 across pre-primary; primary and secondary classes. This unaided school was established by Uran Education Society. Admission was given to the children from economically weaker sections and disadvantaged groups as per the proviso of section 12(1)(c) of the RTE Act. It was petitioned that despite sending numerous reminders, the authorities failed to process the applications made by the school for grant of reimbursement depriving the petitioner of over 25% of the fees which amounted to over Rs. 18 lakhs. It was contended by the petitioner that it would lose at least another Rs. 21 lakhs every year from 2015-16 onwards as the students would progress from Mini KG to Junior KG to Senior KG to Class 1. The petitioners prayed that it was illegal on the part of the respondents to pull back from reimbursing the amount when the seats were allotted as per law.

Respondents

The respondents contended that as per Section 11 of the RTE Act, it was the responsibility of the State Government to make provisions for pre-school education for


children in the age group of 3 to 6 years and that the Central Government would not share the fi nancial responsibility of the State in providing reimbursement to unaided schools for providing admission under section 12(1)(c) of the Act to pre-primary classes. The learned Advocate General appearing for the State of Maharashtra submitted that the proviso to Section 12(1)(c) of the Act provides for compulsory pre-school education whereas sub-section (2) of Section 12 provides for reimbursement only for elementary education and elementary education is defi ned to mean education from Class 1 to Class 8 and therefore the respondent is not bound to pay reimbursement to the petitioner.

Holding

It was held that the State Government was required to reimburse the amount incurred by the school as contemplated under the Act. The respondent was to make elementary education compulsory and provide all facilities as mandated by Section 12 of the Act. As per Section 12(2) of the Act, an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government and which imparts elementary education shall be reimbursed the expenditure so incurred by it.

Reasoning

Se ction 11 of the RTE Act provides for preparing children above the age of 3 years for elementary education. It also states that the appropriate Government may make necessary arrangements for providing free pre-school education and early childhood care for all children until they complete the age of 6 years. Appropriate Government, as defi ned in Section 2(a) of the Act, includes Central Government in relation to a school established, owned or controlled by the Central Government or the Administrator of the Union Territory, having no legislature.

Th e State Government issued a directive to unaided private schools to admit children from disadvantaged groups to pre-primary classes and provide free education as per the RTE Act. The State government is bound to reimburse these schools to the extent of amount which has been mentioned in Section 12(2) of the RTE Act.


KITTY SANIL V. STATE OF KERALA AND ORS.

Case Details

Case Number : WP(C). No. 13198 of 2015 (Y)Citation : AIR 2015 (NOC 997) 971; (2015) 3 KLT 280Court : High Court of KeralaDecided on : May 25, 2015Petitioner : Kitty SanilRespondent : State of Kerala and Others.Coram : Hon’ble Justice A.K. Jayasankaran Nambiar

Summary of the Case

Facts

The petitioner is the mother of a minor boy aged 12 years, who was a student of Class 6 in the respondent school. She fi led a writ of Mandamus aggrieved by the stand taken by the School that her son would not be promoted to Class 7 in the coming academic year for the reason that his academic performance in Class 6 was not satisfactory. The School relied on the norms issued by the Central Board of Secondary Education with regard to assessment of academic standards, and held back the child in Class 6 denying to promote him to Class 7.

Issue

Whether a School can withhold and not promote a student due to non-satisfactory academic performance in light of Section 16 of the RTE Act and the corresponding Rules?


Arguments

Petitioners

The petitioner relied on the provisions of the Right of Children to Free and Compulsory Education Act, 2009 to contend that the respondent school is statutorily obliged to promote her son to the next higher standard corresponding to his age and should continue to do so every year till he attains 14 years of age.

Respondents

The respondent contended that the interpretation of the provisions of the RTE Act as suggested by the petitioner would result in lowering the standard of education and further argued that no child was entitled to an automatic promotion without attaining the minimum standards prescribed by the C.B.S.E.

Holding

The Hon’ble Court held that the school could not detain a student on the ground that the student had failed to meet the minimum educational standards which were prescribed for a particular class.

Reasoning

A reading of the RTE Act mandate that recognition would be awarded to a school which has strictly followed the principles which have been laid down in Sections 13, 16 and 17 of the Act. The provisions of Right of Children to Free and Compulsory Education Act contemplate admission of a student to a class corresponding to his age, between the ages of 6 and 14, and an unhindered progression of the student through various standards till he reaches the age of 14 years which marks the culmination of his elementary education. No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.

The academic performance of the student in any year can be of no signifi cance when the statutory mandate is that the student must receive compulsory education during the years between Class 1 and Class 8. The fundamental right of the child to elementary education, which is traceable to Article 21A read with the provisions of the RTE Act and Rules, cannot be made conditional on the child attaining minimum standards of academic performance as prescribed by the School or the affi liating Board.


DR. VIKHE PATIL FOUNDATION’S VIKHE PATIL MEMORIAL SCHOOL PUNE AND ORS.

V. UNION OF INDIA AND ORS.

Case Details

Case No. : W.P. No. 4457 of 2015, O.S.W.P. No. 1582 of 2015, A.S.W.P. Nos. 4654, 4655, 4656, 4657, 4658, 4659, 4660, 4661 and 4662 of 2015 and A.S. Public Interest Litigation (Stamp) No. 16769 of 2015, O.S. PIL (L) No. 64 of 2015, O.S.W.P. (Lodging) No. 1831 of 2015 and O.S.W.P. (Stamp) No. 1858 of 2015

Citation : 2015 (6) ABR 53, 2016 (3) ALLMR 30


Decided on : August 14, 2015

Petitioner : Dr. Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune and Ors.

Respondent : Union of India and Ors.

Coram : Hon’ble Justice Anoop V. Mohta Hon’ble Justice V.L. Achliya.

Summary of the Case

Facts

The Petitioners were imparting “pre-primary and elementary education” in their respective unaided schools and some of them are unaided minority schools.

The State of Maharashtra arrived at a formula for 25% reservation on the basis of entry level. If the strength of a school at pre-primary level is more than the one at


1st standard level, the schools shall set apart 25% of the seats of the strength at the 1st standard level and admit the students of the stated category accordingly. If the strength of a school at pre-primary level is less than the one at the 1st standard level then, such a school shall admit 25% of the strength at pre-primary level and the difference between the 25% of the 1st standard level and 25% of the strength and the pre-primary level shall be admitted at the 1st standard level. In other words, if the school has a strength of 50 students at the pre-primary level, then, the school shall reserve 12.5% (13%) of the students at the pre-primary level and if, the strength of such school is 100 at the 1st standard level then, the school shall also reserve 12.5% students at the 1st standard level. Thus, the promoted 12.5% from pre-primary level to the 1st standard and 12.5% reserved at the 1st standard makes 25%.

If after completion of the admission process the number of seats earmarked for the weaker and disadvantaged groups remained vacant, then such vacancies were to be fi lled in at the 1st standard level. Thus, in case of school having strength of 100 students at the pre-primary level, 12 seats remain vacant after fi lling 13 seats, then, such a school is under an obligation to fi ll 12 seats at the 1st standard level.

Issue

Whether the State Government’s circular of creating two entry level, i.e., pre-school level, as well as, class I level was contrary to law?

Arguments

Petitioners

There cannot be two entry level for calculating 25%. The concept “entry level” is not specifi cally defi ned. A plain reading of Section 12(1)(c) made it compulsory for the schools to admit in class I, to the extent of at least 25% of the strength of that class, children belonging to “weaker section” and “disadvantaged group” in the neighbourhood and provide free and compulsory elementary education till its completion.

The State Government could not compel them by Resolution to admit students in pre-primary and class I level to the extent of 25% of strength of both the classes. The two entry points were contrary to the scheme of the RTE Act and Section 12 of the Act read with other provisions. This would also infringe their rights as contemplated under Article 19(1)(g) of the Constitution.


Respondents

Where a school has a facility of pre-school education then, the entry at the preschool level is the entry point and such a school is under a legal obligation to set apart 25% of the total strength for the students belonging to weaker sections and disadvantaged groups. In case of a school not having pre-school education facility, the entry point would be Class I. The Act itself contemplates two different entry points in this manner. The hue and cry raised by the Petitioner with regard to two entry points is without any substance.

Holding

Section 12(1)(c) of Act has made it compulsory for schools to admit at least twenty fi ve percent children belonging to “weaker section” and “disadvantaged group” in neighbourhood and provides free and compulsory elementary education till its completion. This provision applies for admission to pre-school education also. The Circulars of the State Government and the other related communications were held to be valid and within the framework of law.

Reasoning

It is settled that the Act/Statute and related rules need to be read as a whole, by referring to the intended object and purpose of the Act and the policy. When one reads Section 11, it is quite clear that the responsibility is thrust upon the appropriate Government which in the present case will be the Government of Maharashtra, for providing free pre-school education for children between the age group of 3 to 6 years to prepare them for elementary education and to provide early childhood care. The purpose and object of Section 12(1)(c) with proviso is crystal clear. It is a positive affi rmation for the “school” to admit children of 25% of the school’s strength at every class of entry level. There is no specifi c intention expressed and/or no such choice and/or option provided to such schools to select one out of these two entry classes, for providing admission and reservation in question. The mandate is to provide reservation irrespective of the classes i.e. pre-primary, at both levels.


Case Details

Case No. : W.P. (C) No. 4164/2015

Citation : 2015 SCC Online Del 11976

Court : High Court of Delhi


Petitioner : Master Neelansh Sharma

Respondent : Ramjas School and Ors.

Coram : Hon’ble Justice Rajiv Sahai Endlaw

Summary of The Case

Facts

The petitioner sought an issue for the writ of mandamus for admission to Ramjas School at Pusa Road, New Delhi (Pusa Road School). The petitioner had passed Class V from Ramjas Primary School, Darya Ganj, Delhi (Darya Ganj School) in the academic year 2014-2015 and was eligible for admission to Class VI in the respondent School for the academic year 2015-2016.

Issue

Whether laying down of minimum marks to be scored in the examination of Class V, below which a student would not be admitted, amounts to screening procedure and whether the prohibition in RTE Act against screening procedure is applicable to the present facts.

MASTER NEELANSH SHARMA V. RAMJAS SCHOOL AND ORS.


Arguments

Petitioners

Although the petitioner approached the respondent School on 25th March 2015 along with the requisite fee, he was denied admission for the reason of his father having actively protested against the School Management on various issues.

Section 13 of the RTE Act in sub-section (1) provides that “no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardians to any screening procedure”. The petitioner contended that in the matter of admission to Class VI, the respondent school was conducting a screening of students as per their grades and this was a violation of the RTE Act. The counsel for the petitioner argued that the basis of selection to Class VI in the Pusa Road School should be on the basis of lottery and not on the basis of a screening procedure.

Respondents

The respondents argued that the petitioner had fi led the present petition erroneously under the assumption that the petitioner had a right to be automatically admitted to Class VI in the Pusa Road School. The respondent explained to the court that it was a private school with classes from VI to XII with a total number of intake of 168 which was divided into four sections of 42 students each. The school’s total intake of students in Class VI was from two sources, i.e. outside students who have passed Class V from neighbouring schools and students who have passed Class V from the Darya Ganj School, Ramjas Primary School situated in Ballimaran and Babu Ram Happy School, Sita Ram Bazar. The Pusa Road School admits students, fi rst from the neighbouring schools and thereafter from the above mentioned schools in the same order. The selection of students is not made arbitrarily but by following a reasonable classifi cation. The Pusa Road School fi xed a cut-off of 50% marks in Class V for admission to Class VI and of the 48 students who had passed Class V from the Darya Ganj School, only 40 had 50% or more marks and qualifi ed for admission. The petitioner had 49.1% marks in Class V and was thus not eligible for admission.

The counsel for the respondents contended that at the time of admission to the Darya Ganj School, no assurance of sure shot admission to the Pusa Road School was given and the petitioner had no right to get admission in the Pusa Road School. The respondent denied that the petitioner had been victimized.


Holding

The present petition was dismissed as there was no merit in it and it was held that there was no fault in the procedure adopted by the Pusa Road School for admission of children to class VI.

Reasoning

Private unaided recognized schools have a fundamental right under Article 19(1)(g) of the Constitution of India to maximum autonomy in its day to day administration, including the right to admit students, except to the extent of admission to 25% of the seats, which is governed by the RTE Act.

The prohibition against subjecting a child to screening procedure in the matter of admission to a school is applicable only for the admission to 25% of the seats under the RTE Act and does not apply to admission to the balance 75% of the seats. The petitioner has not claimed admission under the RTE Act nor was a child belonging to a disadvantaged group.

The prohibition of subjecting a child to a screening procedure as laid down under Section 13 of the RTE Act is applicable only to admission to the entry level, i.e., Nursery or Class I.

The Court relied on the judgments pronounced in the cases of Social Jurist, a civil rights group v. Government of NCT of Delhi1; Forum for promotion of Quality Education for all v. Lieutenant Governor of Delhi2 and Pramod Arora v. Hon’ble Lieutenant Governor of Delhi3 to arrive at this conclusion for the present case.

1 198 (2013) DLT 3842 216 (2015) DLT 803 (2014) 5 HCC (Del) 215


MASTER SHOURYA THAKUR V.STATE OF HIMACHAL PRADESH AND ORS.

Case Details Case No. : CWP No. 2659 of 2015

Citation : AIR 2016 HP 19

Court : High Court Of Himachal Pradesh

Decided on : December 02, 2015

Petitioner : Master Shourya Thakur and Ors.

Respondent : State of Himachal Pradesh and Ors.

Coram : Hon’ble Chief Justice Mansoor Ahmad Mir Hon’ble Justice Tarlok Singh Chauhan

Summary of the Case

Facts

The petitioner approached the respondent school for admitting his younger child to class III, but was denied admission on the ground that the child did not make a grade and therefore, could not be selected.

Issue

Whether private unaided schools have autonomy to admit children though their parents have unfettered right to choose a school in which they wish to study?


Arguments

Petitioners

The petitioner claimed that the respondent school was hardly at a distance of 75 meters from his residence and as per the Right of Children to Free and Compulsory Education Act, 2009, his child had an unfettered right to be admitted to that school and the respondents have no discretion whatsoever to deny him admission.

Respondents

The respondent school placed on record that it is a non-aided school and that the admissions made by it were strictly in conformity with the Act. It is further argued that the petitioner had competed with other children who were desirous of being admitted to class III, but failed to make a grade and therefore, could not be granted admission.

Holding

The Right to free and compulsory education in a neighbourhood school does not include the right to insist on any school of choice under the Act.

Reasoning

The RTE in no manner gives a right to the child or parents to pick and choose a particular school, which falls under Section 12 of the Act, except to the extent of the provisions contained in this Section read with Section 2(n) of the Act, which is not applicable in the current instance.


CASES

FILED IN

2016


PRAKASH KAPADIA V. STATE OF GUJARAT AND ORS.

Case Details Case No. : Writ Petition (PIL) Nos. 193 of 2014 and 51 of 2015

Citation : (2016) 3 GLR 2566

Court : High Court of Gujarat at Ahmedabad

Decided on : January 18, 2016

Petitioner : Prakash Kapadia

Respondent : State of Gujarat and Ors.

Coram : Hon’ble Acting Chief Justice Jayant M. Patel and Hon’ble Justice V.M. Pancholi

Summary of the Case

Facts

The Education Department, State of Gujarat, had issued the resolution on 23.05.2013, wherein the State Government had provided the provision and procedure for admission of 25% students from weaker sections and disadvantaged groups. Present petition was fi led seeking direction to Respondent authorities to take steps in compliance of Notifi cation which was for bringing into force Rules of 2012 which is for making provision for admission on 25% seats to the children belonging to weaker sections of the society in unaided primary schools. The petitions sought directions from the Hon’ble Court to the respondent authorities to effectively implement the RTE Act, 2009, corresponding rules and notifi cations in the State.


Issue

Whether suffi cient measures have been taken by the respondent authorities for the effective implementation of the RTE Act and Rules or has there been any laxity on their part in this regard?

Arguments

Petitioners

It was the argument of the petitioners that though the RTE Act and Rules are framed and enacted, the respondent authority is not properly implementing the provisions of the said Act and the Rules. The petitioner had made representations from time to time to the respondent authority and had also asked for certain information under the Right to Information Act, 2005. However, the respondent authority had not taken any steps either for implementation of the provisions of the Act and the Rules or for spreading awareness about the same among the children, parents and public in general.

Provisions of the Act specifi cally provide the responsibility of government aided as well as non-government unaided schools to absorb students at least to the extent of 25% from weaker sections voluntarily and mandatorily in each class for elementary education. However, the same is overlooked and not complied with and the approach of the schools is commercialized and therefore the object of the Act is not achieved. The benefi ts of the Act and the Rules have not reached the genuine students and such benefi ts are deprived of on various grounds. Either the matter is not properly considered by the District Education Offi cer or even after the order passed by the District Education Offi cer, the schools have not acted for grant of admission by showing fl imsy or non-genuine grounds. Consequently, the seats which are otherwise reserved for the above referred category of children who belong to weaker sections and disadvantaged groups have not been fully fi lled up and they are being allotted by the school management to the other students by charging fees as per their desire. It is only depicted that the Act is implemented but in fact the needy children are unable to get the benefi t of this enabling legislation.

Respondents

It was put forth on behalf of the respondents that the State Government has been taking measures for wide publication and creating awareness about RTE through advertisements, media etc. With regard to the implementation, it was put forth that the State Government, vide resolution dated 21.02.2014, had reserved 25% of the seats for


students belonging to weaker sections of the society in private schools. 18300 seats had been reserved in the State of Gujarat for the said purpose. The offi ce of Director of Primary Education had further issued circulars to DEOs, DPEOs and Administrative Offi cers of Municipalities throughout the State to ensure that resolution dated 21.02.2014 and the provisions of the Act are complied with. The State Government had paid an amount of Rs. 12,60,10,000/- to various DEOs and DPEOs for the purpose of reimbursement to the concerned schools as per Section 12 of the Act. The State had also paid Rs. 10,000/- per student per year by way of grant.

It was further submitted that it has been made clear that if the concerned school failed to pay the penalty imposed or in case the concerned school violated the provisions for fi ve instances then in such case the school or the institution was liable to be proceeded against for cancellation of its registration. It was the case of the respondent authority that the State Government had taken effective steps for proper implementation of the provisions of the Act and the Rules.

Holding

The Hon’ble High Court held as follows:

1. The State Government, through the State Commission as well as through local authorities, shall give wide publication of the rights provided under the Right to Education Act, 2009 through print media, TV, etc., more particularly during the end of and in the beginning of the academic year within a period of six months initially. The action taken report shall be submitted by the Secretary of the Education Department to the Registrar General of this Court within a period of one month from then and if the report is not submitted, the Registrar General of this Court would initiate judicial proceedings before this Court for appropriate action.

2. The children and the parents on whose behalf or for whose benefi t the present petition was fi led or any other child/children or their parents/guardians, as the case may be, shall be at the liberty to approach the concerned offi cer of the local authority and the said offi cer of the local authority shall decide the complaint of the child/children or the parents, as the case may be, within a prescribed time limit, as mentioned in Section 32 of the Act and the Government Resolution. The children and/or parents can also approach the State Commission for Protection of Child Rights for resolving their grievance.


Reasoning

Unless children and parents are made aware about various rights, students or their guardians or parents would not press such rights in the event of deprivation of such rights. The Government and its authorities are duty bound to ensure that the benefi t reaches the deserving and genuine class of students for which the Act is enacted and more particularly after the policy decision by way of Circular to grant admission to the extent of 25% to the weaker and deprived class of the society. Various inbuilt mechanisms are provided for redressal of grievances of students by Government Resolution and statutory provisions of Act read with relevant Rules at level of local authority and at level of State Commission and what was needed to be done was that these mechanisms were to be made available to the benefi ciaries by the government.


ABHYUTTHANAM SOCIETY V. STATE OF RAJASTHAN AND ANR.

Case Details Case No. : D.B. Civil Writ Petition (PIL) No. 4630/2016

Citation : AIR 2016 Raj 164

2016 (4) CDR 1902 (Raj)

2016 (4) RLW 3045 (Raj)

Court : High Court of Rajasthan (Jaipur Bench)

Decided on : May 13, 2016

Petitioner : Abhyutthanam Society

Respondent : State of Rajasthan and Anr.

Coram : Hon’ble Acting Chief Justice Ajay Rastogi and Hon’ble Justice Dinesh Chandra Somani

Summary of the Case

Facts

Instant Public Interest Litigation has been fi led for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009. The petitioner is a registered Society and is allegedly working for effective implementation & mandate of Constitution enshrined under Article 21A. The facts of the case are as follows:

The State Government, respondents herein, had issued a set of notifi cations dated 28.03.2016 defi ning “children belonging to disadvantaged groups” and “children


belonging to weaker sections” under Sections 2(d) and 2(e) of the RTE Act, 2009. These notifi cations, which superseded the set of notifi cations issued for the purpose on 29.03.2011, excluded certain categories of “children belonging to disadvantaged group” and “children belonging to weaker sections” who were recognized in the previous notifi cations dated 29.03.2011 thereby substantially curtailing these children from submitting their applications and getting admitted in the schools, recognized to impart education and defi ned under Section 2(n) of the RTE Act, 2009. While the section of the society who are socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factors are excluded from the defi nition of “Children belonging to disadvantaged groups”, children whose parents’ annual income does not exceed Rs. 2.50 lakhs have been kept out of the ambit of the defi nition “Children belonging to Weaker Sections”. However, these two categories were taken note of by the appropriate Government in its earlier Notifi cation dated 29.03.2011.

The Petitioner society has thus, fi led this PIL challenging the notifi cations of the State Government dated 28.03.2016.

Issue

Whether the Government was justifi ed and was within its competence while laying down the defi nition of “child belonging to disadvantaged group” and “child belonging to weaker section” covered by Secs.2(d) & 2(e) of the Act, 2009?

Arguments

Petitioners

It was the argument of the petitioners that the Parliament intended to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all by enacting the RTE Act, 2009 and the State Government under its impugned Notifi cation debars the major segment of children, belonging to OBC and SBC, who are eligible to be considered for admission under the Act which is also in violation of Article 14 of the Constitution of India. Also, the determination of BPL status is a socio-economic criteria and cannot by any stretch of imagination be considered as a yardstick for determining a child belonging to weaker section, as contemplated under Section 2 of the Act and while determining the class of children belonging to weaker section, it is primarily based on economic and fi nancial condition of the parents/guardians and with no other consideration and the two defi nitions of Sections 2(d) and 2(e) of the Act being independent to each other, there cannot be any overlapping of the conditions.


It was further argued that the State Government is not competent and holding any authority to re-write the defi nition of Sections 2(d) and 2(e) of the Act in the manner that suits the appropriate Government and by eliminating these groups of children, there has been a considerable reduction in the applications received under these categories for admissions, which is almost half of the earlier academic years and this was argued to be one of the indirect ways to support private schools.

Respondents

The respondents have justifi ed their action and in support of the impugned Notifi cations dated 28.03.2016 issued under Sections 2(d) and 2(e) of the RTE Act, 2009 by stating that if the minimum annual income has to be specifi ed by Notifi cation in regard to “child belonging to weaker section” benefi t may not be extended to the children whose parents/guardians are included in the list (both Central and State) of Below Poverty Line families (of General, Scheduled Caste, Scheduled Tribe, Backward Classes and Special Backward Classes) prepared by the Rural or Urban Development Departments of the State Government. The Government has specifi ed 13 pointers for being declared BPL and annual income has no signifi cance for becoming a BPL member. Thus, specifi cation of annual income takes away the rights of major segments of society which are standing last in the queue and the very purport and object with which the RTE Act is enacted, may not be achieved. With regard to the exclusion of OBC and SBC in the impugned Notifi cation, the respondents have assured that the category is supposed to be considered for admission under the Act and the paramount consideration will be those who are really deserving section of the “disadvantaged group” and “weaker section” and need assistance of the Government for free and compulsory education under the RTE Act will be considered for admission on a priority basis.

Holding

The Hon’ble High Court, held as follows:

“The children belonging to OBC and SBC whose parents’ annual income does not exceed Rs.2.50 lakhs should also be included for ‘child belonging to disadvantaged group’, as contemplated under Section 2(d) of the RTE Act, 2009 and the children whose parents’/guardians’ annual income does not exceed Rs.2.50 lakhs shall be considered as ‘child belonging to weaker section’, as contemplated under Section 2(e) of the RTE Act, 2009 and both the substitutions should be made part of the present Notifi cations dated 28.03.2016 issued by the State Government in exercise of powers conferred by Section 2(d) and (e) of the RTE Act, 2009.”


Reasoning

For availing the benefi ts under the Right to Education Act, it is not necessary that a child must satisfy both the tests defi ned under Sections 2(d) and 2(e) of the Act, and benefi ts under the RTE Act are not confi ned to children who must satisfy both the defi nitions i.e. “child belonging to disadvantaged group” and “child belonging to weaker section” but are available to “child belonging to disadvantaged group” as constituting one class and “child belonging to weaker section” as constituting another class

The defi nition of “child belonging to disadvantaged group” under the RTE Act, 2009 includes a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class and also such other group having disadvantage owing to social, cultural, economic, geographical, linguistic, gender or such other factors which may be specifi ed by the Appropriate Government. While defi ning “child belonging to weaker section”, the appropriate Government under its Notifi cation has to satisfy the annual income of the parent or guardian of the child which may not be lower than the minimum benchmark specifi ed by the appropriate Government under its Notifi cation. However, the impugned notifi cations have excluded the children belonging to Other Backward Classes and Special Backward Classes whose parents’ annual income does not exceed Rs. 2.50 lakhs and have also not considered the annual income of the parent or guardian of the child belonging to weaker sections. The defi ning of minimum annual income is the requirement of law to consider a child belonging to weaker section. The State Government is not competent and hold any authority to re-write the defi nitions of “child belonging to disadvantaged group” and “children belonging to weaker sections” in the manner that suits the appropriate Government and eliminate groups of socially and educationally backward class and weaker sections. It was also noted that this action on part of the respondents had reduced the applications under RTE in sizeable numbers which is almost half of the earlier academic years.


YUSUFBHAI MAMADBHAI DABAWALA V. DIRECTOR OF PRIMARY EDUCATION, GUJARAT STATE AND ORS.

Case Details Case No. : Special Civil Application No. 10041 of 2016

Citation : AIR 2016 Guj 146 (2017) 1 GLR 694

Court : High Court of Gujarat at Ahmedabad

Decided on : July 05, 2016

Petitioner : Yusufbhai Mamadbhai Dabawala

Respondent : Director of Primary Education, State of Gujarat and Ors.

Coram : Hon’ble Justice N. V. Anjaria

Summary of the Case

Facts

The grandchild of the Petitioner, Arman, was denied admission to fi rst standard on the pretext of not completing fi ve years of age. The child fell short by one day for completion of fi ve years on the prescribed deadline of 01st June 2016 and he was born on 02nd June 2011. The petitioner approached the respondent school for admission which upon persuasion by the petitioner, sought opinion of the Primary Education Offi cer, Primary Education Committee through a letter dated 13th June, 2016, who did not agree to admit the child to fi rst standard and accordingly the school rejected the admission of the child. Aggrieved, the petitioner approached the Hon’ble High Court seeking admission for the child in fi rst standard in the respondent school.


Issue

Whether Petitioner child, whose age falls defi cit by one day, is entitled for admission as the mandate of the law clearly prescribes that the child must have completed fi ve years as on 01st June, 2016?

Arguments

Petitioners

It was argued by the petitioner that the interpretation of Rule 3(1) of the Gujarat Right of Children to Free and Compulsory Education Rules, 2010, which provides for admission of pupils in schools, applied by the respondent is erroneous and misdirected. It was submitted that Arman is a brilliant child who had completed his pre-fi rst standard education in the Kindergarten with fl ying colours and that he was mature enough to be admitted to fi rst standard. It was the submission of the petitioner that the child did complete fi ve years of age by calculating on the basis of 365 days in a year and accordingly, the child had completed fi ve years and one day as on 31st May, 2016, thereby becoming eligible under the Rule.

Respondents

The Respondent submitted that cut-off date was a necessity. It was the submission of the respondents that since the petitioner’s child was not completing fi ve years of age on the date indicated, denial of admission to him was proper as the child fell short by one day to fi ve years as on 01st June, 2016.

Holding

It was held by the Hon’ble Court that “The petitioner is entitled to get admission in the fi rst standard and he should be treated as fulfi lling the requirement of completion of fi ve years of age for the purpose of Rule 3 of the Right of Children to Free and Compulsory Education Rules, 2010”. The court directed the respondent school to provide admission to the child and the respondent authorities were directed to ensure that the necessary admission process was completed expeditiously and within one week from the date of receipt of the order. The Court further directed the respondent school to condone the absence of the child from school for the time elapsed due to the pendency of the current petition.

Reasoning

A child admitted to the school and introduced to education is invigoration of Article 21 read with Article 21A of the Constitution of India. From the societal standpoint,


introducing a child to education is to lay a reinforcing stone in the foundations of civilized society, to contribute in making the democracy vibrant and worthy with educated citizens. No stone should be left unturned to ensure that everyone gets education. Right to education and right to free and compulsory education to a child being fundamental rights, it can be best accorded in company of the principles fl owing from Article 14 which always strikes at unreasonableness. and seeks to weed out all elements of arbitrariness in application of any law or rule.

Rule 3(1) of the Right of Children to Free and Compulsory Education Rules, 2010 emphasizes completion of certain number of years, fi ve years in the present case, for admission of children to fi rst standard. The object of the Rule of completion of a particular age is that a child to be imparted education should be mature enough to go to the school and cope with the education being imparted. The prescription of the date of 1st June is provided as a kind of yardstick to be applied for considering the completion of fi ve years. Denying a child admission to a school for want of an illusory defi cit of one day in completion of fi ve years would not be countenanced by the Constitutional Court when it is eminently possible to construe the Rule without supplying thereto any additions and doing any variation or violence to the language of the Rule.


SOBHA GEORGE ADOLFUS V. STATE OF KERALA AND ORS.

Case Details Case No. : WP(C) No. 30712 of 2015 (L)

Citation : AIR 2016 Ker 175

Court : High Court of Kerala at Ernakulam

Decided on : July 10, 2016

Petitioner : Sobha George Adolfus

Respondent : State of Kerala and Ors.

Coram : Hon’ble Justice A. Muhamed Mustaque

Summary of the Case

Facts

The writ petition was fi led by the grandmother of a student complaining about the denial of promotion of the student from 6th standard to the 7th standard by the respondent school authorities during the academic year 2015-16.

Issue

Does a child have a right to promotion in a minority institution up to elementary school level?


Arguments

Petitioners

The Petitioners submitted that under Section 16 of the RTE Act, 2009, the petitioner child was entitled to be promoted to 7th standard and be enabled to complete his elementary education. It was put forth that the petitioners had approached the various authorities, including the Government seeking relief. However, the directions issued by the Government were not complied with by the school authorities on the pretext that the school is an unaided recognized minority institution. Later, on 13.10.2015, the Kerala State Commission for Protection of Child Rights also passed an order recommending the respondent school authority to promote the child from 6th to 7th standard which was also not conformed to by the respondent school. Thus, all attempts of the petitioners went in vain, on account of non-compliance.

Respondents

The respondents contended that they are a minority institution entitled to the protection under Article 30(1) of the Constitution and as held by the decision of the Hon’ble Supreme Court in the case of Pramati Educational and Cultural Trust v. Union of India (2014 (2) KLT 547), the provisions under the RTE Act, 2009 is not applicable to the minority institutions.

Holding

The Hon’ble High Court held that “protection under Article 30(1) is not available to a minority educational institution to hold back any child in any class up to elementary education.” The Court further observed that if the child who was held back from promotion to 7th standard for the academic year 2015-16 is promoted to 8th standard without undergoing 7th standard, it would be against the best interest of the child. However, the Court awarded compensation of a sum of Rs. 25,000 to secure the ends of justice. The Court directed the respondent school to deposit the amount in a fi xed deposit till the child attains the age of 18 years with a provision to draw the interest for the benefi t of the child.

Reasoning

The State under Article 21A of the Constitution is obliged to provide free and compulsory education up to the age of 14 years. Thus, even an unaided educational institution imparting education to the children up to the age of 14 years is discharging a State function. RTE Act is an enactment that is fl owing from Article 21A of the Constitution of India. Section 16 of the Act stipulates that no child admitted in school shall


be held back in any class or expelled from the school, till the completion of elementary education.

Section 16 of the RTE Act, 2009 has been enacted to retain status of the best interest of the child to secure adequate standards of educational rights of children. The child up to the elementary school level is in the process of evolving a personality and any denial of promotion before reaching the age of discretion would have an impact on their emotional state and feelings which amounts to negation of ‘best interest principle’. Section 16, thus, can be said to fl ow from right to life of the child and denial of promotion up to elementary school level in minority schools would amount to denial of fundamental rights of the child, as it would have a direct bearing on the right to life of the child guaranteed under Article 21 of the Constitution.

The RTE Act, no doubt, has no application in the case of a minority school according to Article 30(1) of the Constitution of India. However, the protection as envisaged under the Constitution is to protect the minority character of the educational institution. Therefore, when denial of others’ rights by such institutions has no nexus or relation with the object of the protection, court has to denounce upon such claim. A fundamental right can be enforced even as against a private minority school.


DEEPAK RANA V. STATE OF UTTARAKHAND AND ORS.

Case Details Case No. : Writ Petition (PIL) No. 201 of 2014

Citation : MANU/UC/0172/2016

Court : High Court of Uttarakhand at Nainital

Decided on : November 19, 2016

Petitioner : Deepak Rana

Respondent : State of Uttarakhand and Ors.

Coram : Hon’ble Justice Rajiv Sharma and Hon’ble Justice Alok Singh

Summary of the Case

Facts

Present petition was fi led protesting against the dilapidated conditions and poor infrastructure in the school. The Chief Education Offi cer, Dehradun, who sent a requisition for undertaking of urgent repairs, also admitted that in many schools, furniture was not provided. Upon the view that the current matter is of common public interest, the learned Single Judge, vide order dated 24th November, 2014, referred the matter to be examined by a larger Bench. Hence, the case was tried by the division bench.

Issue

Whether State government was directed to take necessary measures with regard to dilapidated condition of schools?

Proceedings

The Hon’ble High Court, vide order dated 01st December, 2014, called upon the Secretary, School Education, Government of Uttarakhand to submit a report on the issue which was fi led by the Additional Chief Secretary, School Education, Dehradun on 10th March, 2015. In accordance with the queries raised by this Court, the State Government had given the details of money spent in the fi nancial years 2013-14 as well as 2014-15 and also the details of grant-in-aid received from the Central Government and other sources. However, it had not specifi cally dealt with the issues of infrastructure to be provided in the schools, such as, blackboards, furniture, laboratory, etc. and was silent on mid-day meals.

The learned Amicus Curiae representing the Petitioner fi led an objection to the report submitting that a number of classrooms are yet to be constructed and there is no separate hygienic toilet facility available for girls in 67 schools. It was the submission of the Petitioner that the report furnished by the Secretary, School Education should have given the details of the facility available in schools, school-wise, and not by giving the total strength of students. The Petitioner contended the report on the ground that the real issue has been avoided in the affi davit and that it was sketchy and vague.

It was put forth by the petitioner that children in the age group of 6 to 14 years have a fundamental right to free and compulsory education and hold the right to have a school building with furniture, black-board, toilet, free uniform and books (stationery) and facility of mid-day meals including computers.

Holding

The Hon’ble High Court directed the State Government to provide all the schools with desks and benches, blackboards (with chalk and duster), computers, well stacked library, well equipped science laboratory, separate hygienic toilets for boys and girls, two sets of uniforms to all students, mid-day meals to all students up to secondary level and water purifi ers and to ensure that all the school buildings are well-lit and duly ventilated. The Court further directed the State Government to increase the grants for duly recognized and affi liated Madrasas to at least Rs.20,000/- per annum under Sarva Shiksha Abhiyan and to pay suitable stipend to all students belonging to SC/ ST and BPL categories. Last but not the least, the Hon’ble Court directed all Primary, Upper Primary and Secondary Schools to ensure the implementation of the provisions of the RTE Act, 2009 in letter and spirit.


Reasoning

Socialism is a basic feature of the Constitution of India. Article 21A of the Constitution, guarantees free and compulsory education of all children in the age group of 6 to 14 years as a Fundamental Right in such a manner as the State may, by law, determine. Parliament has also enacted the Right of Children to Free and Compulsory Education Act, 2009 to ensure the realization of this fundamental right. The expression ‘free and compulsory’ education casts duty upon the State Government and other educational institutions to provide basic infrastructure in the schools to make Article 21A of the Constitution meaningful. The lack of infrastructure in Government and Government-aided schools is lowering the standards of education thereby violating the constitutionally recognized fundamental right of the children.


CASES

FILED IN

2017


SINDHI HIGH SCHOOL AND ORS. V. STATE OF KARNATAKA AND ORS.

Case Details Case No. : Writ Petition Nos. 4825/2015 (EDN-RES), 6276-6283/2013 (EDN-

RES), 3773/2014 (EDN-REG-P) 10138/2014(EDN-AD), 10362/2014, 10444/2014 (EDN-RES), 10401/2014 (EDN-AD), 31831-31834/2014 (EDN-RES), 4824/2015(EDN-RES), 4927-4930/2015 (EDN-RES), 12317-12318/2015(EDN-RES),51306-51307/2015(EDN-RES), 7411-7412/2016 (EDN-REG-P), 14238-14241/2016(EDN-RES) and 27602-27605/2016 (EDN-RES)

Citation : MANU/KA/0099/2017

Court : High Court of Karnataka at Bengaluru


Petitioner : Sindhi High School and Ors.

Respondent : State of Karnataka and Ors.

Coram : Hon’ble Justice L. Narayana Swamy

Summary of the Case

Facts

A Government order (No. ED 27 MAHITI 2012) was passed on 18th June 2014 which provided for the establishment of a review committee to assess the notifi cation of minority educational institutions. The Committee was to consider the applications made by the institutions and pass appropriate orders in respect of issuance of minority status


certifi cates. This notifi cation was made applicable to the petitioner institutions by virtue of them being minorities under Article 30 of the Constitution of India. The petitioner institutions did not possess the minority status certifi cate at this time and hence, they were required to provide 25% reservation to children recommended by the Government under Right of Children to Free and Compulsory Education Act, 2009. Meanwhile, the Hon’ble Supreme Court of India had observed that a relook by the Constitutional Bench is necessary in case of both aided and unaided minority educational institutions. In the light of these circumstances, the petitioner institutions fi led these writ petitions challenging the State Government Order on the grounds of arbitrariness and that they have not been issued the minority status certifi cate by the competent authorities in spite of them applying for the same long ago. It is the case of the petitioner institutions that they are not to be insisted in admitting children under RTE Act, 2009.

Issue

Whether the minority educational institutions, which do not possess the minority status certifi cate, can be made subject to implementation of the RTE Act, 2009 and provide admission for 25% of their total strength to students recommended by the respective governments?

Arguments

Petitioners

It was contended by the petitioners that it is the responsibility of the Central Government under the National Commission for Minority Educational Institutions Act to issue Minority status certifi cate and since the authority has not considered the applications of the petitioner institutions, and under the circumstance insisting on admitting the students recommended by the Government under the RTE Act, 2009 which constitutes 25% of the total strength of the these institutions is arbitrary, unconstitutional and in violation of Article 30 of the Constitution of India. Until determination of the minority status of the petitioner institutions, implementation of the RTE Act cannot be done to these institutions.

It was further argued that, even without issuance of any status certifi cate, the petitioner institutions are minority institutions for the purpose of Article 30 of the Constitution of India and as long as that issue is not resolved and decided by the Hon’ble Supreme Court, the insistence of admission of students under RTE Act is unfair and arbitrary. Until a Constitutional Bench re-looked and an order was passed by the Hon’ble Supreme Court, the insistence of fi lling up of 25% of the total strength


by accommodating the students sponsored by Government under the RTE Act, 2009 should not be done and hence it was submitted that a direction should be issued to the respondent Government not to insist for fi lling of 25% of seats by admitting the students sponsored by Government under RTE Act, 2009.

It was brought to the notice of the Hon’ble Court by the petitioners that in case of some of the petitioners, the Commissioner of Public Instructions has communicated the order declaring that the petitioner institution is a linguistic minority institution and hence, these institutions cannot come under RTE Act, 2009. It was the contention of the petitioners that RTE Act is a State legislation, whereas the Linguistic Minority Act is under Article 30 of the Constitution of India. When such is the constitutional guarantee, the petitioner institutions are not liable for admitting the students under the provisions of RTE Act.

Respondents

It was the contention of the respondents that most of the petitioner institutions do not possess the minority status certifi cate. As long as the petitioner institutions are not in possession of minority status certifi cates issued by the Competent Authority, they are bound to admit the students under RTE Act, 2009 which has come into force by virtue of amendment made under Article 21A of the Constitution of India. The constitutional mandate of educational institution which have been approved by State or Central Government are invariably made to reserve 25% of its total strength for admission to the students who are recommended by the respective governments under RTE Act.

It was further contended by the respondents that the petitioner institutions should approach the competent authority under the National Commission for Minority Educational Institutions Act, 2004 to obtain the minority status certifi cate. The endeavour of the petitioner institutions approaching the court for this matter was opposed by the respondents on the ground that it was unnecessary for the petitioner institutions to approach the court instead of the Competent Authority regarding the issuance of minority status certifi cate when the NCMEI Act clarifi es the position about ‘Competent Authority’ without any scope for confusion.

Holding

The Hon’ble High Court, upon dismissing the writ petitions, held as follows:

1. The Hon’ble Court directed the Central Government to consider and pass appropriate order for issuance of such certifi cate to the petitioner institutions.


It was further held that till such orders are passed or till issuance of minority status certifi cates, the petitioner institutions should admit students sponsored under the RTE Act to the extent of 25% of its total strength for the academic year 2017-18. In other words, whatever the confusion or clarifi cations of the petitioner institutions, they are to comply with the provisions of the RTE Act till such confusions or clarifi cations sought are resolved by the competent authority, state or central government.

2. In addition to the regular 25% per year, the petitioner institutions were directed to admit another 10% of candidates each year, till the total admissions under RTE reaches 75% in these institutions. The additional 10% is to be treated as backlog to make up for the admissions not provided till date. In continuation to the same, the Hon’ble Court directed the respondent Government to pass the necessary circular/ orders for recommendation of 10% candidates under RTE Act, as additional backlog seats.

3. The petitioner institutions were also given the option for making another representation to the authorities and the State or Central Governments were directed to process such applications and pass appropriate orders within six months from the date of receipt of the current order.

4. If the petitioner institution is in possession of the minority status certifi cate issued by the concerned authorities, then the said petitioner shall not be insisted for admission of 25% students that are recommended by the Government under RTE Act, 2009.

Reasoning

The reasoning given by the Hon’ble High Court for the above judgment can be summarized as follows:

Without education, freedom of speech and expression of children will be of no avail. The Right to Education was thus recognized through the 86th Constitutional Amendment Act, 2002 by inserting Article 21A in the Constitution of India which states that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. In order to comply with the mandate of Article 21A, the Right of Children to Free and Compulsory Education Act, 2009 was enacted according to which at least 25% of the total seats in the educational institutions have to be fi lled up by admitting the students who are recommended by Competent Authority under RTE Act, 2009. Thus, it is the constitutional mandate that the educational


institutions approved by the Government are invariably made to reserve at least 25% of their total seats to children belonging to weaker sections and disadvantaged groups of the society.

Article 30 of the Constitution of India provides constitutional status to minority institutions along with the privilege and immunity from the applicability of the State Act or Municipal Act. But any institution, before claiming immunity or any privilege for the purpose of Article 30 of the Constitution of India, should be in possession of minority status certifi cate issued by the Competent Authority or by the appropriate Government.


SAVARI MUTHU MICHEAL SELVAN V. STATE OF MAHARASHTRA AND ORS.

Case Details Case No. : Public Interest Litigation (L) No. 8 of 2017

Citation : MANU/MH/0118/2017



Petitioner : Savari Muthu Micheal Selvan

Respondent : State of Maharashtra and Ors.

Coram : Hon’ble Chief Justice Dr. Manjula Chellur and Hon’ble Justice G.S. Kulkarni

Summary of the Case

Facts

The Government of Maharashtra passed a resolution on 10th January 2017 according to which the freedom to fi ll up 25% of free seats under RTE Act has been conferred upon the management/schools and that students hailing from a distance beyond 3 kilometres in particular circumstances, can be admitted under the 25% free seats and for such admissions, the cost of transportation for the child to reach the school is required to be borne by the parents. The petitioner fi led this Public Interest Litigation challenging this policy of the State Government by virtue of which the State Government has regulated the admissions for the 25% free seats to be fi lled up under Section 12(1)(c) of the RTE Act, 2009.


Issues

1. Whether management/schools can be given the authority to fi ll up the 25% of free seats?

2. Whether charging the cost of transportation of children admitted under the 25% free seats violates the essence of Section 12(1)(c) of the RTE Act?

Arguments

Petitioners

Prior to this policy decision, it was the State Government or its authorities which were responsible to make the admission for these seats. Once freedom is conferred on the management of the schools as done under the impugned Government Resolution, the same would lead to an abuse at the hands of the respective schools/managements, causing injustice to the deserving students. Also, charging the cost of transportation of children admitted under the 25% free seats will change the character of the free seats and dilute the object and the purpose for which free seats are provided under the RTE Act.

Respondents

It was argued by the respondents that it is within the power of the State Government to bring in such a policy and allowing admission of children hailing from a distance beyond 3 kilometres in the 25% free seats or charging transportation charges from the parents/ guardian will not lose the character of the admission being made under the provisions of Section 12(1)(c) of the RTE Act.

Holding

The Hon’ble High Court dismissed the litigation by holding that the Government Resolution is a policy decision of the State Government and it does not offend the provisions of the RTE Act on the contended issues. The Court also observed that the clauses being objected by the petitioner, further the object and purpose of Section 12(1)(c) which is to ensure that all admissions under 25% free seats are utilized and that no seats remain vacant.

Reasoning

The decision of the State Government in question is a policy decision. The freedom being given to the managements/ schools fi ll up the 25% free seats will not in any manner dilute the purpose of Section 12(1)(c) of the RTE Act as ultimately, how the benefi t of this


25% seats is required to be given to the eligible and deserving students as per the rules and norms can surely be regulated by the State Government.

The clause providing for the admission of children hailing from a distance beyond 3 kilometres in the 25% free seats implies that those students who are outside the area of 3 kilometres would in certain cases get the benefi t of admission as would be available to those students who are within the area of 3 kilometres. However, in receiving this advantage, the clause only says that the transportation costs of transporting the child from his home to the school would be required to be borne by the concerned parent/guardian. Thus, their admission would not lose the character of the admission being made under the provisions of Section 12(1)(c) of the RTE Act.


VIKAS MOTEWAR V. THE STATE OF MAHARASHTRA AND ORS.

Case Details Case No. : Writ Petition No. 717 of 2016

Citation : 2017 (3) ABR 293


Decided on : March 15, 2017

Petitioner : Vikas Motewar

Respondent : State of Maharashtra and Ors.

Coram : Hon’ble Chief Justice Manjula Chellur. And Hon’ble Justice M.S. Sonak

Summary of the Case

Facts

Petition fi led by father of Ms. Durva Motewar seeking direction against the respondent institutions to allow Ms. Durva to continue her future education in the respondent institutions by admitting her to 7th standard and to give examination of 7th standard to be held in the month of April 2016, and further allow her to complete her studies and examination of 5th and 6th Standard.

The respondent institution is an unaided minority institution, and the petitioner’s daughter Ms. Durva was studying in that school from nursery class. When she was in 4th standard, she remained absent for three months during the second term of the school. However, shortage of attendance was condoned and management permitted her


to appear for the fi nal examination and she was promoted to 5th standard for the Academic Year 2013-2014. Later, during the academic year 2013-14, she remained absent to school for almost 9 months. In this period, the school communicated to the petitioner to pay the school which was when the petitioner informed the school authorities about the family disputes being faced and thus, his daughter would not be able to attend school for a few more days. Subsequently, the school communicated to the petitioner that the name of Ms. Durva had been removed from the school register. By the time the petitioner could personally meet the Principal, the examinations for the academic year had already commenced and the management was not keen on allowing Ms. Durva to continue education in their school. The Petitioner at this point sought the assistance of the respondent authorities who directed the respondent institution to allow Ms. Durva to continue her education in accordance with the RTE Act, 2009. However, the respondent institution paid no heed to the same. Upon continuous deliberations from the petitioner with the help of the authorities, the respondent institution agreed to admit Ms. Durva to 5th standard. After several attempts for amicable settlement, orders were passed by the respondent authorities on 12th March 2015 upon the violation of which the Maharashtra State Commission for Protection of Child Rights passed an order on 02nd September, 2015 directing the respondent authorities to take appropriate action to facilitate Ms. Durva to complete her elementary education. Based on this, the respondent authority intimated the respondent institution that if Ms. Durva is not allowed to receive education in a class appropriate to her age, action would be taken against the institution in accordance with the RTE Act. Post this, though the respondent institution allowed Ms. Durva to attend 7th standard appropriate to her age in December 2015, she was not allowed to enter the school premises or receive education. Thus, the petitioner approached the Hon’ble court seeking relief.

Issue

Whether the terms and provisions of the RTE Act, 2009 can be imposed on minority institution and compel the respondent institution to admit Ms. Durva recognising her right under Sections 15 and 16 of the RTE Act, 2009?

Arguments

Petitioners

It was the contention of the petitioner that there is intentional deprivation of Right to Education to his daughter, Ms. Durva at the instance of the respondent institution and they are liable for consequences in terms of RTE Act since they fl outed the direction of the respondent authorities. There is total arbitrariness on the part of respondent institution in not complying with the provisions of RTE Act, specifi cally Section 16 of the Act which


says that no child admitted to the school can be held back in any class or expelled from school till the completion of elementary education.

Respondents

The State, on the other hand, maintained that it can make arrangements for admission of Ms. Durva in 8th standard in a Maharashtra Board school in the neighbouring area where the petitioner resides. However, the child and the parents have refused to accept the said offer by contending that Ms. Durva has to study in the respondent school. The State put forth that the management of the school being run by a minority community, they have protection in terms of Article 30 of the Constitution of India and thus, the State expressed its inability to provide any assistance in furtherance of the cause of the petitioner.

The respondent institution maintained that there is no obligation on their part to admit Ms. Durva to 8th standard in the school since they have protection as a minority institution under Article 30 of the Constitution of India and as observed by the Hon’ble Supreme Court of India in the case of Pramati Educational and Cultural Trust v. Union of India, [(2012) 6 SCC 102] the RTE Act was not applicable to them.

Holding

The Petition was disposed of denying the relief sought by the petitioner seeking re-admission to the respondent institution in question in terms of Sections 15 and 16 of the Act. However, the State Government was directed to provide admission to Ms. Durva in any of the neighbourhood school to a class which is appropriate to her age and further, allow her to take examination, if any, for the academic year of 2016-2017.

Reasoning

The regulations imposed by the State on institutions for ensuring free and compulsory education to all children in the specifi ed age group should be followed by the minority institutions so long as they do not invade into the constitutional protection conferred upon these institutions under the Constitution of India.

The constitutional protection given to a minority institution recognizing their right to establish and administer educational institutions stands on a higher pedestal than the rights conferred upon Ms. Durva under Right to Education Act, a statute in terms of Article 21A of the Constitution. Also, it is not a situation where Ms. Durva is totally denied of a right under the RTE Act in terms of Section 15 and 16 of the Act since the State, in the present case, is coming forward to provide Ms. Durva admission in any other neighbourhood school upon which the State can impose such obligation.


SOUJANYA PATEL TRUST AND ORS. VS. STATE OF KARNATAKA AND ORS.

Case Details Case No. : W.P. Nos. 14241, 15631/2017 and 14240/2017 (EDN - RES)

Citation : MANU/KA/0931/2017

Court : High Court of Karnataka


Petitioner : Soujanya Patel Trust and Ors.

Respondent : State of Karnataka and Ors.

Coram : Hon’ble Justice S. Sujatha

Summary of the Case

Facts

The petitioners’ schools were affi liated to Central Board of Secondary Education and were granted permanent recognition without any grant, by the Commissioner of Public Instructions, Bangalore. These institutions are imparting pre-primary and elementary education. Respondents have allotted the students to the petitioners’ educational institutions under RTE quota both to LKG and 1st standard levels. The Government of Karnataka has issued the Government Order dated 06.03.2017 under Section 35(2) of the RTE Act prescribing the mode for the determination of the seats in a private un-aided school for admission of children belonging to disadvantaged group and weaker Section under Section 12(1)(c) and the proviso thereof to the RTE Act. Through these writ petitions, the petitioners had challenged the said Government Order


and the announcement of admission of students under RTE Act, 2009 both at LKG and 1st standard levels in petitioners’ educational institutions.

Issue

Whether the proviso appended to Section 12(1) of the RTE Act has to be read as an addendum-substantive provision to the main provision or as an exception?

Arguments

Petitioners

It was contended by the petitioners that the proviso to Section 12(1) of the RTE Act carves out an exception from the main provision, as such where a school specifi ed in Section 2(n) of the Act imparts pre-school education, the provisions of clause (a) to (c) shall apply for admissions to such pre-school education. A proviso to a section cannot be used to import into the enacting part something which is not there. The impugned action of the respondents in declaring both pre-primary and 1st standard as entry levels for admission of children under the RTE Act in the Educational institutions run by the petitioners is prima facie illegal and contrary to RTE Act in its entirety including Section 12 thereof. An entry level to educational institutions mentioned in Section 12 (1)(c) i.e. Class I is modifi ed by the proviso to the extent of replacing the entry level to pre-primary instead of Class I. There is only one entry level at pre-primary, if the schools are imparting education both at pre-primary and elementary levels, i.e. bound by the proviso, not the main enactment. Assuming if both entry levels are applicable, the State Government has no power to scramble the same in a hybrid manner giving a go by to the legislative intent. The hybrid procedure adopted by the respondents has absolutely no rationale behind it and adversely affects the children since the educational institutions are asked to divide admission between LKG and 1st standard. In giving effect to both, the main enactment and the proviso, the State Government cannot interpret in a hybrid manner other than the enacted provisions. Hence, the Government Order dated 06.03.2017 is illegal.

Respondents

It was the argument of the respondents that based on the experience of implementation of admission under Section 12(1)(c) of the RTE Act, it was found necessary to prescribe additional guidelines in the instances as that of petitioner educational institutions. The said guidelines under Govt. Order dated 06.03.2017 are issued under the provisions of Section 35(2) of the RTE Act. The main intent of the Act was to reserve 25% of the seats for the disadvantaged or weaker sections of students so that there would be social equity.


This was envisaged in the entry level, so that, there would be an organic growth for such students and they could easily adjust to more competitive/advanced education in private schools without facing the pain of transition. The object of the Act was to integrate the children from different strata, so there is more empathy and understanding. But, the avowed object of enacting RTE Act was not fully achieved as many schools attempted to evade admissions under Section 12(1)(c) by deliberately starting the pre-primary classes in their schools, which have substantially lower strength, than the strength in the 1st standard. This misuse of the provision was unforeseen as logically, the number of seats in a lower class in any school would be equal to the next class, as the same students would be graduated to the next (senior) class. It was to overcome this gap that the contended Government Order was issued which determines the number of entry levels and also the student strength mechanism for the academic year.

It was further argued that it is the wrong perception of the petitioners that they are providing free education to the children, since the government is reimbursing the institutions. Indeed the children are getting free education as the Government is bearing the cost of the education of such children. The only difference in the petitioners’ pre and post RTE status would be, to an extent of 25% of the students whom the institutions cannot pick and choose.

The respondents further maintained that harmonious construction of interpretation has to be given to the proviso and Section 12(1)(c). The proviso has to be interpreted in consonance with clause (c), where school specifi ed in Section 2(n) imparts pre-school education and primary education, the strength of class-I envisaged in clause (c) has to be considered to reserve the seats under RTE quota. Hence, the entry level is at two points, i.e., pre-primary and Class I, clubbed together, the extent of at least 25% of the strength of Class I shall be treated as RTE quota. Thus, the Proviso does not destroy the main provision.

Holding

Dismissing the writ petitions, the Hon’ble High Court held as follows:

1. The Government order dated 06.03.2017 is in accordance with law and valid.

2. Action of the respondents in allotting the students to the petitioner educational institutions both at the pre-school and 1st standard levels is legal and intra-vires the RTE Act, 2009.

3. Reservation of 25% in Class I and/or pre-school at both the entry levels/ simultaneously for the children belonging to weaker sections and disadvantaged group is justifi able.


Reasoning

The function of the proviso ordinarily is to qualify the preceding enactment which is expressed in a quite accurate manner. The proper function of a proviso is to accept and deal with the case which would otherwise fall within the main enactment but this is not an infl exible Rule. It is a settled legal position that language employed in the proviso depicts whether the legislature intended to exercise its enacting power. Where the language of the main enactment is explicit and unambiguous, the proviso has to be read along with the main enactment. Thus, the proviso gets integrated to Section 12(1)(c) in terms of the language employed therein. That means “to the extent of at least 25% of the strength of that Class-I” applies to both the entry levels if the school is imparting education at both the entry levels and no option is left to the schools to pick and choose any one entry level. Reservation at 25% of the strength of the class separately cannot be fi xed, if the school is imparting education at both the levels.

The statistical analysis of the admission data of the academic year 2016-17 pertaining to schools imparting both primary and pre-primary education furnished by the respondents disclose that about 2,281 schools having two entry levels with different strength in LKG and 1st standard, were not declaring all the seats in the 1st standard, by showing lower strength in LKG. An adequate number of seats would be lost to the disadvantaged students and weaker sections. Thus, it is by experience that the State Government found it necessary to prescribe guidelines for the effective implementation of the object of the Act. The rationale for issuing such guidelines is well founded and is intra-vires of the RTE Act. The State is empowered to issue guidelines under Section 35(2) of the RTE Act and also to invoke Article 162 of the Constitution of India to fi ll in the gap to remove the doubts or to bring clarity, if any.


NITIN RAVINDRA BANSOD AND ORS. V. GOVERNMENT OF INDIA AND ORS.

Case Details

Case No. : Writ Petition No. 1869/2017

Citation : MANU/MH/0808/2017

Court : High Court of Bombay (Nagpur Bench)


Petitioner : Nitin Ravindra Bansod and Ors.

Respondent : Government of India and Ors.

Coram : Hon’ble Justice V. A. Naik and Hon’ble Justice Swapna Joshi

Summary of the Case

Facts

The children of the petitioners were admitted in Standard I in the respondent Schools – Modern Primary School and Sandipani School, located in Civil Lines, Nagpur under the provisions of Section 12(1)(c) of the Act, in the year 2013-14. These schools provided education to the children only till Standard IV. The managements of these Schools run and administer two other schools at Koradi and Hazari Pahad respectively where education is imparted to the students from Standards I to X. The children of the petitioners had completed their education till Standard IV at the end of the academic session 2016-17 and were entitled for admission to Standard V. Some of the petitioners received a communication from the Modern Primary School that they could admit their children in Standard V in the school run by the management at Koradi on the condition


that they would not be entitled to free education as per the provisions of Section 12(1)(c) of the Act. Sandipani School, on the other hand, served communications to other petitioners informing them that since there was no facility for further education in the school in which their children were admitted, they would be required to make arrangements for admitting their children to other schools as per the provisions of the Act.

The petitioners thus fi led a writ petition challenging the communications of the schools and sought for issue of directions to the Deputy Director of Education, Nagpur and the Education Offi cer (Primary), Zilla Parishad, Nagpur to transfer the children of the petitioners to nearby schools with a view to provide them free education facility as per the provisions of The Right of Children to Free and Compulsory Education Act, 2009 and to the schools to protect the education of the children of the petitioners by admitting them in the other branches of the schools in the nearby locality, as per the provisions of the RTE Act.

Issue

Whether the petitioner has right to seek admission into another school of respondents as the current school only provides education to children till Standard IV.

Arguments

Petitioners

As per the provisions of Section 12(1)(c) of the Act, the children of the petitioners were admitted in the respondent schools to the extent of 25% of the strength of Standard I and free education was provided to them as per the provisions of the Act. The petitioners belong to the weaker or disadvantaged groups and the petitioners therefore have a right to secure free education for their children under the Act. The action on the part of the respondent schools in not providing free education to their children in the other schools run by them which have the facility to provide education till VIII standard would be in violation of the provisions of the RTE Act.

Respondents

The respondent schools contended that the schools in which the children of the petitioners were admitted in the year 2013-14 have classes only till Standard IV and ‘elementary’ education till the end of Standard VIII is not provided in the said schools and this fact was known to the petitioners when they admitted their children in these schools. The managements of the respondent schools run two independent schools in


different localities with different U-DISE numbers. A child admitted in one school run by the management would not have an absolute right to get admitted in the other school run by the management in another locality. Further, the schools run in other locality which have classes from Standard I to X, have exhausted the 25% quota in respect of grant of free education to the weaker sections or disadvantaged groups, as provided under Section 12(1)(c) of the Act while admitting the students to Standard I in those schools. If the respondent schools are now directed to provide free education to the children of the petitioners in their school at a different locality, the 25% quota for providing free education, as provided under Section 12(1)(c) would be exceeded.

The respondents also submitted that as per the provisions of Section 5 of the RTE Act, the child would have a right to seek transfer to any other school, excluding the schools specifi ed under Section 2(n) (iii) and (iv) of the Act, till the completion of his/her elementary education. Hence, the provisions of Section 5 of the Act would come into play as there is no provision for completion of elementary education in the school in the respondent schools where the children of some of the petitioners were taking education and the petitioners would be entitled to get their children admitted to any other school in the nearby locality.

Holding

The writ petition was partly allowed.

1. The challenge to the communications of the respondent schools was dismissed and no directions were issued to them.

2. The Education Offi cer (Primary), Zilla Parishad, Nagpur was directed to admit the children of the petitioners in the other schools, excluding the schools specifi ed in Section 2(n) (iii) and (iv) of the RTE Act for completion of their elementary education, within two months.

Reasoning

The two schools run by the management of the respondent schools are distinct and separate having different U-DISE numbers. Even assuming that the two schools run by each of these managements is one school, admission of the children of the petitioners in these schools would result in exceeding the 25% quota prescribed under the RTE Act. Though there is no prohibition in providing free and compulsory education to more than 25% of the strength of the class under Section 12(1)(c), there is no obligation on the management of the schools specifi ed in Section 2(n) (iii) and (iv) of the Act to provide


free education above the strength of 25% of the class. The schools run by the management of the respondent schools fall within Section 2(n)(iv) of the RTE Act and, hence, the children of the petitioners would not have a right to seek their transfer to these schools.

Section 5 of the RTE Act comes into play where a school has no provision for completion of elementary education of a child, like in the case in hand. In such cases, where the school has no provision for completion of elementary education of the child till Standard VIII, the child would have a right to seek his/her transfer to any other school excluding the schools specifi ed in Section 2(n) (iii) and (iv) of the Act. In accordance with the provisions of Section 9 of the RTE Act which casts a duty on the ‘local authority’ to provide free and compulsory elementary education to every child, it is the duty of the is Education Offi cer (Primary), Zilla Parishad, Nagpur to admit the children of the petitioners in any other schools, excluding the schools specifi ed Section 2(n)(iii) and (iv) of the Act so as to ensure that they secure free and compulsory elementary education.


NAZ FOUNDATION (INDIA) TRUST V. UNION OF INDIA

Case Details

Case No. : Writ Petition (C) No. 147 of 2014

Citation : 2017 SCC OnLine SC 890

Court : Supreme Court of India

Decided on : May 05, 2017

Petitioner : Naz Foundation (India) Trust

Respondent : Union of India

Coram : Hon’ble Chief Justice of India Mr. Jagadish Singh KheharHon’ble Justice D. Y. ChandrachudHon’ble Justice Sanjay Kishan Kaul

Summary of the Case

Facts

The petition was fi led requesting for a writ, order or direction to include children with HIV/AIDS under the category ‘children belonging to disadvantaged groups’ and that they are to be ensured quality education with all other children without any discrimination.

Issue

Whether the category of ‘children belonging to disadvantaged groups’ under the RTE Act, 2009 includes children with HIV/AIDS?


Proceedings

The Hon’ble Court, after observing that 11 States and 1 Union Territory had already recognised children with HIV/AIDS as children belonging to disadvantaged groups under the RTE Act, 2009, passed an order on 31.03.2017 that “children with HIV/AIDS” should be notifi ed as belonging to “children with disadvantaged groups” under Section 2(d) of the RTE Act, 2009 within four weeks from the date of order and those States which are unwilling to issue such notifi cation were given opportunity to fi le an affi davit with reasoning for their unwillingness within four weeks. Accordingly, the Union of India vide a letter dated 06.04.2017 sent a communication to Education Secretaries of all States and Union Territories to this effect. No objections were received by the Court in the stipulated time.

Holding

The Hon’ble Apex Court directed all States and Union Territories, which have not issued the notifi cation to recognize children with HIV/AIDS as children belonging to disadvantaged groups under Section 2(d) of the RTE Act, 2009, to issue the necessary notifi cation within eight weeks.

Reasoning

Since no objections were received from any State Government, the Hon’ble Court was satisfi ed that all State Governments are agreeable to issue a notifi cation, declaring children living with or affected by HIV, fall in the category of disadvantaged children, under Section 2(d) of the RTE Act, 2009.


DR. JAGANNATH V. UNION OF INDIA

Case Details

Case No. : PIL No. 08 of 2016

Citation : 2017 SCC OnLine Bom 6611

Court : High Court of Bombay at Aurangabad

Decided on : June 29, 2017

Petitioner : Dr. Jagannath S/o Shamrao Patil

Respondent : Union of India and Others

Coram : Hon’ble Chief Justice Manjula ChellurHon’ble Justice R. M. Borde

Summary of the Case

Facts

This Public Interest Litigation was fi led expressing the grievances and hardships being faced by the general public with regard to pre-primary education in the State of Maharashtra.

Issue

Whether the State of Maharashtra has failed to address the issues relating to pre-primary education?


Holding

The Respondent-authorities were directed to formulate and implement a policy on or before 31.12.2017 in consonance with Section 11 of the RTE Act, 2009.

Reasoning

Pre-primary education plays a major role in the education system of the country. Section 11 of the RTE Act, 2009 imposes an obligation upon the State to lay down the procedure for provision of pre-primary education. In the light of many establishments catering to pre-primary education, serious disparity among these institutions and the quality of education provided by them is being caused due to lack of proper norms or guidelines.


AKHIL SHARMA V. GOVERNMENT (NCT) OF DELHI

Case Details

Case No. : W.P. (C) 6743/2015

Citation : 2017 SCC OnLine Del 9579

Court : High Court of Delhi


Petitioner : Master Akhil Sharma

Respondent : Secretary (Education), Government of NCT of Delhi & Anr.

Coram : Hon’ble Justice Indermeet Kaur

Summary of the Case

Facts

The Petitioner was denied admission in the respondent-school in the KG Class on the ground of overage. While the norms prescribed the age limit of 3 years to 4 years for admission to KG Class, the petitioner was 4 years 27 days old at the time of seeking admission. Hence, he had fi led this petition seeking relief with the contention that the respondent-school had committed an illegality by not accepting his application form.

Issue

Whether the right of respondent school to fi x an upper age limit for admission to KG/Prep class was a regulatory measure which could have been regulated by the respondent authorities or was it within the independent domain of respondent school to fi x its own age limit?


Arguments

Petitioners

It was argued by the Petitioners that a minimum age limit could be prescribed for admission but prescribing maximum age limit was against the Rules of the respondent government wherein the Government has provided that fi xing of upper age limit for admission was still under deliberation. It was further submitted that the respondent authorities can enforce regulatory measures on private unaided schools and it was within their domain to ensure that the rules and regulations of the respondent school are fair and meet the standards applicable to all schools. Hence, the respondent school had committed gross illegality by fi xing the upper age limit for admission which violates the aforementioned Rules.

Respondents

The Respondents submitted that the respondent school is a private unaided minority institution having rights under Article 30 of the Constitution of India and the provisions of RTE Act, 2009 are not applicable to it. It was further submitted that Section 3 of the Delhi School Education Act and Rule 185 of Delhi School Education Rules recognizes the autonomy of private unaided schools and since the petitioner had not fulfi lled the criteria for admission, his application was not considered.

Holding

The Hon’ble Court held that prescription of upper age limit by a school would be a regulatory measure which the State could regulate and the rejection of petitioner’s application by the respondent school was an arbitrary exercise.

Reasoning

There is no doubt that a private unaided institution is not an instrumentality of the State and Article 21A of the Constitution of India is not applicable to these institutions as held by the Apex Court in the case of Pramati Educational and Cultural Trust v. Union of India [(2012) 6 SCC 102]. However, it is an admitted position that regulatory measures of the respondent authorities even upon unaided minority institutions have to be abided by. While what could fall within the ambit of regulations has been a subject matter of judicial discussion, regulation not to have an arbitrary upper age limit for admission falls within its ambit. By enforcing an upper age limit for admission to pre-primary education which is not provided for by any Government circular, a number of children who did or could not apply within the prescribed age limit due to various incidental reasons would miss out the opportunity to study in a school.


ST. ANN’S ENGLISH MEDIUM SCHOOL V. STATE OF CHATTISGARH

Case Details

Case No. : Writ petition (C) No. 1001 of 2016

Citation : 2017 SCC Online Chh 1436

Court : High Court of Chattisgarh at Bilaspur


Petitioner : St. Ann’s English Medium School, Raigarh

Respondent : State of Chattisgarh and Ors.

Coram : Hon’ble Justice Sanjav K. Agarwai

Summary of the Case

Facts

The petitioner-institution was issued notice by the respondent authorities directing them to produce minority status certifi cate issued by the State Government failing which it would be de-recognized for not admitting 25% students in accordance with the RTE Act, 2009. The current writ petition was fi led by the petitioner-institution for the enforcement of its fundamental rights under Articles 30, 14 and 19 of the Constitution of India and requesting for restraining the State Government from adversely de-recognizing their institution for non-compliance of RTE Act, 2009.

Issues● Whether the petitioner-institution is a minority educational institution entitled

to privilege conferred under Article 30(1) of the Constitution of India?


● Whether the RTE Act, 2009 would be applicable to the petitioner-institution and is it bound to admit students to the extent of 25% as provided under Section 12(1)(c) of the RTE Act, 2009?

Arguments

Petitioners

It was the submission of the petitioner that it is a Christian Minority Unaided Private Educational Institution under Article 30(1) of the Constitution of India who possesses the minority status certifi cate issued by the National Commission for Minority Educational Institutions under Sections 11(f) and 12B of the NCMEI Act, 2004. Therefore, the State Government cannot ignore this fact and cannot demand for certifi cate issued only by the authorities of the State Government. It was further submitted that RTE Act, 2009 is not applicable to minority institutions as held by the Hon’ble Supreme Court in the case of Pramati Educational and Cultural Trust v. Union of India [(2012) 6 SCC 102]. Thus, the impugned order of the State Government deserved to be quashed.

Respondents

The Respondents argued that right to education envisages a reciprocal agreement between the State and the parents and places an affi rmative burden on all the stakeholders. The fundamental right to establish and administer educational institutions under Articles 19(1)(g) and 19(2) of the Constitution of India is co-extensive with the Constitutional obligation of the State to provide for free and compulsory education to the specifi ed category of children and will have to satisfy the test of reasonable restriction. The right to establish and administer educational institutions cannot be equated with the right of recognition or affi liation, which is purely a statutory right subject to the test of reasonable restrictions. In the light of these arguments, it was put forth by the respondents that the impugned order was unexceptionable and the writ petition was to be dismissed.

Holding● The Minority Status Certifi cate granted by the authority under the NCMEI

Act, 2004 will prevail and is binding on the State Government and the State Government or the State Authorities cannot ignore the certifi cate and the declaration made as a minority educational institution unless it is set aside in accordance with the NCMEI Act, 2004 by the authority having jurisdiction. Hence, it was held that the petitioner-institution is a minority education institution covered under Section 2(g) of the NCMEI Act, 2004.


● Since the petitioner-institution has been declared and granted the status of minority institution by the NCMEI, the provisions under Section 12(1)(c) of the RTE Act, 2009 will not be applicable to them and they are not required to admit 25% students from weaker section of society.

Accordingly, the impugned orders were quashed.

Reasoning● The NCMEI Act, 2004 was enacted to constitute a National Commission

for Minority Educational Institutions and to provide for matters connected therewith and incidental thereto. A perusal of Sections 11(f) and 12B of the NCMEI Act, 2004 portrays that one of the functions of the National Commission for Minority Educational Institutions is to resolve all questions relating to the minority status of any institution and declare whether that institution is a minority institution or not. Section 12B provides the power to the Commission to take decision on the minority status of an educational institution when such an application has been rejected by the State or Central Government, as the case may be. Thus, once certifi cate has been issued by the Commission, the State Government and its authorities cannot compel the petitioner institution to obtain certifi cate from the authority appointed by the Government as the statutory authority appointed under the NCMEI Act, 2004 has granted the minority status certifi cate which is binding on the State Government.

● The Hon’ble Apex Court in the case of Pramati Educational and Cultural Trust v. Union of India [(2012) 6 SCC 102] held that the power under Article 21A of the Constitution of India vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice. Thus, the Constitution Bench of the Supreme Court has clearly and unequivocally held that the RTE Act, 2009 insofar as it is made applicable to minority schools under Article 30(1) of the Constitution is ultra-vires the Constitution and therefore, RTE Act, 2009 is not applicable to the minority educational institutions established under Article 30(1).

Other Cases Decided along with this Petition:● Shalini Convent School, Raigarh v. State of Chattisgarh and Ors., Writ Petition (C)

No. 1005 of 2016

● Carmel Convent Senior Secondary School v. State of Chattisgarh and Ors., Writ Petition (C) No. 1006 of 2016

● St. Ann’s High School v. State of Chattisgarh and Ors., Writ Petition (C) No. 1007 of 2016


STATE OF ASSAM V. ALL ASSAM MIDDLE ENGLISH TEACHERS’ ASSOCIATION

Case Details Case No. : WA 130/2017

Citation : 2017 SCC OnLine Gau 850

Court : High Court of Gauhati of Assam, Nagaland, Mizoram and Arunachal Pradesh


Appellant : State of Assam and Anr.

Respondent : All Assam Middle English Teachers’ Association (M. E. School) and Anr.

Coram : Hon’ble Chief Justice Ajit Singh and Hon’ble Justice Manojit Bhuyan

Summary of the Case

Facts

The Secondary Education Department of the Government of Assam introduced a scheme called Shiksha Kshetra on 22.09.2016 vide an Offi ce Memorandum for amalgamation and merger of different schools which intended to derive optimum services of the employees and better logistic support in respect of different categories of schools located in the same campus or in any nearby area by way of amalgamation/ merger and by bringing schools under one single administrative and academic unit. Among others, the scheme provided for merging of all schools situated in the same


campus with the highest school. The legality and validity of this memorandum was questioned in a bunch of writ petitions which were dismissed by a common judgment owing to short of merit. Two writ appeals were preferred against this judgment, one by the State of Assam and another by the All Assam Middle English Teachers’ Association which were heard and decided together.

Issue

Whether the Offi ce Memorandum laying down the scheme Shiksha Kshetra is legally valid?

Grounds of Challenge

State of Assam

The State of Assam partly challenged the judgment of the Single Judge on the following grounds:

● The judgment of the Single Judge which was appealed against in this petition stated that the teachers on the verge of superannuation may not be transferred to other schools. The Government of Assam submitted that this required more clarity and thus was requested to be altered to stating that “teachers having one year to superannuation may not be transferred out to other schools”.

● The scheme Shiksha Kshetra as laid down by the challenged Offi ce Memorandum takes into consideration the service conditions of the employees and envisages district and block level committees to identify schools for amalgamation, the decision of which is appealable with the Government. Thus, the pre-amalgamation exercise of consulting the merging schools before taking the fi nal decision will frustrate and nullify the object sought to be achieved by the scheme.

All Assam Middle English Teachers’ Association

The grounds of challenge put forth by the Association, among others, include:

● The Offi ce memorandum is contradictory to the Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 and the Assam Secondary Education (Provincialisation) Service Rules, 2003.

● The post of Assistant Headmaster/ Assistant Headmistress does not exist in Assam after 1986.


● The Hon’ble Court on a challenge made to similar offi ce memorandum had previously directed that amalgamation can be undertaken only among consenting and not unwilling schools in the same campus. Thus, the impugned memorandum by imposing forced amalgamation violates the said order.

● The policy decision involving amalgamation and merger is arbitrary, erratic and also violates the fundamental rights.

Holding

The Hon’ble High Court dismissed the appeal challenging the offi ce memorandum laying down the scheme by holding that the memorandum does not call for interference of the Court. However, the appeal partly challenging the judgment of the Single Judge seeking more clarity was partly allowed.

Reasoning

The Offi ce memorandum laying down the scheme of Shiksha Kshetra is a policy decision of the Government of Assam which was circulated through a Cabinet Memorandum and eventually was approved by the Cabinet pursuant to the consultation made with the Finance Department of the Government of Assam. It involved expert views from NGO, sponsored by the Indian Council of Social Science Research and the Government of Assam as well as the suggestions made by the RMSA and the views of the 233rd meeting of the Project Approval Board. Such a memorandum can be quashed only if it is found to be predominantly arbitrary, unreasonable thereby violating Article 14 of the Constitution of India or is in confl ict with any statutory or constitutional provisions and as held by the Apex court in a handful of cases, it is not for the Court to substitute its wisdom for the Government on the ground that a better formula or public policy could be evolved.

Other Cases Decided along with this Petition:

State of Assam v. All Assam Middle English Teachers’ Association, WA 155/2017

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