Madras High Court
M.Abimanyou vs The Government Of India on 2 July, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.Nos.10217, 10218, 12203, 13337 and 13338 of 2012
M.Abimanyou .. Petitioner in
W.P.No.10217 of 2012
Ramesh .. Petitioner in
W.P.No.10218 of 2012
R.Sethuvarayar .. Petitioner in
W.P.No.12203 of 2012
M.Padmavathi .. Petitioner in
W.P.No.13337 of 2012
G.Rama .. Petitioner in
W.P.No.13338 of 2012
Vs.
1.The Government of India,
rep by its Secretary,
Department of Human Resources and
Education,
New Delhi-110 001.
2.The Government of Tamil Nadu,
rep by its Secretary,
Department of School Education,
Fort St. George,
Chennai-600 009.
3.The Government of Tamil Nadu,
rep by its Secretary,
Department of Local Administration,
Fort St. George, Chennai-600 009. .. Respondents 1 to 3 in
all writ petitions
4.The Director of School Education,
Office of the Directorate of School Education,
Nungambakkam, Chennai-600 034. .. Respondent No. 4 in
W.P.Nos.10217,10218,
12203 of 2012
5.The Commissioner,
Alandur Municipality,
Alandur, Chennai.
6.The Principal,
D.A.V School,
Sri Nantheeswarar Campus,
Adambakkam, Chennai. .. Respondents 5 and 6 in
W.P.No.10217 of 2012
5.The Head Master,
Sri Nadesan Vidyalaya Mat. Hr. Sec. School,
Muduchoor Road,
Mannivakkam,
Chennai-600 048. .. 5th respondent in
W.P.No.10218 of 2012
5.The Commissioner,
Ambattur Municipality,
Ambattur, Chennai.
6.The Regional Director,
Central Board of Secondary Education,
Plot No.1630, A, "J" Block, 16th Main Road,
Anna Nagar West,
Chennai-600 040.
7.The Principal,
Vellammal Vidyalaya CBSE School,
Ayanampakkam, Chennai. .. Respondents 5 to 7 in
W.P.No.12203 of 2012
4.The Regional Director,
Central Board of Secondary Education,
Plot No.1630, A, "J" Block, 16th Main Road,
Anna Nagar West,
Chennai-600 040.
5.The Commissioner,
Chennai Corporation,
Ripon Building,
Chennai-600 003. .. Respondents 4 and 5
in W.P.Nos.13337 and
13338 of 2012
6.The Principal,
Vani Vidyalaya Senior Secondary & Junior College,
No.12,Vembuli Amman Koil Street,
K.K.Nagar (West),
Chennai-600 078. .. Respondent No.6
in W.P.No.13337 of 2012
6.The Principal,
Chinmaya Vidyalaya,
Chinmaya Nagar, Stage II,
Virugambakkam,
Chennai-600 092. .. Respondent No.6 in
W.P.No.13338 of 2012
W.P.Nos.10217 and 10218 of 2012 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the third respondent to identify the neighbourhood school(s) where children can be admitted and make such information to public for each habitation by public notification by advertisement in all newspapers, in the website of the Education Department, consequently direct the 6th respondent school to admit the petitioner's child Mathivathani (age 3) in LKG Standard and in W.P.No.10218 of 2012 to direct the 5th respondent school to admit the petitioner's child Pavithra (age 6) in the 2nd standard respectively without any screening test by providing free education upto 8th standard with free uniforms, free education materials, free books and other needs for education.
W.P.No.10203 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the 7th respondent school to admit the petitioner's child S.Swathi (aged 5) in 1st standard without any screening test by providing free education upto 8th standard with free uniforms, free education materials, free books and other needs for education.
W.P.No.13337 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the 6th respondent school to admit the petitioner's son Sanjay Bharathi, son of Manickam (age 9) in 5th standard without any screening test by providing free education upto 8th standard with free uniforms, free education materials, free books and other needs for education.
W.P.No.13338 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the 6th respondent school to admit the petitioner's daughter Vaishnavi (age 3) in L.K.G. without any screening test by providing free education upto 8th standard with free uniforms, free education materials, free books and other needs for education.
For Petitioners : Mr.M.Pari
For Respondents : Mr.P.Sanjay Gandhi, Spl.G.P. (Edn.)
for RR2 to 4
in W.P.Nos.10217, 10218 and 12203 of 2012
and for RR2 and 3
in W.P.Nos.13337 and 13338 of 2012
Mr.R.Venkataraman for R-5
in W.P.No.10218 of 2012
Mr.T.Meikandan for R-6
in W.P.Nos.13337 and 13338 of 2012
Mr.N.Raja Senthoor Pandian for R-7
in W.P.No.12203 of 2012
Mr.M.S.Krishnan, SC
in W.P.No.10217 of 2012
Ms.Karthikaa Ashok for R-5
for Chennai Corporation
in W.P.Nos.10217, 12203, 13337 and
13338 of 2012
- - - -
COMMON ORDER
All these writ petitions came to be posted on being specially ordered by the Hon'ble Chief Justice vide order dated 06.06.2012.
2.The petitioners in all these writ petitions are parents of the children for whom they were seeking for admissions into some unaided private schools shown as the contesting respondents in the respective writ petitions. Inspiration for filing the writ petition was drawn from the provisions of The Right of Children for Free and Compulsory Education Act, 2009 (for short Free Education Act).
3.On notice from this court, the contesting respondents have also filed counter affidavits. Before going into the merits of the contentions, it is necessary to set out the facts pleaded by the respective parties.
I.W.P.No.10217 of 2012 :
4.The petitioner in this writ petition seeks for a direction to the official respondents to identify the neighborhood schools where children can be admitted and make such information public and consequently to direct the 6th respondent (D.A.V. School, Sri Nandeeswarar Campus, Adambakkam) to admit his daughter Mathivathani (aged 3 years) in the L.K.G. section without any screening test and by providing free education upto 8th standard, free uniform, free education materials and free books. According to the petitioner, he belonged to the Most Backward caste and disadvantage group. He is earning Rs.1,29,516/- per annum and also belonged to weaker section. Free education Act defines disadvantage group and weaker section. His daughter aged 3 years is willing to join the 6th respondent school in L.K.G. and to study upto 8th standard free and compulsory education. The petitioner had approached the 6th respondent many times for admission. He was not given any application form. After enquiry, he came to know that admission was completed. He made a representation on 13.3.2012 to the respondents requesting them to take steps to admit his child under Rule 6(6) of the Right of Children to Free and Compulsory Education Rules, 2010. It is stated that the 6th respondent school had not allotted 25% of seats as required under Section 12(c) of the Free Education Act in each standard from L.K.G to 8th standard. The official respondents were not supervising. His daughter not only has legal right, but also fundamental right under Article 21 of the Constitution to have free and compulsory education upto 8th standard.
II.W.P.No.10218 of 2012 :
5.In this writ petition, the petitioner who is the father has sought for an identical prayer in respect of his daughter Pavithra aged 6 years to be admitted to 2nd standard with free uniform, free education materials, free books and other needs in the 5th respondent Sri Nadesan Vidyalaya Matriculation Higher Secondary School, Mannivakkam, Chennai-48.
6.When both writ petitions came up for admission, since the petitioners asked for a larger prayer, this court directed that it may be treated as a Public Interest Litigation. Hence it should be posted before a division Bench. However, the division bench presided by the Hon'ble Chief Justice vide order dated 26.04.2012 held that the relief claimed is only personal and it should be heard only by a single bench. Subsequently, these two writ petitions were admitted by this Court on 27.04.2012. On notice, the 5th respondent in W.P.No.10218 of 2012 has filed a counter affidavit , dated 4.6.2012. In the counter affidavit, it was stated that the writ petition is not maintainable as the Act only provides for admission to 1st standard under Section 12(1)(c). But their school is having pre-school education from L.K.G. onwards. Since the petitioner seeks admission for his daughter in the 2nd standard, the writ petition is liable to be dismissed. It was also stated that in the Mannivakkam village neighborhood, there is a Government High school. It is not as if the petitioner cannot get admission to the said school. Their school has been unnecessarily dragged into the case.
III.W.P.No.12203 of 2012 :
7.This writ petition is filed by the father of a child seeking for an admission in the 1st standard to his daughter S.Swathi aged 5 years in the 7th respondent school, i.e., Vellammal Vidyala CBSE School, Ayanampakkam, Chennai without any screening test and free education upto 8th standard. In this writ petition, notice was ordered on 4.5.2012. The contention of the petitioner was that he belonged to Most Backward class which is a disadvantaged group. He is earning Rs.1,15,500/- per year which is a weaker section under the said Act. He had approached the private respondent school for admission. He came to know that the admission was completed. Therefore, he made a representation on 21.4.2012 for taking steps. The official respondents have not taken any steps. Hence this writ petition.
8.On notice from this court, the private respondent school has filed a counter affidavit dated 7.6.2012. In the counter affidavit, it was stated that their schools is an unaided school and is having pre school education from the Lower Kinder Garden (L.K.G.). They are exempted from admitting students in terms of Section 12(c)(1). Since their admission starts from pre school stage, the petitioner's claim to admit his daughter in the 1st standard is not valid. They are not in a position to admit the petitioner's child. The school is having the strength of 500 students in respect of the 1st standard, who were admitted in the L.K.G itself. Further the petitioner in his representation dated 21.4.2012 stated that he wanted Samacheer Kalvi (Uniform syllabus) and it is not applicable to the respondent school as it is affiliated to the CBSE. Therefore, the petitioner cannot admit his daughter in their school.
IV.W.P.No.13337 of 2012 :
9.The petitioner is the mother. In this writ petition, she sought for a direction to admit her son Sanjay Bharathi aged 9 years in the 5th standard without any screening test and by providing free education upto 8th standard in the 6th respondent school, i.e., Vani Vidyalaya Senior Secondary and Junior College, K.K.Nagar (West), Chennai. This writ petition is yet to be admitted. The petitioner was directed to issue a private notice to the 6th respondent.
10.It is the case of the petitioner that she belonged to most backward class and defined as a disadvantaged group. Her family income is less than Rs. 2 lakhs per year. When the petitioner had approached the 6th respondent school for admission, she was not given application form. She came to know that admission was completed. The petitioner made a representation dated 01.05.2012 to the respondents, but no action was taken. Hence she has filed the present writ petition.
V.W.P.No.13338 of 2012 :
11.In this writ petition, the petitioner is the mother, who seeks for a direction to admit her daughter Vaishnavi aged 3 years in the L.K.G. In the 6th respondent school, i.e. Chinmaya Vidyalaya, Chinmaya Nagar, Stage II, Virugambakkam without any screening test and by providing education upto 8th standard. It is her case that her family income is Rs.2 lakhs. She belonged to the weaker section. Inspite of her approaching school, she was not given an application form. Thereafter she came to know that admission of the school was already over. Despite her representation, the respondents have not taken any action. In that writ petition, notice was ordered on 09.05.2012.
12.On notice from this court, the contesting respondent Chinmaya Vidyala has filed a counter affidavit, dated 8.6.2012. It was stated that their school is affiliated to CBSE and no writ petition is maintainable against the said school. It was also stated that their school gave wide publicity with reference to the admission procedure in the local dailies and other newspapers for the academic year 2012-2013 during January, 2012 itself. The application were allowed to be downloaded from the website of the school. Based upon the advertisement made in the newspapers, more than 1265 applications were downloaded by the aspirants to L.K.G. admission for the ensuing academic year. They had specifically instructed and advertised that such applications should be sent to the school on or before 18th, 19th, and 21st January, 2012. Many parents took note of the details and applied to the school for admission within time. The petitioner's contention that she had approached the school for application form was not accepted and it was stated only for filing the present case. The petitioner never made any application to the school.
13.It was stated that apart from issuing application during January, 2012 the academic year for all CBSE schools starts in April itself, i.e., from 4.4.2012. the condition that 25% of vacancies to be filled up by weaker sections and disadvantage group were also filled up on "first come first served" basis and the entire admission in the school was over by April, 2012. Since the petitioner did not approach the school, the question of her seeking for admission from the school does not arise. The management had consciously kept in mind the provisions of the Act as upheld by the Supreme Court and had admitted 52 students under Section 12(1)(c) category out of 160 students. The list of students who were admitted in that category is also enclosed along with the counter affidavit. In fact, their school had admitted more than 1/3rd of the category for admission which is more than the percentage fixed under the Act. Apart from this even in the same neighborhood, there are several schools, which are as follows :
a)Marthoma Matriculation Higher Secondary School.
b)Padma Sarangapani Matriculation Higher Secondary School.
c)Balar Gurukulam School.
d)Tagore Matriculation School.
e)Kalaivani Vidyalaya
f)Corporatino Primary School, Virugambakkam.
g)Clarance Matriculation Higher Secondary School, Virugambakkam."
But no attempt was made to seek admission in those schools though petitioner claiming to be living in the neighborhood. The petitioner is only targeting the respondent school for the reasons best known to her.
14.In the light of these facts, it has to be seen whether the petitioners claim can be countenanced by this court? Since the entire claims of the petitioners have been rest on Section 12 more particularly Section 12(1)(c), it is necessary to extract the said provision in its entirety which reads as follows :
"12.Extent of school's responsibilities for free and compulsory education.-
(1) For the purposes of this Act, a school,
(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent. 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:
Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:
Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be." (Emphasis added)
15.The said provision when challenged by an unaided private schools Association of Rajasthan, the provision was upheld by the Supreme Court vide judgment in Society for Un-aided Private Schools of Rajasthan Vs. Union of India and another reported in 2012 (4) Scale 272. In paragraph No.12, it has been observed as follows :
"12....Thus, if one reads the 2009 Act including Section 12(1)(c) in its application to unaided non-minority school(s), the same is saved as reasonable restriction under Article 19(6)."
16.Before going into the rival contentions, it is also necessary to refer to the following passages found in the same Supreme Court judgment. In paragraph 21, it was observed as follows :
"21.This judgment will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to pronouncement of this judgment shall not be reopened."
17.The judgment of the Supreme Court was delivered on 12.04.2012. Therefore, wherever admissions were made before the date, the petitioners cannot seek any enforcement of the provisions under this Act. In view of the stand taken by the respondent in W.P.No.13338 of 2012, that writ petition is not maintainable as the stand taken by the respondent has not been controverted by any reply affidavit. Therefore, admissions in that school having been made before the cut off date, W.P.No.13338 of 2012 is liable to be rejected on that short ground. Accordingly, it is rejected.
18.In W.P.No.12203 of 2012, the claim for admission is for the 1st standard. But the stand taken by the contesting respondent School was that their admission procedure starts from the L.K.G stage. Therefore, the provisions of Section 12(1)(c) will apply only from pre school education as can be seen from the proviso to Section 12(1) as noted above. Hence the stand of the management that admission during the 1st class is not maintainable as the Act itself recognizes admission at the pre-school stage. Hence W.P.No.12203 of 2012 is liable to be dismissed.
19.In W.P.No.10218 of 2012, the admission was sought for in the 2nd standard. Whereas Section 12(1)(c) itself clearly states that admission should be from Class-I for the ensuing year and does not talk about the subsequent standards fro the purpose of enforcement of the Act. The question of compulsory admission of 25% of the strength of the class relates to Class-I as can be seen from Section 12(1)(c). The Act never contemplated that the School coming under Section 12(1)(c) must grant 25% admission in respect of standards 2 to 8 as the admission to those classes had already been made before coming into force of the Act as well as the Act was made applicable by the Supreme Court with effect from 12.4.2012.
20.Various types of schools are defined under Section 2(n) of the Act, which reads as follows :
"2(n) "School" means any recognised school imparting elementary education and includes
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
21.It is only in case of the school coming under section 2(n)(i), free and compulsory elementary education to all children admitted is to be provided. Whereas the contesting respondent admittedly comes under the category of Section 2(n)(iv) as unaided non minority schools. In those cases, the process of admitting students with 25% reservation for children belonging to weaker sections and disadvantaged group started only from Class I and it may grow gradually from the 1st standard to 8th standard. But in cases where there is pre school education, then it may start from the L.K.G. onwards. Hence the petitioners are under misconception that automatically in respect of unaided private schools, there will be complete free education including supply of uniform, education materials, books and other needs for education. But it is a complete misleading of the provisions of the Act.
22.In case, if a child is unable to get Class-I admission in any of the unaided private school, the only guarantee for free and compulsory education provided for children from 6 years to 14 years is set out under Section 9 of the Free Education Act, which reads as follows :
"9.Duties of local authority.- Every local authority shall
(a) provide free and compulsory elementary education to every child:
Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school;
(b) ensure availability of a neighbourhood school as specified in section 6;
(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;
(d) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed;
(e) ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction;
(f) provide infrastructure including school building, teaching staff and learning material;
(g) provide special training facility specified in section 4;
(h) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;
(i) ensure timely prescribing of curriculum and courses of study for elementary education;
(j) provide training facility for teachers;
(k) ensure admission of children of migrant families;
(l) monitor functioning of schools within its jurisdiction; and
(m) decide the academic calendar."
Therefore, the obligation to provide free and compulsory education upto 14 years vest solely on the local authorities.
23.In case there was any further grievance regarding admission of a child, Section 32 provides for grievance redressal machinery. Section 32 reads as follows :
"32.Redressal of grievances.- (1) Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this Act may make a written complaint to the local authority having jurisdiction.
(2) After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.
(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.
(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31."
24.Since the petitioners have emphasized the right to education as a fundamental right, the history behind the enactment has to be seen first. When the National Policy on Education (1986) was evolved, it guaranteed that the constitutional promise found under Article 45 will be redeemed before the end of the 20th century. It was in Mohini Jains case [Mohini Jain (Miss) Vs. State of Karnataka (1992) 3 SCC 666], the Supreme Court came to the conclusion that the right of education is a fundamental right. In that judgment, in paragraphs 14 and 17, it was observed as follows :
14.The right to education, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society.
17.We hold that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions.
25.But, the dictum of Mohini Jain did not last long. That decision was explained by Unni Krishnans case [Unni Krishnan, J.P. Vs. State of A.P., (1993) 1 SCC 645]. In that judgment, in paragraphs 171, 176 and 182, it was observed as follows :
171... it would not be correct to contend that Mohini Jain was wrong insofar as it declared that the right to education flows directly from right to life. But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him education of his choice?
176.This does not however mean that this obligation can be performed only through the State Schools. It can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children educated in State-run schools. They have necessarily to charge fees from the students.
182.The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development.
26.It was only after these two decisions and due to public pressure, the Parliament was forced to amend the Constitution to introduce Article 21A and it reads as follows :
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
27.Article 45 was also amended simultaneously to read :
"45.Provision for early childhood care and education to children below the age of six years.- The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
The said Article 45 before its amendment reads as follows :
The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
28.Even after declaring the right to education upto 14 years as a fundamental right, nothing was done concretely to make it as a reality by bringing an appropriate legislation. After seven years after the Constitutional amendment, the new The Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) was enacted with effect from 1.4.2010.
29.In the meanwhile, a larger bench of the Supreme Court in T.M.A. Pai Foundations case [T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481] further nullified Unni Krishnans case. It was observed in paragraph 38 as follows :
38.The scheme in Unni Krishnan case4 has the effect of nationalizing education in respect of important features viz. the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable.
30.The need for private public partnership in the field of education was noted in the T.M.A. Pais case. It was observed as follows :
India is a land of diversity of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single-most powerful tool for the upliftment and progress of such diverse communities is education. The State, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people. Very often the impersonal education that is imparted by the State, devoid of adequate material content that will make the students self-reliant, only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
31.Therefore, the judicial process starting from Mohini Jains case to T.M.A.Pai Foundations case via Unni Krishnans case gave sanctity to the National Education Policy by which the State wanted to wriggle out of its commitment by bringing private initiative into the field on grounds of paucity of funds. The Supreme Court in essence gave its seal of approval to the stand of the Union of India. Hence, notwithstanding education being a fundamental right under Article 21A, when the Right of Children to Free and Compulsory Education Act, 2009 was enacted, the Government had T.M.A.Pais case before it. Hence the Act instead of making the State to realise its responsibility, passed on the responsibility to private partnership. Hence the definition of the term school under the Act made four different types of schools under Section 2(n).
32.After enumerating four different types of schools, the Act was held inapplicable to unaided minority schools by the recent judgment in Society for Un-Aided Private Schools of Rajasthan Vs. U.O.I. and another reported in 2012 (4) Scale 272. Section 12 which contemplates the extent of schools responsibility for free and compulsory education only provides for at least 25% of the strength of the class to be filled up by the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. The schools, which are to provide education to such 25% of the children belonging to weaker sections and disadvantaged groups, expenses are to be refunded on the basis of per-child-expenditure incurred by the State.
33.In this scheme of things, it is not clear whether parents of the children whether belonging to weaker sections or well-off sections will have any right to get their children admitted to the school of their choice with the hope of right to get quality education granted to them. On the other hand, except for a guarantee of 25% of admission to weaker sections, the rest of the 75%, who want to get admitted to such private schools, are to fend for themselves by paying the fees demanded as per law.
34.The Supreme Court in its latest decision [2012 (4) Scale 272] in permitting private participation in the area of school education made a distinction between the old Article 45 and the new Article 21A in the following words :
To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word for in Article 45 is a preposition. The word education was read into Article 21 by the judgments of this Court. However, Article 21 merely declared education to fall within the contours of right to live. To provide for right to access education, Article 21A was enacted to give effect to Article 45 of the Constitution. Under Article 21A, right is given to the State to provide by law free and compulsory education. Article 21A contemplates making of a law by the State. Thus, Article 21A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21A. (Emphasis added)
35.Therefore, according to the Supreme Court, the absence of the word for in Article 21A had absolved the full responsibility of the State to provide free and compulsory education. By the interpretative process, the right of the children to have free and compulsory education upto 14 years is clearly diluted. Further as to what constitutes a neighborhood school and if there are more than one school in a neighborhood as to which school the parent can have the choice and which authority can direct admission to such school and in case of an unaided private school who will supervise the admission is not made clear. Under the present scheme of the Act if the school justified that it had admitted minimum of 25% of its seats to the children belong to weaker section and disadvantaged section, that will be a sufficient compliance of Section 12(1)(c) of the Act. The process of admission has to be in a transparent manner. But there is no particular right of a child to be admitted to a particular school is guaranteed under the Act.
36.The counsel for the petitioners placed reliance upon Article 13.3 of the International Covenant on Economic, Social and Cultural Rights, 1966 and stated that there is an obligation by the international law to provide right of the child to get admitted to a school of his choice. Article 13.3 reads as follows :
"3.The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions."
The said provision only enables the parents not to be subjected to the State law to admit only their children / wards in the Government or public school, but also have their choice to get admitted their children other than public school. It is not clear as to how the said provision is helpful to the petitioner, since that provision did not deal with any free education, but only dealt with the choice of parents to go to a school of their choice free from State compulsion.
37.In the light of the above discussion, it has to be seen whether the petitioners have made out any case for interfering with the admission procedure adopted by the contesting respondents. Admittedly, the contesting respondents are "unaided private schools" coming under the definition of Section 2(n)(iv). Their obligation to implement the admission to an extent of 25% for the weaker sections and disadvantagde group only starts from Class-I or in alternative from the pre school education. Therefore, some of the petitioners' claim for admission other than Class-1 is not maintainable. Further since the stand taken by some of the schools that their admission procedure started in the month of January and had ended well during the first week of April, they were clearly exempted from the application of the Act as the Supreme Court had applied the act prospectively from 12.04.2012. In W.P.No.13338 of 2012, the definite stand of the respondent school was that the petitioner never even made any application though application was asked to be downloaded from the website. At the time of admission, they followed the procedure of either first come first serve basis or random method. Since admissions having been completed and there being no case to interfere with the admission procedure adopted by the contesting respondents, the petitioners have not made out any case to entertain the writ petitions. Their only option is to approach the local authorities providing for free and compulsory education.
38.Even in cases where pre school admission was rejected, it is under section 11, the appropriate Governments have been directed to provide necessary arrangements for free pre-school education for such children. Section 11 reads as follows :
"11.Appropriate Government to provide for pre-school education.- With a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government may make necessary arrangement for providing free pre-school education for such children."
39.In cases where there is any specific extent of violation of the provisions of the Act or rules, it also provides for redressal of grievance by the competent authority and by local authorities as well as by the State Governments as set out in Section 32. Hence the petitioners have not made out any case to entertain the writ petitions. Further, it is the stand of the respondent schools that seats have already been filled up as per the guidelines issued under the Act and children have already been studying in the schools. In the affidavits filed by the petitioners, there was no concrete details regarding any improper admissions being made by the schools. The affidavits were filed in a stereotyped manner containing same allegations even though the contesting respondents are different schools. Hence no further probe is required with reference to the nature of admissions made in respect of these schools.
40.In the light of the above, all writ petitions were misconceived and bereft of legal reasons and hence will stand dismissed. However, there will be no order as to costs.
02.07.2012 Index : Yes Internet : Yes vvk To
1.The Secretary, The Government of India, Department of Human Resources and Education, New Delhi-110 001.
2.The Secretary, The Government of Tamil Nadu, Department of School Education, Fort St. George, Chennai-600 009.
3.The Secretary, The Government of Tamil Nadu, Department of Local Administration, Fort St. George, Chennai-600 009.
4.The Director of School Education, Office of the Directorate of School Education, Nungambakkam, Chennai-600 034.
5.The Commissioner, Alandur Municipality, Alandur, Chennai.
6.The Commissioner, Ambattur Municipality, Ambattur, Chennai.
7.The Regional Director, Central Board of Secondary Education, Plot No.1630, A, "J" Block, 16th Main Road, Anna Nagar West, Chennai-600 040.
8.The Commissioner, Chennai Corporation, Ripon Building, Chennai-600 003.
K.CHANDRU, J.
vvk ORDER IN W.P.Nos.10217, 10218, 12203, 13337 and 13338 of 2012 02.07.2012