Punjab-Haryana High Court
Haryana Schools Welfare Association ... vs State Of Haryana And Others on 23 April, 2012
Author: Alok Singh
Bench: Alok Singh
CWP No. 4664 of 2012 & other connected case -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: April 23, 2012
CWP No. 4664 of 2012 & other connected case
Haryana Schools Welfare Association and another
...petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ALOK SINGH
Present: Mr. R.K. Malik, Sr. Advocate with
Mr. Vishal Malik, Advocate
for the petitioner (in CWP No. 13809 of 2010).
Mr. Rajesh Khandelwal, Advocate
for the petitioner (in CWP No. 16036 of 2010)
Mr. Rakesh Gupta, Advocate
for the petitioner (in CWP No. 21855 of 2011)
Mr. Rahul Sharma, Advocate
for the petitioners (in CWP No. 4664 of 2012)
Mr. Rajiv Kawatra, Sr. DAG, Haryana
for respondent Nos. 1 and 2.
Mr. O.S. Batalvi, Advocate
for respondent No.3.
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the
Digest
M.M. KUMAR, ACJ.
1. This order shall dispose of a bunch of petitions* as
the common question of law and facts have been raised. The
primary prayer made by the petitioners in all these cases is that
Rule 134-A of the Haryana School Education Rules, 2003 (for
brevity 'the Rules') as amended on 21.02.2009, is
CWP No. 4664 of 2012 & other connected case -2-
unconstitutional and after declaring the same, as such, a
direction is required to be issued to the respondents restraining
them from enforcing the aforesaid Rule.
2. It is appropriate to mention that respondent-State of
Haryana enacted the Haryana School Education Act, 1995 (for
brevity, 'the 1995 Act') which was enforced w.e.f. 20.07.2001.
It was under Section 24 of 1995 Act that the Rules were framed
which confer powers on the Government to make rules for
carrying out the purpose of the Act. Rule 134-A of the Rules as
amended on 21.02.2009 reads as under:
"134-A Reservation for meritorious students
belonging to economically weaker sections,
section 24(2) and 15.
The recognized private school shall
reserve 25% seats for meritorious students
belonging to economically weaker sections. The
school shall charge fee from these students at
the same rate as charged in Government
Schools."
3. In substance and contents, the Rules providing for
reserving 25% seats for meritorious students belonging to
economically weaker sections is similar to the provisions of the
Right of Children to Free and Compulsory Education Act, 2009
(for brevity '2009 Act') enacted by the Parliament. Section 12(1)
(c) of 2009 Act provides for reserving at least 25% of the
strength of the class for children belonging to weaker section
and disadvantaged group for providing free compulsory
CWP No. 4664 of 2012 & other connected case -3-
elementary education to them. Likewise, Section 18(3) of 2009
Act provides further strength to the aforesaid provision as
recognition could be withdrawn if there is contravention of any
condition of recognition. The aforesaid rule came up for
consideration of Hon'ble the Supreme Court in the case of
Society for Un-aided Private Schools of Rajasthan v. Union of
India and another (Writ Petition (C) No. 95 of 2010 decided on
12.04.2012). However, the aforesaid provisions were found to
have infringed fundamental freedom guaranteed to unaided
minority schools under Article 30(1) of the Constitution. It has
been declared by their Lordships of Hon'ble the Supreme Court
that those provisions would not apply to any such school. In
respect of an unaided non-minority school not receiving any
kind of aid or grants to meet its expenses from the appropriate
Government or the local authority would, thus, be governed by
the provisions of the Rules. Even this question has been
answered by their Lordships of Hon'ble the Supreme Court in
paras 20 and 21, which read as under:
"20. Accordingly, we hold that the Right of
Children to Free and Compulsory Education Act,
2009 is constitutionally valid and shall apply to
the following:
(i) a school established, owned or controlled
by the appropriate Government or a local
authority;
(ii) an aided school including aided minority
school(s) receiving aid or grants to meet whole
CWP No. 4664 of 2012 & other connected case -4-
or part of its expenses from the appropriate
Government or the local authority;
(iii) a school belonging to specified category;
and
(iv) an unaided non-minority school not
receiving any kind of aid or grants to meet its
expenses from the appropriate Government or
the local authority.
However, the said 2009 Act and in
particular Sections 12(1)(c) and 18(3) infringes
the fundamental freedom guaranteed to
unaided minority schools under Article 30(1)
and, consequently, applying the R.M.D.
Chamarbaugwalla v. Union of India [1957 SCR
930] principle of severability, the said 2009 Act
shall not apply to such schools.
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 the
pronouncement of this judgment shall not be
reopened."
4. In view of the above, learned counsel for the
petitioners has stated that they would give up their claim with
regard to constitutional validity of Rule 134-A of the Rules.
However, in writ petition No. 4664 of 2012, Mr. Rahul Sharma,
learned counsel for the petitioner has stated that he has no
CWP No. 4664 of 2012 & other connected case -5-
instructions to give up the challenge to Rule 134-A of the Rules.
Even in the absence of any instructions, the challenge to the
Rule cannot be sustained in view of the authoritative
pronouncement of Hon'ble the Supreme Court in the case of
Society for Un-aided Private School of Rajasthan's case (supra).
Therefore, the question concerning constitutional validity would
not survive. However, Mr. R.K. Malik, learned Senior counsel for
the petitioner has argued that in terms of Section 12(2) of 2009
Act enacted by the Parliament, the petitioner school would be
entitled to reimbursement of expenditure 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.
5. The aforesaid submission is based on the principle
laid down in Section 12(2) of 2009 Act and there cannot be any
doubt that if the petitioner school falls within the parameters of
Rule 12(2) of 2009 Act then it may be entitled to such a claim.
Therefore, it make representation to the State Government
setting out all the details concerning the admission of 25% of
children as per Rules, and also proving that it is unaided and
without any further support from the State Government in the
form of allotment of land at concessional rate or any other
concession. The State Government shall consider the case of
the petitioner and determine the same in accordance with law.
If any such claim is made within a period of four weeks then the
same shall be disposed of by the respondent-State within a
period of three months from the date of receipt of copy of such
representation.
CWP No. 4664 of 2012 & other connected case -6-
5. These petitions are disposed of in the above terms.
6. A photocopy of this order be placed on the files of
connected cases.
(M.M. KUMAR)
ACTING CHIEF JUSTICE
(ALOK SINGH)
JUDGE
April 23, 2012
Atul
*
Sr. Party Name Writ Petition No. No.
1. Haryana Schools Welfare CWP No. 4664 of Association and another v. State of 2012 Haryana and others
2. Haryana Recognized (Un-aided) CWP No. 13809 of Schools Association (Regd.) v. 2010 State of Haryana and others
3. BRM Gaur High School Shiv Nagar CWP No. 16036 of Hisar and others v. State of 2010 Haryana and other
4. Vivekanand Bal Mandir v. State of CWP No. 21855 of Haryana and others 2011 (M.M. KUMAR) ACTING CHIEF JUSTICE (ALOK SINGH) JUDGE April 23, 2012 Atul