Himachal Pradesh High Court
Nisha Kanwar vs Of on 2 December, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 1853 & 2659 of 2015 .
Judgment reserved on: 17.11.2015.
Decided on: December 2, 2015
1. CWP No. 1853 of 2015 Nisha Kanwar ...Petitioner Versus of State of Himachal Pradesh and others ...Respondents
2. CWP No. 2659 of 2015 Master Shourya Thakur rt Versus ...Petitioner State of Himachal Pradesh and others ...Respondents Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1Yes.
For the Petitioner(s) : Ms.Ranjana Parmar, Senior Advocate with Mr. Mohit Thakur and Ms.Komal Kumari, Advocates.
For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr.Anup Rattan, Mr.Romesh Verma, Additional Advocate Generals and Mr.J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2 in CWP No. 1852 of 2015 and for respondents Nos. 1 to 3 in CWP No. 2659 of 2015.
Mr.K.D. Sood, Senior Advocate with Mr.Sanjeev Sood, Advocate, for respondent No. 3 in CWP No. 1853 of 2015.
Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Ajay Chauhan, Advocate, for respondent No. 4 in CWP No. 2659 of 2015.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 2Mr.Rahul Mahajan, Advocate, for respondents No. 5 and 6 in CWP No. 2659 of 2015.
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Tarlok Singh Chauhan J, Both these petitions relate to admission of students in non-aided private school and were, therefore, of taken up together for hearing. However, since the question involved in these petitions is not common, therefore, the rt same shall be dealt with and adjudicated upon by recording separate reasons.
CWP No. 1853 of 20152. By medium of this writ petition, the petitioner has called in question the action of respondent No.3 whereby it has refused to admit the minor son of the petitioner in +1 Class, the Non-Medical Stream, on account of his performance in the matriculation examination.
3. It is not in dispute that the petitioner's son has been studying in respondent No.3-School from the beginning i.e. from K.G. Class. Thus, according to the petitioner, it is not a case of fresh admission, but a case of promotion to the higher class and being a promotion, the same is automatic and, therefore, the ward of the petitioner was automatically, apart from legitimately, entitled to be ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 3 admitted in +1 Class (Non-Medical Stream) i.e. stream of his choice.
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4. Respondent No.3 has opposed the claim of the petitioner by filing reply wherein it is stated that it is an unaided minority institution and has framed guidelines to of Class 11 (Senior Secondary Course) which are also printed in the school diary. Part-2 thereof deals with the admission rt procedure and it is for the school to lay down its norms. As per norms laid down by respondent No.3, a student should have consistent score of 80% in Science and Mathematics and 70% for Commerce Stream.
5. In view of the pleadings of the parties, the only question which falls for consideration is as to whether the son of the petitioner is required to be simply promoted to Class 11 and given a stream of his choice on the ground that the same is neither a fresh admission nor re-admission but a promotion or that respondent No.3-School is well within its right to lay down the criteria for admission depending upon the score and ranking of the child.
We have heard the learned counsel for the parties and have gone through the records of the case.
6. Both the learned counsel for the parties in support of their respective submissions have relied upon the judgment of the Hon'ble Supreme Court in Principal, ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 4 Kendriya Vidyalaya and others versus Saurabh Chaudhary and others (2009) 1 SCC 794.
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7. In order to appreciate the controversy it is, therefore, necessary that we understand clearly as to what was the issue before the Hon'ble Supreme Court in the of aforesaid case. The student, Saurabh Chaudhary, after having appeared in Class 10th examination held by CBSE for rt the academic year 2007-08 had sought admission in Class 11 in the same school, but was declined the same because his marks were lower than the cut-off fixed for admission to Class 11 in the admission guidelines of the school. This led to his filing a petition before the Madras High Court which upheld his claim and directed the school to admit him in Class 11.
8. This order of the Madras High Court was assailed before the Hon'ble Supreme Court by Kendriya Vidyalaya and the same came to be dismissed. The Hon'ble Supreme Court while dismissing the appeal filed by the school rejected its stand regarding the school-authority having an absolute right to grant/non-grant admission and infact it was observed that even the school must share atleast some responsibility for the poor performance of its students and should help them in trying to do better in the next class.
9. However, insofar as the question of right of the student to opt for the course of his choice, irrespective of his ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 5 performance is concerned, the same was negated and it was held that the school may give the stream/course that .
may appear to be most suitable to the student on the basis of the prescribed cut-off marks.
10. This would be clearly evident from the following of observations of the Hon'ble Supreme Court:-
"18. One can have no objection to a school laying down cut off marks for selection of suitable stream/course for a student rt giving due regard to his/her aptitude as reflected from the class X marks where there are more than one stream. But it would be quite unreasonable and unjust to throw out a student from the school because he failed to get the cut off marks in the class X examination. After all the school must share at least some responsibility for the poor performance of its student and should help him in trying to do better in the next higher class. The school may of course give him the stream/course that may appear to be most suitable for him on the basis of the prescribed cut off marks.
19. In the present case it would have been perfectly open to the appellants to offer admission to the boy Saurabh Chaudhary in class XI in streams/courses other than science stream with Mathematics on the basis of the prescribed cut off levels of marks, had such courses been available in Central School No.2, AFS, Tambram. But this school has only science stream with Mathematics for classes XI and XII. The decision in Payal (1995) 5 SCC 512 forbids the school from turning down a student because he/she failed to get the cut off level of marks for admission to class XI. As a result of this fortuitous circumstance the boy must get admission in class XI in Central School No.2, AFS, Tambram in science stream with Mathematics."
(emphasis supplied by us)
11. Now what is discernible from the aforesaid decision is that though the right of the petitioner's son to be ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 6 admitted in respondent No.3-School cannot be questioned and infact has not been questioned, but then he .
(petitioner's son) does not have an unfettered right to seek admission in any of the streams of his choice, rather the same would be dependent upon the cut-off marks fixed by of the school for admission to different streams as has otherwise been held by the Hon'ble Supreme Court (supra).
rt In view of the aforesaid discussion, we find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
CWP No. 2659 of 201512. The main issue that arises for consideration in this writ petition is whether private unaided schools have the autonomy to admit the student or children through their parents have unfettered right to choose a school, in which they wish to study?
13. The brief facts of the case are that the petitioner approached respondent No. 4 school for admitting his younger child in class 3, but was denied the admission on the ground that the child did not make a grade and therefore, could not be selected. The petitioner claimed that respondent No. 4 school is hardly at a distance of 75 meters from his residence and as per the Right of ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 7 Children to Free and Compulsory Education Act, 2009, his child has an unfettered right to be admitted in the school .
and the respondents have no discretion whatsoever to deny him admission.
14. The officials respondents have filed their reply, of wherein it has been stated that vide letter dated 22.9.2015 directions have been issued to the school authorities to rt make all admissions from 1st to 8th class, according to Section 13 of the Act in future, failing which strict action as per Act and law would be initiated.
15. The respondent-School has filed its separate reply, wherein it averred that it is a non-aided school and that the admissions made by it are strictly in conformity with the Act. It is further averred that the son of the petitioner had competed with the other children who were desirous of being admitted in class 3, but failed to make a grade and therefore, could not granted admission.
We have heard the learned counsel for the parties and have gone through the records of the case.
16. The learned counsel for the petitioner in order to claim an indefeasible right of admission to the school has placed heavy reliance on Sections 2 (n)3, 10, 12 and 13 of the Act, which read thus:-
::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 8"2(n)"school" means any recognized 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 of grants to meet its expenses from the appropriate Government or the local authority;
3 Right of child to free and compulsory education :(1) Every rt child of the age of six to fourteen years, including the child referred to in clause (d) or clause (e) of section 2, shall have a right to free and compulsory education in the neighborhood school till completion of elementary education.
(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education.
Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996, shall have the right to pursue free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act. (3) A child with disability referred to in sub-clause (A) of clause (ee) of section 2 shall, without prejudice to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and a child referred to in sub-clauses (B) and (C) of clause (ee) of section 2, have the same rights to pursue free and compulsory elementary education which children with disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: 1 of 1996 Provided that a child with "multiple disabilities"
referred to in clause (h) and a child with "severe disability" referred to in clause (o) of section 2 of the ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 9 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 may also have the right to opt for home-based education.
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10. Duty of parents and guardian: It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighborhood school.
of
12. Extent of school's responsibility 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 rt 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 neighborhood 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:::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 10
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 of authority, as the case may be.
13. No capitation fee and screening procedure for rt admission:(1) No school or person shall, while admitting a child, collect any caption fee or subject the child or his or her parents or guardian to any screening procedure. (2) Any school or person, if in contravention of the provisions of sub-section (1).--
(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;
(b) Subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions."
17. We have considered the aforesaid provisions and are of the considered opinion that the language incorporated in Section 3 of the Act is being misinterpreted by the petitioner. What Section 3(i) of the Act provides is that every child of the age of six to fourteen years shall have right to free and compulsory education in a neighborhood school till completion of elementary education. Object sought to be achieved through this provision is to effectuate Article 21-A of the Constitution of India, thereby ensuring that a school is available in the neighborhood and free and ::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 11 compulsory education in neighborhood school is available to every child of the age group to which statute applies. But .
then this provision, 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 of provisions contained in this Section read with Section 2(n) of the Act.
18. rt Apart from the above, in case respondent school is directed to admit the student belonging to non minority, then the same would lead to an invasion of its right guaranteed under Article 19(1)(g) of the Constitution. The private unaided recognized School Management has a fundamental right under the aforesaid Article to maximum autonomy in day to day administration including their rights to admit students. This right of private unaided schools has been recognized by eleven Judges Bench decision of the Hon'ble Supreme Court in T.M.A. Pai Foundation and others Vs. State of Karnataka and others (2002) 8 SCC, 481.
Subsequently a Constitution Bench of the Hon'ble Supreme Court in P.A. Inamdar & others Vs. State of Maharashtra & others (2005) 6 SCC 537 held that even non-minority un- aided institutions have an unfettered fundamental right to device the procedure to admit students, subject to the said procedure being fair, reasonable and transparent.
::: Downloaded on - 15/04/2017 19:25:31 :::HCHP 12Thereafter, another Constitution Bench of the Hon'ble Supreme Court in Pramati Educational and Cultural Trust .
(Registered) and others Vs. Union of India and others (2014) 8 SCC 1 reiterated that the content of the right under Article 19(1)(g) of the Constitution to establish and administer of private educational institutions includes the right to admit students of their choice and autonomy of administration.
rt Similar preposition has been laid down by this Bench in Master Aarav Goswami (Minor) Vs. State of Himachal Pradesh and another, 2015 (1) Him.L.R. 499.
19. The schools responsibility for free and compulsory education is governed by Section 12 of the Act and sub-section 1(c) thereof provides the extent to which provisions have to be made in favour of the weaker section, disadvantaged group etc., but right to free and compulsory education in a neighborhood school does not include the right to insist on any school of choice under the Act.
20. In view of the aforesaid discussion, there is no merit in this petition and the same is accordingly dismissed.
(Mansoor Ahmad Mir) Chief Justice.
(Tarlok Singh Chauhan),
December 2, 2015 Judge.
(krt/KRS)
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