Bombay High Court
Ganesh S/O Madhavrao Jadhav vs The Maharashtra State Board Of ... on 14 August, 1992
Equivalent citations: 1994(2)BOMCR10, (1992)94BOMLR603
JUDGMENT B.N. Deshmukh, J.
1. Rule returnable forthwith.
2. This petition is filed by advocate Shri G.M. Jadhav, appearing as petitioner-in-person, by way of public interest litigation under Article 226 of the Constitution of India.
3. The petitioner has sought the relief by way of directions to the authorities of the Government to make provisions for the supply of textbooks free of cost to the children from all categories upto 14 years of age taking education in all the recognised/approved Primary Schools upto the VII standard, forthwith from this year and for every year thereafter. For that purpose, directions are also sought to quash the rise in prices effected for the textbooks for the year 1992-93 onwards for I to VII standards primary schools classes.
4. In the petition, the table of last year's prices and current year's prices with difference is given. According to the petitioner, the prices of all the books have been increased considerably. For the I standard, the price of books was Rs. 13/-. The same is increased to Rs. 20.10 paise. Similarly for the II standard, the last year's price of all the books together was Rs. 11, while the raised price in Rs. 14.60 paise. For III standard the last year's price was Rs. 16.30 paise; while the current year's price is Rs. 31.40 paise. For the IV standard the last year's price was Rs. 17.50; while the current year's price is Rs. 35.30 paise. Similarly the price rise is indicated in that table for the students of V to X standards. For X standard students, the last year's price was Rs. 78.90 paise; while the current year's price of the textbooks is Rs. 115.50 paise.
5. The rise in the prices mentioned in the petition is challenged by the respondents and, it was stated before us that the price of all textbooks for the I standard is Rs. 12.40; for II standard it is Rs. 14.60; for III standard it is Rs 31.80 paise; while for IV standard it is Rs. 35.30. The rise in prices as quoted in petition is disputed by the respondents. However, the difference is of very marginal nature. It is not disputed even by the respondents that there is substantial increase in the prices of the books published by the respondent No. 2.
6. According to petitioner, the price rise is arbitrary, unreasonable and illegal, having regard to the nexus of the education and also to the cost of publication. According to petitioner Shri Jadhav, because of the price rise, there is every likelihood of fall in the enrolment and increase in the drop out of students of tender age in the educational institutions in the State. This will also militate against the policy of the State Government to encourage the enrolment of students who are not in a position to join and attend the schools. The students of weaker sections of the communities, particularly of people living below the poverty line, will be hesitant to join the schools or to continue the education. The action of the authorities in increasing the prices of the textbooks is challenged as violative of the provisions of Articles 41 and 45 alongwith other relevant provisions of the Constitution of India and, instead of encouraging the primary education of the children in the State, the same would result in the decline of education in the State, even at the primary level.
In the affidavits-in-reply filed on behalf of the respondents, it is contended that increase in the prices of the textbooks is because of increase in cost of paper and increase in the rate of printing and binding. Therefore, the respondent No. 2 - Bureau, had recommended to the State Government proposing the increase in the prices and, accordingly the Government has granted approval for the increase by its letter dated 2nd January, 1992. In the affidavit-in-reply filed on behalf of respondent No. 2 - Maharashtra State Bureau of Textbooks Production and Curriculum Research, Pune, it is categorically stated that because of the steep rise in the cost, the Bureau was running in huge losses. The prices of printing and binding have increased manifolds as compared with the base year of 1973. In the affidavit, it is pointed out that the cost of printing of forms is increased from 91% to 230%. Plate-making is increased from 135% to 240%; binding cost is increased by 170% to 180% and cover printing - 2 colours by 177% to 300%, and further, for 3 or more colours, the price rise is to the extent of 145% to 240%. Regarding the cost of the paper, it is mentioned that the Bureau was getting paper at concessional rate initially, but the paper supplied at concessional rate was insufficient. So also, it was not reaching Bureau in proper time and the Bureau was required to purchase the paper from open market at market price. It is, further, averred that the increase in the price of paper in that year 1991 as compared to 1967 is 1135%. Thus, it is maintained by the Bureau that, in addition to increase in the cost of paper, there is huge increase in the cost of various processes of printing and binding. The rise in the cost of these processes ranges between 91% to 300% as compared with the relevant cost in 1973.
7. It is pointed out by the Bureau that rise in the price of the textbooks printed by it was formerly not co-extensive with the rise in the cost, which was required to be met by the Bureau in publication of these books and that this situation had caused accumulated losses to the Bureau. It is, further, stated that taking into consideration the existing circumstances and prevailing conditions in the State, the Bureau has prescribed the prices on 'No Profit' basis.
Similar are the contentions of the respondent No. 1 - Board.
8. In view of the contentions raised by the Bureau in its affidavit, there is no gain in saying that the price rise of the textbooks is not justified at all. There is no material produced by the petitioner before us to contest that the price rise had to be made despite fixation of prices on the principle of 'No Profit'. There is also no material produced before us to indicate that the Bureau was, in fact, not running in losses having regard to the rise in the materials and the services, as mentioned by the Bureau. It will have to be held that the price rise cannot be said to be arbitrary or unreasonable. Though the price rise may affect adversely the students from weaker sections of the society, particularly to the people living below the poverty line, we are of the opinion that the price rise cannot be said to be irrational, arbitrary or unreasonable having regard to the rise in the cost of the material and other processes, which are required for printing and selling the textbooks.
9. The next point which requires consideration is, whether or not, having regard to the mandate of the Constitution regarding the education, and particularly regarding the primary education, as per Articles 41 and 45 of the Constitution of India, the effect of the price rise on the education of children below 14 years of age would be adverse to the proclaimed policy of spread and promotion of education.
10. Article 41 reads as under:--
"The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want."
While Article 45 of the Constitution deals with the provision for free and compulsory education for children, and reads as below:
"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."
The right of Education is, therefore, guaranteed not by way of fundamental right but, by way of directive principles as enunciated under Article 41 of the Constitution of India. Not only that but the Constitution, further, directs the State to make endeavour to provide free and compulsory education for all children until they complete the age of fourteen years.
11. The provisions of Arts. 41 and 45 and other relevant Articles 21, 38, 39(a) and (f) came for consideration of the Supreme Court in the case of Miss Mohini Jain v. State of Karnataka & others, decided on 30th July, 1992, in Writ Petition (C) No. 456 of 1991 : 1992(2) SCALE ; 90. The Supreme Court has observed, "Right to Education, as such has not been guaranteed as fundamental right under Part III of the Constitution but reading above quoted provisions cumulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens."
12. Regarding the effectiveness of the Directive Principles, the Supreme Court, has, further, observed, "The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights. Both are supplementary to each other. The State is under constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education", under Article 41 of the Constitution a reality, the fundamental rights under Chapter III shall remain beyond the reach of a large majority which is illiterate."
13. The Supreme Court, after considering the provisions of Article 21 of the Constitution of India regarding life and liberty and after dealing with the other earlier decisions of the Supreme Court, has further observed regarding the 'right to education' as the right being concomitant of 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 sections of the society.
14. The Supreme Court, therefore, held that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions for citizens to enjoy the said right. The State may discharge its obligation through State owned or State recognised educational institutions. When the State Government grants recognition to the private educational institutions, it creates an agency to fulfil its obligation under the Constitution. The students given admission to the educational institutions - whether State owned or State recognised - in recognition of their right to education under the Constitution. In view of the decision of the Supreme Court in Miss Mohini Jain's case (cited supra), the question of getting textbooks free of cost from the State by the students below age of fourteen years, requires consideration in the present case.
15. Even as per the respondents, a child studying in I standard is required to purchase the textbooks worth Rs. 12.40; while the child studying in II standard is required to purchase books worth Rs. 14.60. The child studying in III standard is required to purchase books worth Rs. 31.80; while the child studying in IV standard is required to pay for the textbooks Rs. 35.30 paise.
16. The learned Government Pleader, Shri Kakade, was good enough to provide us the latest data relating to the strength of children falling in the age group of 6 to 14 years. According to those figures, out of 2,73,14,325 such children, the enrolment in schools is only to the extent of 1,42,81,325 (approximately). Thus, more than 1,30,00,000 (approx.) children falling in the age group of 6 to 14 years, are not enrolled for education at all. These children are left out students from the mainstream of the education in the State. At the time of promulgation of the Constitution itself, under Article 45 it was expected that the State shall endeavour to provide within a period of ten years from the commencement of the Constitution for free and compulsory education for all children until they complete the age of fourteen years. From the figures which are made available to us, practically half of the eligible population of the children of the relevant age group are left out of schools and are not in a position to take education even at the primary level.
17. The price rise indicated in the affidavit of the Bureau can be treated as a guide to consider the price rise in all walks of life. The petitioner, Shri Jadhav, has told us that the percentage of population living below the poverty-line in this State, is about 40 per cent. The initial fall of the students of the relevant age group of 6 to 14 years out of the education as per the figures given to us by the learned Government Pleader also indicates that the children living below the poverty-line must not be less than 40 per cent of the student population. The sad story does not end at this stage. Out of the students enrolled for the I standard, a large number of students are dropped in II standard. The process continues from year to year and from class to class, which is evident from the representative latest Table produced before us by the Government Pleader, alongwith the Government Scheme regarding the Book Bank on credit basis.
YEAR ENROLMENT (Standardwise)
I II III IV TOTAL
1989-90 2504823 2160135 2043102 1690050 8398110
1990-91 2518622 2198556 2129645 1747588 8594411
1991-92 2532474 2237690 2219942 1807006 8797112
1992-93 2546402 2277520 2314068 1868444 9006434
Mere glance at the Table shows that in the year 1989-90. 25,04,823 students were admitted in I standard. As against this, in the year 1990-91 only 21,98,556 students were enrolled for II standard. For the year 1991-92 in III standard 22,19,942 students took admission; but for the year 1992-93 only 18,68,444 students are enrolled for IV standard. From 21 lakhs of students who were enrolled for I standard in the year 1989-90 ultimately only about 18 lakhs of students got admission after three years in the IV standard. The figures given in the Table of enrolment for the year 1989-90 to 1992-93 clearly indicate that a large number of students fall out of the stream of education inspite of their enrolment in the I standard only upto IV standard. Though the figures are not made available to us from V standard onwards, there can be no doubt that the fall out of students after IV standard must be considerable.
18. This is the position in the State in spite of the mandate of the Constitution to provide free and compulsory education at least upto the age of fourteen years of the child. The age fourteen can be considered as the relevant upper limit in the context at least of the primary education level in view of the Constitutional mandate in Article 45, though there may be some students who might have crossed the primary education level before 14 and have entered or, even crossed the middle school level. For the purpose of this petition, it is enough for us to consider the problem of education upto primary education i.e. upto IV standard as there is no doubt that the children studying from I to IV standards belong to the age group of 6 to 14 years that is covered by the provisions of Article 45 of the Constitution of India.
19. It was agitated before us that the 'right to education' does not include the right to get free textbooks. In the affidavits filed on behalf of the State of Maharashtra and Director of Education, it is contended that free primary education envisages exemption from tuition fees only and does not include other private expenditure like purchase of textbooks, exercise books, uniforms etc. It was, further, pointed out that in spite of the limited scope of the "Right to Education" relating to primary education, the Government has taken steps for ensuring enrolment and retention of students especially belonging to the backward communities and also the girls in the primary schools. Shri Kakade, the learned Government Pleader, invited our attention to the steps taken by the State Government in cases of students belonging to Scheduled Castes and Tribes, Vimukta Jati, and Nomadic Tribes and other deprived sections of the community. In the primary schools run by the Zilla Parishads, Municipalities, Municipal Councils, Municipal Corporations, on loan basis, Books Banks are established. Such a scheme is in operation from the year 1976-77 and it is continued even now. Under that Scheme books are made available to the students on loan basis. Shri Kakade, further, contended that the Government has also taken steps to give special facility to several categories of students, not only in primary education but also at secondary and higher secondary education also. It is not necessary for us, in this writ petition, to consider the Schemes of the Government and steps taken by the State Government with regard to the students other than the students taking primary education.
20. We are unable to appreciate the contentions raised on behalf of the State that the concept of free education is a limited or a restricted concept applying only qua tuition fees and that it does not cover the other facilities, which enabled the students to get the education at least upto IV standard. Under Article 41 of the Constitution it is mentioned that the State shall within the limits of its economic capacity and development make effective provision for securing the right to work, to education etc. So far as the primary education is concerned, under Article 45 the State is directed to make endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education of all children until they complete the age of fourteen. The free education contemplates not only the tuition fees, but other facilities which are required for taking the education.
21. The concept of Free Education is considered by the Education Commission at several levels in the Report of the Education Commission (1964-66). In Chapter VI - "Towards Equalization of Educational Opportunity", it is observed :
"Another cause of inequality of educational opportunity is the poverty of a large section of the population and the relative affluence of a small minority. Even in the neighbourhood of an educational institution, children from poor families do not have the same chance as those who come from richer ones. To overcome these handicaps, it is desirable to abolish fees progressively, to provide free books, stationery and even school meals and uniforms. In addition, it is necessary to develop a large programme of scholarship."
22. The Report, further, highlights on the primary stage of education and observes:
"At the primary stage, a programme of providing free textbooks should be given a very high priority and introduced immediately. It should also be extended to the higher primary stage as early as possible. Children freshly joining schools should be welcomed at a school function and presented with a set of books."
These were the recommendations of the Commission established as far back as in the year 1964-66. The need is far more at present and has assumed urgency now, in view of the increase in prices, which have gone practically beyond the reach of the common man. Because of this, increase in the prices of textbooks further adds to the difficulties in the purchase of textbooks even at primary level. This has virtually provided a last straw on the camel's back so far as the policy of promotion of education and the spread thereof at primary level is concerned.
23. Shri Kakade has invited our attention to the Scheme formulated by the Government in this regard for the current year. As per the Government Resolution bearing No. PRE-1092/(9739)/125837/ Primary Education-1 dated 3rd August, 1992, the Scheme provides for the creation of Book Bank on credit basis and is made applicable to the students of I to IV standards. The Scheme consists of providing books by this method to the students belonging to backward classes.
24. The Scheme formulated by the State Government is restricted to some children only between the age group of 6 to 14 and does not cover the entire population of students in the age group of 6 to 14, who are enrolled in the Schools. The Scheme is basically inadequate having regard to the nexus of education as contemplated under Articles 41 and 45 of the Constitution. At the cost of repetition, it may be emphasised that it is the duty of the State to endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years.
25. The learned Government Pleader, has produced before us a statement showing the budgetary provision for the year 1992-93 on education. In the Budget, a sum of Rs. 1846.98 crores is provided for education besides a provision for the tribal plan to the extent of Rs. 13.59 crores and a sum of Rs. 1.05 crores is available by way of backlog. As per the break-up produced before us, budgetary provision of Rs. 827.39 is made for primary education; Rs. 754.49 crores for secondary education; Rs. 213.61 crores for University education and, Rs. 14.94 crores for adult education; while Rs. 0.05 crores is the provision for language development and Rs. 36.50 crores is the provision for other items.
26. Thus, from the budgetary provision of the State for the year 1992-93, the largest provision is made for primary education which is to the extent of Rs. 827.39 crores.
27. Shri Karmarkar, learned Counsel for the Bureau as well as Shri Kakade, learned Govt. Pleader have submitted before us that, if the textbooks printed by respondent No. 2 for standards I to IV are required to be supplied free to all the students who are enrolled in various schools, a sum of Rs. 20 to 25 crores will be required per year. For this year, the Government has already made some provision in this regard, by way of Book Bank and under other Schemes to the extent of about Rs. 5 crores. If the books are required to be supplied to all the students enrolled in I to IV standards, then the State will require at the most Rs. 15 to 20 crores in addition to the amount already provided for. The total provision on education is to the extent of Rs. 1846.98 crores out of which primary education is provided for with a sum of Rs. 827.30 crores. From the allotment of funds for primary, secondary education etc., it is clear that a large portion of the amount of budget on education is provided for the primary education. In view of the fact that a large amount of Rs. 827.39 crores is available for primary education, it cannot be said that the financial position of the State is such that it is not possible for the State Government to provide for the free textbooks to the students below the age of fourteen and studying in standards I to IV. The financial requirement as envisaged in Article 41 of the Constitution is thus met with.
28. The Scheme formulated by the State Government regarding the Book Bank contemplates purchase of books in a particular year and, thereafter, supplying the said bocks on credit basis to the students and taking back the books at the end of the year except from the students for I and II standards. Even if the Government is required to spend an amount of Rs. 15 to 20 crores in one year initially, the expenditure on this count will be reduced thereafter as the books supplied to the students on credit basis will be obtained back from them and will be made available for the students next year. In the process, there may be a loss to the extent of 25% at the most in one year. Thus, by spending the initial amount the Government would be in a position to run the Scheme for the students who are enrolled in standards I to IV for future years also with a provision for a lesser amount. Even assuming that the life of a set of books is three years, the books will be required to be purchased again and again after three years. But this replacement is the inherent part of the Scheme of the Book Bank itself.
29. It may also be noted, at this stage, that for the year 1992-93, the Government is required to make a provision for adult education by providing an amount to the extent of Rs. 14.94 crores. The Scheme of adult education is in existence in the State for quite some time and is likely to be continued for number of years hereafter also. The provision for adult education is required to be made as there was no provision at the relevant time in the past for educating the adult persons at their primary education level. If the policy of education is now so adopted as to take care of and make a substantial provision for educating all the children upto the age of 14 years then, no amount would be required to be spent for their education when they will become adults. The amount which is required to be spent on adult education programme will ultimately be saved if care is taken to educate the children at the primary education level. In this way, in the long run, the public exchequer would be able to save amount which is presently spent on adult education every year.
30. In view of this financial position, we find that even within the present limits of its economic capacity, the Government can take effective steps in the direction of free education to make the right of education meaningful by providing textbooks to all children studying in primary classes to start with.
31. Our attention was also invited to the fact that apart from the textbooks, there are certain books recommended even for these primary classes for studies. They are not printed by the respondent No. 2-Bureau, but are printed by the private publishers; for instance, Books on Histroy and Study on Environment for the I standard. They are published by private publishers. Similar is the case with some books for other standards also.
32. Apart from the textbooks, the Government should supply those books to the schools for different classes and keep them in Book Banks in such a number that the students studying in those classes will be able to avail of those books.
33. It was strongly agitated before us both by Shri Kakade and Shri Karmarkar, that the richer sections of the community have been educating their children in schools which are merely recognised by the State Government and some of them are not even receiving any grants from the Government. Admittedly, three categories of Schools are available at the primary education level. They are :
(i) Schools run by the Government and other Local Bodies.
(ii) Schools recognised and aided by the State Government.
(iii) Schools which are recognised but not aided by the State Government.
According to the learned Counsel, the Schools which are merely recognised but not aided by the State Government are manned by children belonging to the richer sections of the community. They are paying exorbitant fees. Their parents, being rich, purchase the books for their children. Thus, these students should not be made entitled for availing the facility of getting the books through the Banks.
34. There is no dispute that non-recognised non-aided schools exist in rural areas as well as in Zopadpatti in urban areas. Therefore, it cannot be presumed that recognised non-aided schools provide facility to the children of rich persons only; such schools are also meeting the needs of lower strata of the Society as they are located in rural areas as well as in backward localities of urban areas. Therefore, it cannot be presumed that all recognised, non-aided schools provide facility of primary education only to the children of rich people. However, at the same time, it cannot be forgotten that there may be some schools which are meant for the children from affluent classes of society. They may be very small in number and meeting the requirement of a negligible minority of the class of student taking primary education, as a whole. The provisions of Article 45 do not make any distinction between children of the affluent and the non-affluent classes of the society.
35. Though no figures are made available to us as to how many students in the State are being educated through the medium of recognised but non-aided schools, the percentage of such students must be very small. Even some of those schools would like to avail of the facility of Book Bank, while some others may want to opt out of the Scheme. The Government may consider to allow them to opt out of the Scheme of Book Bank, subject to imposition of appropriate conditions in that regard by the State Government. Such conditions can be laid down at the time of grant of recognition of the school or at appropriate subsequent time.
36. It may be that, some of the students from affluent classes of the society would be benefitted by the Scheme but having regard to the totality of the problem, the percentage of such students would be negligible. The right to education confers right on all children at least upto the age of fourteen under the Constitution. Supply of free textbooks and other books required for studies as stated above, therefore, shall not be based on any kind of discrimination amongst the children of tender age. Introducing such kind of differential treatment amongst the children at such a tender age, is also not conducive to the integration of the Society as a whole.
37. Shri Jadhav, contended that there are many students studying in V, VI & VII standards who are left out by this judgment. We are aware of the fact that there may be some students aged less than 14 years and studying in V, VI and VII standards. There is no doubt that they also require the benefit of such or similar Schemes. It seems that the proposal of inclusion of V, VI and VII standards in primary schools after taking them away from middle schools, is yet not finally considered by the State Government. However, we hope that the Government will prepare a phased programme to extend the benefit of the aforesaid Scheme or appropriate Schemes to such students upto VII standard in the near future.
38. We appreciate the efforts made by Shri Jadhav and the Counsel for respondents for supplying us the necessary data.
39. We, therefore, direct the State Government and its Officers to make books available free of cost to the students enrolled in standards I to IV in all the Schools either under the Scheme of Book Bank as per the relevant Resolutions and in particular, as per the Resolution dated 3rd August, 1992, or even otherwise.
Rule made absolute accordingly. There shall be no order as to costs.
Rule made absolute.