Gujarat High Court
Er. Sandip Harshadray Munjyasara vs State Of Gujarat on 17 August, 2020
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/WPPIL/1/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 1 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial questionNo
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ER. SANDIP HARSHADRAY MUNJYASARA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
MR JK SHAH, AGP (1) for the Opponent(s) No. 1,2
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 17/08/2020
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)
1. We have heard Shri Sandip Muniyasara, the petitioner-
Page 1 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENTin-person and Shri J.K. Shah, learned Assistant Government Pleader for the State respondents.
2. This petition under Article 226 of the Constitution, framed as Public Interest Litigation has been filed claiming the following reliefs:
A) Your Lordship may be pleased to allow this petition and issue a writ of mandamus and/or any other appropriate writ, orders or directions in the nature of mandamus quashing and setting aside the impugned Government Resolution dated 04.04.2018 to the extent of its paragraph No.4 (Page No.16-21, Relevant Page No.18) as being illegal, discriminatory, ultra vires and contrary to both the RTE Act and guidelines issued by the GOI u/s 35 of the RTE Act.
B) Your Lordship may be pleased to issue a writ of mandamus and/or any other appropriate writ, orders or directions in the nature of mandamus to the Respondents to follow a system of random selection out of the applications received from children belongs (sic) to Disadvantaged Group and Weaker Section for admissions u/s 12(1)(c) of the RTE Act from academic year 2020-21 onwards.
C) Pending the hearing and final disposal of the Petition, Your Lordship may be pleased to Page 2 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT arrange hearing of this matter on day to day basis and also be pleased to stay implementation and operation of impugned Government Resolution dated 04.04.2018 to the extent of its paragraph 4.
D) Ad interim exparte relief in terms of above paragraph C;
E) The Hon'ble Court may grant such other reliefs as the nature and circumstances of the case may require.
3. The petitioner is a practicing Advocate of this Court and claims to be deeply involved in ensuring the compliance of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 ("RTE Act" for short) for the poor and needy children in the State. According to the petitioner, the manner in which the State Government is implementing the provisions of the RTE Act of getting 25% admission to the children belonging to the Weaker Sections and Disadvantaged Group is not in accordance to the provisions of the RTE Act. The Government Resolution dated 4 th April, 2018 prescribing the mode and manner in which the admissions are to be provided to different categories under the Weaker Sections and Disadvantaged Group needs to be quashed and further appropriate direction may be issued to the State to follow random selection out of the total applications received from the children Page 3 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT of the aforesaid groups for the academic year 2020-21.
4. The main ground of attack by the petitioner is in reference to paragraph 4 of the aforesaid Government Resolution wherein 11 categories of the Weaker Section and Disadvantaged Group have been spelt out by the State. Paragraph 4 of the said Government Resolution dated 4th April, 2018 is reproduced below:
"4. The priority for free of cost admission to Std.1 to students of weak and deprived groups will be as under this scheme:
(1) Orphan child (2) A child in need of care and protection (3) Children of remand home (4) Children of migrated labourers/child labour (5) Children suffering from mentally retardedness/ cerebral palsy, children in special need/physically handicapped and all divyang children mentioned in Sec.(1) of the Handicap Act, 2016.
(6) Children suffering from HIV (7) Children of the martyred soldiers of the military/paramilitary/police force. (8) Children of BPL families of all the categories (SC,ST,SEBC, General and others having 0 to 20 number).
(9) Children belonging to SC & ST (10) Children of SEBC/Other Backward Class/Nomadic Tribes.
First priority shall be given to the children of Nomadic Tribes in this category.
(11) General category.
For the children covered under the category sub-number (9), 10 and (11) of point no.4 above the GR SSHY/102011/437/A-1 dt. 24/04/2017 of Social Justice and Empowerment Deptt. Gujarat State, and GR Tribal Development GR No. CHHTL/ Page 4 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT 152011/98/G dt.24/10/2017 for income limit. In rural areas, the income limit shall be Rs.1,20,000/- and for urban areas the income limit shall be Rs.1,50,000/-. Also income limit that may be fixed from time to time by the SJ&E Dept. and the TDD shall apply for that academic year's admission. Priority will be given to the children of the lowest income family."
5. In his written submissions, the petitioner in paragraph 9 has reproduced the statistics provided by the State in its counter affidavit regarding total number of applications under the aforesaid 11 categories, total number allocated and the total number of students admitted. The said chart as provided in the counter affidavit in paragraph 8 is reproduced below:-
RTE Summary-Category wise (Academic Year 2019-20) Sr. Name Total Allotted Admitted No. applicants 1. Orphan Child 56 56 53 2. Child in Need of Care 244 244 231 and Protection 3. Children belonging 10 10 9 to Child Care Institution 4. Child 4 4 3 Labour/Children of migrating Labourers 5. Mentally 156 156 147 Challenged/Child Cerebral Palsy/CWSN Page 5 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT 6. HIV affected 4 4 3 Children 7. Children of Martyred 2 2 2 Soldier
8. BPL 7222 7076 6700
9. SC/ST 29465 27443 25262
10. SEBC/OBC 86547 51054 43838
11. General Category 66393 21978 17834 Total 190103 108027 94082 Based on the aforesaid figures, submission of the petitioner is that in the 9th category, the chance of success for admission is 93%, in the 10 th category, chance of success for admission is 59% and in the 11 th category, chance of success for admission is 33% and therefore, the same is arbitrary and discriminatory and as such, violative of Article 14 of the Constitution.
6. In response, a detailed affidavit has been filed by the State, duly sworn by the Deputy Director, Directorate of Primary Education, stating that the criteria laid down by the Government Resolution dated 4 th April, 2018 is just and proper and in fact, it covers and caters to all the categories of the disadvantaged group and weaker sections. It is submitted by Shri J.K.Shah, learned Assistant Government Pleader that categories have been formed after due deliberations and after giving careful thought, if such categories are not Page 6 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT formed, the whole scheme would be unworkable and the children belonging to the categories at Serial Nos.1 to 8 may not at all get any chance of admission, although those categories are of acute disadvantaged group.
7. Having considered the submissions, we do not find any reason to interfere with the policy laid down by the government. The government has laid down the policy after due deliberation, which is followed since 2018. It is also well settled that the Courts should normally refrain from interfering with the policy of the State Government and it is only when such policies are found to be totally absurd, unworkable or so unreasonable that on the face of it would appear to be arbitrary and illegal and without any basis that the Courts may interfere.
8. In the present case, no such illegality is found. The policy as laid down in the Government Resolution dated 04/04/2018 takes care of all the defined categories under the disadvantaged group and the weaker sections. Children of all cross section of the disadvantaged group and weaker sections are covered and admissions are being provided to them. The State Government is the best judge in making its policy to ensure that all categories are covered. We are unable to find any flaw in the impugned policy which would make it completely unworkable or arbitrary. Whenever there are more categories and there is variation in Page 7 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020 C/WPPIL/1/2020 CAV JUDGMENT numbers, a balance is to be maintained so as to ensure representation of all. That is what the State Government has sought to achieve.
9. For all the reasons recorded above, the petition lacks merit and is accordingly dismissed.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) A.M.PIRZADA/M.A. SAIYED Page 8 of 8 Downloaded on : Thu Aug 20 20:37:36 IST 2020