Kerala High Court
Manager vs State Of Kerala on 20 March, 2019
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940
WA.No. 1140 of 2018
AGAINST THE JUDGMENT IN WPC 20098/2017 of HIGH COURT OF
KERALA DATED 11-06-2018
APPELLANTS/4TH RESPONDENT AND PETITIONER:
1 MANAGER, AYSHA LP SCHOOL, CHEDIKKULAM
ARALAM P.O, KANNUR - 670 704.
2 P.P JINACHANDRAN
PRESIDENT, PARENT TEACHER ASSOCIATION, AYSHA LP
SCHOOL,CHEDIKKULAM, ARALAM P.O, KANNUR - 670
704.
BY ADVS.
SRI.S.M.PREM
SRI.H.NARAYANAN
SRI.P.RAMACHANDRAN (PALAKKAD)
RESPONDENTS/RESPONDENTS 1 TO 3 AND ADDITIONAL 5TH
RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO
GOVERNMENT,GENERAL EDUCATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
WA No.1140/18 & conn.cases
-:2:-
2 DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THYCAUD P.O, THIRUVANANTHAPURAM - 695
014.
3 ASSISTANT EDUCATIONAL OFFICER
IRITTY, KANNUR - 670 703.
4 UNION OF INDIA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
SCHOOL EDUCATION & LITERACY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA,
SHASTRI BHAVAN,NEW DELHI - 110 001.
BY ADV.GEN.SRI.C.P.SUDHAKARAPRASAD
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2019, ALONG WITH WA NOS.1181/2018 & CONN.CASES, THE
COURT ON 20.3.2019 PASSED THE FOLLOWING:
WA No.1140/18 & conn.cases
-:3:-
"C.R"
REFERENCE ORDER
W.A.Nos. 1140, 1181, 1183, 1205, 1213, 1218, 1222,
1260, 1261, 1262, 1287, 1300, 1303, 1304, 1306, 1307,
1314, 1316, 1319, 1320, 1324, 1336, 1341, 1346, 1353,
1406, 1416, 1463, 1465, 1477, 1490, 1505, 1515, 1519,
1522, 1528, 1529, 1533, 1574, 1672, 1696, 1717, 1719,
1723, 1730, 1731, 1872, 2108, 2130, 2159, 2161, 2180,
2184, 2185, 2186, 2204, 2205, 2212, 2222, 2300, 2313,
2320, 2324, 2357, 2358, 2371, 2372, 2373,
2381 of 2018, 13 & 20 of 2019
Shaffique, J.
These appeals concern a far reaching issue relating to the provisions to be made by the Government under the Right of Children to Free and Compulsory Education Act, 2009 (for short the 'RE Act') and the Rules made thereunder, namely, the Right of Children to Free and Compulsory Education Rules, 2011, (for short '2011 Rules').
2. A batch of writ petitions came to be filed by the Management/Parent Teacher Association of various schools inter alia seeking a direction to the State and the Educational authorities to permit commencement of Class V in respect of WA No.1140/18 & conn.cases -:4:- schools having only Classes I to IV and in respect of schools having upto VIIth standard to start Class VIII, placing reliance upon the statutory provisions under the RE Act and the Rules framed thereunder. The claim made by these schools have a chequered history.
3. The RE Act though was enacted with effect from 01/04/2010, the implementation of the provisions of the Act started on the State Government framing Rules in terms of the 2011 Rules. But still, when it came to light that nothing useful was being done by the State Government, writ petitions came to be filed before this Court seeking directions to the State Government to pass orders upgrading the existing schools so as to bring within their fold additional classes (Standard V) in the case of Lower Primary schools and Standard VII in the case of Upper Primary schools. Learned Single judge of this Court in Manager, LPGS, Veliyam, Kollam v. State of Kerala and Others (2015 (3) KHC 703), having taken note of the steps that have already been taken by the Government, held at paragraph 5 as under:-
"5. On a consideration of the steps taken by the State WA No.1140/18 & conn.cases -:5:- Government thus far, in the light of its obligation to give effect to the provisions of the RTE Act in the State, I find that the State Government will now need to complete the following tasks so as to put itself in a position where it will be able to effectively consider the applications preferred by the petitioners herein for upgradation of their schools.
(i) The data with regard to children up to the age of 14 years will have to be gathered and analysed, and a report drawn up showing the educational need of each area within the territorial limits of the various local authorities in the State.
(ii) Based on a comparison of the aforesaid data, with the data obtained with regard to the current infrastructural facility available in the said areas, a decision will have to be taken as regards the sanctioning of new schools / upgradation of existing schools in the area concerned. The progress report dated 13/05/2015 prepared by the State Project Director, SSA, Kerala indicates that steps are well underway towards collection of the aforesaid data and preparation of the necessary software that will process the same. Specific time schedules between June 15th and July 15th, 2015 have also been indicated for completing the process.
(iii) The State Government will also need to evolve suitable criteria that will determine which, among the many applications for sanction of new schools/ upgradation of existing schools, will be preferred for the said grant.
(iv) It is only thereafter, that the State Government can WA No.1140/18 & conn.cases -:6:- call for and consider the applications for the grant of new schools/ upgradation of existing schools in each area."
4. Accordingly, direction had been issued to the State Government to ensure that necessary steps required for processing applications for opening new schools/upgradation of existing schools, in accordance with the provisions of the RE Act should be done on or before 31/10/2015. It was further observed that, until such time, the existing schools need not be permitted to admit students to standards which have not been sanctioned in the said schools through a formal process of upgradation. The judgment in Veliyam's case (supra) was followed by a Division Bench of this Court in State of Kerala and Others v. Manager, Bhagavathi Vilasom L.P. School and another in W.A.Nos.96, 960 of 2015 and certain other writ petitions. The judgment of the Division Bench came to be challenged before the Apex Court in SLP Nos. 24786 and 24787 of 2015. The Apex Court disposed of the Special Leave Petitions by order dated 7/4/2017, when a submission was made by the State that they have no objection to comply with the orders of the Division Bench. It is submitted that despite such directions, no action has been taken in the matter WA No.1140/18 & conn.cases -:7:- for upgrading the schools to Classes V and VIII respectively. Writ petitions came to be filed before this Court seeking appropriate direction to permit schools to conduct Classes V and VIII respectively. Certain interim directions were also issued by the learned Single Judge. In the meantime the Government issued two orders. One is Government Order dated 19/5/2017 notifying three additional locality for implementing the provisions of the RE Act and 2011 Rules. It was found that there was no necessity to upgrade all the schools so as to provide elementary education as contemplated under the RE Act. Another Government Order was issued on 9/6/2017 intimating a list of schools and locality where transportation facility had to be provided. The writ petitions were disposed of giving liberty to the petitioners to move appropriate proceedings against the order passed by the Government in the event they were aggrieved, and it was further stated that the interim order permitting Classes V or VIII, as the case may be, shall be confined to the academic year 2017-18.
5. The petitioners therefore inter alia sought for a declaration that they are entitled for upgrading of the Lower Primary and Upper Primary categories by providing additional WA No.1140/18 & conn.cases -:8:- Classes V or VIII, as the case may be. In WP(C) No.15089/2018 Government Order dated 9/6/2017 (P7) and 19/5/2017 (P8) were under challenge. Substantially the contention urged on behalf of the petitioners is to declare that the classification of "Schools for General Education" made under Rule 2 of Chapter II in KER has been superseded and rendered void for repugnancy under Art.254 of the Constitution by coming into force of Rule 6(2) of the Kerala Right of Children to Free and Compulsory Education Rules 2011 for providing elementary education as guaranteed under Art.21A of the Constitution, as prayed for in WP(C) No. 20098/2017.
6. Counter affidavit was filed by Government in WP(C) No. 14645/2018 which was adopted in the other pending cases as well. In the counter affidavit, it is stated that there were batch of writ petitions with identical prayer which were disposed of repelling the contentions of the petitioners holding that the RE Act does not mandate that the children should be given facilities to pursue their study in the same school from Standard I to V or Standard VI to VIII and according to the State, the duty was only to see that facilities to undergo elementary education is available WA No.1140/18 & conn.cases -:9:- in the neighbourhood. The writ petitions were disposed of holding that State has complied its duty and has given liberty to the petitioners to move appropriate proceedings if they are aggrieved. Ext.R1(a) is the judgment of learned single Judge, dated 27/9/2017 in WP(C)No.16731/2017 (The Manager St.Peter's L.P.School v. State of Kerala and others) and connected matters. In the said judgment, reliance was placed on another judgment of the learned Single Judge in Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another (ILR 2016 (1) Ker. 590), in which also the learned Single Judge declined to pass any orders inter alia observing that in the light of the judgment in Veliyam's case (supra), no direction can be issued as of now. It was observed that the Government having already issued orders dated 19/5/2017 and 9/6/2017 after taking into consideration the statutory provisions and the petitioner does not have any complaint against such orders and the Act or Rules do not provide that the children should be given facilities to study in the same school from Class I to V or VI to VIII or Class I to VIII, it was observed that the duty of the respondents is only to see that facilities to undergo elementary education is available in WA No.1140/18 & conn.cases -:10:- the neighbourhood. The said judgment had been affirmed by the Division Bench. Ext.R1(b) is the judgment dated 25/1/2018 in W.A.No. 2487/17 (The Manager T.K.M.M.L.P. & U.P. School v. State of Kerala and others) which again was an appeal filed from the said batch of writ petitions. The Division Bench having considered the same issue observed as under in paragraph 8:-
"8. Heard. We have considered the respective contentions advanced before us by the contesting parties, anxiously. It is true that, by the Constitution 86th Amendment Act 2002, the right to education has been made a fundamental right by the introduction of Article 21A. In tune with the mandate of the said provision, the Union Parliament has enacted the RTE Act, 2010. The complaint of the appellants before us is that, they have not been granted the sanction to add either an additional Vth standard or an additional VIIIth standard to the schools conducted by them for the purpose of giving meaningful education to the children who are studying in their schools. We notice that, the obligation to provide elementary education to the children in the age group of 6 to 14 years is on the State. The State has in furtherance of the objective enacted the Kerala Rules of 2011 putting in place various measures to ensure proper implementation of the provisions of the Act and the Rules. Though it is contended that, the schools are entitled under the provisions of the RTE Act, 2009 and the Rules thereunder to be granted permission to start additional classes, we do not find that they have any such right either under the RTE Act 2009 or the Rules framed WA No.1140/18 & conn.cases -:11:- thereunder. It is true that, they have offered to provide the necessary facilities for the purpose of starting additional standards at their expense. However, the fact remains that teachers would be necessary to impart instruction to the students. According to the respective counsel appearing for the appellants, by utilising the services of the protected teachers available in the State, any additional burden on the State exchequer could be avoided. It could also be ensured that the services of the protected teachers are more meaningfully utilised, considering the obligation of the State to pay them, eventhough they do not have sufficient work to be discharged. However, the above aspect is one on which the Government would have to bestow its attention. We do not know what is the number of protected teachers available for such utilisation or deployment. We are also not aware as to what would be the other consequences that are likely to follow by such deployment of the protected teachers. As rightly pointed out by the learned Advocate General, in the absence of such teachers being not available, the Managers of the schools would make fresh appointments adding to the burden on the State exchequer. Therefore, those are matters on which the Government would have to take a decision after evaluating the ground realities."
Thereafter the Division Bench considered the question whether the State has discharged its obligation for giving effect to the RTE Act and the Rules thereunder. Reference was made to Government Order dated 19/05/2017 and 9/6/2017, and it is observed that "instead of establishing additional schools or WA No.1140/18 & conn.cases -:12:- providing additional infrastructural facilities, the provision of providing transportation facilities cannot be found fault with. Therefore we are not satisfied that there has been any lapse in the matter of implementing the provisions of the RTE Act and the Rules as alleged by the appellants." Taking note of the argument in terms of Rule 14(8) of the 2011 Rules that any school which does not conform to the norms specified in the schedule to the Act within 3 years of date of commencement of the Act would have to stop its functioning and the three year period having expired, it was observed that, it is for the State Government to address the question as to whether a school should be granted permission to start additional standards for the purpose of conforming to the provisions of the RTE Act and the Rules. The appellants were permitted to approach the Government and the Government has to consider the same.
7. Some of the defeated appellants approached the Apex Court and Ext.R1(c) is the order dated 23/4/2018 in SLP(Civil) No.12967/2018 which was disposed of, with the following order:
"Permission to filed SLP is granted.
Learned counsel for the petitioners says that he will WA No.1140/18 & conn.cases -:13:- make a fresh application in terms of the order passed by the High Court within a period of one week. We expect the concerned authority to take a decision within a period of two months thereafter. The special leave petitions are disposed of."
8. Government also took up a contention that Rule 6 of 2011 Rules only mean that for students upto Class I to V, there should be a school at a distance of one kilometer of the neighbourhood. The Act does not say that, in the same school, there should be Classes I to V or VI to VIII. With reference to Rule 6(2), which provides that the Government should endeavour to upgrade in a phased manner existing schools with Classes I to IV with Class from V to VIII or school from V onwards with Classes I to IV only after taking into account the availability of such classes in the existing school in the neighbourhood. Reference is placed to the judgment in Kum.Sreya Vinod v. Director of Public Instruction & Others (2012 (4) KHC 49), wherein a Division Bench of this Court held that instead of having schools within a particular area, the Government should consider the distance rules and locate schools in such a way that the schools are run with the required number of students. There was also an WA No.1140/18 & conn.cases -:14:- observation to make alternative arrangements for safe travel of students free of cost. According to the Government, as per the Kerala Education Rules, Lower Primary section confines to any or all of the standard I to IV and Upper Primary as any or all of the standard V to VII and with or without the Lower Primary Section and Standard VII to X shall be collectively known as secondary grade. In order to harmonise the above provisions with RTE Act & Rules, the Government has issued Government Order dated 03/05/2013. It was thereafter stated as under:-
"As per clause 2 of the above Government order, the Government has directed to retain class V and class VIII in the existing premise in the upper primary and Higher Schools respectively and has re-designated those upper primary schools with class 5 as Lower and Upper Primary Schools and those High Schools with class 8, as upper primary and High School. Such a course has been adopted so as to avoid large scale fund requirement for construction of class room and to avoid large scale re-deployment of teachers. This course of action would suffice the object of RTE Act. Though the above clause in the Government Order was challenged before this Hon'ble Court, it was negative by this Honourable Court in judgment reported in ILR 2016 (1) Kerala 590. In the judgment the claim for upgradation under the guise to avoid expulsion of a student was also repelled by the Learned Single Judge stating that RTE Act does not WA No.1140/18 & conn.cases -:15:- preclude a child to seek transfer to any nearby school for completion of elementary education."
9. The main contention urged by the learned counsel for the appellants is based on Rule 6(2) of the 2011 Rules. Rule 6(2) reads as under:-
"6. Area or limits of neighbourhood--(1)xxx (2) The Government shall endeavour to upgrade in a phased manner, existing Government and aided schools with classes from 1 to 4, to include classes from 5 to 8 and in respect of schools which start from class 5 onwards, to add classes from 1 to 4 wherever required, taking into account the availability of such classes in the existing schools in the neighborhood and this specific recommendation of the Assistant Educational Officer and the local authority."
10. Rule 6(2) is independent of other provisions and existing Government and Aided Schools are to be upgraded. Such schools having Classes I to IV are to include V to VIII and those schools which starts from Class V onwards should add I to IV whereever required. Only requirement is that, the upgradation has to be made taking into account such classes in the existing schools in the neighbourhood and the specific recommendation of Assistant Educational Officer and the local authority. So the very concept of Rule 6(2) is to ensure that the existing Government WA No.1140/18 & conn.cases -:16:- and Aided Schools should have Classes from I to VIII. The contention urged by the counsel for appellants is that Rule 6(2) is a mandate on the Government which cannot be diluted in any manner and any such dilution will be contrary to the provisions of the Act and Rules and constitutionally invalid. According to them, if such classes were available in the existing schools in the neighbourhood, the Assistant Educational Officer ought to have verified and made a specific recommendation. It is argued that the learned Single Judge did not consider the validity of the Government Order dated 9/6/2017 though it was specifically under challenge in various writ petitions. In the Government Order dated 9/6/2017, it is stated that school mapping was conducted by Sarva Shiksha Abhiyan and Government issued preliminary notification of list of areas identified as having educational need. On 25/5/2016, complaints and objections were received which were examined and 91 areas were identified as having educational needs. Government again conducted a study based on certain parameters and as per directions issued by the Government, the Committee found that three areas have ultimate educational need and notification was issued in the Gazette on WA No.1140/18 & conn.cases -:17:- 20/5/2017. Out of the balance 88, three areas that came under Thiruvananthapuram Corporation were found to have no educational need and were excluded. Similarly, in Palakkad District also, two areas were excluded as found to have no educational need. In Pulloor ward of Manjeri, it was found that there was no need for Standard VII. Therefore, according to the Committee, only a few areas were found to have educational need. It was further observed that "it was found that upgrading of existing schools or starting new schools in the State is not feasible by considering distant norms alone. In order to meet the educational need of children, the identified areas (82 number) appended to this proceedings, transportation facility will suffice their educational need as provided in Rule 6(4) of the Kerala Right to Children for Free and compulsory Education Rules, 2011"
The Government in their counter affidavit has also brought to our notice the judgment dated 3/2/2016 in W.P.(C).No.4188/2016 (Shymol S. v. State) in which the learned Single Judge had occasion to consider the writ petition filed by a PTA President for upgrading the Lower Primary school to Standard V as well. It was observed that there is no provision in the RE Act providing for the WA No.1140/18 & conn.cases -:18:- upgradation of the Lower Primary schools or the Upper Primary schools and how the same has to be arranged is the discretion of Government. RTE Act is intended to ensure that the school is available for imparting education. It does not mean that the Lower Primary school should be upgraded to the V th standard and the Upper Primary schools are to be divested as Vth standard and upgraded to VIIIth standard.
11. Learned counsel for the appellants has also referred the Schedule attached to the Act. The Schedule prescribes the norms and standards for the schools. It stipulates the number of teachers required for Class I to V and Class VI to VIII, the norms and standards, the number of teachers that are required, pupil teacher ratio etc. It also provided the nature of building facility that are needed, the minimum number of working days, the inspection hours in an academic year, the minimum working hours of the teacher, teaching learning materials, library play material, games and sports etc. It is therefore argued that when elementary education from Class I to VIII is to be provided to every child aged 6 to 14 years, and free and compulsory education has to be given in a neighbourhood school, the WA No.1140/18 & conn.cases -:19:- Government cannot shirk away from the responsibility by stating that it is not feasible. It is also argued that when the RTE Act has been framed based on Article 21A , a fundamental right and it is not open for the Government on account of whatever reason, refuse upgradation of the schools.
12. Learned Advocate General however placed reliance upon the judgment of a Division Bench of this Court in Kum.Sreya Vinod (supra) wherein this Court while considering a writ petition seeking permission to write the examination in the same school made certain observations. That was a case in which a Lower Primary school at Ponkunnam had only 14 children from I to IV and ultimately on 2010-11, they had only 3 children. Actually there was only 1 pupil in standard I and 3 teachers. The child filed the writ petition through guardian to write the examination in the same school and interim direction was issued permitting the child to write 1 st standard examination in a nearby Government school. While considering an appeal against the said order, the Division Bench took note of the sad situation in which Government schools and Aided schools were functioning without much students. In that matter, the provisions of the RE Act were WA No.1140/18 & conn.cases -:20:- also considered. While considering the matter, this Court made certain observations, which reads as under:-
"We do not know how Government can expect tender children to be sent to School by walking, which involves tremendous risk and insecurity to the children particularly in this State, where disappearance of children is not uncommon. Therefore, we feel, in the first place, the Government should reconsider the distance Rule, and locate Schools in such a way that Schools run are healthy institutions with required number of students in terms of the norms and required number of teachers, and it doesn't matter if the same involves children traveling 2 or 3 KMs or even up to 5 KMs in a safe vehicle accompanied by Ayahs or Assistants. We are sure that the neighbourhood school contemplated under the Kerala Rule is neither workable nor will the Government be able to establish as many Schools as visualised within every one kilometer and 3 KMs from every homestead wherefrom a child hails for education. The Government should also look at the pattern of distribution of houses in far and remote areas like hilly areas, remote villages and even tribal areas where people are scattered all over, and it would be impossible to provide Schools within the neighbourhood of every child as visualised in the Rules. There will be nothing wrong in the Government or local authority providing safe vehicles and staff to Government Schools, and even to Aided Schools if they do not have fund for it, because education up to the age of 14 has to be provided by the Government at their cost, which not only means coaching in the Schools but the WA No.1140/18 & conn.cases -:21:- entire facility of Schooling. Since the Government feels that noon - meals and other facilities are to be compulsorily provided, we see no reason why transportation should not also be covered. We therefore direct the Government to reconsider their proposal to start Schools everywhere without caring for availability of students for all such schools."
13. In order to consider the rival contentions, it will be appropriate to have a reference to Article 21A and settled legal position in that regard. Article 21A has been inserted by the Constitution in the 86th Amendment Act, 2002 with effect from 01/04/2010. Article 21A reads as under:-
"21A. Right to education- 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."
14. Even before Article 21A being incorporated into Constitution as a fundamental right, in Unnikrishnan K.P. v. State of Andhra Pradesh (AIR 1993 SC 2178), the Apex Court held that free education until the child completes 14 years is a fundamental right and after the child completes 14 years, his right to education is circumscribed by limits of the economic capacity of the State and its development. In Super Star Education Society v. State of Maharashtra [(2008) 3 SCC WA No.1140/18 & conn.cases -:22:- 315], it was held that the obligation cast by Article 21-A requires the State to expand substantially its network of school, so that a child can go to school within accessible distance. It also implied that the education provided in these schools must be of an acceptable and reasonable standard. In Ashok Thakur v. Union of India [(2008) 6 SCC 1], the Apex Court directed the Union of India to set a time limit within which Article 21A is going to be completely implemented. In Ashok Thakur (supra), it was held that Article 21-A is the most important fundamental right and stands above the other rights as one's ability to enforce one's fundamental right flows from one's education. The Apex Court held that the right to compulsory education to children aged 6-14 years, the State is obliged to provide all basic requirements for running the school. In Avinash Mehrotra v. Union of India [(2009) 6 SCC 398], it was held that Article 21A has been construed as the fundamental right of each and every child to receive education free from fear of security and safety, so that children have a right to receive education in a sound and safe building. In State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools [(2014) 9 WA No.1140/18 & conn.cases -:23:- SCC 485], it was held that free education which a child can claim from a State will be in a manner that the State may, by law determine.
15. Coming to the provisions of the RE Act, it will be useful to refer to a few statutory provisions. Section 2(n) defines 'school' which includes schools established, owned or controlled by Government or local authority or schools receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority. Duties of appropriate Government is specified under Section 8 and in addition to providing free elementary education to every child of age 6-14 years, Section 8(b) indicates that the appropriate Government should ensure availability of neighbourhood schools as specified in Section 6. Section 6 reads as under:-
"6. Duty of appropriate Government and local authority to establish school- For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act."
16. The schools responsibility is as specified under Section WA No.1140/18 & conn.cases -:24:-
12. We are concerned with the schools coming under Section 2
(n)(ii) and Section 12(b), which reads as under:-
"2. Definitions- (n). "school" means any recognised school imparting elementary education and includes--
(i) xxx
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority."
"12. Extent of school's responsibility for free and compulsory education.
(a) xxx
(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."
17. Existing schools are under obligation to obtain a certificate of recognition from the competent authority. It excludes schools owned or controlled by Government or local authority. Proviso to Section 19(2) specifies that schools shall take steps to fulfill the norms and standards. Section 19 prescribed the norms and standards for school which reads as under:-
"19. Norms and standards for school.-
WA No.1140/18 & conn.cases -:25:-
1. No school shall be established, or recognised, under section 18, unless it fulfils the norms and standards specified in the Schedule.
2. Where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule, it shall take steps to fulfill such norms and standards at its own expenses, within a period of three years from the date of such commencement.
3. Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.
4. With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.
5. Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues".
18. Section 25 speaks about pupil-teacher ratio, which reads as under:
"25. Pupil-Teacher Ratio. (1). Within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.
WA No.1140/18 & conn.cases -:26:-
2. For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in Section 27."
19. The Central Government framed Rules in 2009 itself and the State while framing 2011 Rules, similar provisions had been incorporated. We are concerned with Rule 6 of the 2011 Rules, which reads as under:-
"6. Area or limits of neighbourhood (1) The area or limits of neighbourhood within which a school has to be established by the Government or the local authority shall be:-
(a) in respect of children in classes from 1 to 5, a school shall be established within a walking distance of one km of the neighbourhood:
(b) in respect of children in classes from 6 to 8, a school shall be established within a walking distance of three kms of the neighbourhood:
(2) The Government shall endeavor to upgrade in a phased manner, existing Government and aided schools with classes from 1 to 4, to include classes from 5 to 8 and in respect of schools which start from class 5 onwards, to add classes from 1 to 4 wherever required, taking into account the availability of such classes in the existing schools in the neighbourhood and the specific recommendation of the Assistant Educational Officer and the local authority.
(3) In places with difficult terrain, risk of landslides, WA No.1140/18 & conn.cases -:27:- floods, lack of roads and in general, danger for young children in the approach from their homes to the school, the Government shall locate the school in such a manner as to avoid such dangers, by reducing the area or limits specified under sub-rule (1) (4) For children from small hamlets, as identified by the Government or the local authority, where no school exists within the area or limits of neighbourhood specified under sub-rule (1), the Government or the local authority shall make adequate arrangements, such as free transportation and residential facilities for providing elementary education in a school, in relaxation of the area or limits specified in the sub rule (1).
(5) In places with high population density, the Government may consider establishment of more than one neighbourhood school having regard to the number of children in the age group of 6-14 years in such places based on the child census conducted by Sarva Siksha Abhiyan or the local authority.
(6) The local authority, concerned, in consultation with the Assistant Educational Officer; shall identify the neighbourhood school where children can be admitted and make such information public through the notice board of the local authority and office of the Assistant Educational Officer. The basis of the identification of the neighbourhood schools shall be the school mapping carried out by the Government.
(7) In respect of children with disability, which prevent them from accessing the school, the Government or the local authority shall make appropriate and safe transportation arrangements to enable them to attend school and WA No.1140/18 & conn.cases -:28:- complete elementary education.
(8) Additional assistance in the form of home-based teaching shall be arranged for children with severe disabilities by the Government and the local authority. (9) The Government and the local authority shall impress upon the parents and guardians of their duty to admit or cause to be admitted, their child or ward as the case may be, to a neighbourhood school, for completion of elementary education.
(10) The Government or local authority shall ensure that access of children to the school is not hindered on account of social and cultural factors, on account of closure of a Government or aided school and that no school is closed down without the recommendation of the Assistant Educational Officer and the local authority and prior sanction of the Government.
(11) The Government and the local authority shall provide free and appropriate pre-school education based on a Pre-
primary Education policy formulated by the Government, to all children above the age of three years till they complete six years so as to prepare them for elementary education. For the purpose, Pre-primary Centres shall be established in all Government and aided schools in a phased manner within three years from the appointed date. A unified child- friendly curriculum shall be developed by the academic authority for these centres which shall have linkages with the Anganwadies for providing Integrated Child Development Scheme services to all the children. The minimum academic and professional qualification of pre- primary teachers shall be as laid down by National Council for Teacher Education".
WA No.1140/18 & conn.cases -:29:-
20. Counter affidavit has been filed by the State in WA No.1140/2018 inter alia reiterating the contentions already urged and controverting the contentions urged on behalf of the respondents. Exts.R1(a) and R1(b) are produced to indicate the transportation facilities provided to areas notified as per Government Order dated 9/6/2017. It is stated that school mapping had been conducted pursuant to the provisions of the Central Act and the State Rules and in so far as the State Rules are not under challenge, petitioners/appellants are not entitled for any relief as sought for.
21. The learned Single Judge while considering the above cases observed that in so far as school mapping has been conducted, it was noticed that in areas where the schools which are before the Court are concerned, they do not have the educational need. Once it is observed that there is no educational need in the locality, the permission sought to have Class V or VIII in the respective LP/UP schools cannot be granted, unless it is shown that interference is required to the Government Order. It is also found that the basis for upgradation of a school shall be the educational need for upgradation which has to be found in the WA No.1140/18 & conn.cases -:30:- school mapping conducted by the authorised agencies and in terms of Rule 14 read with Rule 2(2) and Rule 6(2), the basis of upgradation of an existing school shall be the educational need of the locality as revealed in the school mapping carried out by the authorised agency and certified by the local authority and the Educational Officer concerned. Since no such educational need is found in the locality, the application for upgradation does not arise. It is also found that in the absence of any valid and tenable challenge made against notification dated 19/5/2017 of the Director of Public Instructions and the Government Order dated 9/6/2017, petitioners are not entitled for an order to make admission of students to Class V or Class VIII, as the case may be. It was further held that any students who are yet to be issued with transfer certificates in the respective LP/UP Schools to seek admission to Class V or Class VIII shall be issued such certificates and the State and Educational authorities shall ensure that such students are admitted in other schools having Class V or Class VIII without any delay.
22. The concept of elementary education was considered as Lower Primary and Upper Primary school as per Rule 2 of WA No.1140/18 & conn.cases -:31:- Chapter II of KER. Lower Primary school was from Standard I to IV and Upper Primary School from Standard V to VII. By the RE Act, the concept of elementary education had been treated as education from Class I to Class VIII. Section 2(f) of the Act reads as under:
"2(f) elementary education means the education from first class to eighth class"
23. The concept of the RE Act is clear from S.3 which reads as under:-
"3. Right of child to free and compulsory education.-- [(1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her 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.
[(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 WA No.1140/18 & conn.cases -:32:- the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:
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 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) may also have the right to opt for home- based education.] Section 5(1) reads as under:-
"5. Right of transfer to other school.--(1) Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses
(iii) and (iv) of clause (n) of section 2, for completing his or her elementary education."
24. S.8 imposes a duty on the appropriate Government to provide free and compulsory education to every child of the age of 6-14 years. As per S.8(b), the appropriate Government has to ensure availability of a neighbourhood school as specified in Section 6. S.8(d) indicates that necessary infrastructure including school building, teaching staff and learning equipment has to be provided by the Government and in terms of S.8(g), the Government has to ensure good quality elementary education WA No.1140/18 & conn.cases -:33:- conforming to the standards and norms specified in the schedule among various other obligations as provided under S.8.
25. Section 18 of the RE Act imposes an obligation on every school other than a school established, owned or controlled by the appropriate Government or the local authority to obtain certificate of recognition. Proviso to Section 18(2) indicates that no such school shall be granted recognition unless it fulfills with the norms and standards as specified under Section 19. In terms of S.19(1), no school has to be recognized u/s 18, unless it fulfils the norms and standards specified in the Schedule. Sub-section (2) of S.19 further indicates that if a school established prior to the commencement of the Act fails to fulfil the norms and standards specified under the Schedule, it shall do so within a period of three years from the date of commencement. Non compliance of S.19(2) within the period specified under sub- section (2), would result in withdrawal of recognition granted to such school, as contemplated u/s 18(3). The Schedule and the norms and standards in terms of S.19 clearly indicates the number of teachers required for Class I to V and Class VI to VIII and other parameters that are required to be followed. Therefore, WA No.1140/18 & conn.cases -:34:- the statute makes it obligatory on the part of the existing schools, other than schools established, owned or controlled by Government/Local Authorities to obtain a recognition in terms of S.18 and to comply with the norms and standards in terms of S.19 and it also contains penal provisions for punishing a school which runs without the recognition.
26. In the 2011 Rules, provision had been made for recognition/upgradation of school and also for withdrawal of recognition in the event of non compliance of the conditions for grant of recognition. Rule 14 of the 2011 Rules imposes an obligation on every school other than a school established, owned or controlled by Central/State Government or the local authority which was established before the commencement of the Act and a school coming under Sub clause (iv) of clause (n) of Section 2 having recognition under the Kerala Education Act and the Rules and certain other category of schools to make a declaration within a period of three months from the appointed day in a specified form to the AEO regarding compliance with the norms and standards stipulated in the Kerala Education Rules in addition to the norms in the Schedule and fulfilment of other conditions WA No.1140/18 & conn.cases -:35:- specified therein. Therefore, the schools which we are now concerned are under obligation to make a self declaration stating that they have complied with the stipulations in the Kerala Education Rules and also the norms in the Schedule to the RE Act. Sub-rule (6) of Rule 14 further provides that after inspection of the school by the District Educational Officer and the Assistant Educational Officer, the report is placed before the District Level School Recognition Committee and only those schools which conforms to the norms and standards in Rule 14 alone shall be granted recognition by the Deputy Director of Education. Sub Rule (8) further indicates that any school which does not conform to the norms, standards and conditions mentioned in sub-rule (1) within three years from the date of commencement of the Act shall stop functioning, and running of any school shall be punishable u/s 19 of the Act. Rule 15 relates to withdrawal of recognition wherein the Deputy Director of Education on his own motion, or on any representation received from any person, has reason to believe, that a school recognized under Rule 14 has violated any one or more of the conditions for grant of recognition or has failed to fulfill the norms and standards specified in the WA No.1140/18 & conn.cases -:36:- Schedule is entitled to withdraw the recognition. Such being the statutory position, it is apparent that in order to recognize an existing school, it should be a school envisaged in terms with the Schedule to the Act. When such a mandate is imposed on the existing schools, which comes under the purview of Ss.18, 19 r/w Rule 14, and when a request is made in that behalf, it is for the Government to consider it and pass appropriate orders.
27. This issue was considered by the learned Single Judge and it is held that Rule 14 have no application in the matter of establishment or upgradation of a school. It was held that the basis for upgradation of a school shall be educational need for upgradation found in the school mapping conducted by authorized agencies. If there is no educational need in the locality, in a school rendering elementary education, no application for upgradation of such school by commencing Class V or Class VIII can be made by the respective management.
28. The Division Bench in T.K.M.M.L.P and U.P School (supra) considered the very same issue and it was found that the existing schools have no right either under the RTE Act or the Rules to demand upgradation. In fact, the Division Bench did not WA No.1140/18 & conn.cases -:37:- consider the obligation cast on the schools to upgrade the schools in terms with the Schedule to the Act and it was left to the parties to approach the Government for the said purpose.
29. There is no doubt that educational need is the basis for establishing a new school as contemplated under Rule 6(1) of the 2011 Rules. Upgradation of existing schools in a phased manner in terms of Rule 6(2) is also taking into account the availability of such classes in the existing schools and schools in the neighbourhood and specific recommendation of Assistant Educational Officer.
30. But the question is whether an existing school as defined under S.2(n)(ii) of the RE Act, can be recognised as a school, if it does not have Classes I to V or VI to VIII, as the case may be, as specified under the Schedule. While considering this matter, in T.K.M.M.L.P. and U.P. School (supra), Division Bench did not advert to it whereas the said question was left to the Government to decide. The Apex Court also, did not decide the issue, in its order dated 23/4/2018 and left it to the parties to approach the concerned authority, to decide the matter. No such decision is brought to our notice, despite the expiry of the two WA No.1140/18 & conn.cases -:38:- month period specified by the Apex Court.
31. The endeavour of the petitioners is to get the schools recognized as per Section 19 of the Act r/w Rule 14 of the 2011 Rules. If a school is ready and willing to comply with the norms and standards as specified in the Schedule, can the Government turn a blind eye and take a contention that there is no educational need in the locality. We are of the view that after coming into force of the Act and 2011 Rules, every school other than the schools established, owned or controlled by the Central Government or the State Government or local authority or Unaided schools are bound to be established in terms of the Schedule. It is not open for the Government to take a view that they are not bound to comply with the statutory provisions. The extra financial liability incurred for payment of salary to the teachers shall not be a reason to avoid compliance to prevent the schools from complying with the standards prescribed under the RE Act or the Rules.
32. Necessarily, it indicates that a school which had been established in terms of Chapter II Rule 2 of KER has lost its significance and Classes I to VIII has to be treated as elementary WA No.1140/18 & conn.cases -:39:- education. As per Rule 2 of Chapter II KER, Classes I to VII were collectively known as Primary Grade which is subdivided into Lower Primary and Junior Basic containing any or all of the standards of I to IV and upper Primary and Senior Basic containing any or all of standards V to VII and with or without Lower Primary Section, but it does not include existing Lower Primary schools where standard V is retained by the special sanction of the Government. Standards VIII to X are collectively known as Secondary Education. On the RE Act coming into force, especially Sections 18 and 19, and read with the Schedule to the Act, the classification of schools in terms of Rule 2 of Chapter II KER apparently lost its significance and from the commencement of the Act, the norms and standards for a school have to be in terms with the Schedule to the Act.
33. As far as Rule 6(1) of the 2011 Rules, is concerned, as rightly pointed out by the learned counsel appearing for the appellants, it relates to establishment of new schools in the neighbourhood of the locality and it indicates that a school having Classes I to V shall be established within a walking distance of 1 km of the neighbourhood and in respect of children WA No.1140/18 & conn.cases -:40:- in Classes from VI to VIII, a school shall be established within a walking distance of 3 kms of the neighbourhood.
34. As far as existing schools are concerned, Rule 6(2) envisages upgrading in a phased manner, existing Government and Aided schools having Classes I to IV, to include Classes from V to VIII and in respect of schools which starts from Class V onwards, to add Classes from I to IV. However, further indicating that the same has to be done "wherever required" and taking into account the availability of such classes in existing schools in the neighbourhood and the specific recommendation of Assistant Educational Officer and the local authority. Rule 6(2) apparently is to ensure that in all Government and Aided Schools, the schools are required to be upgraded to have Classes from I to VIII. However, it depends upon the question whether it is actually required and on the availability of existing schools in the neighbourhood and on recommendation of the AEO and the local authority. In the cases on hand, Government says in its order dated 9/6/2017 that there is requirement or educational need in 88 schools, but they are providing transport facilities which would suffice. As far as transportation facilities are concerned, Rule 6(4) WA No.1140/18 & conn.cases -:41:- clearly indicates that it applies to children from small hamlets where no school exists within the limits of neighbourhood specified under sub-rule (1) and the Government has to make adequate arrangement as free transportation and residential facilitates for providing elementary education in a school, in relaxation of the area or limits specified in sub-rule (1). Apparently, Rule 6(4) applies with respect to establishment of new schools by the Government or the local authority as provided under Rule 6(1). The aforesaid rule will not be a substitute or cannot be stated to be a reason for not upgrading the existing schools to comply with the scheme of RE Act. Rule 6(2) is an independent provision by which the Government has undertaken an obligation to upgrade the schools to Class I to VIII, in a phased manner, subject to the requirement and taking into account various other factors.
35. In the cases on hand, the petitioners are only seeking for upgradation of the schools to start Class V or Class VIII, as the case may be, in order to ensure that they have the facility to provide elementary education in a school for any student. The Government in its order dated 9/6/2017 proceeds on the basis WA No.1140/18 & conn.cases -:42:- that providing such upgradation in terms of the statutory provisions is not feasible.
36. The RE Act and the Rules framed thereunder are based on a fundamental right created in terms of Art.21A of the Constitution of India. Every child has a fundamental right to have elementary education and the elementary education is from Class I to VIII. The distance norms had been provided to enable the child to walk to their neighbourhood school and the very concept of the statutory provision is to enable every child within the specified age to complete their elementary education in a nearby neighbourhood school. The Government's counter affidavit and the argument proceeds on the basis that all schools have standards I to IV which need not be upgraded to standard V as there are other schools in the neighbourhood from Standards V to VII and yet other schools from standard VIII to X or XI, as the case may be. In other words, a child starting his elementary education in a neighbourhood school have to study in Class I to IV and in the Vth standard, he will have to shift to another school, which has only V to VII and, on the VII th standard, he will have to shift to another school which has VIII th standard. The standard V WA No.1140/18 & conn.cases -:43:- school, as per the scheme of the Act, ought to be within 1 km from the neighbourhood. But, the child will have to move out to another school which may be far away to continue his education in standard V and thereafter from standard VII, he will have to shift to another school to continue his education. This sort of shifting of school or transfers may create impediment in the child's attitude to continue the studies. That is the whole reason why norms and standards of elementary education had been clearly specified under the statute read with the Schedule thereof; and the statute clearly provides to upgrade the existing schools to ensure that all schools should have Classes I to VIII. The concept of neighbourhood school within a distance of 1 km from the neighbourhood for Classes I to V or 3 kms in respect of VI to VIII, according to us, applies only to establishing of new schools.
37. In Manager, T.K.M.M.L.P. and U.P. School Edakadathy v. State of Kerala and others decided as per judgment dated 25/1/2018 in WA No.2487/2017 and connected cases, the Division Bench proceeded on the basis that instead of establishing additional schools or providing additional WA No.1140/18 & conn.cases -:44:- infrastructure facilities, the provision of providing transportation facilities by the Government cannot be found fault with. This view, according to us, does not conform to the statutory principles enunciated earlier. In fact, in Manager, LPGS Veliyam (supra), the learned Single Judge directed the State Government to ensure that necessary steps required for processing applications for opening new schools/upgradation of existing schools in accordance with the provisions of the RTE Act is put in place within four months from 31/10/2015. Upgradation of existing schools was also one of the obligations that rests on the Government in terms of the RE Act and the Rules framed thereunder.
38. In Kum.Sreya Vinod (supra), a Division Bench of this Court though expressed certain views, it has not considered the scope and effect of Sections 18 and 19 of the RE Act or Rule 6(2) of the 2011 Rules. However, it proceeds on the basis that the neighbourhood school contemplated under the Kerala Rule is not workable and the Government will not be able to establish as many schools as visualised within every 1 km and 3 kms from every homestead wherefrom a child hails for education. With due WA No.1140/18 & conn.cases -:45:- respect, we differ from the above view. The Government having already framed Rules to establish new schools in an area where there is requirement of a new school, it is bound to do so irrespective of any other impediments. Government cannot take shelter under a judgment of this Court expressing a view and indicate that the statute need not be complied with. The learned Advocate General argued that, when transportation facilities are provided, there is no necessity to upgrade the schools. Transportation facilities are to be given only in respect of students coming from hamlets where there is no nearby school and until a nearby school is established in terms of Rule 6(1), and it is not an arrangement which can continue for ever.
39. In the light of the aforesaid discussion, we are of the following view:-
(a) The scheme of RE Act is to provide free elementary education to children from 6 to 14 years in a neighbourhood school.
(b) All schools should be established or existing schools to be continued as per the norms and standards as provided under the Act and Schedule.
WA No.1140/18 & conn.cases -:46:-
(c) The schedule prescribes the norms and standards for schools from Classes I to V and Classes VI to VIII.
(d) Classes I to V schools should be within 1 km from the neighbourhood and Classes VI to VIII within 3 km from the neighborhood.
(e) Schools coming within the definition of S.2(n)(ii) should comply with the norms and standards as specified in the schedule and get recognition, or else such schools cannot function.
(f) All elementary schools should have at least Classes I to V or Classes VI to VIII.
(g) Government and Aided schools having Classes I to IV are to be upgraded to include Classes V to VIII, and such schools having Classes V onwards are to be added with Classes I to IV, depending upon the requirement and on the recommendation of the AEO and local authority.
(h) Rule 2 of Chapter II in KER, is repugnant to the provisions RE Act and Rules, and is void.
(i) Aided schools have to add Class V or VIII as the case may be, to comply with the norms and standard as per the schedule to the RE Act, and the Government cannot refuse the demand on WA No.1140/18 & conn.cases -:47:- the ground that it is not feasible.
40. Hence, we are of the view that the learned single Judge was not justified in arriving at a conclusion that the schools cannot be upgraded, as sought for. That apart, none of the schools as defined under Section 2(n)(ii) of the RE Act, can be recognised as per Sections 18 and 19 of the RE Act, read with Rule 14 of the 2011 Rules. Without such recognition, such schools cannot function. We also do not ascribe to the view taken by the learned single Judge in the judgment dated 3/2/2016 in W.P. (C).No.4188/2016 (Shymol S. v. State).
41. But the view we have taken is contrary to the view expressed by another Division Bench in Manager, T.K.M.M.L.P. and U.P. School Edakadathy v. State of Kerala and others decided as per judgment dated 25/1/2018 in WA No.2487/2017 and connected cases and Kum.Sreya Vinod (supra). Hence, it is only appropriate that the matter be heard by a Larger Bench as the issue involves substantial questions having far reaching consequence, which may result in violation of the RE Act and the 2011 Rules.
42. In some of the schools, they have already started Class WA No.1140/18 & conn.cases -:48:- V or Class VIII, as the case may be, which are not recognised so far. In so far as the academic year is ending, it is only appropriate that the students in such schools be permitted to write the examination in other recognised Government/Aided Schools and the concerned District Educational Authorities shall make arrangements to allow the students to write the examinations on a request being made in that behalf by the concerned Management/Head Master and the results shall be published. It is made clear that, until a final decision is taken in the matter, no schools shall admit students to Class V or VIII, if it has not been sanctioned by the Educational Authorities.
Registry shall place the matter before the Hon'ble the Chief Justice for further orders.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
A.M.BABU
kp/Rp //True Copy// JUDGE
PS to Judge