Allahabad High Court
C/M Of Adarsh Junior High School vs State Of U.P. Thru Secy. And Others on 30 October, 2013
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 32 A.F.R Case :- WRIT - C No. - 39770 of 2012 Petitioner :- C/M Of Adarsh Junior High School Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- K. Ajit Counsel for Respondent :- C.S.C.,Raghvendra Singh Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri K.Ajit, learned counsel for the petitioner and Sri Raghavendra Pratap Singh appearing for respondents no.2, 3 and 4 and the learned Standing Counsel appearing for respondent no.1 and perused the record.
2. In this writ petition the petitioner has prayed for the following relief :
"issue a writ, order or direction including a writ in the nature of mandamus commanding the respondents to grant permanent recognition to the petitioner's institution as per the Government Order dated 13.8.1997 read with 19.5.2012."
3. Briefly stated the facts of the present case are that the petitioner is a junior high school and holds a temporary recognition certification. It is governed by the provision of U.P. Basic Education Act 1972 (hereinafter referred to as the U.P.Act). It is stated in paragraph 5 that the temporary recognition was granted to the petitioner in the year 1974-75 by the District Basic Education Officer, Mainpuri. In the letter of the District Basic Education Officer, Mainpuri dated 24.3.1992 (Annexure-2), it is mentioned that according to the Government Order No. 1784-15-6-90-18- ,l (7)/89 dated 24.7.1990 and the letter of the Director and Chairman, Basic Shiksha Parishad, Uttar Pradesh, Allahabad dated 20.7.1991, the petitioner's college is mentioned in the list of junior schools of Distt. Mainpuri at serial no. 94.
4. The petitioner submitted an application for recognition and application dated 29.10.2011 (Annexure - 6) for recognition of the college and fulfil all the conditions as provided in the aforesaid G.O. dated 19th May, 2011. He submits that his recognition file was forwarded by the District Basic Education Officer, Mainpuri to the Regional Assistant Director of Education (Basic), Agra vide letter dated 28.3.2012 (Annexure - 7). He raised certain objections vide letter dated 4.4.2012 (Annexure - 8) and directed the District Basic Education Officer to send the file after removal of objections by the petitioner college. It is stated in paragraph - 13 that the petitioner removed all the objections vide letter dated 9.4.2012 (Annexure - 9). Thereafter the several correspondences dated 9.5.2012, 14.5.2012 and 6.6.2012 (Annexures - 10, 11 and 12 respectively) took place between the District Basic Education Officer, Mainpuri and the Regional Assistant Director of Education (basic) Agra whereby the Assistant Director of Education (Basic) reportedly returned the recognition file of the petitioner's college on the ground that there is no mention of permanent recognition in the G.O. dated 19.5.2011. He directed that file be not sent again unless any instructions/guidance is received from the level of the Director Education or the State Government. The petitioner moved the representation dated 2.5.2012 before the Basic Shiksha Adhikari, Mainpuri requesting him to grant recognition certificate. In reply to the said representation (Annexure - 13) the Basic Shiksha Adhikari, Mainpuri sent the letter dated 19.6.2012 (Annexure - 14) intimating the petitioner that the Assistant Director has communicated that the recognition file be not sent to him unless appropriate guidance is received from the level of the Director or the State Government.
Aggrieved with non disposal of application for recognition, the petitioner has filed the present writ petition.
Submissions
5. Sri K.Ajit submits that on fulfilment of the required conditions/requirement as provided under the G.O. dated 19.5.2011 as well as Section 18 of the Central Act read with Rule 11 of the Rules 2011, the respondents are under statutory duty to grant recognition. He further submits that it is not the case of the respondents that any of the conditions/requirements statutorily required has not been fulfilled by the petitioner. Sri R.P. Singh appearing for respondents no. 2, 3 and 4 does not dispute the aforementioned submission of Sri K. Ajit but he reiterates the stand taken in paragraphs 5 and 10 of the counter affidavit of Sri Veer Pal Singh Yadav, District BEO, Mainpuri filed on behalf of respondent no.2 i.e. the Director of Basic Education, U.P. Allahabad that the G.O. dated 19.5.2011 does not provide for permanent recognition.
Findings
6. I have considered the submissions of learned counsel for the parties. I find that the Government Order No. 645/15-6-97-18- ,l (7)/89 dated 13.8.1997 was issued by the State Government in exercise of powers conferred under Section 13(1) of the U.P. Act prescribing the conditions/requirement to be fulfilled for recognition in two categories namely, permanent and temporary. Subsequently, Article 21 A was inserted in the Constitution by providing fundamental right of free and compulsory education to all children as under :
"21A. 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."
7. In view of Article 21 A of the Constitution, Parliament enacted "The Right of Children to Free and Compulsory Education Act 2009" (hereinafter referred to as the Central Act). In view of the Central Act and proposed rules the State Government issued G.O. dated 19.5.2011 (Annexure 5) prescribing mandatory conditions, standards and norms to be fulfilled for recognition of schools. Vide notification no. 2510/LXXIX-5-29-09 dated 27.7.2011 the State Government, in exercise of powers conferred under Section 38 of the Central Act enacted the Rules called "The Uttar Pradesh Right of Children to Free and Compulsory education Rules 2011" (hereinafter referred as Rules 2011)
8. Section 18 of the Central Act provides that no school shall be established or functioned without obtaining certificate of recognition from such authority by making an application in such form and manner as may be prescribed. Section 18 and 19 of the Central Act is reproduced below :
"18. No school to be established, without obtaining certificate of recognition.- (1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.
(2) The authority prescribed under Sub-section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed :
Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19.
(3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition:
Provided that such order shall contain a direction as to which of the neighbourhood school, the children studying in the de recognised school, shall be admitted:
Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed .
(4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function.
(5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, 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.
19. Norms and standards for school.- (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 fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil 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."
9. Section 2(n) of the Central Act defines the word 'School' as under:
"(n) "school" means any recognised school imparting elementary education."
The word 'elementary education' has has been defined in Section 2 (f) of the Central Act as under :
"(f) "elementary education" means the education from first class to eighth class ;"
The word 'appropriate government' has been defined in Section 2 (a) as under :
"(a) "appropriate Government" means-
(I) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;
(ii)in relation to a school, other than the school referred to in sub-clause (I), established within the territory of -
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;"
10. Rules 2011 has been enacted by the State Government in Supersession of all existing rules and orders on the subject. Rule 11 of the Rules 2011 prescribes the procedure and conditions for recognition to schools as under :
"11. Recognition to School (Section 18).- (I) Every school other than a school established, owned or controlled by the Central Government, State Government or local authority, established before the the commencement of the Act shall make a self declaration in Form -I to the concerned Zila Shiksha Adhikari, who shall be the authorised officer, regarding its compliance or otherwise with the norms and standards specified in the Schedule and fulfilment fo the following conditions, namely :-
(a) the school is run by a society registered under the Societies Registration Act, 1860 (21 of 1860) or a public trust constituted under any law for the time being in force;
(b) the school is not run for profit to any individual, group or association of individuals or any other persons;
(c) the school is confirms to the values enshrined in the Constitution;
(d) the school building or structures or the grounds are used only for the purposes of education and skill development;
(e) the school is open to inspection by any officer authorised by the State Government or local authority;
(f) the school furnishes such reports and information as may be required by the Zila Shiksha Adhikari/Director of Education or any other authorized officer from time to time and complies with such instructions of the State Government / local authority as may be issued to secure the continued fulfilment of the condition of recognition or the removal of deficiencies in working of the school.
(2) Every self declaration received, in Form-I shall be placed by the Zila Shiksha Adhikari in public domain through website within within fifteen days of its receipt.
(3) The Zila Shiksha Adhikari shall conduct on-site inspection of such schools which claim in Form-I to fulfil the norms, standards and the conditions, mentioned in Sub-rule (I) within three months of the receipt of the self declaration.
(4) After the inspection referred to in sub-rule (3) is carried out, the inspection report shall be placed by the Zila Shiksha Adhikari in public domain and schools found to be conforming to the norms, standards and the conditions shall be granted recognition by the Zila Shiksha Adhikari in Form -II, within a period of 60 days from the date of inspection.
(5) The list of schools which do not conform to the norms, standards and conditions mentioned in sub-rule (I) shall be prepared and made public by the Zila Shiksha Adhikarithrough a notification mentioning the deficiencies and shall be displayed on website. Such schools may request the Zilsa Shiksha Adhikari for an on - site inspection for grant of recognition any time within the next two years.
(6) Schools, which do not conform to the norms, standards and conditions mentioned in sub-rule (1) even after three years from the commencement of the Act, shall cease to function.
(7) Every school, other than a school established; owned or controlled by the Central Government, State Government or local authority established after the commencement of the Act shall conform to the norms standards and conditions mentioned in sub-rule (1) in order to qualify for recognition.
(8) Every Zila Shiksha Adhikari shall maintain a register of recognized schools and allot a number to every such school."
Rule 12 of the Rule 2011 provides for withdrawal of recognition to schools.
11. It is not disputed by learned counsel for the respondent no.2, 3 and 4 or in the counter affidavit filed on behalf of respondent no.2 that the petitioner fulfils the prescribed conditions/requirements as provided in Section 18 of the Central Act, Rule 11 of the Rules 2011 and the G.O. dated 19.5.2011. The stand of the respondents is that the G.O. dated 19.5.2011 does not provide for permanent recognition of the institution.
12. From the provisions of Section 18 of the Central Act read with Rule 11 of the Rules 2011 and the G.O.dated 19.5.2011, it is absolutely clear that no school other than a school established, owned or controlled by the appropriate government or local authority shall after the commencement of the Central Act, be established or functioned, without obtaining a certificate of recognition from the prescribed authority for which application is to be submitted in the prescribed form and manner. The norms and standards have been specified in the schedule appended with the Central Act. Conditions for recognition have been prescribed in Rule 11. Scrutiny of scheme of recognition as provided under the Central Act read with Rules 2011 and the G.O.dated 19.5.2011 goes to show that now only "recognition certificate" is required to be issued. The prescribed authority empowered to grant recognition is bound to grant recognition as per procedure prescribed if application/declaration submitted by an institution for recognition is in order and such applicant institution fulfils the prescribed conditions, standards and norms. The prescribed authority cannot keep pending the declaration or the application for recognition beyond the period prescribed in Rule 11 of the Rules 2011. If such declaration or application is kept pending for longer period than prescribed then the very object of guaranteeing fundamental right under Article 21 A of the Constitution for free and compulsory education to all children of the age of 6 to 14 years cannot be achieved even though the Parliament has enacted the Right of Children to Free and Compulsory Education Act 2009 and the State Government has also enacted the Uttar Pradesh Right of Children to Free and Compulsory Education Rules 2011.
13. In view of the above discussions, this Court is of the view that the prescribed authority has failed to discharge its statutory obligation under Section 18 read with Rule 11 of the rules 2011 by keeping the application of the petitioners pending since the year 2011. Under the facts and circumstances this Court finds it appropriate to issue following directions:
(i) The petitioner shall submit a certified copy of this judgment along with necessary documents within four weeks before the respondent no.4.
(ii) The respondent no.4 shall, thereafter, pass appropriate order for recognition of petitioner's institution in accordance with law within a further period of two months.
14. In result the writ petition succeeds and is allowed with the aforesaid directions.
Order Date :- 30.10.2013 Ashish Pd.