State Of Odisha vs School Managing Committee Of ... on 29 October, 2024

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Orissa High Court

State Of Odisha vs School Managing Committee Of ... on 29 October, 2024

1. A learned Single Judge of this Court, by a common judgment and order dated 04.05.2021 passed in W.P.(C) No.27401 of 2020 W.A No.417 of 2021 Page 2 of 70 (School Managing Committee of Amaramunda Government Primary School, Amaramunda v. State of Odisha and others) and six other writ applications has held the policy of rationalization and consolidation of schools framed by the School and Mass Education Department, Government of Odisha, dated 14.05.2018, the consequential Notification No.5465(SME), dated 11.03.2020, and the implementation guidelines issued vide Office Memorandum No.5538/SME., dated 11.03.2020, concerning the said policy of rationalization and consolidation of schools as illegal. The Learned Single Judge has accordingly quashed the said Notification No.5465/SME., dated 11.03.2020, the Office Memorandum No.5538/SME., dated 11.03.2020 and a subsequent corrigendum issued on 14.12.2020, with a direction to the State of Odisha and its officials to restore back the position of the schools to the stage where they were, prior to the implementation of the policy of rationalization. Learned Single Judge has treated the case of School Managing Committee of Amaramunda Government Primary School, Amaramunda (in short SME Amaramunda) as the lead case; the facts asserted in the said writ application are manifestly the basis for the conclusion arrived at by W.A No.417 of 2021 Page 3 of 70 learned Single Judge, while addressing the statutory provisions under the Right of Children to Free and Compulsory Education Act, 2009 (in short RTE Act) and the Odisha Right of Children to Free and Compulsory Education Rules, 2010 (in short ORTE Rules).

2. The said common judgment and order passed by the learned Single Judge in W.P.(C) No.27401 of 2020 is under challenge in the present intra-Court appeal preferred by the State of Odisha.

3. It is noted that the impugned common judgment and order of learned Single Judge was stayed by an order dated 20.07.2021 passed by a Co-ordinate Bench of this Court, which interim order is continuing.

4. We have heard Mr. Ashok Kumar Parija, learned Advocate General assisted by Mr. T. K. Pattnaik, learned Additional Standing Counsel appearing on behalf of the appellants-State of Odisha, Mr. Amiya Kumar Mohanty (A) and Mr. K.K. Swain, learned counsel for the respondents and Mr. Gautam Mishra, learned Senior counsel and Mr. A.K. Pandey, learned counsel appearing on behalf of the intervenors.

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5. Based on the submissions advanced on behalf of the parties in the factual backdrop of the case, following three legal questions of seminal significance have emerged to address the challenge put to the impugned judgment of the learned Single Judge: -

(i) Whether any provision under the policy of the State Government of Odisha of rationalization and consolidation of schools as contained in Notification No.5465 (SME) dated 11.03.2020 and the Office Memorandum No.5538/SME dated 11.03.2020 can be termed as--

(a) violative of Article 21A of the Constitution of India,

(b) any provision of the Right of the Children to Free and Compulsory Education Act, 2009 or,

(c) Odisha Right of Children to Free and Compulsory Education Rules, 2010?

(ii) Clause 24 of the Office Memorandum containing implementation guidelines prescribes for post-consolidation grievances to be taken up by a Grievance Redressal Cell in the District office and then to the State Grievance Cell and OSEPA. In that background, W.A No.417 of 2021 Page 5 of 70 whether the maxim nemo judex in re sua, i.e., no man can be a judge in his own cause applies, on the ground that the grievance cell is chaired by the District Collector which is to be referred to the State Grievance Cell and the OSEPA?

(iii) Whether the aforesaid rationalization policy can be held to be illegal on the ground that there is no such stipulation under the RTE Act or the ORTE Rules?

(iv) Whether the opinion recorded by the learned Single Judge that there is no provision under the RTE Act or the rules for merger/consolidation of primary/upper primary schools with the high schools is legally sustainable?

6. It would be apposite to notice briefly at the threshold, the reasons recorded by the learned Single Judge for quashing rationalization of schools policy of the State Government issued vide Notification No.5465 dated 11.03.2020 and the Office Memorandum No.5538 dated 11.03.2020, unconstitutional and illegal. Reasons for quashing which can be summarized as under: -

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(i) The RTE Act and the RTE Rules do not permit the State Government to merge or consolidate schools;

(ii) The RTE Act and the RTE Rules do not allow merger of schools on the roll strength of its students;

(iii) Nowhere in the RTE Act and the Rules there is a provision for merger of primary/upper primary schools with high schools;

(iv) The State Government's policy of merger that consolidates primary/upper primary schools with high schools is contrary to the RTE Act and the Rules, since Rule 2(F) of the Act defines elementary education from Class-I to VIII only and the RTE Act and the Rules do not make provisions for merger of primary/upper primary schools with high schools;

(v) The merger of schools is contrary to the schedule in the RTE Act which mandates that the schools with Class-I to V and with students up to roll strength of 60 must have at least two teachers;

(vi) The Grievance Redressal Cell provided in the implementation of guidelines is an empty formality and violates principles of natural justice which as no one can be judge in his own cause and the Government officials are part of the Grievance Redressal Cell;

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(vii) The merger in W.P.(C) No.27401 of 2020 violates the distance norms as it merged Amaramunda Government Primary School into Laxmanpali Project UP School, based on the information received from the Google Maps;

(viii) The merger policy of the State Government is manifestly arbitrary, unconstitutional and de hors the provisions of the RTE Act and the RTE Rules.

7. Mr. Ashok Kumar Parija, learned Advocate General, assailing the impugned judgment, has submitted that neither the RTE Act nor the Rules prohibit merger of schools. He contends that the merger of school policy is devised at the level of Central Government by domain experts, based on empirical analysis and it furthers the objectives of a nation-wide reform to improve quality education. He has referred to the draft guidelines for rationalization of small schools across the States for better efficiency, issued by the Government of India through letter dated 07.07.2017 addressed to all the Secretaries of School Education, Sarva Sikshya Abhiyan of the States and Union Territories which was a pre-cursor for finalization of the guidelines. The Government of India has noted in paragraph 5.2.3 of the said document that running a school with only 15 or 30 students was, in the opinion of W.A No.417 of 2021 Page 8 of 70 the Central Government, was more challenging than running one with 60 or more students.

8. The access to school has been re-conceptualized under the RTE Act as it has brought a wider and more functional dimension to it and recognizes need for a more functional understanding of ―access‖ and goes beyond ―mere physical access to schools‖. Mr. Parija has submitted that consolidation and rationalization of schools was one of the steps recommended by NITI Aayog to improve the quality of education. He has argued that the draft guidelines dated 07.07.2017 acknowledge existence of ―surplus schools‖ and ―low enrolment schools‖ adversely affecting the provisions of resources, teaching and learning processes, retention of children in schools and learning outcomes. Many localities or the villages have two or more Government schools without feasible enrollment. The consolidation of schools improves teacher-pupil ratio in larger schools and consolidation of small schools will improve the factors, like ― to promote access to quality education‖ and that shall be in the ―best interest‖ of the child. Low enrolment schools also have shortage of W.A No.417 of 2021 Page 9 of 70 teachers in classrooms and multi-grade teachers that leads to low involvement in community. The draft guidelines further make it clear that the process of rationalization of small schools will adhere to the neighbourhood norms as defined in the RTE Rules of the States/ Union Territories, he contends It was in that background that the State of Odisha has formulated its policy for rationalization of schools taking into account the concerns expressed in the draft guidelines dated 07.07.2017. He has also argued that the policy of the merger and rationalization offers made by the State of Odisha was hugely appreciated by NITI Aayog through its communication dated 19.11.2018. On 25.02.2019, the State Government notified transport/escort facilities for children of elementary schools in exercise of its power under Rule 6(4) of the RTE Rules to mitigate difficulties arising out of merger of the schools. Further, for children travelling beyond 1 km to attend primary school and beyond 3 kms to attend upper primary school, a transport/escort allowance has been provided by the State Government of up to Rs.6,000/- per annum. Later, superseding the 2018 policy, the State Government notified its second policy titled ―Rationalization and Consolidation of Schools‖ on 11.03.2020 (the 2020 Policy).

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9. Mr. Parija further argues that the 2020 Policy has stipulated a clear policy that the Government Primary/Upper Primary/Secondary Schools with low enrollment and having another elementary/secondary school within reasonable distance are to be consolidated with nearby schools with better enrollment and/or better infrastructure. Further, during consolidation, RTE distance norms for access to Primary/ Upper Primary schools is required to be followed. Alternatively, transport/escort allowance as per RTE norms was to be provided. There is provision for ―one-time facilitation allowance‖ for any child who moves from the satellite school to the lead school. The 2020 policy contemplates exemption from merger in case of Geographical/ natural barriers, limited to rivers without bridges, mountains, forests, national Highway without subways or over bridge, where access and safety is a challenge. In such cases, the Government may decide to relax the norm on a case-to-case basis.

10. Mr. Parija further contends that nothing in the 2020 policy violates neighbourhood norms under Rule 6(1) read with 6(4) of the RTE Rules. The State Government notified the ‗implementation W.A No.417 of 2021 Page 11 of 70 guidelines for the policy of rationalization and consolidation of schools' while Memorandum No.5538 dated 11.03.2020 to set out the modalities of consolidation process (the implementation guidelines). The said implementation guidelines dated 11.03.2020 stipulates two types of mergers, namely, schools having less than 20 students in Non- Scheduled areas and Scheduled areas; and primary schools having enrollment less than 40 in Non-Scheduled areas and less than 25 in Scheduled areas. He has argued that under the policy, two-step Grievance Redressal Mechanism for any grievance against consolidation process has been put in place. First step is the Grievance Redressal Cell in the district office and the second is the State Grievance Cell and the Odisha School Education Programme Authority (OSEPA). He has argued that as a matter of fact, the State Government has been responsive to the grievances against mergers of schools, in appropriate cases. The persons aggrieved by merger of schools have approached the State Government on a case-to-case basis, and based on such grievance the State Government has already de-merged 43 numbers of merged schools.

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11. Mr. Parija, learned Advocate General has submitted that in case of Rajneesh Kumar Pandey v. Union of India; (2021) 17 SCC 1, referring to children with special needs (CwSN), it has been observed that possibility of merging unviable special schools with relatively viable special schools in the neighbourhood should be explored so as to entail in consolidation of assets and resources for better delivery to the requirements of CwSN. While reiterating his submission that neither the RTE Act nor the RTE Rules prohibit merger of schools as part of rationalization, he submits that the policy of merger of schools has a reasonable nexus with the objectives of the right to education under Article 21A of the Constitution. The policy of merger and rationalization is based on two criteria; viz., the distance between schools and the roll strength of the school. Its purpose is to address the problem of low enrollment schools across the country and improve the quality of education. He has submitted that the finding of the learned Single Judge that the RTE Act and the RTE Rules prohibit the State Government from notifying merger policy which goes beyond elementary education is baseless as the State is well within its powers to regulate primary, upper primary and secondary schools under Article W.A No.417 of 2021 Page 13 of 70 162 of the Constitution of India, without breaching the provisions under the RTE Act and Rules.

12. Refuting the contentions of the writ petitioner that the merger policy is hit by Rule 6(1) of the RTE Rules, he argues that Rule 6(1) of the Rules should be read with Rule 6(4) thereof. Rule 6(4) of the Rules allows relaxation to the neighbourhood principle in certain cases and states that for children of small hamlets where no school exists within the area of limits of neighbourhood, the Government/Local authority shall make adequate arrangements for providing elementary education in relaxation of the limits in Rule 6(1) of the RTE Rules. The merger policy of the State Government has been framed upon balancing the considerations of physical availability of school within the neighbourhood and qualitative factors to enable better learning outcomes such as sufficient enrollment, infrastructure, mentorship, teacher-pupil ratio. Further, the policy stipulates adequate arrangements for transport/escort allowance in case the school is beyond 1 km from a village. Secondly, the yardstick of the school merger is the school-to-school distance. Each case of merger of schools will be required to withstand independent scrutiny against the W.A No.417 of 2021 Page 14 of 70 neighbourhood principle. Illustratively, he submits that it may so happen that two schools with less than 10 students which are 1.5 kms from each other are merged. However, if both the schools are within the same neighbourhood, the neighbourhood principle is not violated.

13. Assailing the impugned judgment of the learned Single Judge, Mr. Parija has further submitted that the learned Single Judge has not held that paragraph 3(A)(1)(a) of the said policy is ultra vires nor it has been held that the neighbourhood principle has been violated. The 2020 policy of the State Government specifically stipulates that during consolidation, the RTE distance norms for access to primary/upper primary schools may be followed and alternatively, transport/escort allowance as per the RTE norms to be provided. He submits that a challenge to State policy cannot be maintained on a plea of its erroneous application. The persons aggrieved by specific cases of merger of schools have remedy to approach the grievance redressal bodies. The finding of the learned Single Judge that the merger was bad in case of Amaramunda Government Primary School with Laxmanpali Project UP School because the distance between two W.A No.417 of 2021 Page 15 of 70 schools was found to be 2.9 kms i.e. more than permitted distance of 1 km is wholly unsustainable for two reasons, he argues. Firstly, there is no finding that because of the merger of two schools, the neighbourhood requirement under the RTE Act or the Rules was violated. The distance between two schools to be merged cannot be a criterion to hold that such merger violates the neighbourhood principle. Secondly, the learned Single Judge has recorded the said finding based on Google Maps, while denying the stand taken in the counter affidavit by the State of Odisha. The said finding is impermissible under the Evidence Act. It was specifically pleaded in the counter affidavit that the distance between the aforesaid two schools was 0.8 km. Further, the finding of the learned Single Judge verges on perversity while recording that there is reserve forest between the roads leading from Amaramunda to Laxmanpali and wild elephants cross the road frequently. The said finding is based on newspaper reports which have not been verified. He submits that no such reserve forest exists between the schools.

14. Mr. Parija has relied on the Supreme Court's decision in case of All India Council for Technical Education v. Surinder Kumar W.A No.417 of 2021 Page 16 of 70 Dhawan; (2009) 11 SCC 726 to submit that an expert body's policy decision must be given deference by the Courts and writ Courts cannot substitute the domain experts' views with its own.

15. Per contra it has been argued on behalf of the respondents that the learned Single Judge has taken a correct view holding the merger policy to be violative of Article 21A of the Constitution and the provisions under the RTE Act and the Rules.

16. Mr. K.K. Swain, learned counsel appearing on behalf of the respondents has submitted that the plea taken on behalf of the appellants/State of Odisha of providing transport facilities in case there is no school within the limits of distance is impermissible under the RTE Rules, 2010. He has submitted that Section 20 of the Act confers upon the Central Government a power to amend the schedule. The policy by the State Government is violative of Section 20 of the Act. He has further argued that Rule 6(2) of the Rules permits upgradation but not merger of two schools.

17. Mr. A.K. Pandey, learned counsel appearing on behalf of the intervenors has submitted that the policy of merger of schools is by W.A No.417 of 2021 Page 17 of 70 way of executive instructions which cannot supersede statutory provisions. Similar submissions have been advanced on behalf of the respondents to the effect that the executive instructions cannot override the statutory provisions. Reliance has been placed on the decisions of the Supreme Court in case of Punjab Water Supply & Sewerage Board v. Ranjodh Singh; AIR 2007 SC 1082, Lok Prahari v. State of Uttar Pradesh; (2016) 8 SCC 389, Vinod Kumar Koul v. State of Jammu and Kashmir; (2012) 11 SCC 247 as well as this Court's decisions in case of Santosh Kumar Sahu v. District Judge, Kalahandi-Nuapada; 2009 (Supp-II) OLR 757 and Lakshmikanta Mishra v. State of Odisha; 2017 (Supp-II) OLR 1055 in support of the contention that an executive instruction cannot supersede statutory provisions.

18. Mr. Gautam Misra, learned Senior Counsel has appeared on behalf of the intervenors in the present case. It is noteworthy that the intervenors had filed a writ petition registered as W.P.(C) No.2006 of 2018 which was disposed of by an order dated 02.06.2021 in the light of the common judgment dated 04.05.2021 passed by the learned Single Judge, which is impugned in the present writ appeal. W.A No.417 of 2021 Page 18 of 70 Accordingly, defending the impugned judgment, the said intervention application has been filed. Mr. Misra has submitted that the learned Single Judge, after delivering the lead judgment, has passed several similar orders. However, a single writ appeal has been filed. Relying on the Supreme Court's decision dated 18.05.2022 passed in SLP(C) No.28065 of 2019 (State of Odisha v. Niranjan Biswal), he has submitted that the present writ appeal should not be entertained and on the said ground alone, this writ appeal deserves to be dismissed.

19. In response to the said submission made on behalf of the intervenors, it has been submitted by Mr. Parija, learned Advocate General that separate writ appeals have been filed vide W.A. Nos.350, 360, 361, 354, 332 and 349 of 2024 arising out of W.P.(C) No.11704 of 2020, W.P.(C) No.14289 of 2021, W.P.(C) No.30808 of 2020, W.P.(C) No.2600 of 2021, W.P.(C) No.8275 of 2021 and W.P.(C) No.11603 of 2021 respectively.

20. Intervention applications have also been filed vide I.A. No.1858 of 2021, I.A. No.1989 of 2021 and I.A. No.1738 of 2021, who claim to be the guardians of the students of Amaramunda Government Primary W.A No.417 of 2021 Page 19 of 70 School and have been elected as Chairman of School Management Committees of respective schools under the provisions of the RTE Act. Mr. Amiya Kumar Mohanty (A), learned counsel representing respondents No.1 and 2 has addressed this Court on behalf of the said intervenors-applicants and has supported the impugned judgment passed by the learned Single Judge. It has been argued inter alia that the facts asserted in the additional affidavit filed on behalf of the appellants should not be taken into account as they cannot be permitted to improve their case by filing affidavit to supplement the reasons to support the sustainability of Rationalization/Merger Policy of the schools in question. It has been argued that before merging the schools, the State Government had called for reports from their own agencies based on which the policy was framed for merger of the schools, without giving any opportunity to the members of the School Management Committee. He has adopted the submissions advanced by Mr. Gautam Misra, learned Senior Counsel appearing on behalf of the Interveners in I.A. No.3863 of 2022.

21. It has been argued that Clause 8(C) of the Office Memo dated 11.03.2020 states that consolidation is not possible in case of natural W.A No.417 of 2021 Page 20 of 70 barriers such as rivers without bridge, mountains, forests, national highways without subways or over bridges where access and safety is challenged. Relying on a newspaper report, it has been argued that in case of Amaramunda Government Primary School, the merger is impermissible in view of Clause 8(C) as the news item specifically mentions about the forest situated under Agalpur Block. This fact has not been denied in the counter affidavit and, therefore, merger of Amaramunda Government Primary School and Laxmanpali Project Upper Primary School is impermissible because of the intervening Chheliapur forest.

22. Before proceeding further, at this juncture, while formulating the issues involved in the present appeal, we must notice following settled legal principles, which hardly require any elaboration: -

I. If there is a statutory provision of binding nature on a matter, the executive must abide by the same and it cannot, in exercise of its executive powers under Article 162 of the Constitution, ignore or act contrary to them. The statutory Rules cannot be modified or superseded by the administrative instructions. However, if the Rules are silent on any particular point, the appropriate Government can fill up the gap and W.A No.417 of 2021 Page 21 of 70 supplement the Rule and issue instructions, not inconsistent with the Rules already framed.

II. A policy decision of the executive is subject to judicial review, inter alia, broadly on following grounds: -

a. If such policy is unconstitutional or dehors the statutory provisions;

b. If the delegate has acted beyond its power of delegation; and c. If the executive policy is contrary to a larger policy.

III. It is permissible to take the aid of Statement of Objects and Reasons of an enactment of an Act or Rule to interpret a statutory provision. It is also permissible to apply the mischief rule for interpretation of a statutory provision i.e. to find out the evil which the statute sought to remedy.

23. Keeping in mind the aforementioned settled legal positions, so as to address the issues arising out of the challenge to the impugned judgment of the learned Single Judge in the wake of the submissions that have been advanced on behalf of the parties as noted above, we following questions have emerged for consideration:-

i. Whether the Policy of Rationalization And Consolidation Of Schools of the State Government of Odisha (School and Mass Education Department) contained in the Notification dated 11.03.2020 W.A No.417 of 2021 Page 22 of 70 is violative of Article 21A of the Constitution or any statutory provision under the RTE Act or RET Rules; which contemplates consolidation of schools and upgradation and introduction of lower classes in schools, framed with an aim to efficient utilization of the State resources and improvement of quality education?

ii. Whether the Policy of Rationalization/Merger of Schools in question has rightly been held by the learned Single Judge to be unconstitutional and illegal on the ground that the ―roll strength‖ has been made the basis for merger/rationalization? Stated differently, whether rationalization/merger of schools on the basis of roll strength violates any provision under the RTE Act or the RTE Rules?

iii. Whether the opinion recorded by the learned Single Judge that there is no provision for merger/consolidation of primary/upper primary schools has been recorded without noticing Rule 6(2) of the RTE Rules?

iv. Whether the grievance redressal mechanism incorporated in the policy decision can be said to be violative of principles of natural justice based on the doctrine i.e. No one can be judge in his own case and an empty formality on the ground that the said grievance redressal W.A No.417 of 2021 Page 23 of 70 cell is created by the Government and the Government officers are members of the said cell?

v. Whether learned Single Judge is correct in his opinion that the grievance redressal mechanism is unsustainable because the RTE Act and Rules do not contemplate such mechanism on a presumption that the persons shall not get justice, since such cells have Government officers to look into the grievances?

vi. Whether the finding of the learned Single Judge, with reference to the case of Amaramunda Government Primary School and Laxmanpali Project Upper Primary School based on distance between the two schools instead of the concept of ―area or limits of neighborhood‖ is sustainable based on legal reasoning in view of the provisions of Rule 6 of the RTE Rules?

vii. Whether learned Single Judge has committed an error by relying on the information derived from Google map to reach a finding as regards the distance between Amaramunda Government Primary School and Laxmanpali Project Upper Primary School to deny, despite the statement made in the counter affidavit that the distance between the two schools was 800 meters?

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viii. Whether learned Single Judge was correct in recording a finding that there is a reserve forest between road leading from Amaramunda Government Primary School to Laxmanpali Project Upper Primary School and wild animals cross the road frequently, based on newspaper reports to the effect that Amaramunda Government Primary School was adjacent to Cheliapat reserve forest?

ix. Whether, in any event, the Notification No.5465 dated 11.03.2020 and the consequential Notification No.5538 dated 11.03.2020 and the corrigendum dated 14.12.2020 could be held to be unsustainable being violative of the mandate of Article 21 of the Constitution, provisions of the RET Act and the RTE Rules?

x. Whether the discussion made in the impugned judgment from paragraphs 65 to 70 has any foundation based on the pleadings or submissions made/advanced on behalf of the parties? CONSIDERATION:

24. For better appreciation of the legal and factual issues involved and points raised, we deem it apposite to briefly mention the various parts of the impugned judgment of the learned Single Judge. W.A No.417 of 2021 Page 25 of 70

25. The judgment of the learned Single Judge runs in 74 paragraphs. Paragraph 1 to 4 contain the reliefs sought in the writ petition, paragraph 5 mentions the factual matrix of W.P.(C) No.27401 of 2020. Paragraphs 6 to 11 contain the submissions advanced on behalf of the petitioners in different cases. Paragraph 12 is the submission advanced on behalf of the State. In paragraph 13, the orders dated 09.03.2021, 07.04.2021 and 12.04.2021 have been quoted, that relate to directions issued by this Court for production of the relevant file dealing with the decision of merger of the schools. Relevant parts of the noting of the concerned file have been quoted in paragraph 14. Paragraph 15 refers to the appearance of the parties. In paragraph 16, the learned Single Judge, in the said judgment, has referred to the kinds of merger/consolidation of schools, namely, horizontal consolidation, vertical consolidation, physical consolidation and administrative consolidation as contained in the notification dated 11.03.2020 which provides for mechanisms/ modalities relating to consolidation/merger of the schools. The learned Single Judge, thereafter, has framed the following question:

"whether the State Government can take a policy decision for merger of schools on the basis of roll strength or not. The note sheets, which have been W.A No.417 of 2021 Page 26 of 70 referred to above, clearly indicate that the Government have taken all endeavour for merger of schools purely on the basis of roll strength and while taking such steps the constitutional mandate read with statutory provisions have been given a go by?"

26. Article 21-A, Article 246 and Entry-25 of Concurrent List-III (Education) have been quoted in paragraph 17. As the controversy is about the Education which is in Entry-25 of the Concurrent List-III, the learned Single Judge has dealt with the definition of Education in paragraph 18 with reference to the decisions in Barry v. Hughes, (1973) 1 All ER 537, P.A. Inamdar v. State of Maharastra, (2005) 6 SCC 537, Lok Shikshana Trust v. I.T. Commissioner, Mysore (1976) 1 SCC 254, T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, Avinash Mehrotra v. Union of India, (2009) 6 SCC 398.

27. After having considered the aforesaid judgments, the learned Single Judge has opined in paragraph 19 as under:

"19. Right to education includes right to safe education. Education is the brining up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of W.A No.417 of 2021 Page 27 of 70 literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with "learning"."

28. In paragraph 20, the Statement of Objects and Reasons of enacting RTE Act has been quoted. Paragraphs 21 and 22 refer to various Supreme Court's decisions on the point that it is permissible to take aid of the Statement of Objects and Reasons for understanding the background, the antecedent, the state of affairs and, the evil which a statute sought to remedy. The provisions of the RTE Act and Rules have been quoted in paragraph 24. After having noticed various provisions under the RTE Act and the RTE Rules, the learned Single Judge has opined in paragraph 26 as under:

"26. xxx xxx xxx xxx Therefore, combined reading of Act, 2009 and Rules, 2010, no where there is any provision for merger/consolidation of primary/upper primary schools with high schools. Therefore, the notification no.5465 dated 11.03.2020 regarding consolidation of various types of schools including high schools with classes VI to X, I-X or IX-X with primary and upper primary school, is contrary to the provisions of the Act, 2009 and Rules, 2010, as the very definition of elementary education as provided under Section 2 (f) of the Act, 2009 means the education from first class to eight class. Therefore, the Government has issued the notification no.5465 dated 11.03.2020 without taking into consideration the constitutional mandate W.A No.417 of 2021 Page 28 of 70 as well as statutory provisions, namely, Act, 2009 and Rules, 2010. Thereby, the same cannot sustain in the eye of law."

29. The learned Single Judge has further held in paragraphs 27 and 28 as under:

"27. The table relating to distance and enrollment norms for consolidation in the notification no.5465 dated 11.03.2020 wherein secondary schools beyond class-VIII have been given contrary to the Act, 2009 and Rules, 2010. In the table, a primary school having roll strength less than 40 in respect of nonscheduled area and less than 25 in respect of scheduled area can be consolidated, is also contrary to the provisions of the Act, 2009, wherein it has been prescribed for classes having I-V admitted children up to 60, two teachers are required. Therefore, when there is no minimum roll strength prescribing for a primary school under the Act, 2009 and the Rules, 2010, the notification no.5465 dated 11.03.2020 fixing the minimum roll strength prescribed as per the table in respect of primary schools, i.e., less than 40 in respect of non-scheduled area and less than 25 in respect of scheduled area is contrary to the statute and, as such, the same cannot sustain in the eye of law.

28. In respect of the upper primary school the roll strength has been prescribed less than 50 in respect of non-scheduled area and less than 40 in respect of scheduled area, is also contrary to the schedule appended to the Act, 2009, though while issuing the notification in the office note deals with some factual matrix with regard to natural barriers, but the same has not taken up under Rule-6 of Rules, 2010, which W.A No.417 of 2021 Page 29 of 70 clearly provides that the area or limits of neighbourhood school can be reduced."

30. Overruling the submission advanced on behalf of the State that the policy of rationalization and consolidation of schools was introduced with certain objectives, the learned Single Judge has held in paragraph 29 as under:

"29. xxx xxx xxx xxx But, when the government notification no.5465 dated 11.03.2020 itself runs contrary to Article 21-A of the Constitution and provisions of Act, 2009 and Rules, 2010, the mechanism provided for consolidation/merger of various category of school is not acceptable. Besides that, when the very purport of the Act, 2009 and Rules, 2010 is to provide at least one school within a walking distance of one km. of the neighbourhood, in that case, the State Government cannot and could not take steps for abolition of schools which are already there and catering to the needs of the local people. Therefore, in the guise of merger/consolidation of the schools, the very purpose of the Act, 2009 and Rules, 2010 has been frustrated. Thereby, the impugned notifications cannot sustain in the eye of law."

31. On the point of availability of Grievance Redressal Cell in case any party had any grievance consequent upon consolidation or merger of schools, the learned Single Judge has held in paragraphs 30 and 31 and under: -

W.A No.417 of 2021 Page 30 of 70

"30. By virtue of the notification no.5465 dated 11.03.2020, an alternative Grievance Redressal Cell has been created, which can examine the specific grievance of any party during post consolidation period, is of no use as once consolidation/merger is made any sort of grievance redressal by the alternative forum may lead to an empty formality as the Grievance Redressal Cell is created by the Government itself and the government officers are the members of the said cell. Besides that, such Grievance Redressal Cell in the district office or anywhere is being contrary to the Act, 2009 and Rules, 2010. Thereby, the same is of no use.

31. Law is well settled by catena of decisions of the apex Court as well as this Court that no man should be a Judge of his own cause, which is violative of principles of natural justice. Meaning thereby, having a Grievance Redressal Cell with some government officers, the petitioners will not get justice. Thereby, it is only an empty formality and an eye wash for implementation of the notifications, as referred to above order, and as such, the same is contrary to the provisions of law. Thereby, the impugned notifications issued by the government cannot sustain in the eye of law."

32. Dealing with the case of the petitioner in W.P.(C) No.27401 of 2020, the learned Single Judge has recorded his finding in paragraph 32 as under: -

"32. Coming to the petitioner‟s school in W.P.(C) No.27401 of 2020, no doubt the student strength of the petitioner‟s school was 33 for the academic session 2019-20, as the petitioner‟s school was not given W.A No.417 of 2021 Page 31 of 70 permission for admission of students in respect of ClassI during the session 2020-21. Had the permission been given to the petitioner‟s school to admit students in Class-I, then the students strength of the school would have been beyond 40, as nine guardians of the village were interested to admit their wards in class-I of the said school. With regard to distance between Amaramunda Government Primary school and Laxmanpali Project Upper Primary school, the same is more than 1 km., i.e., 2.9 kms, which is evident from google map. But in the counter affidavit, the distance between the Amaramunda Government Primary school to Laxmanpali Project Upper Primary school has been shown as 800 meters. The same is beyond the actual fact and record available. The joint inquiry report, which has been placed under AnnexureB/1 to the counter affidavit, cannot be relied upon as the distance between two schools is 2.9 kms. The further contention made in the counter affidavit that there is no natural barriers like ponds, rivers, deep forest and traffic congestion between the lead school and the satellite school is also not correct, as there is reserve forest between the road leading from Amaramunda to Laxmanpali and wild elephants are crossing the road frequently which has come out in various newspapers stating that village Amaramunda is adjacent to Cheliapat reserve forest. Therefore, at the caprice and whims of the authority, merger of schools have been made, which is a disadvantage to the local people and also contrary to the constitutional mandate as well as the provisions of the Act, 2009 and Rules, 2010. Thereby, the impugned notification no.5465 dated 11.03.2020 and consequential notification no.5538 dated 11.03.2020, i.e., guidelines for implementation of policy for rationalization and consolidation of schools, and also corrigendum issued on 14.12.2020, cannot sustain in the eye of law."

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33. Paragraphs 34 to 40 referred to various Supreme Court's decisions on the scope of judicial review of Government policy. In paragraph 42, the learned Single Judge has held, based on the appreciation of the note-sheet of the original file that the provisions under the Act and the Rules were not taken note of and, therefore, the Court had the jurisdiction to interfere with the decision-making process. Paragraph 42 of the judgment is important for adjudication of the present matter and is being reproduced herein below:

"42. On perusal of the relevant note-sheets, referred to above, it reveals that while taking a decision, the authorities have not taken note of the provisions contained in Act, 2009 and Rules, 2010, as discussed above. Therefore, this Court has jurisdiction to interfere with the decision making process, as has been held by the apex Court in catena of decisions. If in the decision making process there is non- compliance of the statutory provisions, then ultimate decision suffers from illegality and irregularity, with which the Court can interfere. In view of such power, this Court examined the government notification and consequential office memorandum dated 11.03.2020 and found that both are violative of statutory provisions governing the field."

34. In paragraph 43, the learned Single Judge has referred to the Supreme Court's decision in case of Delhi Development Authority v. Joint Action Committee, (2008) 2 SCC 672, which inter alia lays down W.A No.417 of 2021 Page 33 of 70 the grounds for judicial review of a policy decision which includes, ―if the executive policy is contrary to the statutory or a larger policy‖. Paragraphs 44 to 54 are the quotes from various decisions of the Supreme Court on the point that executive instructions cannot amend or supersede the statutory rules. In paragraph 55, a decision rendered by the Rajasthan High Court has been referred to whereas paragraph 56 refers to an interim order passed by a division Bench of Uttarakhand High Court.

35. Paragraphs 58 to 72 contain the discussions, which read as under:

"58. Applying the said principles, children in elementary schools should be our first concern. The rise in the literacy rates in various States over the years is primarily due to better inputs in (formal) primary education.

59. When then base is weak, everything remains weak in later years. In half-hearted primary education, all efforts to reform secondary or higher education will prove to be futile exercise.

60. Unfortunately the authorities of the system do not seem to realize this natural phenomenon, because, they themselves have no stakes in this system; they follow for their wards the "other" system of public and model schools which often has a sound basis. However, for the general run of the people, the only resort is the prevalent system run by different authorities, who swim or sink in it.

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61. Elementary education obviously requires maximum attention in respect of academic, administrative and financial inputs. Many academic and administrative measures are equally important- as the purpose is not only to have funds but also to spend them most honestly and gainfully. This calls for wholesale decentralization of powers and active involvement of local communities and panchayats.

62. With the avowed objectives of giving education to the children of the locality, lands had been donated by the then generous people for establishment of the schools and, as such, the schools were named after them and many of the schools have been established more than 10 years above and many students have come out from said institutions having elementary education. In such circumstances, directing merger of schools and consequential closure of institutions having all infrastructure, cannot be considered to be a sound approach by the authority in issuing the notification no.5465 dated 11.03.2020 and consequential guidelines issued vide office memorandum no.5538 dated 11.03.2020 and corrigendum issued on 14.12.2020.

63. As the number of primary schools is very large, formal and regular inspections are not possible. There are hundreds, if not thousands, of primary schools, which were never inspected by the department officers. And quite often, inspections comprise only a fleeting glance.

64. Instead of finding the reasons for decreasing roll strength merger of school will not serve the purpose. It is just like without finding the cause of disease treatment has been started. There are enumerable reasons for decreasing of roll strength, instead of eradicating the ground difficulties merger is taken W.A No.417 of 2021 Page 35 of 70 place due to decision is taken place at higher level without realizing the ground level reality.

65. As it appears, in the State of Odisha, many categories of teachers exist - confirmed teachers, unconfirmed teachers, ad hoc teachers, tenure teachers, teachers on contractual basis, volunteer teachers, and so on. No other kind of employees or workers has such divisions. This clearly indicates the extent of regard the planners and policy- makers have for education. So the teaching profession is to be taken as a full-time job.

66. Earlier, ET and CT training teachers with less qualification were being appointed and they had got their institutional commitment. But, now appointments are being made to different categories of teachers with multifarious activities and utilizing them with a paltry sum of money. With a half fed belly, they are directed to discharge their duties. Consequentially, the objectives are not being achieved. This may be one of the reasons for reduction of roll strength of a particular school. But this can be eradicated in effective manner, if the authorities, who are in the helm of affairs, are little vigilant.

67. Now, the authorities are shedding crocodile tears to have a primary education in mother tongue, but they are granting permission in free hands for establishment and recognition of institutions in other medium, which may be a reason for reduction of students‟ strength in the existing schools. As it appears, Govt. of Delhi has taken drastic steps for upliftment of government primary schools in Delhi Union Territory and that is the best example for other States to follow, so as to keep elementary education accessible to each child having the minimum infrastructure available in the locality.

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68. Students in neglected rural far-flung region need special dispensation, additional dose of teaching and other activities. If Government accommodation for teaching is provided and a rational transfer policy is formulated and strictly adhered to, many problems of teachers posted in difficult rural regions will be resolved to a great extent.

69. Kendriya Vidyalayas and other institutions affiliated to the Central Board of Secondary Education (CBSE), primary school teachers are invariably trained graduates. It is difficult for matric or Plus-Two pass educators to teach modern, updated syllabi and texts at the primary stage - particularly the CBSE syllabi, NCERT books designed with trained graduates as elementary teachers in view.

70. But educational administration at all levels, as suggested by numerous commissions and committees on education, should be the exclusive prerogative and domain of experts, educationists and educators. Also, education at the elementary school level should be accorded a top-priority, acute and persistent financial crunch notwithstanding.

71. Article 21-A of the Constitution of India and its consequent legislation, the Right to Children to Free and Compulsory Education (RTE) Act, 2009 became operative in the country in 2010. The RTE Act confers the right to elementary education on all children, in the age group 6-14 years, on the basis of equality of opportunity in a formal school which satisfies certain essential norms and standards. All States and UTs have notified their State RTE Rules. The centrally sponsored scheme of Sarva Shiksha Abhiyan (SSA) supports States and UTs in their efforts to implement the RTE Act. Its interventions include, inter alia, opening of new schools, construction of schools and W.A No.417 of 2021 Page 37 of 70 additional classrooms, constructing toilets and drinking water facilities, provisioning for teachers, in- service training for teachers and academic resource support, free textbooks and uniforms, support for improving learning achievement levels, research, evaluation and monitoring.

72. Universalisation of primary education under the RTE Act paved the way for making education accessible to all. The status of access to education in Odisha can be assessed through different indicators such as enrolment ratio, pupil teacher ratio, drop-out rate, transition rate, buildings and infrastructure, in both primary and upper primary (together termed as „elementary‟) and secondary schools."

36. What we are considering in the present batch of cases is the sustainability of a policy framed by the State of Odisha for rationalization and consolidation of schools which according to the State is in consonance with the constitutional mandate under Article 21A of the Constitution of India and different provisions of the RTE Act and the ORTE Rules. It is trite that the questions of policy are essentially for the State to frame. ―The Court cannot be compelled into unchartered ocean of Government policy‖, the Supreme Court remarked in case of Bennett Coleman & Co. v. Union of India; (1972) 2 SCC 788.

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37. So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it is not for the High Court to lay down the policy that should be adopted by the educational authorities. [See 1971 (2) SCC 410] It has been laid down in State of Maharashtra v. Lok Shikshan Sanstha, (1971) 2 SCC 410 as follows:

"9. Before we deal with the above contentions advanced before us on behalf of both sides, it is necessary to state that the High Court in the judgment under attack has made certain observations regarding what according to it should be the policy adopted by the educational authorities in the matter of permitting the starting of a new school or of an additional school in a particular locality or area. It is enough to state that the High Court has thoroughly misunderstood the nature of the jurisdiction that was exercised by it when dealing with the claims of the two writ petitioners that their applications had not been wrongly rejected by the educational authorities. So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy leading up to such assessment."

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38. In case of Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth; (1984) 4 SCC 27, it has been ruled by the Supreme Court that that Court exercising power of judicial review cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. Such policy may be wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and ―the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one and that it will not really serve to effectuate the purposes of the Act‖.

39. Re-emphasizing the view, the Supreme Court observed that the legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or it being inconsistent with any of the W.A No.417 of 2021 Page 40 of 70 provisions of the parent enactment or in any violation of limitations imposed by the Constitution.

40. In Narmada Bachao Andolan v. Union of India; (2000) 10 SCC 664, the Supreme Court has reiterated that the Courts, in the exercise of their jurisdiction, should not transgress into the field of policy decision though they have a duty to see that in the undertaking of a decision, no law is violated and the people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution.

41. In Delhi Development Authority v. Joint Action Committee; (2008) 2 SCC 672, the Supreme Court broadly laid down the grounds on which a policy decision of State can be subject to judicial review: -

(i) if it is unconstitutional;

(ii) if it is de hors the provisions of the Act and the Regulations;

(iii) if the delegate has acted beyond its power of delegation;

(iv) if the executive policy is contrary to the statutory or a larger policy.

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42. The Court made it clear that whereas the superior Courts may not interfere with the nitty-gritties of the policy, or substitute one by the other but it will not be correct to contend that it shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision, while laying down the limited grounds for judicial review.

43. We need not encumber this judgment with series of decisions laying down the principle that in respect of policy matters, the Courts do not and cannot act as the appellate authorities. The scope of judicial review, while considering a challenge to policy of the State Government is to find out whether it violates any fundamental right or is opposed to any other provision of the Constitution or statutory provision or it is manifestly arbitrary.

44. The Courts cannot interfere with the policy either on the ground that is erroneous or that a better, fairer or wiser alternative is available. The legality of the policy and not the wisdom or soundness thereof is the subject to judicial review (see Directorate of Film Festivals v. Gaurav Ashwin Jain; (2007) 4 SCC 737).

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45. Keeping these salutary legal principles in mind laying down the limitations of judicial review of a policy decision of State, we now proceed to answer the questions framed hereinabove. For the said purpose, we need to notice the relevant provisions, viz., Article 21A of the Constitution, the provisions of the RTE Act with particular reference to Sections 6, 8 and 38 and the relevant provisions of the ORTE Rules.

46. Article 21A of the Constitution of India 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."

47. Article 21A of the Constitution of India mandates free and compulsory education to all children of the age of 6 to 14 years ―in such manner as the State may, by law, determine‖. The mandate of Article 21A is clear which is to provide free and compulsory education to the children of the said age group. The RTE Act has been enacted to give effect to the constitutional mandate under Article 21A of the Constitution. Apparently, the manner in which the constitutional mandate of Article 21A is to be carried out has been determined by W.A No.417 of 2021 Page 43 of 70 enactment of the RTE Act, 2009 and it can thus be easily deduced on conjoint reading of Article 21A and the Statement of Objects and Reasons of the RTE Act that any breach of the provisions of the RTE Act shall amount to infringement of the right under Article 21A of the Constitution of India.

48. Section 8 of the RTE Act, requires the appropriate Government to provide free and compulsory elementary education to every child and for that purpose, the obligation has been cast on the appropriate Government to establish a school, within such area or limits of neighborhood, as may be prescribed, where it is not so established. Section 8 of the RTE Act delineates the duties of appropriate Government. The explanation under Section 8(a) defines the term ―compulsory education‖ to mean obligation of the appropriate Government to--

i. provide free elementary education to every child of the age of six to fourteen years; and ii. ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;

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49. Section 8(b) of the RTE Act is crucial for the present adjudication in the wake of the reasoning assigned by the learned Single Judge for quashing the notification and the memorandum, which cast one of the dues upon the appropriate Government to ―ensure availability of a neighbourhood school as specified in Section 6 of the RTE Act.‖ Section 6 of the RTE Act 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.

50. The State Government, in exercise of power conferred under Section 38 of the RTE Act, has framed a rule, namely, Odisha RTE Rules, Rule 2(h) of which defines ―school mapping‖ and reads as under:-

"(h) "School mapping" means planning school location for the purpose of section-6 of the Act to overcome social barriers and geographical distance."

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51. Manifestly, Rule 2(h) refers to planning the school location to satisfy the requirement of Section 6 of the RTE Act. Rule 6 of the Odisha RTE Rules reads as under:-

"PART IV DUTIES & RESPONSIBILITIES OF GOVERNMENT, LOCAL AUTHORITY

6. Areas or limits of neighborhood:― (1) The areas or limits of neighborhood within which a school would be established by the Government or Local Authority shall be as under -

(a) In respect of children in classes I - V, a school shall be established within a walking distance of one k.m. of the neighborhood.

(b) In respect of children in classes VI - VIII, a school shall be established within a walking distance of 3 k.m. of the neighborhood.

(2) Wherever required, the Government shall upgrade existing schools with classes I-V to include classes VI -

VIII. In respect of schools which start from class VI onwards, the Government shall endeavor to add classes I - V, if necessary.

(3) In places with difficult terrain, risk of landslides, floods, lack of roads and in general, danger for young children in the approach from their homes to the school, the State Government/Local Authority shall locate the school in such a manner as to avoid such dangers, by reducing the limits specified under sub-rule (1).

(4) For children from small hamlets, children in urban areas as identified by the Government/Local Authority, where no school exists within the area or limits of neighborhood specified under sub-rule (1), the Government/Local Authority shall make arrangements, such as free transportation, escort facilities and residential W.A No.417 of 2021 Page 46 of 70 facilities, for providing Elementary Education in a school, in relaxation of the area or limits specified in the said rule. (5) In places with high population density, the Government/Local Authority may consider establishment of more than one neighborhood school, having regard to the number of children in the age group of 6-14 years in such areas.

(6) The Local Authority shall identify the neighborhood school(s) where children can be admitted and make such information to public for each habitation in the Gram Panchayat office notice board within its jurisdiction. (7) In respect of children with disabilities which prevent them from accessing the school the Government/Local Authority will endeavor to make appropriate and safe arrangements for them to attend school through Committee and complete elementary education.

(8) The Government/Local Authority shall ensure that access of children to the school is not hindered on account of social, legal and cultural factors."

52. Our attention has been drawn to a communication dated 07.07.2017 issued by the Department of School and Mass Education & Literacy, Ministry of Human Resources Development, Government of India (F. No.12-4/2016-EE.11) addressed to the Secretary (School Education), Sarva Shiksha Abhiyan (SSA) of all States and Union Territories (UTs) pertaining to finalization of guidelines for Rationalization of Small Schools across States for better efficiency. The said communication discloses that it was issued after examining the W.A No.417 of 2021 Page 47 of 70 practice of rationalization of schools as underway in some of the States and based on existing models of rationalizing of schools, based on which draft guidelines were prepared seeking comments and feed back so that the guidelines might be finalized. The said communication takes note of the fact that Section 6 of the RTE Act provides children's access to elementary schools within the defined area or limits of neighborhood. Further, the Act lays down the norms and standards, which are required to be ensured in every school including availability of teachers as per number of students and infrastructural facilities. A relook at the expansion of schooling facilities made in previous years called for a nation-wide consolidation of schools for various reasons, including existence of surplus schools, schools with zero enrolment, schools with very less enrolment, existence of more than one school in the same building or vicinity, were the reasons in the background of which the said communication was issued. It noticed the fact that the States were increasingly realizing that surplus schools, in excess of neighbourhood requirement, had been established which were adversely affecting the provisioning of resources, teaching, learning process, monitoring and supervision.

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53. Analysis done by State revealed that if child and resources spread into 2 or more small schools were combined together within the habitation, it would not only provide better teacher learning environment, but also make schools RTE compliant. It was clearly mentioned in the said communication that the process of rationalization of small schools will adhere to the neighborhood norms as defined in the RTE Rules of the States. It reiterated that the objectives of the rationalization of some schools include ensuring access to all children to fully functional neighbourhood schools and to consolidate the sources for the best interest of the child. The primary aim of the process of rationalization was to ensure access to every child to fully functional school in terms of availability of teachers, infrastructure and other resources has mandated under the RTE Act. The objectives of the rationalization of small schools and the guiding principle for rationalization of small schools find place in paragraphs 9 and 10 of the said communication which read thus:

"9. Objectives of Rationalization of Small Schools

1. To ensure access of all children to fully functional neighbourhood schools.

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2. To expedite the resourcing of schools, to improve the quality of education, and to ensure the retention of children in schools.

3. To make all schools RTE Act 2009 compliant, i.e. confirm to the norms and standards as laid down in the Schedule of the RTE Act 2009.

4. To shift and reallocate the staff and other resources where they are in excess of the requirement to the schools where they are needed.

5. To consolidate the resources for the best interest of the child and

6. To minimize underutilization and wastage of resources.

10. Guiding Principles for Rationalisation of Small Schools

1. To exercise of rationalization of small schools will not, in any case, violate any of the provisions of RTE Act 2009.

2. Rationalization of small schools is to be done with the interest of the child as the central concern.

3. Rationalization of small schools does not mean closing of schools. It is actually reorganization and consolidation of existing schools and other resources of a neighbourhood.

4. The process for rationalization of small of schools will not, in any case whatsoever, deprive even a single child‟s access to school.

5. At no point of the rationalization exercise, the interest and convenience of the child would be placed second in the order of priority.

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6. The process of rationalization of small schools will adhere to the Neighbourhood norms of the State/UTs.

7. The process of rationalization of schools will not necessarily lead to merging or closing of schools. On the contrary it may also establish the need of opening of new school as well.

8. It rationalization process indicates for merging of schools, it will be ensured that schools are merged only within neighbourhood norms defined in State‟s RTE Rules and no school is merged if access to neighbourhood school of any child is affected.

9. Consultation with Children, Teachers, Local Authorities, Parents and Community is the key to ensure effective and useful rationalization of schools. Their support will be required not only during the entire process of rationalization for smooth and uninterrupted completion of rationalization exercise but also after the exercise is over so that the result of the exercise is useful and relevant which brings positive change for the community and children.

10. Due respect shall be accorded to the local cultural and belief system. Every step will be taken to ensure that local sensitivities are not ignored even if it means continuation with an unsubstantiated demand of a school.

11. No situation is permanent. Schools having low enrolment may turn into schools with high enrolment over a period of time. Similarly, the habitations which do not require school at one point of time may require school at another point of time and vise versa.

12. Avoid one-size-fits-all approach. The best solution for one habitations or cluster or district may not be the best solution for another even though the two entities W.A No.417 of 2021 Page 51 of 70 (habitations or cluster) may appear similar in terms of geography, socio-economic status etc. There are always significant variations in every habitation which are crucial and should not be ignored. The size of the community, interpersonal relationships between different groups of the community, socio - cultural beliefs, Age of schools building, the density of the surrounding area, and the capacity of the nearby school all play an important role in rationalization of schools and will eventually be responsible for the exercise to be more or less productive."

54. The State of Odisha in its School and Mass Education Department came out with a policy of the rationalization of schools through notification dated 14.05.2018 published in the Official Gazette. The said policy postulates the following major initiatives namely, (a) merger of schools which includes horizontal merger with same range of classes to be merged to form a single school, and (b) up- gradation of schools.

55. It stipulates two kinds of merger, i.e., horizontal merger and vertical merger. Merger of two or more primary schools, merger of two or more Upper Primary School of any range and merger of two secondary schools of any range is to be treated as horizontal merger under the scheme. The schools with different range of classes i.e. one W.A No.417 of 2021 Page 52 of 70 with lower class range and the other with higher class range, could be merged.

56. Following mergers, under the rationalization policy of the State Government are treated as vertical mergers:

 Merger of one or more Primary School (s) with a 3 class (VI- VIII) or 8 class (I-VIII) Upper Primary School.

 Merger of one or more Primary School(s) with a 5 class (VI- X)/7 class (IV-X) Secondary School.

 Merger of one or more 3 class Upper Primary Schools (VI- VIII)/8 class Upper Primary Schools (I-VIII) with a 2 class (IX-X)/5 class (VI-X)/7 Class (IV-X) Secondary School.

 Merger of one or more Primary Schools with a 2 class (IX-X) Secondary School, provided that the linking classes are opened by Govt. in appropriate time to facilitate continuity of study of the students passing out of the top class of the primary school."

57. Further, the above horizontal and vertical merger could either be physical or administrative. In physical merger two or more schools shall be merged resulting in complete closure of one or more schools. In such case, the students will physically shift out to another school from the closed school and the school records and all movable assets of W.A No.417 of 2021 Page 53 of 70 the close school shall be shifted to the Nodal school with which the merger is made.

58. In administrative merger, two or more schools could be merged for the purpose of optimum utilization of available resources under unified command and one administrative supervision. In such case, if the level of classes are different, the school shall run with two different wings and all the employees would work under the control of one head of the institution but their cadre would not change and their service matters would be dealt with by different authorities as before. Merger of elementary schools with secondary schools, the policy provides the following criteria for selection of schools for merger [see paragraph 2(b)] of the notification dated 14.05.2018:

"(a) All schools being merged need to be located in the same district.

(b) The Schools must be Govt. managed schools.

(c) Madrasa, Sanskrit Toll, Special Schools shall not be selected for merger.

(d) The schools should be located in same campus or within 100 metre radius. In case of Low Roll Strength Schools, the 100 meter distance restriction shall not apply.

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(e) Schools separated by State High Way, National High Way and Railway line shall not be taken for merger.

(f) Schools separated by rivers, forests, hills or any other natural barrier shall not be merged.

(g) An aided school shall not be considered for merger with a Govt. school.

(h) In case of physical merger of schools not located in the campus, the availability of class rooms in the school to which students of closed schools(s) shall be shifted must be verified properly.

(i) In case of non-availability of required number of class rooms to accommodate the students after physical merger, administrative merger may be taken up for the time being till construction of the additional class rooms."

59. Paragraphs 4 and 5 of the said rationalization policy are significant for considering the challenge to the impugned order passed by the learned Single Judge, which read thus:-

"4. Applicability of Provisions of RTE Act:

The distance norm for access for children from catchment villages/habitations as prescribed in RTE Act shall not be deviated in any case of physical merger of elementary schools.

5. Applicability of Odisha Elementary Cadre Rules:

The provisions of Odisha Elementary Cadre Rules in so far as service conditions of the teachers of W.A No.417 of 2021 Page 55 of 70 elementary schools are concerned, shall not be deviated in any manner after the merger."

60. For carrying out the provisions of the RTE Act, in exercise of power under Section 38 thereof, the State Government has framed RTE Rules. From the reading of the pleadings on record and the impugned judgment of the learned Single Judge, it can be easily culled out that there are two grounds recorded by the learned Single Judge for interfering with the policy of rationalization of the State Government. Firstly, it violated the requirement under Rule 6 of the ORTE Rules that the area or limit of neighborhood within which a school would be established by the Government or local authority shall be in respect of children in Classes I to V of a school, within a walking distance of one kilometer of the ‗neighbourhood' and in respect of children in Classes VI to VIII, a school shall be established within a walking distance of three kilometers of the neighbourhood. Secondly, as has been noted hereinabove, learned Single Judge has opined that there is no provision for merger/consolidation of primary/upper primary schools with the High Schools. The third reasoning, which has been assigned by the learned Single Judge to interfere with the impugned policy is that the W.A No.417 of 2021 Page 56 of 70 RTE Act or the Rules do not stipulate the roll strength as criteria for merger of the schools.

61. To consider this aspect, let's begin from Rule 2(h) of ORTE Rules, which defines ―school mapping‖, which means ―planning school location for the purpose of Section-6 of the Act to overcome social barriers and geographical distance‖. Sub-Rule 2 of Rule 6 permits the Government to upgrade existing schools with classes I -V to include classes VI - VIII. In respect of the schools which start from class VI onwards, the Government is supposed to make endeavour to add classes I - V, if necessary.

62. We are of the considered view that that Sub-Rule (2) of Rule 6 escaped the attention of the learned Single Judge while deciding the issue which permits the State Government to add Classes I to V to such schools which start from Class VI onwards. The reasoning recorded by the learned Single Judge that there is no provision of merger/consolidation of primary/upper primary schools with High Schools is not permissible under law and, therefore, the Rationalization and Consolidation of Schools Policy is unsustainable on the ground W.A No.417 of 2021 Page 57 of 70 that the RTE Act and the Rules deal with elementary education which means education from Classes I to VIII within the meaning of Section 2(f) of the RTE Act cannot be accepted if the entire rationalization scheme is taken into account.

63. The objective of rationalization is to make the schools aspirational with a larger peer group and adequate teachers per grade; Improvement of Pupil-Teacher Ratio (PTR) and Teacher per Grade ratio; Better infrastructure facilities in consolidated schools; Better academic environment with additional TLM facilities, e-Learning and co-curricular facilities; Vibrant parent community as enrolment increases and PTMs stabilise; Improve Learning Outcomes; Improve quality of monitoring; Efficient utilization of public resources; Better transition rate and school management and Enabling school ecosystems to create future thinkers/leaders/entrepreneurs and employers.

64. The principles of consolidation of schools as disclosed in paragraph 1 of the Notification dated 11.03.2020 states that the exercise shall be conducted in a manner so as to ensure optimum number of schools with optimum enrolment and create as many as integrated secondary schools as possible and convert all other schools W.A No.417 of 2021 Page 58 of 70 having reasonable enrolment to any of the four categories mentioned in the objectives viz.,:-

i) To reduce the number of educationally and economically sub-optimal schools;

ii) To rationalize and consolidate existing schools to reduce the category of schools and fix the range category to only four, i.e. I-V, I-VIII, I-X &VI-X;

iii) To create as many as integrated secondary schools as possible and hence provide education up to high school level in one single campus, improving transition; and

iv) To consolidate standalone Upper Primary and Secondary Schools.

65. The objective of creating integrated secondary school, in our opinion, cannot be termed as violative of the RTE Act or the Rules framed thereunder on the ground that RTE Act and Rules deal with elementary education only and such education cannot be imparted in a secondary school. Stating it differently, it cannot be said that it is impermissible for addition of one elementary school with a secondary school on the ground of roll strength. This can be understood by way of an example. Let us suppose there is an elementary school nearby a W.A No.417 of 2021 Page 59 of 70 secondary school. The roll strength in the said elementary school is too low that running of the school with all the infrastructure is not viable. In such circumstance, if the education/teaching is shifted to the secondary school without breaching any statutory requirement under the Act and the Rules, it cannot be said that such policy is contrary to the statutory provision. The policy of making schools aspirational with a larger peer group and adequate teachers per grade, in the Court's opinion, cannot be treated to be irrational. We are of the opinion that transitions of the students studying in the schools imparting education up to classes I to V to a school imparting education from classes VI to X will adversely affect their education.

66. In our considered opinion, the constitutional requirement of Article 21A of the Constitution is that the State has a duty to provide free and compulsory education of all children of the age of six to fourteen years. Till a case is made out that the State has failed to provide free and compulsory education to such group of children, no violation of Article 21A of the Constitution can be made out unless it is shown that the same is not being provided by the State in accordance with law. At the cost of repetition, we record that ―such a manner as W.A No.417 of 2021 Page 60 of 70 the State may, by law, determine‖ means RTE Act and ORTE Rules framed thereunder.

67. We have already noticed that Section 8 of the RTE Act lays down the duties of the appropriate Government and the compulsory education ―stands defined by explanation under Section 8(a) of the Act.‖ Section 8(b) mandates the Government to ensure availability of a neighborhood school as specified in Section 6. Section 6 requires the State Government and Local Authority to establish within such ‗area' or limits of ‗neighbourhood' as may be prescribed. The aforesaid is the background in which the areas or limits of neighborhood as stipulated under Rule 6 of the ORTE Rules has to be understood, which has already been quoted hereinabove. The statutory provisions under the Act or the Rules do not prohibit having one school campus from Classes I to X. The ORTE Rules permit upgradation of schools which can also happen with the merger of two schools. Sub-Rule 3 of Rule 6 of the ORTE Rules takes into account the situation of places with difficult terrain, risk of landslides, floods, lack of roads and in general, danger for young children in the approach from their homes to the schools and requires the State Government/Local Authority to locate W.A No.417 of 2021 Page 61 of 70 the school in such a manner as to avoid such dangers, by reducing the limits specified under Sub-Rule (1). Sub-Rule (4) of Rule 6 stipulates that for children from small hamlets, children in urban areas as identified by the Government/Local Authority, where no school exists within the area or limits of neighborhood specified under Sub-Rule (1) the Government/Local Authority ―shall make adequate arrangements, such as free transportation, escort facilities and residential facilities for providing elementary education in a school, in relaxation of area of limits specified in the said rule‖. It is evident on close reading of Sub- Rule 4 of Rule 6 that the provisions in Sub-Rule 1 can be relaxed by making arrangements of free transportation, escort facilities and residential facilities for providing elementary education in a school. Sub-Rule 1 of Rule 6 can thus be relaxed if the arrangements are made under Sub-Rule 4 thereof if the circumstance exists. In the implementation of guidelines for the Policy of Rationalization and Consolidation of Schools, it has been clearly provided in paragraph 7 that if the lead school distance is beyond 1km., escort/transport allowance as per RTE norms shall be provided to the students. W.A No.417 of 2021 Page 62 of 70

68. In our considered view, the Policy of Rationalization and Consolidation cannot be considered to be violative of any statutory provision. We do not agree with the reason assigned by the learned Single Judge that the policy decision is bad because roll strength of a school is criteria for consolidation/integration/ upgradation of schools. The law requires a child's right of elementary education in accordance with the provisions under the Act and the Rules.

69. Learned Single Judge has treated the facts of Amaramunda Government Primary School as lead case by way of illustration and has concluded that the merger of Amaramunda Government Primary School by referring to the distance between the said school and Laxmanpali Project Upper Primary School with which Amaramunda Government Primary School has been merged. It was the case of the State that the distance between the two schools was 800 metres whereas learned Single Judge disbelieving the said stand based on a joint inquiry report relying on the information received from the Google map has concluded that the distance between the two schools was 2.9 Kilometres. The said approach, in our opinion, is not in consonance with the requirements of the Act and the Rules. The area or W.A No.417 of 2021 Page 63 of 70 limits of neighborhood under the RTE Act and ORTE Rules is with reference to the habitation of the children and that has no connection with the distance between the two schools to be consolidated. Unless a case is made out that such consolidation had the effect of depriving any child of his access to elementary education because of non-availability of schools in the neighborhood as stipulated under Rule 6 of the ORTE Rules, his right under Article 21A of the Constitution or the RTE Act cannot be said to have been infringed.

70. We also respectfully disagree with the view taken by the learned Single Judge based on the information gathered from Google map and thereby denying the specific stand taken by the State in its counter affidavit based on a joint report as regards the distance between the two schools. The said evidence being in the nature of electronic evidence was required to be established in a Court of law in accordance with the provisions under the Evidence Act.

71. Having stated thus, we do not find any flaw in the policy of the State of Odisha contained in the Notification No.5465(SME), dated 11.03.2020 and the implementation of guidelines issued by Office Memorandum No.5538/SME., dated 11.03.2020.

W.A No.417 of 2021 Page 64 of 70

72. After having said so, we cannot ignore the circumstances of incorrect implementation of the policy leading to breach of the statutory requirements under the RTE Act or the Rules. To address the situation, the implementation policy lays down Post-Consolidation Grievance in paragraph 24, which reads thus:-

"Post-Consolidation Grievance

24.While the Policy and the SOP has taken all necessary steps to ensure smooth implementation of the consolidation and the intent if for the betterment of Learning Outcomes and environment for students. However, if there are specific grievances by any party post the consolidation in April 2020, the same shall be referred to the Grievance Redressal Cell in the District Office and then to the State Grievance Cell and OSEPA. The Grievance Redressal Cell in the District Office will be chaired by the District Collector and constitute a team for in-person reverification of each case. The re- verification and stakeholder consultation for each grievance shall be conducted by a person different from the original verification. A detailed copy of the investigation must also be submitted to the State Grievance Cell &OSEPA. State Grievance Cell may further investigate any cases it deems necessary and issue relevant instructions to the district."

73. We do not agree with the opinion expressed in paragraph 31 of the impugned judgment of the learned Single Judge that the Grievance Redressal mechanism is an empty formality since the affected persons will not get justice from the Government officials. This is for the W.A No.417 of 2021 Page 65 of 70 reason that from the language of paragraph 24 of the implementation policy, it is evident that Post-Consolidation Grievance is not for the purpose of exercise of any judicial or quasi-judicial function. It is apparently an internal arrangement for the functionaries of the State to monitor proper implementation of the policy of rationalization. A bias cannot be attached with all the Government functionaries if any grievance is raised in relation to incorrect implementation of the policy or if because of the policy, certain rights under Article 21A of the Constitution, provisions of the RTE Act or ORTE Rules are violated. The redressal mechanism in paragraph 24 of the policy has been provided to take corrective measures in case of any flaw or deficiency in implementation of the policy or in course of implementation of rationalization policy, any statutory provision under the RTE Act or ORTE Rules stands breached.

74. In our considered view, paragraph 24 of the implementation policy is a safeguard for the stakeholders to raise a grievance where any provision of the RTE Act or Rules is violated while implementing the rationalization policy.

W.A No.417 of 2021 Page 66 of 70

75. It should also not be forgotten that the rationalization policy is in tune with the communication dated 07.07.2017 issued by the Ministry of Human Resource Development, Department of School Education and Literacy in relation to rationalization of small schools across the State for better efficiency.

76. In our considered view, consolidation of schools in the manner it has been decided to be undertaken by the State Government under its policy if carried out judiciously cannot be said to be violating any provision under the Act or Rules until it is demonstrated on case-to- case basis that its implementation has impacted on access to education.

77. The opinion expressed by the learned Single Judge in paragraphs 60 to 70 are based on perception. We refrain ourselves from recording any opinion as regards the said comments in the present judgment.

78. We record our conclusions thus:-

I. No provision under Notification No.5465 dated 11.03.2020 and Office Memorandum No.5538/SME dated 11.03.2020 has been W.A No.417 of 2021 Page 67 of 70 demonstrated to be violative of any provision under Article 21A of the Constitution or any provision under the RTE Act or ORTE Rules.

II. Clause 24 of the Office Memorandum containing implementation guidelines is not hit by the maxim nemo judex in re sua.

III. The Rationalization Policy cannot be held to be illegal merely on the ground that there is no such prescription under the RTE Act or ORTE Rules. The validity of such policy could be successfully challenged only when they were shown to be defeating the provisions of RTE Act or ORTE Rules and thereby Article 21A of the Constitution.

IV. With reference to the question No.4, we are of the view that the opinion recorded by the learned Single Judge is not in consonance with Rule 6(2) of the ORTE Rules.

79. For the reasons noted above, the impugned judgment dated 04.05.2021 passed by the learned Single Judge deserves interference. The judgment is accordingly set aside.

80. The appeal is allowed. The interim order is made absolute. W.A No.417 of 2021 Page 68 of 70

81. We make it however clear that any stakeholder shall be at liberty to invoke Clause 24 of the Implementation Policy on the allegation of violation of any provision under the RTE Act, ORTE Rules or the Policy contained in the Notification No.5465/SME dated 11.03.2020 and the Resolution for implementation of the policy No.5538/SME dated 11.03.2020 before the Competent Authority.

82. It is peculiar to note that school management committees of different schools have approached this Court in the present proceeding challenging the Policy of Rationalization of the Schools. No substantive claim has been made by any petitioner indicating violation of fundamental right of any citizen under Article 21A of the Constitution or any provision under the RTE Act or ORTE Rules. They have raised grievance against closure of the schools without making out a substantive case of violation of right of a person to access to education because of the framing of such policy.

83. However, in the facts and circumstances of the case, we direct the concerned Grievance Redressal Cells of the concerned districts to W.A No.417 of 2021 Page 69 of 70 consider the grievances of these petitioners as raised by pleadings in the present writ application and do the needful in accordance with law.

84. It goes without saying that though we have upheld the Rationalization and Consolidation of School Policy, any decision taken by the authority on a grievance raised under Clause 24 of the Policy shall be subject to challenge before appropriate forum including by filing writ application before this Court under Article 226 of the Constitution of India in case of violation of the provisions of the Act, Rules, Article 21 of the Constitution of India or any other ground including the ground of arbitrariness or irrationality.

85. All interlocutory applications stand disposed of.




                                                                           (Chakradhari Sharan Singh)
                                                                                  Chief Justice

                M.S. Raman, J.                  I agree.

                                                                                  (M.S. Raman)
                                                                                     Judge



 M. Panda/S. K. Jena, Secy.      Signature Not Verified
/ S. Behera, Sr. Steno           Digitally Signed
                                 Signed by: MRUTYUNJAYA PANDA
                                 Designation: Secretary
                                 Reason: Authentication
                                 Location: High Court of Orissa, Cuttack
                                 Date: 29-Oct-2024 17:57:24


                   W.A No.417 of 2021                                                      Page 70 of 70

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