HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 38 Case :- WRIT - C No. - 25043 of 2015 Petitioner :- Saif Sagheer And 3 Othrs. Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Kumar Anish,Satish Mandhyan Counsel for Respondent :- A.S.G.I.,A.K. Pal,Ikram Ahmad,S.C. Hon'ble Pankaj Mithal,J.
Heard Shri Kumar Anish/Shri Satish Mandhyan, learned counsel for the petitioners and Shri Ikram Ahmad, learned counsel appearing for the respondent nos. 2 to 5.
The controversy involved in this writ petition is purely legal and very short for which no counter affidavit is necessary as the facts are not disputed, though previously time for counter affidavit was granted twice but in vain.
Initially the petition was preferred by four students jointly but later vide order of the court dated 1.5.2015 petitioners no. 2 to 4 got their names deleted. Therefore, now the petition is only on behalf one petitioner i.e. petitioner no. 1.
The petitioner is a student of class V of AMU City Girls High School, Aligarh. In the session 2014-15 he was not allowed to appear in the final examination of the said class and an endorsement was made in his result that he has been detained due to short attendance.
Aggrieved he has preferred this writ petition contending that under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as an 'Act') the school authorities have no right to withold any student in the same class or to expel him from the school.
Shri Ikram Ahmad, learned counsel appearing for the contesting respondents submits that Section 16 of the Act has to be read with Section 8 of the Act which provides that it is the duty of every school not only to provide free elementary education but to ensure attendance of the students as well.
Section 16 of the Act reads as under :
"Prohibition of holding back and expulsion.- No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education."
The aforesaid provision clearly provides that no child admitted to a school shall be held back in the same class or expelled from the school till he completes the elementary education. In view of the above provision, the school authorities apparently do not have any right to detain a child in the same class or to expel him from the school till he completes the elementary education.
The word "child" has been defined under Section 2(c) of the Act to mean a child male or female aged between 6 to 14 years.
The "elementary education" has been defined under Section 2(f) to mean education from first class to eighth class.
The petitioner is a student of class V and is between the age of 6 to 14 years. He is a child undergoing elementary education. Therefore, by virtue of Section 16 of the Act, the school authorities are not possessed of any power either to expel him from the school or to detain him in the same class.
The relevant part of Section 8 of the Act reads as under :
"Duties of appropriate Government: The appropriate Government shall--
(a)provide free and compulsory elementary education to every child:
Provided that .........
Explanation--The term "compulsory education" means 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;
(b)..................
(c)..................
(d)..................
(e).................
(f)ensure and monitor admission, attendance and completion of elementary education by every child;
(g)................
(h)...............
(i)..............
The above provision casts an obligation upon the Government not only to provide free and compulsory education to every child but to ensure his admission, attendance and completion of elementary education. So attendance in school of a child is also an obligation of the State.
The marksheet of the petitioner which has been filed as Annexure No. 1 to the petition reveals that the petitioner was declared pass in half yearly examination. He was not allowed to appear in the annual examination on account of shortage of attendance i.e. 272 out of 376. He had not been marked either pass or fail in the final examination but it contains on endorsement in the column meant for marks "Detained due to short attendance. "
The endorsement "Detained due to short attendance" is in context with annual final examination and not in respect of detaining him in the same class as if this would have been the intention it could have been clearly stated that he has not been promoted to the next higher class, but there is no such remark or endorsement.
The aforesaid marksheet as such does not fails the petitioner. The aforesaid endorsement in the absence of any remark of pass and fail and that of refusing promotion to him would only mean that the petitioner was detained only from appearing in the annual examination for shortage of attendance. The said detention is not in context with final result having the effect of withholding him in the same class. The intention of the school authorities to detain him in the same class would have been clear if he would have been declared failed or there would have been an endorsement "not promoted or detained in the same class".
In view of the aforesaid facts and circumstances, there is neither any expulsion of the petitioner nor detention in the same class. The action of the respondents is detaining him for sitting in the final examination is to secure his attendance of contemplated by Section 8 of the Act and is not violative of Section 16 of the Act.
In similar set of circumstances in writ petition no. 37856 of 2015 Shah Husain (Minor) Vs. Union of India and three others, this court vide judgment and order dated 13.7.2015 while dismissing the writ petition has held that this Court in exercise of its discretionary jurisdiction would not interfere in the internal management of the institution regulating conditions regarding eligibility of students for taking final examination, particularly when the counsel for the petitioner could not produce any rule or bye-laws which permits a student to take the final examination, despite shortage of attendance.
In view of the above facts, the respondents are well within their jurisdiction not to allow the petitioner to take the final examination due to shortage of the attendance but of the same time they shall allow the petitioner to join the next higher class and would not refuse admission to him in the higher class on the ground that he has not appeared in the final examination is detention in the same class prohibited.
The writ petition is disposed of with the above clarification and direction.
Order Date :- 20.7.2015 SA