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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4986 OF 2013
Jnana Prabodhini ... Petitioner
V/s.
Education Officer (Secondary) and others ... Respondents
WITH
CIVIL APPLICATION NO.1792 OF 2013
IN
WRIT PETITION NO.4986 OF 2013
SYSCOM,
Through its President Shri Rajendra Dharankar
ig ... Applicant
In the matter between
Jnana Prabodhini ... Petitioner
V/s.
Education Officer (Secondary) and others ... Respondents
Mr. A.M. Joshi and Mr. U.K. Bodhave, for the Petitioner in W.P. No.4986
of 2013 and for Respondent in CAW No.1792 of 2013.
Mr. Sugandh B. Deshmukh, for Applicant in CAW No.1792 of 2013.
Ms. S.S. Bhende, AGP for Respondent Nos.1, 4 and 5.
CORAM : A.S. OKA &
REVATI MOHITE DERE, JJ.
JUDGMENT RESERVED ON : 23rd SEPTEMBER, 2013 JUDGMENT PRONOUNCED ON : 19th OCTOBER, 2013 JUDGMENT (PER A.S. OKA, J.):-
. By this petition under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order dated 29 th May, 1 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 2 wp-4986.13 - Copy 2013 passed by the Educational Officer (Secondary) Zilla Parishad, Pune. The issue involved in this petition is whether the Petitioner while admitting the students to Standard V of the School run by it has admitted the students in contravention of Sub-section (1) of Section 13 of the Right of Children to Free and Compulsory Education Act, 2009 (for short "the said Act").
2. The Petitioner is a Public Charitable Trust registered under Bombay Public Trust Act, 1950. It is contended that the aim and object of the Petitioner is to promote the development of this Country by providing leadership. It is claimed that the Petitioner aims at Social Development by undertaking Socio Economic Projects. Various achievements of the Petitioner Society have been set out in the petition.
It is claimed that an application has been made for designating Jnana Prabodhini Prashala, the school run by the Petitioner as a "Specified Category" within the meaning of clause (p) of Section 2 of the said Act.
It is contended that the said application is still pending.
3. On 23rd March, 2013, the Education Officer (Secondary) Zilla Parishad (first Respondent) informed the Head Master of the said School that for grant of admission in the said School up to VII standard, no screening test should be conducted, failing which action shall be 2 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 3 wp-4986.13 - Copy taken under the said Act. By a communication dated 29th March, 2013, the Petitioner sought time for giving a reply to the said letter. On 29 th May, 2013, first Respondent issued the impugned communication informing the Head Master of the said School that the school has admitted students to standard V after holding a common screening test.
Therefore, the Head Master was directed to cancel all the admissions and to grant fresh admissions in accordance with the provisions of the said Act. This is the communication which is subject matter of challenge in the present petition. On 24 th May, 2013, the Head Master of the School replied to the first Respondent with reference to the letter dated 23rd March, 2013. It is stated that the School is a Special School which has introduced new ideas. It is contended that for giving admissions to such school, conduct of test of intelligence is unavoidable.
It is alleged that the test of intelligence is objective and transparent. It is stated that when letter dated 23 rd March, 2013 was received, the process of admission was already completed. It is stated in the petition that an Appeal under Sub-section (3) of Section 32 of the said Act was preferred before the State Commission for protection of child rights and the said Appeal is pending.
4. The learned counsel appearing for the Petitioner has made detailed submissions. His first contention is that the word "and" in 3 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 4 wp-4986.13 - Copy Sub-section (1) of Section 13 of the said Act cannot be read as "or". His submission is that Sub-section (1) of Section 13 will not apply as the Petitioner has not collected any capitation fee while admitting the students to the standard V and therefore, the bar created by Sub-
section (1) will not apply. Relying upon clause (c) of Sub-section (1) of Section 12 of the said Act, he urged that the embargo or restriction imposed by Sub-section (1) of Section 13 will apply only as regards admission to the Standard I . He submitted that the Petitioner is not running an ordinary school. The said School will fall in specified category. He urged that very high standards of education have been set by the said School and various dignitaries at very high level have appreciated the work done by the Petitioner. He urged that neither the Petitioner is collecting any capitation fee nor is discriminating the students on the basis of the financial capacity of their parents. He urged that large number of students apply to the reputed school run by the Petitioner and therefore, the Petitioner has adopted a very objective test for ascertaining "the giftedness" of the students. He urged that such "giftedness" is not ascertained only on the basis of intellectual abilities but the possible development of the child for the National Development. He submitted that best method for shortlisting of the students has been adopted by the Petitioner. He placed reliance on a decision of Division Bench of Andhra Pradesh High Court in Writ Appeal 4 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 5 wp-4986.13 - Copy Nos.610, 611, 612 of 2012 dated 4th January, 2013. He pointed out that several other schools have been permitted to conduct screening test.
Lastly, he urged that only consequence of breach of Sub-section (1) of Section 13 is imposition of fine as provided in clause (b) of Sub-section (2) and, therefore, there is no power vesting in the first Respondent of cancelling the admissions. Lastly, he pressed into service the aforesaid decision of the Andhra Pradesh High Court which holds that the prohibition in Section 13 of subjecting the child to screening procedure is applicable only to the admission at entry level which is Nursery or Class I.
5. The learned counsel appearing for the Applicant in Civil Application No.1792 of 2013 supported the action of the Education Officer. He pointed out Exhibit "A" to the Civil Application. He pointed out that Exhibit "A" is a copy of notice to be published on the website of the Applicant which shows that admission procedure for V standard included the screening test.
6. We have carefully considered the submissions. The said Act has been enacted for giving effect to Article 21 A of the Constitution of India which provides for free and compulsory education to all children in the age group of 6 to 14 years as a fundamental right. It will be 5 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 6 wp-4986.13 - Copy necessary to advert to Section 13 of the said Act which reads thus :-
"13. No capitation fee and screening procedure for admission. - (1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.
(2) Any school or person, if in contravention of the provisions of sub-section (1) -
(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;
(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty- five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions."
7. Capitation fee is defined under clause (b) of Section 2 of the said Act. Screening procedure is defined under clause (o) of Section 2 of the said Act which reads thus :-
"(o) "screening procedure" means the method of selection for admission of a child, in preference over another, other than a random method;"
8. The submission of the learned counsel appearing for the Petitioner is that the Sub-section (1) of Section 13 is attracted only when a school while admitting a child collects capitation fee and also 6 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 7 wp-4986.13 - Copy subjects the child or his parents to any screening procedure. His submission is that as the Petitioner has not collected any capitation fee, even assuming that the Petitioner has subjected the child to screening procedure, Sub-section (1) of Section 13 will not be attracted. He submitted that word "and" cannot be read as "or". According to us, the said argument is fallacious and deserves to be rejected. Plain meaning of Sub-section (1) is that while admitting a child to the school, the School authorities shall neither collect any capitation fee nor subject the child or his/her parents or guardian to any screening procedure. Sub-
section (1) is attracted even when a school does not collect any capitation fee but subjects the child or his/her parents or guardian to a screening procedure. If a school does not subject the child or his/her parents or guardian to screening procedure but accepts capitation fee, still Sub-section (1) of Section 13 will be attracted. Sub-section (2) of Section 13 supports the said interpretation. It provides for imposition of separate and distinct penalties in cases where school receives capitation fee or subjects the child to screening procedure. The Sub-
Section prohibits both the collection of capitation fee and the conduct of the screening test. The submission made by the learned counsel appearing for the Petitioner deserves to be rejected. Sub-section (1) of Section 13 is attracted even when a school does not collect any capitation fee but subjects the child or his/her parent or guardian to a 7 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 8 wp-4986.13 - Copy screening procedure.
9. Relying upon Section 12 and in particular clause (c) of Sub-section (1) thereof the learned counsel tried to contend that the embargo on screening procedure will apply only to admissions granted at the entry point in the school. We have perused Section 12. Section 12 deals with the extent of school's responsibility for free and compulsory education. Clause (c) applies to schools belonging to the specified category and unaided schools not receiving any kind of aid or grant to meet its expenses from the appropriate government or the local authority. Clause (c) provides that such schools shall admit in Class - I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. Thus, clause (c) of Sub-section (1) of Section 12 imposes an obligation on the schools falling in said two categories to admit in Class - I, to the extent of at least twenty-five per cent children belonging to weaker sections and disadvantaged group.
Thus, Sections 12 and 13 operate in different fields. There is nothing in Sub-section (1) of Section 13 to indicate that the prohibition of subjecting the students or parents to screening procedure will apply only to the Nursery or Standard I admissions. We may note here that 8 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 9 wp-4986.13 - Copy clause (f) of Section 2 of the said Act defines elementary education to mean the education from first class to eighth class. The said Act provides for no prohibition against admitting students in any class up to VIII standard. Section 16 provides that no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education. If the admissions contemplated by Sub-section (1) of Section 13 are narrowly construed as admissions only to the nursery or first standard, the very object of enacting Section 13 shall be defeated. Such interpretation would mean that while admitting the students to nursery or first standard, the school will be dis-entitled to charge capitation fee. However, if a child is admitted in second to eight classes, it will be open for a school to charge capitation fee or to subject the students to the screening procedure. The plain reading of Sub-section (1) of Section 13 does not permit such narrow interpretation. Thus, the prohibition imposed by Sub-section (1) of Section 13 will apply to admission to class I to class VIII which form part of elementary education.
10. We have perused the decision of the Andhra Pradesh High Court relied upon by the learned counsel appearing for the Petitioner.
For the reasons we have recorded earlier, we do not agree with the view taken by Andhra Pradesh High Court. The Andhra Pradesh High Court 9 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 10 wp-4986.13 - Copy has relied upon Section 5 of the said Act which reads thus :-
5. Right of transfer to other school. - (1) Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.
(2) Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.
(3) For seeking admission in such other school, the Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate:
Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school:
Provided further that the Head-teacher or in-
charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her."
The said Section confers right on a child to seek transfer to 10 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 11 wp-4986.13 - Copy any other school, excluding any school specified in sub-clauses (iii) and
(iv) of clause (n) of Section 2 of the said Act. The schools covered by clauses (iii) and (iv) are the schools belonging to specified category and unaided schools. It provides that once a student is admitted to class I in a school where there is no facility of completion of elementary education, he can seek transfer to any other school to subsequent classes as a matter of right. While seeking admission to other school on transfer, he cannot be made to pay capitation fee or he cannot be subjected to screening test/ procedure. If it is held that Sub-section (1) of Section 13 will apply only to admission at entry point of elementary education, it will imply that prohibition of charging capitation fee or prohibition against conducting screening procedure will not apply when a child seeks admission by way of transfer to higher classes.
11. The third question which arises is whether the Petitioner School conducted screening procedure which is prohibited by Sub-
section (1) of Section 13. The learned counsel appearing for the Petitioner has made some submissions on the definition of screening procedure under clause (o) of Section 2 of the said Act. Screening procedure is the method of selection for admission for a child in preference for another, other than a random method. A random method adopted for selection for admission of a child will not be a 11 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 12 wp-4986.13 - Copy screening procedure to which Sub-section (1) of Section 13 will apply.
The screening procedure is the one which provides for methodology of giving preference to one child over the another in the matter of admission to a school. At this stage, it will be necessary to make a reference to the averments in paragraph 7 of the petition which reads thus :-
"7. The petitioner submits that as already stated the petitioner Trust is not trying to introduce any screening tests with a view to collect capitation fee or for any other extraneous ground. In fact the test which is being held while admitting the students has larger number of students apply for admissions is most objective test for ascertaining the giftedness of the students. Such giftedness is not also ascertained on the basis of the intellectual abilities, but, the possible developments of the child for National Development. As herein before mentioned in the earlier part of this appeal. The petitioner submits that it is the respectful submissions of the petitioner that such test is in fact the best method of short listing the students with a particular aim and objects for which the school has been founded and so also the Institution."
(emphasis added)
12. In the letter dated 30th March, 2013 addressed by the Petitioner to the first Respondent, it is specifically contended that for running a special school, conduct of a test of intelligence is required for 12 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 13 wp-4986.13 - Copy selecting the students. Even in the letter dated 24 th May, 2013, the Petitioner has reiterated that selection of the students on the basis of test of intelligence is unavoidable. In the reply filed to Civil Application No.1792 of 2013, the Petitioner has not denied averments made in paragraph 2 of the Civil Application in which reliance has been placed on extract of the notice published on the website of the Petitioner. The said extract provides for admission procedure for standard V. It specifically records that there will be first round of entrance examination on 3rd March, 2013 and there will be second round of entrance examination only for short listed candidates. The notice also provides that admission procedure for VI to X standards consists of entrance test which includes a battery of intelligence tests. Clause 3 of admission procedure for standard V specifically provides that the candidates securing marks above the prescribed norm in the 1 st entrance test which consists of intelligence test will be called for another test and interview. It provides that the second test includes intelligence test and on the basis of performance in the second test and interview, the final list of selected candidates will be declared. Thus, two entrance tests have been conducted by the Petitioner as the method of selection for admission of a child in preference over another. Thus, it leaves no manner of doubt that the Petitioner adopted a screening procedure contemplated by clause (o) of Section 2 of the said Act 13 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 14 wp-4986.13 - Copy attracting breach of Sub-section (1) of Section 13 of the said Act.
13. It is not necessary for us to decide in this petition what should be a random method contemplated by clause (o) of Section 2.
14. Thus, the Petitioner school has violated Sub-section (1) of Section 13 of the said Act. An argument is made that for such violation, penalty prescribed by clause (b) of Sub-section 2 is the only consequence. Once it is found that admission procedure in contravention of Sub-section (1) of Section 13 is adopted, the entire admission process becomes illegal and, therefore, the Education Officer was right in directing the Petitioner to conduct a fresh process by cancelling the earlier process.
15. We must note here that the application of the petitioner for declaring the school as belonging to specified category is admittedly not allowed. Merely because some other school is conducting entrance tests is no ground to save the illegal procedure adopted by the Petitioner.
16. At this stage, we must note that nearly half of the academic year is over. Though, we are confirming the validity and the legality of the impugned communication dated 29th May, 2013, the admissions 14 of 16 ::: Downloaded on - 27/11/2013 20:27:51 ::: pmw 15 wp-4986.13 - Copy granted to standard V cannot be cancelled in the midst of the academic year and, therefore, the direction contained in impugned communication dated 29th May, 2013 shall be given effect only at the end of the academic year. We make it clear that the students who are admitted to class V shall not be required to again secure admission to the same class next year. An interesting argument was sought to be made that in view of Section 16 of the said Act, admissions granted to the students cannot be cancelled. Section 16 applies to admissions which are lawfully granted. The section does not protect the admissions granted in contravention of the provisions of the said Act. The children who are admitted in contravention of Sub-section (1) of Section 13 cannot claim protection of Section 16 of the said Act.
17. Therefore, the petition must fail and the same is rejected.
We direct that the admissions granted to standard V shall not be cancelled in the midst of the present academic year and, therefore, the directions contained in impugned communication dated 29 th May, 2013 shall be given effect only at the end of the academic year. We make it clear that the students who are admitted to class V during this academic year shall not be required to again secure admission to the same class next year.
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18. Civil Application No.1792 of 2013 does not survive and the same is disposed of.
(REVATI MOHITE DERE, J ) ( A.S. OKA, J )
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