WP 1869/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1869/2017
1. Nitin Ravindra Bansod,
Age 48 years, Occupation - Farmer,
Agresen Road, Near Gajanan Maharaj
Mandir, Dharampeth, Zenda chauk,
Nagpur - 440 010.
2. Parashram Ramji Raut,
Age 42 years, Occupation : Auto Driver,
Plot No.118, Ambazari Tekadi,
Hill Road, Nagpur 440 033.
3. Niranjn Vishwanath Bhagat,
Age 48 years, Occupation - Auto Driver,
Plot No.553 Gali No.5, Gokulpeth
Budha vihar Road, Shankar nagar,
Nagpur 440 010.
4. Ramdas Agrawal,
Age 53 years, Occupation - Pvt. Job,
Plot No.606, Marar Toil,
Ramnagar Nagpur 440 033.
5. Praful Vinayak Hazare,
Age 41 years, Occupation - Pvt. Job,
Behind Bishop Cotton School,
Dharampeth, Nagpur 440010.
6. Ajay Kisan Kanojiya,
Age 45 years, Occupation - Pvt.Job,
Dadaji Dhutiwane marg,
Ravinagar, Civil Line, Nagpur.
7. Vikas Motiram Wankhede,
Age 46 years, Occupation Pvt.Job,
Plot No.184/D Ajay nagar,
Ambajari Hiltop, University Campas,
Nagpur 440033.
8. Rajesh Radheshyam Shriwas,
Age 41 years, Occupation Pvt.Job,
Surendragad, Behind Veternary College,
Nagpur 440006.
9. Haridas Shyamrao Dhopte,
Age 46 years, Occupation Pvt.Job,
Near Rajbhavan Garden, Khatikpura,
Sadar, Nagpur 440001.
10. Rajesh Pandharinath Madane,
Age 45 years, Occupation Pvt.Job,
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WP 1869/17 2 Judgment
Near old police station, Tin Mundi,
Sadar, Nagpur 440001.
11. Rajesh Shardanand Jaiswal,
Age 55 years, Occupation - Fruit shop,
Near Police post, Jawahar chauk,
Nagpur 440001.
12. Suresh Shyamrao Dhore,
Age 41 years, Occupation Pan shop,
Bajrang chauk, Gandhi nagar,
Seminary Hill, Nagpur.
13. Suresh Gulabrao Bhandakkar,
Age 43 years, Bhuvneshwari Matamandir,
Seminari Hills, Nagpur 440006.
14. Sau. Bharti Arvind Patil,
Age 40 years, Occupation - Business,
Bhima Apartment, Flat No.B/2,
Ravinagar, Amravati Road,
Nagpur 440033.
15. Rupchand Knhyalal Uikey,
Age 42 years, Occupation - Pvt. Job,
Plot No.670, Near Hanuman Mandir,
Marar Toli, Ramnagar,
Nagpur 440010.
16. Suresh Premlal Sirswal,
Age 43 years, Occupation Pvt.Service,
H.No.1338/A Ramnagar, Near
Pandharabodi, Hanuman Mandir,
Sanjay nagar Road, Nagpur-440033. PETITIONERS
.....VERSUS.....
1. Government of India,
Through its Secretary,
Ministry of HRD, New Delhi.
2. State of Maharashtra,
Through its Secretary,
Department of Education and Sport.
3. Deputy Director of Education,
Nagpur Division, Nagpur.
4. Education Officer (Primary),
Zilla Parishad, Nagpur.
5. Principal,
Modern Primary School,
Civil Line, Nagpur.
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WP 1869/17 3 Judgment
6. Principal,
Sandipani School,
Civil Lines, Nagpur. RESPONDENTS
Shri T. Rahul, counsel for the petitioners.
Mrs. A.A. Joshi, counsel for the respondent no.1.
Shri S.M. Ukey, Additional Government Pleader for the respondent nos.2 and 3.
Mrs. I.L. Bodade and Shri G.G. Mishra, counsel for the respondent no.4.
Shri Rohit Joshi, counsel for the respondent no.5.
Shri Anand Jaiswal, Senior Counsel with Mrs. Radhika Bajaj, counsel for the respondent
no.6.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 20 TH APRIL, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.) RULE. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.
2. By this writ petition, the petitioners seek a direction to the respondent nos.3 and 4-The Deputy Director of Education, Nagpur and the Education Officer (Primary), Zilla Parishad, Nagpur to transfer the children of the petitioners in the nearby schools with a view to provide them free education facility as per the provisions of The Right of Children to Free and Compulsory Education Act, 2009. A further direction is sought against the respondent nos.5 and 6-Modern Primary School and Sandipani School to protect the education of the children of the petitioners by admitting them in the other branches of the schools in the nearby locality, as per the provisions of the Act.
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WP 1869/17 4 Judgment
3. The children of the petitioners were admitted in Standard I in the respondent nos.5 and 6-Schools, located in Civil Lines, Nagpur under the provisions of Section 12(1)(c) of the Act, in the year 2013-14. The respondent nos.5 and 6-Schools in Civil Lines provide education to the children only till Standard IV. The management of the respondent nos.5 and 6-Schools run and administer two other schools at Koradi and Hazari Pahad respectively where education is imparted to the students from Standard I to X. The children of the petitioners have completed the education till Standard IV at the end of the academic session 2016-17 and are entitled to the admission to Standard V. Some of the petitioners received a communication from the respondent no.5 informing them that they could admit their children in Standard V in the school run by the management at Koradi on the condition that they would not be entitled to free education as per the provisions of Section 12(1)(c) of the Act. The respondent no.6 also served the communications on the other petitioners informing them that since there is no facility for further education in the schools in which their children were admitted, they would be required to make arrangement for admitting their children in the other schools as per the provisions of the Act. The communications are challenged by the petitioners in the instant petition and a direction is sought against the respondent nos.3 to 6 to ensure that the children of the petitioners are provided free education in the 25% quota as provided under Section 12(1)(c) of the Act.
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WP 1869/17 5 Judgment
4. Shri T.Rahul, the learned counsel for the petitioners, submitted that as per the provisions of Section 12(1)(c) of the Act, the children of the petitioners were admitted in the respondent nos.5 and 6- Schools to the extent of 25% of the strength of Standard I and free education was provided to them as per the provisions of the Act. It is submitted that the respondent nos.5 and 6-Schools, that are located in Civil Lines, have classes only up to Standard IV and elementary education is not provided in the said schools till Standard VIII. It is submitted that the petitioners belong to the weaker or disadvantaged groups and the petitioners therefore have a right to secure free education for their children under the Act. It is stated that the action on the part of the respondent nos.5 and 6 in not providing free education to their children in the other schools run by them would be violative of the provisions of the Act. It is submitted that in any case, a direction needs to be issued against the respondent nos.3 and 4 to admit the children of the petitioners in any other schools so that the petitioners could educate their children, as per the provisions of the Act. The learned counsel for the petitioners, states that the grievance of the petitioners would stand redressed if the respondent no.4 takes steps to transfer their children to any other school excluding the schools that are specified in Sub-Clauses (iii) and
(iv) of Clause (n) of Section 2 of the Act.
5. Shri Jaiswal, the learned Senior Counsel for the respondent no.6, submitted that the respondent no.6 runs two independent schools, one in the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 28/08/2017 00:01:40 ::: WP 1869/17 6 Judgment Civil Lines locality in which the children of the petitioners are admitted and the other one at Hazaripahad. It is stated that the school run by the respondent no.6 in Civil Lines, where the children of the petitioners are admitted and the school at Hazaripahad are different schools. A reference is made to the U-DISE numbers of the schools at Civil Lines and Hazaripahad to point out that the schools run by the respondent no.6 in Civil Lines and Hazaripahad are different and independent schools. It is stated that a child admitted in one school run by the management would not have an absolute right to get admitted in the other school run by the management in another locality. It is submitted that the schools in which the children of the petitioners were admitted in the year 2013-14 have classes only till Standard IV and 'elementary' education till the end of Standard VIII is not provided in the said schools. It is submitted that this fact was known to the petitioners when they admitted their children in the respondent no.6-School at Civil Lines. It is submitted that the school run by the respondent no.6 at Hazaripahad have classes from Standard-I to X and while admitting the students to Standard I in the school at Hazaripahad, they have exhausted the 25% quota in respect of grant of free education to the weaker sections or disadvantaged groups, as provided under Section 12(1)(c) of the Act. It is stated that if the respondent no.6 is directed to provide free education to the children of the petitioners in their school at Hazaripahad, the 25% quota for providing free education, as provided under Section 12(1)(c) would be exceeded.
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WP 1869/17 7 Judgment
6. Shri Joshi, the learned counsel for the respondent no.5, submitted that the respondent no.5 runs two independent schools, one in the Civil Lines locality in which the children of the petitioners are admitted and the other one at Koradi. It is stated that the school run by the respondent no.5 in Civil Lines locality where the children of the petitioners are admitted and the schools at Koradi are entirely different schools. A reference is made by the learned counsel to the U-dise numbers of the two schools to show that they are different. It is submitted that if it is assumed that the school run by the respondent no.5 in the Civil Lines locality in which the children of the petitioners are admitted and the school at Koradi is the one and the same school, the 25% quota as provided under Section 12(1)(c) will surely exceed. It is submitted that Section 5 of the Act provides that where there is no provision in the school for completion of elementary education a child will have a right to get transferred to a school, other than the schools provided under Section 2(n)(iii) and (iv) of the Act. According to the respondent no.5, the provisions of Section 5 would come into play as there is no provision for completion of elementary education in the school in Civil Lines, where the children of some of the petitioners were taking education and the petitioners would be entitled to get their children admitted to any other school in the nearby locality.
7. The learned counsel for the respondent no.4 submitted that if there is no provision for completion of elementary education of the child in ::: Uploaded on - 29/04/2017 ::: Downloaded on - 28/08/2017 00:01:40 ::: WP 1869/17 8 Judgment the school in which he or she is admitted, as per the provisions of Section 5 of the Act, the child would have a right to seek transfer to any other school, excluding the schools specified in Sub-Clause (iii) and (iv) of Clause (n) of Section 2 of the Act, till the completion of his/her elementary education. It is submitted that if this Court so directs, the respondent no.4 would take appropriate steps to admit the children of the petitioners in any other schools, except the schools specified in Sub-Clauses (iii) and (iv) of Clause
(n) of Section 2 of the Act.
8. On a reading of the relevant provisions of the Act, it appears that a direction cannot be issued in the circumstances of the case against the respondent nos.5 and 6 to admit the children of the petitioners in the schools run by them in Koradi and Hazaripahad respectively. We find much force in the submission made on behalf of the respondent nos.5 and 6 that though the management of the schools run by the respondent nos.5 and 6 at Civil Lines and Koradi; and Civil Lines and Hazaripahad respectively is the same, the schools are independent schools having different U-DISE numbers. Even assuming that the schools run by the respondent nos.5 and 6 at Civil Lines and Koradi and Hazaripahad respectively are considered to be one school, we find much force in the submission made on behalf of the respondent nos.5 and 6 that if the two schools run by each of these respondents are considered to be one school, the children of the petitioners would not be entitled to take free education in the schools at Koradi and Hazaripahad ::: Uploaded on - 29/04/2017 ::: Downloaded on - 28/08/2017 00:01:40 ::: WP 1869/17 9 Judgment respectively in view of the provisions of Section 12(1)(c) of the Act. Section 12(1)(c) of the Act casts an obligation on the schools specified in Sub- Clauses (iii) and (iv) of Clause (n) of Section 2 of the Act to admit at least 25% of the strength of a class, children belonging to the weaker sections and disadvantaged groups and provide free and compulsory elementary education to them, till its completion. There is no dispute about the fact that the respondent nos.5 and 6 are unaided schools and are not receiving any kind of aid or grant to meet their expenses from the appropriate government or the local authority. Hence, the schools run by the respondent nos.5 and 6 would fall within the term "school" as is provided under Section 2(n)(iv) of the Act. A duty is enjoined upon the schools specified in Sub-clause (iv) of Clause (n) of Section 2 to provide free and compulsory education, at least to the extent of 25% of the strength. It is the case of the respondent nos.5 and 6 and it is not disputed by the petitioners and the respondent no.4 that if the children of the petitioners are directed to be admitted in the schools run by the respondent nos.5 and 6 at Koradi and Hazaripahad respectively, the quota of 25% under Section 12(1)(c) would be exceeded. There is no prohibition in providing free and compulsory education to more than 25% of the strength of the class under Section 12(1)(c) but, there is no obligation on the management of the schools specified in Sub-Clauses (iii) and (iv) of Clause (n) of Section 2 of the Act to provide free education above the strength of 25% of the class. If that is so, a direction cannot be issued against the respondent nos.5 and 6 to admit the students beyond 25% ::: Uploaded on - 29/04/2017 ::: Downloaded on - 28/08/2017 00:01:40 ::: WP 1869/17 10 Judgment strength of the class in Standard-V. If the provisions of the Act are applied to the circumstances of the case, we find that no direction could be issued to the respondent nos.5 and 6 to provide free education to the children of the petitioners in their schools at Koradi and Hazaripahad respectively, specially when these schools are distinct and separate from their schools in Civil Lines. Though no direction could be issued against the respondent nos.5 and 6 to admit the children of the petitioners and provide free education to them in their schools at Koradi and Hazaripahad, the children of the petitioners cannot be left in a lurch. Section 5 of the Act comes into play where a school has no provision for completion of elementary education of a child, like in the case in hand. In such cases, where the school has no provision for completion of elementary education of the child till Standard VIII, the child would have a right to seek his/her transfer to any other school excluding the schools specified in Sub-Clauses (iii) and (iv) of Clause (n) of Section 2 of the Act. We have already noted that the schools run by the management of the respondent nos.5 and 6 at Koradi and Hazaripahad respectively are the schools falling within Sub-Clause (iv) of Clause (n) of Section 2 of the Act and, hence, the children of the petitioners would not have a right to seek their transfer in the schools run by the management of the respondent nos.5 and 6 at Koradi and Hazaripahad respectively. In the circumstances of the case and in the interest of justice, it would be necessary to issue a direction against the respondent no.4, in view of the provisions of Section 9 of the Act that casts a duty on the 'local authority' to provide free and compulsory ::: Uploaded on - 29/04/2017 ::: Downloaded on - 28/08/2017 00:01:40 ::: WP 1869/17 11 Judgment elementary education to every child, to admit the children of the petitioners in any other schools, excluding the schools specified in Sub-Clause (iii) and
(iv) of Clause (n) of Section 2 of the Act so as to ensure that they secure free elementary education.
9. Hence, for the reasons aforesaid, the writ petition is partly allowed. The respondent no.4 is directed to admit the children of the petitioners in the other schools, excluding the schools specified in Sub-Clause
(iii) and (iv) of Clause (n) of Section 2 of the Act for completion of their elementary education, within two months. By keeping the objects of the Act in view, we hope and trust that the respondent no.4 would ensure that the children of the petitioners would be admitted in the schools in their neighbourhood and would not be required to travel a long distance for attending the schools to which they may be admitted in terms of this order.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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