Sudheer Kumar vs State Of U.P. And 3 Others
2017 Latest Caselaw 3114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 17.05.2017
 
Judgment delivered on 09.08.2017
 
AFR
 
Court No. - 34
 

 
Case :- WRIT - C No. - 1568 of 2017
 

 
Petitioner :- Sudheer Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Adarsh Bhushan
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Kartikeya Saran,Swetashwa Agarwal
 

 
Hon'ble Saumitra Dayal Singh,J.

This writ petition has been filed, seeking a writ of mandamus to the respondents to ensure admission of the petitioner's male child born on 11.10.2011 (hereinafter referred to as 'C'), at Maharshi Patanjali Vidya Mandir, Allahabad, claiming under Section 12 (1) (c) of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'the Act').

The petitioner has disclosed his address at 102, Suturkhana, (Galla Bazar), Allahabad. He claims to be economically weak, with an annual income of Rs. 48,000/- per annum. Therefore, he claims 'C' is "child belonging to weaker section" as defined under Section 2(e) of the Act and entitled to receive "elementary education" defined under Section 2(f) of the Act, at the cost of the State. These facts are not in dispute.

The petitioner's case, in short is, pursuant to an application made by him, the Basic Shiksha Adhikari, Allahabad (hereinafter referred to as BSA) vide his communication dated 11.08.2016 recommended the case of three children including 'C', under the provisions of the Act, for admission at Maharshi Patanjali School, Teliyarganj, Allahabad. Admittedly, the said recommendation had been made in writing and was addressed to the Manager "Maharshi Patanjali School, Teliyarganj, Allahabad".

The petitioner then contends, despite his having continuously approached the School Authority for twenty days, 'C' was not granted admission at that school. Therefore, he complained in writing to the District Magistrate, Allahabad, in respect of the same. A copy of the same has been annexed to the writ petition.

The petitioner then complains, as 'C' was not granted admission at Maharshi Patanjali School, despite aforesaid efforts, he filed the present writ petition for the following relief:-

"To issue a writ, order or direction in the nature of mandamus directing respondents to ensure admission of the son of petitioner Chaitanya Dev in Maharishi Patanjali Vidya Mandir, Allahabad under Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009."

In this writ petition Maharishi Patanjali Vidya Mandir has been impleaded by that description, (as respondent no. 4) and effectively, relief has been sought against that respondent.

The petitioner relies on the provisions of Section 12 (1) (c) of the Act. He states Maharshi Patanjali Vidya Mandir is a school specified under Section 2 (n) (iv) of the Act being an unaided school. Therefore, petitioner contends, that school is obliged by law to admit 'C' who falls under description of "child" as defined under Section 2 (e) of the Act. According to the petitioner, the total number of students admitted to Class 1 by the said school is much higher than four in number and therefore the school has violated the Act by not admitting 'C' (one of the three children recommended by the BSA), in accordance with the scheme of the Act which mandates 25% such seats to be filled up by students recommended to the school, under provisions of the Act.

Alternatively, he also relies on the proviso to section 12 (1) of the Act, to submit, in case the child was under age, for admission to class 1, then in view of the aforesaid proviso, the Maharshi Patanjali School should have admitted the 'C' in pre-school.

This alternative submission has been made in context of language of Section 12(1) of the Act which are quoted herein below:-

"12. Extent of school's responsibility for free and compulsory education:-

(1) For the purposes of this At, a school, -

(a) specified in sub-clause (I) of clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein;

(b) specified in sub-clause (ii) of clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 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 till its completion;

Provided further that where a school specified in clause (n) of Section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education."

Second, petitioner relies on the Government Order issued by the Government of Uttar Pradesh being G.O. No. 308 dated 3.12.2012 which was considered and the law in that regard clarified by a Division Bench of this Court in the case of Ajay Kumar Patel Vs. State of U.P. and another reported in 2016 (4) ADJ 662, wherein in paragraphs 16 and 17, this court had held as below:-

"16. The first issue which falls for consideration relates to the interpretation of the provisions of Section 12 (1) (c). Section 12 defines the nature of the responsibility of a school to provide for free and compulsory education. Section 12 (1) (c) covers schools belonging to specified categories and unaided schools not receiving any grant or aid to meet expenses from the Government or local authority. These schools have been obligated to admit to Class 1 to the extent at least 25% of the strength of that class, children belonging to weaker sections and disadvantaged groups in the neighborhood and to provide free and compulsory elementary education till its completion. The mandate of Section 12 is not conditional on the absence of schools established, owned or controlled by the appropriate Government or local authority or of aided schools. In other words, the obligation to admit students belonging to the weaker sections and from disadvantaged groups does not come into existence only upon the absence of seats in schools which are run by the State or local authority or by aided institutions. The obligation under Section 12 (1) (c) has not been made dependent on the non existence of State run schools or aided schools or the unavailability of seats in those schools. To read Section 12 (1) (c) in a contrary manner so as to import an obligation to admit students from the weaker sections and disadvantaged groups only where seats are not available in State run schools or aided institutions would be to defeat the object of the provisions. The Government Order dated 6 January 2015 reiterates the earlier Government Order dated 3 December 2012 by stipulating that it is only where the District Basic Education Officer has found that students belonging to weaker sections or disadvantaged groups are unable to obtain admissions to government schools or schools run by the Basic Shiksha Parishad and in aided institutions due to unavailability of seats that such students would be entitled to obtain admission against the 25% seats available in unaided institutions. This prescription creates a hierarchy in the availment of the benefits under Section 12 (1) (c) by stipulating that it is only in the absence of admissions being available in Government run schools or aided institutions that the obligation to admit students from disadvantaged groups or of weaker sections under Section 12 (1) (c) would arise. This interpretation and understanding of the State is clearly contrary to the provisions of Section 12 (1) (c).

17. Moreover, it is evident that the rules which have been prescribed by the State Government under the rule making authority do not establish any such hierarchy as indeed the rules could not have done in violation of the provisions of the parent enactment. Consequently, we find merit in the first submission which has been urged on behalf of the petitioner that laying down a hierarchy or condition for the availment of the benefits under Section 12 (1)(c) by restricting them only to a situation where admissions in schools which are conducted by the Government or in aided institutions are not available, would be contrary to the plain mandate of Section 12 (1) (c). Such a policy cannot be laid down by the State Government in violation of the provisions of the Act of Parliament and would be ultra vires. The plain effect of the policy would be to mandate that a child belonging to the weaker section or disadvantaged groups cannot aspire for admission to an unaided institution under Section 12 (1) (c) so long as admissions are available in State run schools or in aided institutions. This is impermissible. It is a matter of common knowledge that the facilities which are provided in unaided institutions are superior to those in government institutions and aided institutions though may be with certain exceptions. The whole object and purpose of Section 12 (1) (c) was to provide for an assimilation of students belonging to the weaker sections and disadvantaged groups into the main stream of education by allowing them access to facilities and means of learning provided in unaided institutions. Unfortunately, as a result of the policy which has been framed by the State Government to which we have made a reference earlier, this object has been negated by depriving the most deserving of students from the grant of benefits which have been provided by the legislation enacted by Parliament in implementation of the fundamental right to free and compulsory education between the ages 6 and 14."

(emphasis supplied)

In the above regard, learned counsel for the petitioner submits, statement made in paragraph 2 Clause 6 (B) of the Government Order (which appears to suggest, admission to unaided school may be made only after the seats in schools established by the Government or Local Authority are filled up), has been specifically disapproved by the Division Bench. Such interpretation and understanding of the State has been held to be contrary to the provisions of Section 12(1)(c) of the Act. It is impermissible to contemplate, a child belonging to the weaker section or disadvantaged group cannot aspire for admission to an unaided school so long as admissions are available to schools established by the State Government or local authority or aided schools.

Third, learned counsel for the petitioner relies on notification dated 30.11.2012 issued under Section 2(d) and 2(e) of the Act to claim petitioner as a person belonging to the economically weaker section, his income of Rs. 48,000/- per annum being clearly below the upper limit of Rs. 1,00,000/- contemplated under the aforesaid notification. To this, there is no dispute.

Fourth, learned counsel for the petitioner relies on another Government Order issued by the Government of Uttar Pradesh being G.O. No. 999 dated 11.05.2016 which obligates the BSA (Basic Shiksha Adhikari) of each district to ensure grant of admission to children of persons belonging to economically weaker sections and disadvantaged groups at recognized schools near ("aas-pas") their residence, up to the statutory limit of 25% of total seats available in class 1 of each such school. He submits, as will be later examined, the concept of "'neighbourhood'" school and limitations as to distance between the residence of the 'child' and the unaided school falling under section 2 (n) (iv) of the Act does not apply to such schools, in discharge their obligation under the Act.

Also, the aforesaid Government Order has been relied in so far it provides, in case of more than one recognized school existing in a residential area, admission of a child be made in accordance with the choice of the child.

According to learned counsel for the petitioner, the concept of "'neighbourhood'" which, in first place is relevant only for establishment of schools by State Government and local authority, is wholly irrelevant for purpose of discharge of obligation by schools falling under section 2 (n) (iii) and (iv). That obligation, it is claimed, is independent of the concept of neighbourhood. In any case, the concept of "'neighbourhood'" is wholly irrelevant with reference to the choice of a 'child' seeking admission in a partially aided and or unaided school. He submits, while exercising his choice a 'child' as defined under the Act may seek admission in any institution of his choice, irrespective of distance of that school from his residence, just like any other child whose parents do not belong to EWS or who is not a member of the a disadvantaged group may seek admission at such school.

The petitioner therefore contends, in view of existence of 25% reservation on all admissions made at respondent school to class Nursury and/or class I, under Section 12(1)(c) of the Act, his child was entitled to be admitted to that school in accordance with his choice on account of sufficient seats being available there under.

Last, the petitioner has relied on paragraph 19 of the judgment in the case of Ajay Kumar Patel (supra). He submits, admission has been sought by him for 'C' strictly in accordance with law and that the State agencies and schools have failed to act in accordance with law as enunciated by the Division Bench of this Court. Paragraph 19 of the aforesaid judgment is quoted herein below:-

"19. During the course of hearing, one aspect which has emerged before the Court is the failure of the Principal Secretary, Basic Education to deal specifically with the number of admissions granted across the State under Section 12 (1) (c). Apart from controverting the statement made by the petitioner, by submitting that Section 12 (1) (c) is not a target, no specific disclosure of statistics has been made before the Court. The State Government shall ensure that the provision is implemented in letter and spirit in the State of Uttar Pradesh from the coming academic session. The State shall do so in accordance with the basic interpretative principles that must govern the implementation of Section 12 (1) (c) in the State as enunciated in this judgment. The State shall now revisit its earlier formulations so as to bring them in conformity with the mandate of Section 12 (1) (c) as interpreted in the present judgment of this Court no later than within a period of two months from the date of receipt of a certified copy of this order."

(emphasis supplied)

The BSA, Allahabad has filed two affidavits. In the main counter affidavit to the writ petition the said authority has disclosed, on 04.02.2016, it had issued an advertisement inviting applications from parents of the students eligible to the benefits of the Act. In that advertisement various schools had been described in the second and fourth column with reference to certain residential areas mentioned in first and third column. It is relevant to extract the advertisement:-

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It has also been stated by the BSA in his counter affidavit that the petitioner had applied on 08.06.2016 disclosing the choice of five schools in order of preference. The first school mentioned by the petitioner for admission of his child is described as "Maharshi Patanjali Vidya Mandir, 2 Shilakhana, Teliyarganj, Allahabad 211004". He also disclosed the distance of the school from his residence is one kilometer.

It is then stated by the BSA, Allahabad that a list containing proposal of all admissions to be made under the Act was made by the Block Shiksha Adhikari to the BSA on 22.07.2016 containing two parts. First, being list of 42 students in respect of admission to be made to Class-1 and the other being list of 8 students for admission to class-Nursery. The name of the petitioner's child is mentioned at Sl. No. 4 in part 2 of the list for admission at "Maharshi Patanjali School, Teliyarganj, Allahabad", alongwith name of another student Shikha Jaiswal. Perusal of Part-I of the list discloses no student was proposed to be recommended for admission at the aforesaid school to class -1. It is noted, these lists are referable to admissions to be made under Section 12(1)(c) of the Act only.

Then, it is disclosed, upon approval by the CDO/DM list of 100 students was prepared for admissions to be made under the Act. There upon, on 11.08.2016, the Basic Shiksha Adhikari wrote to the Block Shiksha Adhikari to recommend the admission of the petitioner's son to "Maharishi Patanjali School, Teliyarganj, Allahabad" to Nursery class, his name being included in the list of 8 students so recommended.

It is then claimed, the Block Shiksha Adhikari vide his communication dated 11.08.2016 addressed to the Manager "Maharishi Patanjali School, Teliyarganj, Allahabad" required the said school to admit the petitioner's child as also two other children Shikha Jaiswal to nursery class and another child Aayush Jaiswal to class 1. Copy of the said communication has also been annexed with the counter affidavit.

It has then been stated by the BSA that the petitioner complained to that authority of the school having not granted admission to 'C' despite his making 12 to 15 attempts. Acting on such complaint, the Basic Shiksha Adhikari claims to have written to the Principal "Maharishi Patanjali Vidya Mandir School, Teliyarganj, Allahabad" requiring the said school to submit its report in the above regard immediately, alongwith details of the students admitted by that school under Section 12 (1)(c) of the Act. This communication has also been annexed with the counter affidavit. According to the Basic Shiksha Adhikari, the school did not grant admission to 'C' as directed and has thus violated the Act.

During the course of hearing, on an earlier date, a dispute was raised by the school that "Maharishi Patanjali Vidya Mandir" is a separate school and it has no branches and further the said school is different from three other entities being Maharishi Patanjali Vidya Mandir Ganga Gurukulam; Patanjali Rishikul and; Patanjali Nursery School.

Though no impleadment or other application has been filed by any of the other three schools said to be existing separately, learned counsel for the respondent school sought to draw up the distinction between the aforesaid four schools to submit that "Maharishi Patanjali Vidya Mandir" does not have a nursery class and, therefore, the petitioner's child could not have been admitted to that school, the child being less than five years of age and the recommendation of BSA being for admission to nursery.

He has also submitted that the Maharishi Patanjali Vidya Mandir Ganga Gurukulam and Patanjali Nursery School which have nursery class are separately recognised schools which are independent of Maharishi Patanjali Vidya Mandir, Teliyarganj, Allahabad and no recommendation was ever made for admission of petitioner's child either at the Maharishi Patanjali Vidya Mandir, Ganga Gurukulam or to Patanjali Nursery School. Therefore, the admission to 'C' could not be granted, even if, the petitioner were held to be entitled to admission to any of the aforesaid schools.

Upon such dispute being raised, by order dated 25.4.2017 the BSA was directed to file fresh affidavit disclosing the exact status of the four schools as also classes run by them.

In compliance of the aforesaid order the Basic Shiksha Adhikari filed an affidavit wherein it has been disclosed, he had constituted a committee to examine the issue whether the aforesaid four schools, are a single or multiple entity. According to the affidavit, the committee so established by the BSA made it's inquiry at these four schools and it was informed, while the aforesaid three of the four aforesaid schools have separate recognition namely Maharishi Patanjali Vidya Mandir 28/A, Shilakhana, Teliyarganj, Allahabad; Maharishi Patanjali Vidya Mandir Ganga Grurkulam, Gaddopur, Phaphamau, Allahabad; Patanjali Rishikul at 2 Shilakhana are separately recognsied schools under the C.B.S.E. Board, Patanjali Nursery School at 2 Shilakhana, Teliyarganj, Allahabad is not a recognised school under any education Board.

Then, in respect of classes held at each school it was disclosed to the committee constituted by the BSA, Maharishi Patanjali Vidya Mandir at 28/A Shilakahana runs classes from 5 to 12 while Maharishi Patanjali Vidya Mandir Ganga Gurukulam runs classes from 1 to 12 and Patanjali Rishikul runs classes from 1 to 10 and Patanjali Nursery School runs nursery to prep classes only.

It had been further reported to the committee, none of the four schools have any branch. Then, it has been disclosed to the committee by the schools that barring one student Vartika Shukla admitted to Class 1, at Patanjali Rishikul under the Act, no other student was granted admission under the Act at any of the four schools.

Petitioner has impleaded Maharishi Patanjali Vidya Mandir, 28-A, Shilakhana, Rasulaghat, Teliyarganj, Allahabad, through its Manager as respondent no.4 in the writ petition. In all, four (counter) affidavits have been filed on behalf of said respondent by one Shivpoojan who has disclosed himself to be an employee (Legal Assistant) of respondent no.4.

In the first affidavit filed on February, 2017, which is the main counter affidavit to the writ petition, mainly three defences have been set up.

Before referring to the defence taken by respondent no.4, it may be noted, as per affidavits and inquiry conducted by the Basic Shiksha Adhikari, it is on record now, that Maharishi Patanjali Vidya Mandir at Shilakhana, Teliyarganj is a school having recognition from the CBSE Board, recognised to run classes 1 to 12. However, at present it is only running classes 5 to 12.

In the main counter affidavit it was not stated that there are four schools, independent of each other. No plea in that regard was raised. On the contrary the main counter affidavit first states, that the respondent no.4 has been complying with the provisions of the Act including providing admission in terms of Section 12 of the said Act. In fact the paragraphs, 7, 8 and 10 of the main counter affidavit read as under:-

"7. That the answering respondent has been duly complying with the provisions of the RTE Act, including providing admission in terms of Section 12 of the said Act.

8. That in fact from before implementation of the RTE Act, since July, 2001 the answering respondent has been running the Patanjali Sarv Shiksha Prarambhik Vidyalaya, Teliarganj, Allahabad (in the campus of Maharishi Patanjali Vidya Mandir, Allahabad), wherein free education in Hindi medium is being provided to the children from economically poor backgrounds living in the vicinity of the Patanjali Group of Schools. Those childrren who are able to cope up with English medium are put in the mainstream schools.

9. That these 228 students under the Sarv Shiksha Scheme range from Nursery to Class V, and therefore, the mandate of the RTE Act is being duly followed by the answering respondent since 2001 itself."

A reading of the aforesaid paragraphs of the main counter affidavit clearly bring out admission of the respondent school that provisions of the Act are applicable to it. Also, it specifically states that for the academic session 2016-17, the said respondent (Maharishi Patanjali Vidya Mandir) had admitted 228 students ranging from classes Nursery to Class 5 to what it describes as "Sarva Shiksha Prarambhik Vidyalay", being run on the campus of Maharishi Patanjali Vidya Mandir for the benefit of economically backward children. According to the said respondent it was providing free education, uniform, refreshment, writing material to those students.

In the above background the respondent first claimed it was already discharging its social obligation towards educating the poor and that over and above the same, it was also discharging its obligation under the Act.

It then stated, the recommendation for admission of 'C' for academic session 2016-17 was made very late, on 11.8.2016, whereas the school run by the said respondent commenced it's session on 1st April 2016. In this context contents of paragraphs 15 and 16 of the main counter affidavit are relevant. They are quoted herein below:-

"15. That it may also be pointed out that while the academic session of the schools run by the answering respondent commence from 1st April, and seats fill up fast, timely recommendations of the Education Officer are duly honored and admission is granted as per the RTE Act.

16. That in the present case, for the academic session 2016-17 the answering respondent has granted admission to those recommendations made within time, but for the petitioner's son the relevant recommendation was made only on 11.08.2016, as is clear from a perusal of Annexure no. 3 to the writ petition. "

Third, the respondent school set up that defence of the petitioner residing beyond one kilometer distance from the school. It, therefore, contended that the respondent school did not fall within the "'neighbourhood'" as per the Government order dated 24.2.2016.

Then, the respondent school also contended, it had written to the Block Education Officer on 24.10.2016 seeking clarification on the above issue i.e. the fact of the petitioner's child residing outside the ward in which the school was located, but, it did not receive any reply from that authority.

Later, the said respondent no. 4 filed a Supplementary Counter Affidavit dated 17.4.2017 wherein, besides reiterating its earlier defence in respect of the petitioner residing outside the "'neighbourhood'" area of the school, it raised additional plea that the obligation creted under the Act was confined to children in the age group of 6 to 14 years while 'C' was only four years of age on the date of application and five years of age, as on date. Therefore, the obligation under the Act, if any, did not exist on the respondent school vis-a-vis the petitioner's child. In this regard it was further stated, the matter pertaining to such obligation is engaging attention of the Supreme Court in the case of Independent School Federation of India Vs. Union of India and others wherein an order dated 3.4.2017 issuing notices was relied upon. The said order is quoted as below:-

"Heard Mr. Abhishek Manu Singhvi, learned senior counsel along with Mr. Manish Vaish, learned counsel for the petitioner.

Issue notice.

Let a copy of this writ petition be served on the central agency so that it can engage a counsel to represent the Union of India.

As far as State of U.P. is concerned, a copy of this petition be served on the learned standing counsel for the State of U.P.

Dasti, in addition, is permitted in respect of respondent no. 2.

Let this matter be listed along with similar other matters which have been directed to listed in 12th August, 2017."

Then, during the course of hearing, an argument was raised by learned counsel appearing for the respondent no. 4, that there are four and not one school. Therefore, recommendation in question, as made was not enforceable against respondent no.4 which did not have Nursery classes.

In view of such stance taken by respondent no.4, Basic Shiksha Adhikari was required to file supplementary affidavit to clarify the position in that regard.

Respondent no.4 also filed a supplementary counter affidavit to the affidavit filed by the Basic Shiksha Adhikari, largely stating that there were four schools having separate entities and separate affiliation numbers and that none of those school was a branch of the other.

Also, by that affidavit respondent no. 4 brought on record a letter dated 3.5.2017 said to have been issued by the Basic Shiksha Adhikari to the Principal/Manager Patanjali Nursery School, Shilakhana, Teliyarganj, Allahabad, recommending 'C' for admission to Patanjali Nursery School. It was therefore pleaded, in view of such subsequent recommendation to Patanjali Nursery School the present writ petition had become infructuous as it stood admitted to the Basic Shiksha Adhikari that Maharishi Patanjali Vidya Mandir had no branch and was not running any pre-school classes.

Lastly, an affidavit in reply to the supplementary rejoinder affidavit filed by the petitioner was also filed by respondent no.4. It is also dated 16.5.2017. In this affidavit the school reiterated its plea /defence raised in the earlier affidavits, namely, the school was not located in the "'neighbourhood'" of the petitioner's residence; the matter pertaining to right of a "child" below 6 years of age was sub-judice before the Supreme Court; all four schools named above were separate entities; merely because all four schools were being run as a 'group', it could not lead to a conclusion of the four schools being one; further, all four schools were not being run by one society and; in view of second recommendation made by the BSA dated 3.5.2017, to the Principal/Manager of the Patanjali Nursery School, the writ petition had become infructuous.

In view of pleadings being thus complete, the matter was heard at length. While learned counsel appearing for the parties have been at variance at almost every aspect urged by the other. There is the petitioner who is the father of child seeking to enforce the Act, in favour of his child then there is the School which claims to be discharging its social obligation over and above the statutory obligation to impart education to the underprivileged, but which, at the same time, resists the claim of a child who has come to it on his own seeking education and third the Basic Shiksha Education who has been given supervisory and administrative powers to ensure fulfillment of the objectives of the Act who claims, is helpless as the respondent school has defied his recommendation.

Despite such variance and pleadings, there is no dispute that the petitioner is a person belonging to the economically weaker section. Admittedly, therefore petitioner's child would be entitled to the benefit of the Act.

There is also no dispute that the case of 'C' was recommended by the Basic Shiksha Adhikari under the Act and that recommendation was received by the respondent school. This admission stands established from a bare perusal of the main counter affidavit itself, wherein it is not denied that the recommendation as made was not received by Maharishi Patanjali Vidya Mandir.

In the main counter affidavit it was first disclosed Maharishi Patanjali Vidya Mandir, Allahabad was part of the "Patanjali Group of the Schools". It was however not made clear as to which other school were included in such group. Also, neither pleading as to separate registration or entity was made nor form and structure of management of each school was disclosed.

Thereafter, it was stated the said school namely Maharishi Patanjali Vidya Mandir at Teliyarganj was imparting free education to not less than 228 students under Sarva Shiksha Scheme which was also referred to as the Sarva Shiksha Prarambhik Vidhyalay to students from nursery to class 5. Also it was stated that such classes were being run on the campus of the Maharishi Patanjali Vidya Mandir, Teliyarganj, Allahabad.

Thus, at the beginning of this litigation, respondent no.4 did not choose to state that there were four different schools, independent of each other and it did not set up a plea of invalidity of the recommendation of the BSA for that reason. It is also seen that though in the subsequent affidavits the said respondent chose to raise a plea that it was not running any Nursery classes, in the first affidavit, it admitted to be running Nursery classes also, on the campus of Maharishi Patanjali Vidya Mandir, though, not as part of regular school but as a welfare scheme or as a philanthropic activity.

As to the defence, the main counter affidavit only set out two defences. One, of the recommendation having been made very late. This was cited as a reason to deny admission to the petitioner's child. It was stated in so many words by means of paragraphs 15 and 16 of the counter affidavit extracted above. Second, it was stated, the respondent school is outside the 'neighborhood' limit from the residence of the petitioner. Therefore, the recommendation time is invalid.

On the issue of delay, I find this plea to be not wholly bona fide. According to his application copy filed by BSA), the petitioner had applied for admission of his child, at the school with description of respondent no.4 alone. The Basic Shiksha Adhikari, in turn recommended the case of 'C' to "Maharishi Patanjali School, Teliarganj, Allahabad". This description as per the subsequent defence set up by respondent no.4 (in the supplementary counter affidavit) is not the description of that respondent.

However as to the plea of delay, it is seen, in the main counter affidavit itself, the said respondent no.4 had itself annexed two letters dated 24.8.2016 and 24.10.2016, both stated to have been written in response to the recommendation dated 11.8.2016, by the Principal, "Maharishi Patanjali School, Teliyarganj, Allahabad/respondent no.4 to the Block Education Officer. In those letters, written by the said Principal, specifically, with respect to the recommendation made for admission of the petitioner's child, objected only on one issue, namely, the recommended school was not situated within a "'neighbourhood'' of the residence of the petitioner and it being located in a different ward.

No objection whatsoever was raised by the Principal, "Maharishi Patanjali School" in it's letters dated 24.8.2016 and 24.10.2016 either that the recommendation so made by the Block Education Officer was belated or that it could not be honoured because the session at the School had already begun. More importantly, no objection was raised in the said letter that the said school namely "Maharishi Patanjali School" could not grant admission to the petitioner's child in Nursery class because the said School did not have any Nursery class. Yet these two letters have been annexed to and relied upon in the counter affidavit filed by respondent no.4, namely "Maharishi Patanjali Vidya Mandir, Teliyarganj, Allahabad". Therefore, there can be no dispute as the correctness of the contents of letter dated 24.8.2016 because the same have been filed as part of the main counter affidavit by the School itself.

From the above, it is held that the subsequent pleadings made by respondent no.4 that the recommendation was belated and therefore, the recommendation made to it could not be honoured, is nothing but a mere eye wash or an after thought or the first improvement to the case.

Had it actually been the case or had there been any doubt such pleading would have been raised at the stage of objection filed by the School on 24.8.2016 itself, before the Block Education Officer.

However, the substance of the recommendation made by the Block Education Officer being for three students, one being petitioner's child for Nursery class and other two for admission to class 1 and the fact Principal, Maharishi Patanjali School wrote to the Block Education Officer only with respect to one of those recommendations that too voicing a single doubt as to ''neighbourhood'' limits, it is unbelievable that the Principal, Maharishi Patanjali School was, at the relevant time facing any other difficulty in giving effect to the recommendation made to him. Thus, it is seen, but for the reservation arising on account of petitioner residing more than one kilometer away, the respondent no. 4 had no other other objection if that recommendation had been made within time.

On merits of the objection of recommendation being belated, it is seen that the provisions of the Act namely Section 15 reads as under:-

"15. No denial of admission:- A child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed:

Provided that no child shall be denied admission if such admission is sought subsequent to the extended period:

Provided further that any child admitted after the extended period shall complete his studies in such manner as may be prescribed by the appropriate Government."

A plain reading of the aforesaid Section makes it clear that in the first place a child in whose favour right has been created under the Act, be admitted to a school at the commencement of academic year or within such extended period as may be prescribed by the Rules. Then, by way of proviso, it has been made clear that no child be denied such admission if admission is sought after the extended period.

Then, Rule 10 of the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 reads as under:-

"10. Extended period for admission in school (Section 15)--

(1) Extended period of admission shall be three months from the date of commencement of the academic year of a school i.e. 30th September after the commencement of the session.

(2) Where a child is admitted in a school after the extended period, he or she shall be eligible to complete studies with the help of special training, as determined by the head of the school."

Thus, in the first place, the Rules enable admission to be made up to 30th September after commencement of academic session, in cases where the academic session has already commenced and then Sub-Rule 2 further obligates the school (in respect of admissions granted beyond 30th September) to provide help to students who have been granted admission beyond 30th September, with special training.

In view of the above statutory scheme the plea of delay raised by the school by means of the counter affidavit lacks merit and is accordingly rejected as admittedly, the first recommendation was made by the BSA to respondent no.4 on 11.8.2016, duly received by that respondent. That respondent, as it's own showing, wrote to the BSA, till as late as 24.10.2016 with respect to the recommendation for admission of 'C' but, even in that communication only sought clarification with regard to limits of 'neighbourhood'. No objection was raised as to delay. The plea of delay/laches is thus non-bonafide and in any case, untenable in view of Section 15 of the Act, read with Rule 10 of the Rules.

While, it is true, in the best interest of children and the school as well the Basic Shiksha Adhikari should have completed the proceedings such that each school gets it's share of special children (entitled to admission under the Act) well before commencement of the session by each school, yet, a child would not and cannot loose his right under the Act merely because the recommendation was made on 11.08.2016 which date, in any case, was within the statutory limit of extended period.

Similarly, having relied on the letters written to and replied by "Principal, Maharishi Patanjali School", treating them to have been written to and by the said respondent, the defence raised through supplementary counter-affidavit of existence of four independent schools, appears to be a second improvement-nothing but a hollow defence resting on a mere technicality that has no real or substantial existence.

First, three recommendations were made by the BSA to the Principal, Maharishi Patanjali School and no doubt was expressed in respect of the other two recommendations that were for class 1, made to Maharishi Patanjali School. According to respondent no. 4 their exists no school by that name and all four schools have a different name. If the Principal, Maharishi Patanjali School had no difficulty in giving effect to two other recommendations similarly made, he could not have had one in case of the third on account of difference in name of school. Though, as a fact admission has not been shown to have been granted to other two children also.

It is seen even in these proceedings of respondent no.4 first filed it's main counter and annexed copies of letters written to and by Principal Maharishi Patanjali School with respect to the recommendation of 'C'. Relying such communication, it only raised plea of the school being outside 'neighbourhood' area of petitioner's residence. Thus, at the relevant time respondent no.4 did understand and treat the recommendation made by the BSA, as one, it could and would have honoured but for one objection regarding 'neighbourhood'.

Thus, on it's own showing, respondent no.4, itself, looked at itself as a single entity, identified as "Maharishi Patanjali School" not only at the time of responding to the BSA with respect to the recommendation made by that authority, but even as late as filing the main counter affidavit in this writ petition, where no plea was raised of recommendation being vague on that count.

Also, it is the own admission of respondent no.4, in the main counter affidavit that it was running classes Nursery to 5 at the same school campus i.e. "Maharishi Patanjali Vidya Mandir" for the underprivileged children, by giving it the name of "Sarva Shiksha Prarambhik Vidyalaya", though, according to it, as part of the regular school Maharishi Patanjali Vidya Mandir only runs classes 5 to 12.

Thus, it has not been made clear as to how it imparts education from classes Nursery to 5 to 228 students under the aforesaid scheme being run by the Maharishi Patanjali Vidya Mandir. If the plea, "Maharishi Patanjali Vidya Mandir" is an independent entity/school, (independent of the other three schools being run of the same group) were actually true it would not be able to impart such education, as it was itself engaged in running classes 5 to 12 only. Clearly the plea of four independent schools appears to be a false defence.

It is also admitted to respondent no.4 all the four schools have a common vision. Three schools have been shown to be separately recognized by the CBSE and the fourth is a pre-school, not requiring any recognition. Each school has been shown to have a separate management. Yet, alongwith the supplementary affidavit filed by the petitioner, certain documents have been annexed claimed to have been downloaded from the website of Patanjali Nursery School. Therein it has disclosed itself to be primary wing of "Maharishi Patanjali Vidya Mandir". Similarly, "Patanjali Nursery School" and Patanjali Rishikul Nursery School have disclosed themselves to be part of the Patanjali group of schools.

Thus, the pleas raised by respondent no. 4 in the subsequent affidavits that there exist four separately recognized schools and that the recommendation made to one, namely, "Maharishi Patanjali Vidya Mandir School" (which was running classes 5 to 12 only), could not obligate another school, is, in the given facts of the present case, false defence or a mere after thought and not a real defence. All four schools are one entity for the purpose of the Act, in the facts of the present case.

Plainly, it appears, at the relevant time, the respondent no.4 very clearly understood the recommendation in respect of 'C' had been made for admission to one of the four schools under common management or as the school would itself describe to one of the four schools having 'common vision' and that it would have honoured the recommendation but for the fact that the petitioner was residing at the place beyond 1 km. distance from the school.

No other objection having been raised either while objecting to the recommendation, by writing a letter or by filing the main counter affidavit in the writ petition, the subsequent plea and objection raised in that regard are therefore, rejected as mere after thought, contrary to the own understanding of respondent no.4, as has been shown to exist, by that respondent itself.

The next supplementary plea raised by respondent no.4 is, the mandate of the Act is confined to provide elementary education i.e. education in class 1 to 8 for children in the age group of 6 to 14 years only and that inasmuch as the admission had been recommended by the Basic Shiksha Adhikari for class Nursery, that too in respect of a child below 6 years of age, is invalid. This plea is also belatedly raised and no objection existed with respondent no.4 either at stage of responding to the recommendation made by the BSA or upto filing the main counter affidavit. Therefore, this objection is also liable to be similarly dealt with as aforesaid two supplementary objections dealt with above.

In this above regard, it is also noticed, while it is true that under Section 3 read with Section 2(c), 2(f) it appears the primary object of the Act is to ensure, all children, irrespective of financial or social disadvantages visiting their parents, be given equal opportunity to be educated in a certain minimum way i.e. be educated at least upto the 'elementary level' which has been identified by the statute as upto class 8, it is also true that such education, for the purpose of the Act, been contemplated to begin from class 1 and not earlier.

However, Section 12 falls under Chapter IV of the Act, under the heading "Responsibilities of Schools and Teachers". It spells out responsibility of various schools falling under Section 2(n) of the Act. For ready reference Section 2(n) of the Act reads as under :-

"2(n)"school' means any recognized school imparting        elementary education and includes-
 
(i)	a school established, owned or controlled by the appropriate Government or local authority;
 
(ii)	an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
 
(iii)	 a school belonging to specified category; and
 
(iv)	an unaided school not receiving any kind of aid or grants to meet its 	expenses from the appropriate Government or the local authority;"
 

 
	Then, section 12(1)(a) of the Act defines the responsibility of such schools which are established, owned or controlled by the appropriate Government or local authority. Respondent school is not such a school.
 
	Section 12(1)(b) of the Act defines the responsibility of the schools that are aided schools receiving aids or grants to meet whole or part of their expenses from the appropriate Government or local authority. Again, the respondent school is not such a school.
 

Then, Section 12(1)(c) of the Act defines the responsibility of the schools that either fall under "specified" category or are schools that are unaided and do not receive any kind of aid or grant to meet their expenses from the appropriate Government or local authority. Admittedly, the respondent no.4 school is such a school.

Schools established, owned or controlled by the appropriate Government falling under Section 2(n)(i) are responsible to provide free and compulsory elementary education to all children admitted therein. In the second place, an aided school has been made responsible under Section 12(1)(b) to provide free and compulsory elementary education to children (eligible to benefits of the Act), in the same proportion as grants received by it bear to its annual recurring expenses, subject to a minimum of 25%.

Schools such as the respondent school which is an unaided school falling under Section 12(n)(iv) has been made responsible to provide elementary education to at least 25% of the total strength of class 1 of that school. Under Section 12(2) respondent school is entitled to receive reimbursement of expenditure incurred in imparting elementary education to such students at fixed rate.

However, by virtue of proviso to Sub-Section 1 of Section 12 of the Act, it has been specifically laid out, where a school as defined under Section 2(n) of the Act imparts pre-school education, then, provisions of clause (a) to (c) of Sub-Section 1 of Section 12 shall apply for admission to such pre-school education, also. The effect of that proviso is, the provisions of Section 12(1)(a), (b), (c) which are in the first place directly applicable to admissions to be made to class 1 have been extended to in like manner to admissions to be made by schools covered under those sub-clauses of sub-Section 1 of Section 12, to pre-school education/classes also.

Thus, a school covered under Section 12(1)(a), found to be imparting pre-school education in addition to elementary education (i.e. class 1 to 8), it would be responsible to provide free and compulsory education to all children admitted to pre-school education as well. In that case it would not be open to such school to charge any fee for imparting pre-school education to its students.

Similarly, schools covered under clause 12(1)(b) i.e. those schools which are receiving aids or grants from the appropriate Government or the local authority as are found to be imparting pre-school education are also be obliged to admit and impart education to children eligible under the Act, in the same proportion as they would be doing for admissions for class 1.

In the same manner schools such as respondent school, once found to be engaged in the activity of imparting pre-school education in addition to imparting elementary education (i.e. from class 1 to 8), would be, obliged to admit 25% children belonging to the weaker sections and children belonging to disadvantaged groups without payment of fee or charges at pre-school level as well.

It is also seen, the obligation created under the proviso to Section 12(1)(c) of the Act, on 'unaided' and 'specified' schools, is incidental to and in furtherance of the admitted obligation existing on those schools under Section 12(1)(c) of the Act. Thus, there is no dispute that the 'unaided' schools and 'specified' schools are obliged to impart elementary education under Section 12 (1)(c) of the Act to students coming from economically weaker section and from disadvantaged groups.

The purpose of the Act being to ensure such students gain 'elementary education' i.e. education from class 1 to class 8, it makes much sense to allow such children to be admitted at such schools at pre-school level as well. It would be wholly consistent with the spirit, scheme and purpose of the Act.

To not do so, would dilute the intention and purpose of the law to require such schools to accept and discharge their obligation to impart elementary to the children of the underprivileged. By denying admission to such children at pre-school level would be to burden those children with more inequality when they are admitted to the same schools in class-I, for which they have a perfect indefeasible right. It is so, because, such children would have been deprived of one year of academic and other activity which their not-so-disadvantaged class mates would have enjoyed owing to their economic and social advantages. It would create or enhance the inequality which the Act seeks to set right.

Also, once it is recognized and admitted that the schools are obliged to educate the children covered by the Act from Class 1 to 8, the requirement to educate those children from pre-school level, at the same school would be wholly logical, convenient and in the interest of both, the schools and the children.

To refuse to educate children at pre school level while at the same time recognizing their obligation to educate the same children from class 1 on wards would be, in a way to defeat the spirit of the legislation which is to provide equal pre-education to all children irrespective of the economic and social disadvantages faced by their parents.

Therefore, there can be no legal reasoning to deprive children, eligible under the Act, to pre-school education at such school where they are legally entitled to receive elementary education. Therefore, the proviso to Section 12 (1) must be given full effect. Once it is found, a child is eligible to admission at elementary school level to an unaided school or a specified category school, then, the said child would also be entitled to admission at pre-school level at the same school.

Needless to say, a school falling under Section 12(1)(c) of the Act, imparting education at pre-school level as well i.e. in addition to it imparting elementary education as defined under the Act, would only be obliged to take such admissions at pre-school and class 1 level such that the total number of students either at class Nursery and/or class 1 level would not exceed 25% of total strength of that class, i.e. all sections of class 1 taken together.

Thus, for example, if a school falling under Section 2(n)(iv) which would be covered by Section 12(1)(c) takes admissions at 100 seats (in all), at pre-school level and the same number of seats at class 1 level then, it would be obliged to take total admissions of 25 students under the Act, such that those students may either get admitted at pre-school level and continue from class 1 to 8, in the years to follow or if no such student seeks admission at pre-school level then all 25 may be admitted at class 1 level or still otherwise, it may happen that some students out of 25 students may be admitted at pre-school level and the remaining at class 1 level.

Thus, the only effect of the proviso is, the primary obligation under the Act, created to impart elementary education i.e. class 1 to 8 has been extended to pre-school education as well in respect of schools engaged in imparting such education.

Thus, the school such as the respondent school once had been found to be engaged in imparting pre-school education, besides imparting elementary education, it cannot raise a plea that it's obligation is confined to providing elementary education i.e. from class 1 to 8 and not at pre-school level. To allow the respondent to do so would be allow that very inequality to exist, which the Act seeks to stamp out.

The only argument that could have been raised but which does not arise in the instant case is, once the proviso is fully given effect to at pre-school level then, the total cap of 25% imposed under Section 12(1)(c) of the Act had to be maintained at both pre-school level as also class 1 level which is to say that if the respondent school had given admissions to 25% students under the proviso to Section 12(1)(c) then those students would have come up in the next year to class 1. Then, such students would be included in computation of the limit of 25% for class 1 also and that the school cannot be obligated to make admission in excess of those students as that would breach the cap of 25%. Other than this, there can be no meaning attributed to the proviso to Section 12(1) of the Act.

Also, the fact that notices have been shown to be issued by the Supreme Court in certain cases, without anything more (i.e. without their being any interim order or direction by the Supreme Court), cannot, by itself give rise to any defence as has been sought to be raised by the respondent school against grant of writ of Mandamus to the respondent school to admit 'C' to pre-school class.

Having dealt with the additional issues raised by the respondent school, we then come to the core issue which is, the respondent school is not located in the "'neighbourhood'" of the petitioner's residence. Specifically it is the case of the respondent school that it is situated outside one kilometer distance from the petitioner's residence. It is, therefore, the case of the respondent school that it is not obliged to comply with the recommendation made by the BSA which is invalid as the Basic Shiksha Adhikari could have only recommended the admission of the petitioner's child to a school within one kilometer from the petitioner's residence.

At the outset, such a plea, in the first place belies the hollow claim made in the main counter affidavit that the respondent school is trying to discharge it's social obligation by imparting education to 228 students. Once, the respondent school states that it is conscious of it's social obligation and is imparting education, from class nursery to class 5, free of cost, to not less than 228 students from the locality, it is strange that at the same time it has raised a plea, to not educate a child whose parents have the desire to educate their child better and who are therefore, willing to literally go an extra mile to give their child a better future.

Admittedly, the petitioner has not asked for any extra benefits from the school in respect of the admission sought, though it is commonly known and observed fact in the city at Allahabad, respondent no.4 operates large number of school buses which run through different parts of the city every day to transport children from their homes to the school and back everyday, many from beyond 1 kilometer distance from that school.

The fact that the school is operating buses for the benefit of the school children (for whatever charges that may be existing), the plea of 'C' residing beyond statutory limits of ''neighbourhood" schools, appears to have been taken not for reasons of legality or practicality but purely on technicality arising perhaps, from a desire to deny admission to 'C'.

If the respondent school were to grant admission to the petitioner's child on spirit of philanthropy which it claims to practice by educating 228 students free of cost, it would find no difficulty in providing for transport to 'C' as is being provided to the other children studying at that school.

It is relevant that the schools in question are almost at the northern end of the city whereas it's students come from different parts of the city, both by private transport as also by transport that may be provided/arranged by the schools.

That apart, in so far as the Act is concerned the concept of ''neighbourhood'' first appears in Section 3(1) of the Act which reads as under:-

"3. Right of child to free and compulsory education-- (1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a 'neighbourhood' school till completion of elementary education."

The word 'neighbourhood' has not been defined under the Act. Then, Section 6 which falls under Chapter III of the Act enunciates duties of Appropriate Government or Local Authority and Parents. It 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."

Thus, Section 6 obligates the appropriate government and the local authority to establish school in every ''neighbourhood'' within three years from the commencement of the Act.

Then, Section 8(b) and 9(b) of the Act prescribes duties of the appropriate government, amongst others, to ensure availability of 'neighbourhood' school as specified in Section 6. Similar, obligation has been created on the local authority by virtue of Section 9(b) of the Act.

Section 10 of the Act prescribes the duty of the parents and guardian, which reads as under:-

"10. Duty of parents and guardian:- It shall be the duty of every parent of guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the 'neighbourhood' school."

Thus, Section 10 obligates every parent and guardian to admit or cause to be admitted his child to elementary education in the 'neighbourhood' school.

Read literally, Section 10 would mandate every "child" as defined under Section 2(c) of the Act i.e. a child from 6 to 14 years of age to be admitted only to a 'neighbourhood' school. Thus, no child from age 6 to 14 years would have a choice to go to any school other than the 'neighbourhood' school.

Learned counsel for the respondent school has contended, the concept of 'neighbourhood' is fundamental to the Act and such schools are to be provided for either by the Government or the local authority. He has further submitted and rightly so that the respondent school does not qualify as a 'neighbourhood' school.

However, the consequence of the arguments made by learned counsel for the respondent school, if accepted would be, all unaided schools including the respondent school would become redundant and would have to close down because they would, then, not be entitled to receive by way of admission any student from class 1 to 8 as in view of mandate of Section 10 of the Act, if read to be absolute.

The concept of 'neighbourhood' as defined under the Rules is contained in Section 2(f) r/w Section 4 of the Act. For ready reference Section 2(f) and Rule 4 are quoted herein below:-

"2(f) "'neighbourhood'" means a population area specified in Rule 4;

4. Areas or limits of 'neighbourhood' (Section 6):-

(1) The area or limit of ''neighbourhood' within which' a school has to be established by the Committee authorized by the State Government, shall be as under-

(a) in respect of children in classes I-V, a school shall be established in habitation which has no school within a distance of 1.0 km. and has population of at least 300;

(b) in respect of children in Classes VI-VIII, a school shall be established in habitation which has no school within a distance of 3.0 km. and has population of at least 800."

In this regard Rules 7 of the Rules reads as under:-

"7. Admission of children belonging to weaker section and disadvantaged group [Section 12(1)(c)].- (1) The schools referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall ensure that children admitted in pursuance of clause (c) to Section 2(1) shall not be segregated from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children.

(2) The schools referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall ensure that children admitted in pursuance of clause (c) to Section 12 (1) shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as textbooks, library and Information, Communication and Technology (ICT) facilities, extra-curricular activities and sports.

(3) The areas or limits of neighbourhood specified in Rule 4(1) shall apply to admissions made in pursuance of clause (c) to Section 12(1):

Provided that the school may, for the purposes of filling up the requisite percentage of seats for children referred to in clause (c) to Section 12(1), extent these limits with the prior approval of the State Government,

(4) The local authority(Gram Panchayat/Nagar Nigam/Nagar Palika/Nagar Panchayat, as the case may be) shall maintain a name-wise list and record of all children belonging to weaker section and disadvantaged group, studying in private and specified category schools under its jurisdiction."

Thus, the concept of a neighbourhood school emerges as would be consistent with Section 2(n) r/w Rule 2(f) r/w Rule 4 & Rule 7(4) of the Rules. Thus, school would be such as has been defined under Section 2(n) of the Act and ''neighbourhood'' such as has been defined under Section 2(f) of the Act.

Accordingly, for class 1 to 5, a 'school' shall have to be established by the appropriate government and/or the local authority in every habitation which has no school within a radial distance of 1 kilometer which has population of at least 300 and in respect of children in class 6 to 8, a school shall have to be established by the appropriate government and/or the local authority in habitation within a radial distance of 3 kilometers and which has population of at least 800.

The aforesaid stipulation would apply only to such schools as are required to be established as above and not to provide unaided schools which may be established irrespective of stipulations as to population and distance as their establishment is based on a decision taken by their own management. The Act does not obligate any person to establish a school falling under Section 2(n) (ii), (iii) and (iv) in any area.

Thus, the concept of ''neighbourhood'' school is, principally relevant for the purpose of creating the minimum right in favour of every child in the age group of 6 to 14 years and that right, in the first place obligates the appropriate government and the local authority to establish such number of schools as would be necessary to effectuate the right created in favour of all children.

The Act has, at the same time created a parallel obligation on all other schools, irrespective of the fact whether they are or they are not established by the appropriate government and or the local authority. That obligation extends to unaided schools such as the respondent school.

The obligation on the unaided school is to provide for education, at State cost, to children eligible under the Act upto the extent 25% of the strength in class 1. It is by very nature different from the obligation created on the schools established or to be established by the appropriate government and or the local authority.

Thus, no aided (partly or wholly) or specified category school is required to be established in any particular area defined either with reference to distance or population. Such schools may be established as per the desire of their management. For them there is no obligation to establish a school. The obligation arises at the later stage to admit students from the categories specified under the Act.

Thus, assuming that 'neighbourhood' schools are established in all residential areas, in such number as to cover all children, even then, and despite that, the obligation created under Section 12(1)(c) of the Act would exist on the unaided schools such as the respondent school. To that extent the obligation created an unaided schools is independent of the obligation on the appropriate government and or the local authority.

A question would then arise whether the child has or has no choice in the matter to either go to a 'neighbourhood school' established by the appropriate government or local authority or to go to an unaided institution and obligate such unaided institutions to bear the cost of his education on the terms and conditions provided under the Act, chiefly under Section 12(2) of the Act, at partial reimbursement of the expenses, at fixed rates.

Answer to this question has already been given by the Division Bench of this Court in the case of Ajay Kumar Patel (supra) wherein paragraph 19 referred to above it has been held:-

"Thus the plea of the respondent that 'C' has to first seek admission in a school established by the appropriate government or the local authority, that too within 1 kilometer radial distance from his home and apply to an unaided school such as the respondent school is, an argument contrary to the scheme of the Act, as interpreted by the Division Bench in the case of Ajay Kumar Patel (supra) and abhoring as an idea, as it appears to build class barriers on basis of economic & social considerations."

Only question that then survives is whether a child such as petitioner's child who lives beyond 1 kilometer from the schools has an unassailable right to be educated by respondent no. 4.

Though the concept of 'neighbourhood school' and the distance which is a criteria for establishment of 'neighbourhood' school by the appropriate Government and or the local authority has no relevance for the purpose of discharge of obligation by the respondent school, yet, by virtue of Rule 7(3), it appears, a rule has been devised to prevent arbitrary action on part of the unaided and specified category schools. Also, the said rule appears to check arbitrariness and malafide action by unaided and specified category schools.

Thus, in an ideal situation where all aided, unaided schools and schools falling in specified category are found to be providing elementary education to eligible children under the Act such that they are receiving sufficient applications to fill up of all 25% of their seats at pre-school and or class-I level, in accordance with the mandate of Section 12(1) (c) of the Act or receiving applications in excess of such seats, then, in such cases and at that stage, Rule 7(3) of the Rules would become effective and operational with respect to discharge of obligations by such schools.

In that situation the schools in question would be entitled to refuse admission to applicants residing beyond the 'neighbourhood' limits prescribed under the Rules. It would be so because, unless the Rule would be applied, at that stage, it would lead to arbitrariness on part of the concerned school in accepting admissions to prevent those schools from practicing pick and choose according to their own convenience.

At that stage, unless Rule 7 were to be applied, it would also result in uncertainty and confusion amongst the children who would have applied for admission under Section 12(1) (c) of the Act as they would not know the fate of their applications and would have to be left to the whims of the schools to deal with such applications against the scheme of the Act.

Also, if Rule 7(3) were not to be enforced in that case, it may also result in children from each residential area getting admission in far of school rather than unaided and specified category school in their residential area, for which they may have shown their preference also.

The above discussion also makes it clear that such consideration does not and cannot arise in the present case. Here, as has been shown on record, the total number of seats at nursery level at Maharishi Patanjali Vidya Mandir, Ganga Gurukulam is 60 whereas that at Patanjali Nursery School is 750. Thus the total number of seats are 810. Therefore, 202 seats (in all) were to be filled up under Section 12(1)(c) of the Act. However, it is admitted on record to respondent no.4, against the aforesaid 202 seats, the said respondents did not admit any child under the Act. Thus, the respondent no.4 has miserably and perhaps deliberately failed to discharge its statutory obligation.

In view of the admitted position on record, that against 202 seats at pre-school level, the respondent no.4 has not admitted a single child, the plea of the 'C' coming from outside the 'neighbourhood' area cannot be allowed to be raised by the said respondent as it would result in allowing that respondent to completely avoid it's obligation under the Act in relation to pre-school children eligible under the Act.

As has already been discussed above, in any view, Rule 7(3) would become enforciable and mandatory only upon sufficient applications arising from the 'neighbourhood' area of the concerned unaided school or specified schools. To enforce the Rule before that stage would be to allow a school such as the respondent school to defeat the scheme, object and provision of the parent legislation-the Act. It would be against settled and unquestionable rule of interpretation, namely, the delegated legislation cannot defeat the principal legislation.

Also, primary object of the Act being to ensure imparting primary education to the underprivileged children, the enabling rule of distance created to serve that purpose cannot be interpreted to defeat the primary object.

Unless the above interpretation is made, Rule 7(3) would become a device in the hands of unaided schools to avoid their statutory obligations. Such interpretation would plainly, run contrary to the spirit and scheme of the Act. Thus, decisions of Delhi High Court relied upon by learned counsel for the respondent arise in a different statutory & factual background are therefore distinguishable. There unaided schools had granted admissions under Section 12(1)(c) of the Act while respondent no. 4 has not. In any case, those judgements do not have precendential value over this Court.

Also, further in view of proviso to sub-Rule 3 of Rule it is clear , the said sub-Rule is not mandatory inasmuch as, the State Government may, upon an application by the school concerned, relax the distance limits of 'neighbourhood' and thus increase the area from where applications for admission of children may arise. The proviso itself runs contrary to the argument advanced by learned counsel for the respondents school inasmuch as the proviso makes it clear that the distance rule for 'neighbourhood' school with respect to discharge of obligation by unaided schools and schools falling in specified category, is not rigid are fixed, but it may vary from case to case depending on the case or difficulty that may be faced by a particular school at a given point of time.

In view of the discussion made above and in view of the fact (no other student having either applied or having been admitted against any of those seats) interim order of this Court in the case of City Montessory School Vs. State of U.P. and others reported in 2015 (7) ADJ 132 (paragraph 20) relied upon by learned counsel for the respondent school (for whatever persuasive value an interim order may have), cannot be read to disqualify or prevent 'C' from taking admission against one of the 202 seats on which the respondent no.4 is obliged to take admissions under Section 12(1)(c) of the Act.

Thus, while there is no dispute to the fact that the concept 'neighbourhood' is relevant to unaided and specified category schools as well, yet, in the facts of the present case the same cannot be relied upon by the respondent to deny admission to the 'C' for facts and reasons discussed above.

The only factual relevance of such arguments may arise if such a school as respondent school be visited with application in excess of its obligation to take in 25% of the students strength of pre-school or class 1 strength. In that case, it would be open to the respondent school to contend that it will first take in such students who are residing nearest to its campus and shall accommodate those living far or further away only if there are more seats available. Thus, the respondent school may first accommodate children who reside within the neighbourhood distance, as prescribed, and only thereafter it may accommodate children living further away. Also, it may be open to the school to refuse to grant admission to a child who may be living at such a place as to be unable to be regular at school as that may itself defeat the purpose of the Act. However, such is not the case here.

Thus, I do not find any good ground for the respondent school to have refused admission to the petitioner's child for reason of the school not being located within the 'neighbourhood' of the petitioner especially when it has not filled up 25% of it's seats under Section 12(1)(c) of the Act and also, since it does have a bus service to cater to all it's students who live in different parts of the city. The only 'child' respondent no.4 claims to have admitted under the Act, is a Vartila Shukla, to class-I. Considering the number of seats available for admission to classes Nursery and I, it cannot be cited as a reason to defeat the right claimed by 'C' in view of many more vacant seats being assailable under Section 12(1)(c) of the Act.

As has been shown by means of subsequent affidavit as also the report of the Basic Shiksha Adhikari, nursery classes were available only at Patanjali Rishikul at Teliyarganj, Allahabad and Maharishi Patanjali Vidya Mandir Ganga Gurukulam at Phaphamau, it was only logical that the respondent school should have offered admission 'C' at Patanjali Rishikul, Teliyarganj which would have been much closer to the residence of the petitioner than the other school.

Lastly, it cannot be said, upon issuance of alleged second recommendation, the writ petition became infructuous as neither it was an independent recommendation nor it was made upon earlier recommendation being withdrawn. In any case, in view of discussion made in earlier part of this judgement, the respondent school has neglected to comply with the Act though it clearly understood the earlier recommendation as one made to it and further, it did not honour even the so called second recommendation. Therefore, this plea also, has no merit and is accordingly rejected.

What then remains to be seen is the relief that may be granted. The child admittedly is born on 11.10.2011. He would be 5 years and 10 months and fully eligible for admission to class Nursery or other appropriate pre-school class for academic session 2017-18.

Also, it has been found, respondent no. 4 was running pre-school in addition to elementary school. It has violated the Act, in not granting admission to 'C' for academic session 2016-17. The petitioner on the other hand has aced with due diligence and has vigilantly pursued the rights of 'C'. He cannot be non-suited on plea of laches as raised in view of the delay being found to have been caused by respondent no. 4.

Consequently, the writ petition is allowed with the direction to the respondent no.4 to grant admission to the petitioner's child 'C' in appropriate pre-school at the school, it describes as Patanjali Nursery School, 2 Shilakhana, Teliyarganj, Allahabad for the academic session 2017-18 within two weeks from today and shall ensure that his elementary education as contemplated by the Act is completed successfully in the same manner as it allows all other students to complete their elementary education by sending them to such other schools which are stated to be part of the group of schools known as Maharishi Patanjali School, without obligating the petitioner with any financial burden in that respect.

Also, I find, there was never a genuine dispute as to the entitlement of the petitioner's child to be imparted elementary education, by the respondent school. It has however, denied 'C' a right to education for one year. The delay caused in the education of 'C' cannot be compensated in terms and money. Accordingly appropriate costs need to be awarded against the respondent no.4

Therefore, by way of costs, it is provided, upon completion of his elementary education of 'C', respondent no. 4 shall ensure completion of his school education up to class 12th without payment of any fee by the petitioner for the same. In other words, the obligation on respondent no.4 to educate 'C' free of cost from class pre-school to 8th class shall stand extended in this case, by way of costs, up to class 12th. Obviously, the respondent shall not be entitled to any re-compensation from the State Government with respect to the education that it would provide to the petitioner's child from class 9th to Class 12. Also, subject to availability (of a school bus on that route or upto the place nearest his home), respondent no. 4 shall make available to 'C' it's school bus service, all throughout his schooling, free of cost. Such monetary compensation is, in my view adequate and apt, in view of loss caused to 'C' owing to conduct of respondent no. 4.

Writ petition is allowed, as above.

Order Dated: 09.08.2017

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