Allahabad High Court
Sonakshi Verma And Another vs U.O.I. Thru. Secy. Ministry Of ... on 26 September, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- WRIT - C No. - 5795 of 2022
Petitioner :- Sonakshi Verma And Another
Respondent :- U.O.I. Thru. Secy. Ministry Of Education, New Delhi And Others
Counsel for Petitioner :- Sadhu Saran Shukla,Madhu Srivastava
Counsel for Respondent :- A.S.G,C.S.C.,Krishna Lal Yadav,Noorain Husain Khan(Niazi)
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioners and learned counsel for the respondents.
Present petition has been filed alleging that petitioner no.1 was a student with the respondent no.3 - school and on account of death of the father, the fee could not be afforded and as such after passing the Class - 3rd, she was not permitted to continue.
As regards petitioner no.2, it is stated that he belongs to a weaker section and is not being given admission by respondent no.3 - school.
Contention of learned counsel for the petitioners is that the petitioners being minor are guaranteed their right to free and compulsory education in terms of Article 21-A of the Constitution of India read with The Right of Children to Free and Education Act, 2009, and respondent no.3 - School is denying the said rights to the petitioners.
Learned counsel for respondent no.3 places reliance on the judgment of the Hon'ble Supreme Court in the case of Pramati Educational & Cultural Trust & Ors. v. Union of India & Ors.; Writ Petition (C) No.416 of 2012 decided on 06.05.2014 to argue that the Act of 2009 has no applicability to the minority institution as held in details in Paras - 46 & 47 of the judgment, which is quoted herein below:
"46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory 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. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.
47. In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers? Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All I.As. stand disposed of. The parties, however, shall bear their own costs."
In view of the said, it is clear that respondent no.3 has no obligation to provide free and compulsory education to the petitioners as claimed by them, however, the fact remains that the State is under obligation in terms of Article 21-A of the Constitution of India and Act of 2009 to provide free and compulsory education to the petitioners, which right is being violated.
As such, the present petition is disposed off with liberty to the petitioners to approach District Magistrate, Lucknow by filing an appropriate application, who shall ensure that the petitioners are admitted in any of the schools who are under obligation to provide free and compulsory education under the Act of 2009, within a period of four weeks from the date of petitioners' approaching the District Magistrate alongwith a copy of this order.
Order Date :- 26.9.2022
nishant
