Jnana Prabodhini vs Education Officer (Secondary) ...
2013 Latest Caselaw 55 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                                                
                        WRIT PETITION NO.4986 OF 2013

     Jnana Prabodhini                                                     ... Petitioner




                                                        
           V/s.
     Education Officer (Secondary) and others                             ... Respondents




                                                       
                                     WITH
                      CIVIL APPLICATION NO.1792 OF 2013
                                      IN
                        WRIT PETITION NO.4986 OF 2013




                                         
     SYSCOM, 
     Through its President Shri Rajendra Dharankar
                        ig                                                ... Applicant

          In the matter between
                      
     Jnana Prabodhini                                                     ... Petitioner
           V/s.
      

     Education Officer (Secondary) and others                             ... Respondents
   



     Mr. A.M. Joshi and Mr. U.K. Bodhave, for the Petitioner in W.P. No.4986 
     of 2013 and for Respondent in CAW No.1792 of 2013.
     Mr. Sugandh B. Deshmukh, for Applicant in CAW No.1792 of 2013.





     Ms. S.S. Bhende, AGP for Respondent Nos.1, 4 and 5.

                                         CORAM  :   A.S. OKA & 
                                                    REVATI MOHITE DERE, JJ.

JUDGMENT RESERVED ON : 23rd SEPTEMBER, 2013 JUDGMENT PRONOUNCED ON : 19th OCTOBER, 2013

JUDGMENT (PER A.S. OKA, J.):-

. By this petition under Article 226 of the Constitution of

India, the Petitioner has taken an exception to the order dated 29 th May,

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2013 passed by the Educational Officer (Secondary) Zilla Parishad,

Pune. The issue involved in this petition is whether the Petitioner while

admitting the students to Standard V of the School run by it has

admitted the students in contravention of Sub-section (1) of Section 13

of the Right of Children to Free and Compulsory Education Act, 2009

(for short "the said Act").

2. The Petitioner is a Public Charitable Trust registered under

Bombay Public Trust Act, 1950. It is contended that the aim and object

of the Petitioner is to promote the development of this Country by

providing leadership. It is claimed that the Petitioner aims at Social

Development by undertaking Socio Economic Projects. Various

achievements of the Petitioner Society have been set out in the petition.

It is claimed that an application has been made for designating Jnana

Prabodhini Prashala, the school run by the Petitioner as a "Specified

Category" within the meaning of clause (p) of Section 2 of the said Act.

It is contended that the said application is still pending.

3. On 23rd March, 2013, the Education Officer (Secondary)

Zilla Parishad (first Respondent) informed the Head Master of the said

School that for grant of admission in the said School up to VII standard,

no screening test should be conducted, failing which action shall be

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taken under the said Act. By a communication dated 29th March, 2013,

the Petitioner sought time for giving a reply to the said letter. On 29 th

May, 2013, first Respondent issued the impugned communication

informing the Head Master of the said School that the school has

admitted students to standard V after holding a common screening test.

Therefore, the Head Master was directed to cancel all the admissions

and to grant fresh admissions in accordance with the provisions of the

said Act. This is the communication which is subject matter of

challenge in the present petition. On 24 th May, 2013, the Head Master

of the School replied to the first Respondent with reference to the letter

dated 23rd March, 2013. It is stated that the School is a Special School

which has introduced new ideas. It is contended that for giving

admissions to such school, conduct of test of intelligence is unavoidable.

It is alleged that the test of intelligence is objective and transparent. It

is stated that when letter dated 23 rd March, 2013 was received, the

process of admission was already completed. It is stated in the petition

that an Appeal under Sub-section (3) of Section 32 of the said Act was

preferred before the State Commission for protection of child rights and

the said Appeal is pending.

4. The learned counsel appearing for the Petitioner has made

detailed submissions. His first contention is that the word "and" in

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Sub-section (1) of Section 13 of the said Act cannot be read as "or". His

submission is that Sub-section (1) of Section 13 will not apply as the

Petitioner has not collected any capitation fee while admitting the

students to the standard V and therefore, the bar created by Sub-

section (1) will not apply. Relying upon clause (c) of Sub-section (1) of

Section 12 of the said Act, he urged that the embargo or restriction

imposed by Sub-section (1) of Section 13 will apply only as regards

admission to the Standard I . He submitted that the Petitioner is not

running an ordinary school. The said School will fall in specified

category. He urged that very high standards of education have been set

by the said School and various dignitaries at very high level have

appreciated the work done by the Petitioner. He urged that neither the

Petitioner is collecting any capitation fee nor is discriminating the

students on the basis of the financial capacity of their parents. He

urged that large number of students apply to the reputed school run by

the Petitioner and therefore, the Petitioner has adopted a very objective

test for ascertaining "the giftedness" of the students. He urged that

such "giftedness" is not ascertained only on the basis of intellectual

abilities but the possible development of the child for the National

Development. He submitted that best method for shortlisting of the

students has been adopted by the Petitioner. He placed reliance on a

decision of Division Bench of Andhra Pradesh High Court in Writ Appeal

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Nos.610, 611, 612 of 2012 dated 4th January, 2013. He pointed out that

several other schools have been permitted to conduct screening test.

Lastly, he urged that only consequence of breach of Sub-section (1) of

Section 13 is imposition of fine as provided in clause (b) of Sub-section

(2) and, therefore, there is no power vesting in the first Respondent of

cancelling the admissions. Lastly, he pressed into service the aforesaid

decision of the Andhra Pradesh High Court which holds that the

prohibition in Section 13 of subjecting the child to screening procedure

is applicable only to the admission at entry level which is Nursery or

Class I.

5. The learned counsel appearing for the Applicant in Civil

Application No.1792 of 2013 supported the action of the Education

Officer. He pointed out Exhibit "A" to the Civil Application. He pointed

out that Exhibit "A" is a copy of notice to be published on the website of

the Applicant which shows that admission procedure for V standard

included the screening test.

6. We have carefully considered the submissions. The said Act

has been enacted for giving effect to Article 21 A of the Constitution of

India which provides for free and compulsory education to all children

in the age group of 6 to 14 years as a fundamental right. It will be

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necessary to advert to Section 13 of the said Act which reads thus :-

"13. No capitation fee and screening procedure for

admission. - (1) No school or person shall, while

admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.

(2) Any school or person, if in contravention of the provisions of sub-section (1) -

(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee

charged;

(b) subjects a child to screening procedure, shall be

punishable with fine which may extend to twenty- five thousand rupees for the first contravention and fifty thousand rupees for each subsequent

contraventions."

7. Capitation fee is defined under clause (b) of Section 2 of

the said Act. Screening procedure is defined under clause (o) of Section

2 of the said Act which reads thus :-

"(o) "screening procedure" means the method of selection

for admission of a child, in preference over another, other than a random method;"

8. The submission of the learned counsel appearing for the

Petitioner is that the Sub-section (1) of Section 13 is attracted only

when a school while admitting a child collects capitation fee and also

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subjects the child or his parents to any screening procedure. His

submission is that as the Petitioner has not collected any capitation fee,

even assuming that the Petitioner has subjected the child to screening

procedure, Sub-section (1) of Section 13 will not be attracted. He

submitted that word "and" cannot be read as "or". According to us, the

said argument is fallacious and deserves to be rejected. Plain meaning

of Sub-section (1) is that while admitting a child to the school, the

School authorities shall neither collect any capitation fee nor subject the

child or his/her parents or guardian to any screening procedure. Sub-

section (1) is attracted even when a school does not collect any

capitation fee but subjects the child or his/her parents or guardian to a

screening procedure. If a school does not subject the child or his/her

parents or guardian to screening procedure but accepts capitation fee,

still Sub-section (1) of Section 13 will be attracted. Sub-section (2) of

Section 13 supports the said interpretation. It provides for imposition

of separate and distinct penalties in cases where school receives

capitation fee or subjects the child to screening procedure. The Sub-

Section prohibits both the collection of capitation fee and the conduct of

the screening test. The submission made by the learned counsel

appearing for the Petitioner deserves to be rejected. Sub-section (1) of

Section 13 is attracted even when a school does not collect any

capitation fee but subjects the child or his/her parent or guardian to a

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screening procedure.

9. Relying upon Section 12 and in particular clause (c) of

Sub-section (1) thereof the learned counsel tried to contend that the

embargo on screening procedure will apply only to admissions granted

at the entry point in the school. We have perused Section 12. Section

12 deals with the extent of school's responsibility for free and

compulsory education. Clause (c) applies to schools belonging to the

specified category and unaided schools not receiving any kind of aid or

grant to meet its expenses from the appropriate government or the local

authority. Clause (c) provides that such schools shall admit in Class - I,

to the extent of at least twenty-five per cent of the strength of that class,

children belonging to weaker section and disadvantaged group in the

neighbourhood and provide free and compulsory elementary education

to them till its completion. Thus, clause (c) of Sub-section (1) of

Section 12 imposes an obligation on the schools falling in said two

categories to admit in Class - I, to the extent of at least twenty-five per

cent children belonging to weaker sections and disadvantaged group.

Thus, Sections 12 and 13 operate in different fields. There is nothing in

Sub-section (1) of Section 13 to indicate that the prohibition of

subjecting the students or parents to screening procedure will apply

only to the Nursery or Standard I admissions. We may note here that

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clause (f) of Section 2 of the said Act defines elementary education to

mean the education from first class to eighth class. The said Act

provides for no prohibition against admitting students in any class up to

VIII standard. Section 16 provides that no child admitted in a school

shall be held back in any class or expelled from school till the

completion of elementary education. If the admissions contemplated by

Sub-section (1) of Section 13 are narrowly construed as admissions only

to the nursery or first standard, the very object of enacting Section 13

shall be defeated. Such interpretation would mean that while admitting

the students to nursery or first standard, the school will be dis-entitled

to charge capitation fee. However, if a child is admitted in second to

eight classes, it will be open for a school to charge capitation fee or to

subject the students to the screening procedure. The plain reading of

Sub-section (1) of Section 13 does not permit such narrow

interpretation. Thus, the prohibition imposed by Sub-section (1) of

Section 13 will apply to admission to class I to class VIII which form

part of elementary education.

10. We have perused the decision of the Andhra Pradesh High

Court relied upon by the learned counsel appearing for the Petitioner.

For the reasons we have recorded earlier, we do not agree with the view

taken by Andhra Pradesh High Court. The Andhra Pradesh High Court

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has relied upon Section 5 of the said Act which reads thus :-

5. Right of transfer to other school. - (1) Where in

a school, there is no provision for completion of

elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of

section 2, for completing his or her elementary education.

(2) Where a child is required to move from one

school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to

seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of

section 2, for completing his or her elementary education.

(3) For seeking admission in such other school, the Head-teacher or in-charge of the school where such

child was last admitted, shall immediately issue the transfer certificate:

Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school:

Provided further that the Head-teacher or in-

charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her."

The said Section confers right on a child to seek transfer to

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any other school, excluding any school specified in sub-clauses (iii) and

(iv) of clause (n) of Section 2 of the said Act. The schools covered by

clauses (iii) and (iv) are the schools belonging to specified category and

unaided schools. It provides that once a student is admitted to class I in

a school where there is no facility of completion of elementary

education, he can seek transfer to any other school to subsequent

classes as a matter of right. While seeking admission to other school on

transfer, he cannot be made to pay capitation fee or he cannot be

subjected to screening test/ procedure. If it is held that Sub-section (1)

of Section 13 will apply only to admission at entry point of elementary

education, it will imply that prohibition of charging capitation fee or

prohibition against conducting screening procedure will not apply when

a child seeks admission by way of transfer to higher classes.

11. The third question which arises is whether the Petitioner

School conducted screening procedure which is prohibited by Sub-

section (1) of Section 13. The learned counsel appearing for the

Petitioner has made some submissions on the definition of screening

procedure under clause (o) of Section 2 of the said Act. Screening

procedure is the method of selection for admission for a child in

preference for another, other than a random method. A random

method adopted for selection for admission of a child will not be a

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screening procedure to which Sub-section (1) of Section 13 will apply.

The screening procedure is the one which provides for methodology of

giving preference to one child over the another in the matter of

admission to a school. At this stage, it will be necessary to make a

reference to the averments in paragraph 7 of the petition which reads

thus :-

"7. The petitioner submits that as already stated the

petitioner Trust is not trying to introduce any screening tests with a view to collect capitation fee or for any

other extraneous ground. In fact the test which is being held while admitting the students has larger

number of students apply for admissions is most objective test for ascertaining the giftedness of the students. Such giftedness is not also ascertained on the

basis of the intellectual abilities, but, the possible

developments of the child for National Development. As herein before mentioned in the earlier part of this appeal. The petitioner submits that it is the respectful

submissions of the petitioner that such test is in fact the best method of short listing the students with a particular aim and objects for which the school has

been founded and so also the Institution."

(emphasis added)

12. In the letter dated 30th March, 2013 addressed by the

Petitioner to the first Respondent, it is specifically contended that for

running a special school, conduct of a test of intelligence is required for

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selecting the students. Even in the letter dated 24 th May, 2013, the

Petitioner has reiterated that selection of the students on the basis of

test of intelligence is unavoidable. In the reply filed to Civil Application

No.1792 of 2013, the Petitioner has not denied averments made in

paragraph 2 of the Civil Application in which reliance has been placed

on extract of the notice published on the website of the Petitioner. The

said extract provides for admission procedure for standard V. It

specifically records that there will be first round of entrance

examination on 3rd March, 2013 and there will be second round of

entrance examination only for short listed candidates. The notice also

provides that admission procedure for VI to X standards consists of

entrance test which includes a battery of intelligence tests. Clause 3 of

admission procedure for standard V specifically provides that the

candidates securing marks above the prescribed norm in the 1 st

entrance test which consists of intelligence test will be called for

another test and interview. It provides that the second test includes

intelligence test and on the basis of performance in the second test and

interview, the final list of selected candidates will be declared. Thus,

two entrance tests have been conducted by the Petitioner as the method

of selection for admission of a child in preference over another. Thus, it

leaves no manner of doubt that the Petitioner adopted a screening

procedure contemplated by clause (o) of Section 2 of the said Act

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attracting breach of Sub-section (1) of Section 13 of the said Act.

13. It is not necessary for us to decide in this petition what

should be a random method contemplated by clause (o) of Section 2.

14. Thus, the Petitioner school has violated Sub-section (1) of

Section 13 of the said Act. An argument is made that for such violation,

penalty prescribed by clause (b) of Sub-section 2 is the only

consequence. Once it is found that admission procedure in

contravention of Sub-section (1) of Section 13 is adopted, the entire

admission process becomes illegal and, therefore, the Education Officer

was right in directing the Petitioner to conduct a fresh process by

cancelling the earlier process.

15. We must note here that the application of the petitioner for

declaring the school as belonging to specified category is admittedly not

allowed. Merely because some other school is conducting entrance tests

is no ground to save the illegal procedure adopted by the Petitioner.

16. At this stage, we must note that nearly half of the academic

year is over. Though, we are confirming the validity and the legality of

the impugned communication dated 29th May, 2013, the admissions

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granted to standard V cannot be cancelled in the midst of the academic

year and, therefore, the direction contained in impugned

communication dated 29th May, 2013 shall be given effect only at the

end of the academic year. We make it clear that the students who are

admitted to class V shall not be required to again secure admission to

the same class next year. An interesting argument was sought to be

made that in view of Section 16 of the said Act, admissions granted to

the students cannot be cancelled. Section 16 applies to admissions

which are lawfully granted. The section does not protect the admissions

granted in contravention of the provisions of the said Act. The children

who are admitted in contravention of Sub-section (1) of Section 13

cannot claim protection of Section 16 of the said Act.

17. Therefore, the petition must fail and the same is rejected.

We direct that the admissions granted to standard V shall not be

cancelled in the midst of the present academic year and, therefore, the

directions contained in impugned communication dated 29 th May, 2013

shall be given effect only at the end of the academic year. We make it

clear that the students who are admitted to class V during this academic

year shall not be required to again secure admission to the same class

next year.

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18. Civil Application No.1792 of 2013 does not survive and the

same is disposed of.

      (REVATI MOHITE DERE, J )                         ( A.S. OKA, J ) 




                                             
                                   
                      
                     
      
   






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