Nitin Ravindra Bansod And Others vs Government Of India, Thr. ...
2017 Latest Caselaw 1889 Bom

WP  1869/17                                     1                       Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 1869/2017
1.    Nitin Ravindra Bansod,
      Age 48 years, Occupation - Farmer,
      Agresen Road, Near Gajanan Maharaj
      Mandir, Dharampeth, Zenda chauk,
      Nagpur - 440 010.

2.    Parashram Ramji Raut,
      Age 42 years, Occupation : Auto Driver,
      Plot No.118, Ambazari Tekadi, 
      Hill Road, Nagpur 440 033.
3.    Niranjn Vishwanath Bhagat,
      Age 48 years, Occupation - Auto Driver,
      Plot No.553 Gali No.5, Gokulpeth
      Budha vihar Road, Shankar nagar,
      Nagpur 440 010.
4.    Ramdas Agrawal,
      Age 53 years, Occupation - Pvt. Job,
      Plot No.606, Marar Toil,
      Ramnagar Nagpur 440 033.
5.    Praful Vinayak Hazare,
      Age 41 years, Occupation - Pvt. Job,
      Behind Bishop Cotton School,
      Dharampeth, Nagpur 440010.
6.    Ajay Kisan Kanojiya,
      Age 45 years, Occupation - Pvt.Job,
      Dadaji Dhutiwane marg,
      Ravinagar, Civil Line, Nagpur.
7.    Vikas Motiram Wankhede,
      Age 46 years, Occupation Pvt.Job,
      Plot No.184/D Ajay nagar, 
      Ambajari Hiltop, University Campas,
      Nagpur 440033.
8.    Rajesh Radheshyam Shriwas,
      Age 41 years, Occupation Pvt.Job,
      Surendragad, Behind Veternary College,
      Nagpur 440006.
9.    Haridas Shyamrao Dhopte,
      Age 46 years, Occupation Pvt.Job,
      Near Rajbhavan Garden, Khatikpura,
      Sadar, Nagpur 440001.
10.   Rajesh Pandharinath Madane,
      Age 45 years, Occupation Pvt.Job,

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 WP  1869/17                                         2                         Judgment

      Near old police station, Tin Mundi,
      Sadar, Nagpur 440001.
11.   Rajesh Shardanand Jaiswal,
      Age 55 years, Occupation - Fruit shop,
      Near Police post, Jawahar chauk,
      Nagpur 440001.
12.   Suresh Shyamrao Dhore,
      Age 41 years, Occupation Pan shop,
      Bajrang chauk, Gandhi nagar,
      Seminary Hill, Nagpur.
13.   Suresh Gulabrao Bhandakkar,
      Age 43 years, Bhuvneshwari Matamandir,
      Seminari Hills, Nagpur 440006.
14.   Sau. Bharti Arvind Patil,
      Age 40 years, Occupation - Business,
      Bhima Apartment, Flat No.B/2,
      Ravinagar, Amravati Road,
      Nagpur 440033.
15.   Rupchand Knhyalal Uikey,
      Age 42 years, Occupation - Pvt. Job,
      Plot No.670, Near Hanuman Mandir,
      Marar Toli, Ramnagar,
      Nagpur 440010.
16.   Suresh Premlal Sirswal,
      Age 43 years, Occupation Pvt.Service,
      H.No.1338/A Ramnagar, Near
      Pandharabodi, Hanuman Mandir,
      Sanjay nagar Road, Nagpur-440033.                                 PETITIONERS


                                     .....VERSUS.....

1.    Government of India,
      Through its Secretary,
      Ministry of HRD, New Delhi.
2.    State of Maharashtra,
      Through its Secretary,
      Department of Education and Sport.
3.    Deputy Director of Education,
      Nagpur Division, Nagpur.
4.    Education Officer (Primary),
      Zilla Parishad, Nagpur.
5.    Principal,
      Modern Primary School,
      Civil Line, Nagpur.


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 WP  1869/17                                         3                             Judgment

6.    Principal,
      Sandipani School,
      Civil Lines, Nagpur.                                                        RESPONDENTS


                        Shri T. Rahul, counsel for the petitioners.
                    Mrs. A.A. Joshi, counsel for the respondent no.1.
    Shri S.M. Ukey, Additional Government Pleader for the respondent nos.2 and 3.
        Mrs. I.L. Bodade and Shri G.G. Mishra, counsel for the respondent no.4.
                    Shri Rohit Joshi, counsel for the respondent no.5.
Shri Anand Jaiswal, Senior Counsel with Mrs. Radhika Bajaj, counsel for the respondent
                                          no.6.



                                     CORAM :SMT.VASANTI  A  NAIK AND
                                                 MRS. SWAPNA  JOSHI, JJ.    

DATE : 20 TH APRIL, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

RULE. Rule made returnable forthwith. The writ petition is

heard finally with the consent of the learned counsel for the parties.

2. By this writ petition, the petitioners seek a direction to the

respondent nos.3 and 4-The Deputy Director of Education, Nagpur and

the Education Officer (Primary), Zilla Parishad, Nagpur to transfer the

children of the petitioners in the nearby schools with a view to provide

them free education facility as per the provisions of The Right of Children

to Free and Compulsory Education Act, 2009. A further direction is

sought against the respondent nos.5 and 6-Modern Primary School and

Sandipani School to protect the education of the children of the

petitioners by admitting them in the other branches of the schools in the

nearby locality, as per the provisions of the Act.

WP 1869/17 4 Judgment

3. The children of the petitioners were admitted in Standard I in the

respondent nos.5 and 6-Schools, located in Civil Lines, Nagpur under the

provisions of Section 12(1)(c) of the Act, in the year 2013-14. The

respondent nos.5 and 6-Schools in Civil Lines provide education to the

children only till Standard IV. The management of the respondent nos.5 and

6-Schools run and administer two other schools at Koradi and Hazari Pahad

respectively where education is imparted to the students from Standard I to

X. The children of the petitioners have completed the education till Standard

IV at the end of the academic session 2016-17 and are entitled to the

admission to Standard V. Some of the petitioners received a communication

from the respondent no.5 informing them that they could admit their

children in Standard V in the school run by the management at Koradi on the

condition that they would not be entitled to free education as per the

provisions of Section 12(1)(c) of the Act. The respondent no.6 also served

the communications on the other petitioners informing them that since there

is no facility for further education in the schools in which their children were

admitted, they would be required to make arrangement for admitting their

children in the other schools as per the provisions of the Act. The

communications are challenged by the petitioners in the instant petition and

a direction is sought against the respondent nos.3 to 6 to ensure that the

children of the petitioners are provided free education in the 25% quota as

provided under Section 12(1)(c) of the Act.

WP 1869/17 5 Judgment

4. Shri T.Rahul, the learned counsel for the petitioners,

submitted that as per the provisions of Section 12(1)(c) of the Act, the

children of the petitioners were admitted in the respondent nos.5 and 6-

Schools to the extent of 25% of the strength of Standard I and free education

was provided to them as per the provisions of the Act. It is submitted that

the respondent nos.5 and 6-Schools, that are located in Civil Lines, have

classes only up to Standard IV and elementary education is not provided in

the said schools till Standard VIII. It is submitted that the petitioners belong

to the weaker or disadvantaged groups and the petitioners therefore have a

right to secure free education for their children under the Act. It is stated

that the action on the part of the respondent nos.5 and 6 in not providing

free education to their children in the other schools run by them would be

violative of the provisions of the Act. It is submitted that in any case, a

direction needs to be issued against the respondent nos.3 and 4 to admit the

children of the petitioners in any other schools so that the petitioners could

educate their children, as per the provisions of the Act. The learned counsel

for the petitioners, states that the grievance of the petitioners would stand

redressed if the respondent no.4 takes steps to transfer their children to any

other school excluding the schools that are specified in Sub-Clauses (iii) and

(iv) of Clause (n) of Section 2 of the Act.

5. Shri Jaiswal, the learned Senior Counsel for the respondent no.6,

submitted that the respondent no.6 runs two independent schools, one in the

WP 1869/17 6 Judgment

Civil Lines locality in which the children of the petitioners are admitted and

the other one at Hazaripahad. It is stated that the school run by the

respondent no.6 in Civil Lines, where the children of the petitioners are

admitted and the school at Hazaripahad are different schools. A reference is

made to the U-DISE numbers of the schools at Civil Lines and Hazaripahad to

point out that the schools run by the respondent no.6 in Civil Lines and

Hazaripahad are different and independent schools. It is stated that a child

admitted in one school run by the management would not have an absolute

right to get admitted in the other school run by the management in another

locality. It is submitted that the schools in which the children of the

petitioners were admitted in the year 2013-14 have classes only till Standard

IV and 'elementary' education till the end of Standard VIII is not provided in

the said schools. It is submitted that this fact was known to the petitioners

when they admitted their children in the respondent no.6-School at Civil

Lines. It is submitted that the school run by the respondent no.6 at

Hazaripahad have classes from Standard-I to X and while admitting the

students to Standard I in the school at Hazaripahad, they have exhausted the

25% quota in respect of grant of free education to the weaker sections or

disadvantaged groups, as provided under Section 12(1)(c) of the Act. It is

stated that if the respondent no.6 is directed to provide free education to the

children of the petitioners in their school at Hazaripahad, the 25% quota for

providing free education, as provided under Section 12(1)(c) would be

exceeded.

WP 1869/17 7 Judgment

6. Shri Joshi, the learned counsel for the respondent no.5,

submitted that the respondent no.5 runs two independent schools, one in

the Civil Lines locality in which the children of the petitioners are admitted

and the other one at Koradi. It is stated that the school run by the

respondent no.5 in Civil Lines locality where the children of the petitioners

are admitted and the schools at Koradi are entirely different schools. A

reference is made by the learned counsel to the U-dise numbers of the two

schools to show that they are different. It is submitted that if it is assumed

that the school run by the respondent no.5 in the Civil Lines locality in which

the children of the petitioners are admitted and the school at Koradi is the

one and the same school, the 25% quota as provided under Section 12(1)(c)

will surely exceed. It is submitted that Section 5 of the Act provides that

where there is no provision in the school for completion of elementary

education a child will have a right to get transferred to a school, other than

the schools provided under Section 2(n)(iii) and (iv) of the Act. According

to the respondent no.5, the provisions of Section 5 would come into play as

there is no provision for completion of elementary education in the school in

Civil Lines, where the children of some of the petitioners were taking

education and the petitioners would be entitled to get their children

admitted to any other school in the nearby locality.

7. The learned counsel for the respondent no.4 submitted that if

there is no provision for completion of elementary education of the child in

WP 1869/17 8 Judgment

the school in which he or she is admitted, as per the provisions of Section 5

of the Act, the child would have a right to seek transfer to any other school,

excluding the schools specified in Sub-Clause (iii) and (iv) of Clause (n) of

Section 2 of the Act, till the completion of his/her elementary education. It

is submitted that if this Court so directs, the respondent no.4 would take

appropriate steps to admit the children of the petitioners in any other

schools, except the schools specified in Sub-Clauses (iii) and (iv) of Clause

(n) of Section 2 of the Act.

8. On a reading of the relevant provisions of the Act, it appears that

a direction cannot be issued in the circumstances of the case against the

respondent nos.5 and 6 to admit the children of the petitioners in the schools

run by them in Koradi and Hazaripahad respectively. We find much force in

the submission made on behalf of the respondent nos.5 and 6 that though

the management of the schools run by the respondent nos.5 and 6 at Civil

Lines and Koradi; and Civil Lines and Hazaripahad respectively is the same,

the schools are independent schools having different U-DISE numbers. Even

assuming that the schools run by the respondent nos.5 and 6 at Civil Lines

and Koradi and Hazaripahad respectively are considered to be one school,

we find much force in the submission made on behalf of the respondent

nos.5 and 6 that if the two schools run by each of these respondents are

considered to be one school, the children of the petitioners would not be

entitled to take free education in the schools at Koradi and Hazaripahad

WP 1869/17 9 Judgment

respectively in view of the provisions of Section 12(1)(c) of the Act. Section

12(1)(c) of the Act casts an obligation on the schools specified in Sub-

Clauses (iii) and (iv) of Clause (n) of Section 2 of the Act to admit at least

25% of the strength of a class, children belonging to the weaker sections and

disadvantaged groups and provide free and compulsory elementary

education to them, till its completion. There is no dispute about the fact that

the respondent nos.5 and 6 are unaided schools and are not receiving any

kind of aid or grant to meet their expenses from the appropriate government

or the local authority. Hence, the schools run by the respondent nos.5 and 6

would fall within the term "school" as is provided under Section 2(n)(iv) of

the Act. A duty is enjoined upon the schools specified in Sub-clause (iv) of

Clause (n) of Section 2 to provide free and compulsory education, at least to

the extent of 25% of the strength. It is the case of the respondent nos.5 and

6 and it is not disputed by the petitioners and the respondent no.4 that if the

children of the petitioners are directed to be admitted in the schools run by

the respondent nos.5 and 6 at Koradi and Hazaripahad respectively, the

quota of 25% under Section 12(1)(c) would be exceeded. There is no

prohibition in providing free and compulsory education to more than 25% of

the strength of the class under Section 12(1)(c) but, there is no obligation on

the management of the schools specified in Sub-Clauses (iii) and (iv) of

Clause (n) of Section 2 of the Act to provide free education above the

strength of 25% of the class. If that is so, a direction cannot be issued

against the respondent nos.5 and 6 to admit the students beyond 25%

WP 1869/17 10 Judgment

strength of the class in Standard-V. If the provisions of the Act are applied to

the circumstances of the case, we find that no direction could be issued to

the respondent nos.5 and 6 to provide free education to the children of the

petitioners in their schools at Koradi and Hazaripahad respectively, specially

when these schools are distinct and separate from their schools in Civil Lines.

Though no direction could be issued against the respondent nos.5 and 6 to

admit the children of the petitioners and provide free education to them in

their schools at Koradi and Hazaripahad, the children of the petitioners

cannot be left in a lurch. Section 5 of the Act comes into play where a school

has no provision for completion of elementary education of a child, like in

the case in hand. In such cases, where the school has no provision for

completion of elementary education of the child till Standard VIII, the child

would have a right to seek his/her transfer to any other school excluding the

schools specified in Sub-Clauses (iii) and (iv) of Clause (n) of Section 2 of

the Act. We have already noted that the schools run by the management of

the respondent nos.5 and 6 at Koradi and Hazaripahad respectively are the

schools falling within Sub-Clause (iv) of Clause (n) of Section 2 of the Act

and, hence, the children of the petitioners would not have a right to seek

their transfer in the schools run by the management of the respondent nos.5

and 6 at Koradi and Hazaripahad respectively. In the circumstances of the

case and in the interest of justice, it would be necessary to issue a direction

against the respondent no.4, in view of the provisions of Section 9 of the Act

that casts a duty on the 'local authority' to provide free and compulsory

WP 1869/17 11 Judgment

elementary education to every child, to admit the children of the petitioners

in any other schools, excluding the schools specified in Sub-Clause (iii) and

(iv) of Clause (n) of Section 2 of the Act so as to ensure that they secure free

elementary education.

9. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The respondent no.4 is directed to admit the children of the

petitioners in the other schools, excluding the schools specified in Sub-Clause

(iii) and (iv) of Clause (n) of Section 2 of the Act for completion of their

elementary education, within two months. By keeping the objects of the

Act in view, we hope and trust that the respondent no.4 would ensure

that the children of the petitioners would be admitted in the schools in

their neighbourhood and would not be required to travel a long distance

for attending the schools to which they may be admitted in terms of this

order.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                             JUDGE

APTE