Hiraman Sonu Jat Shikshan And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 948 Bom

                                        {1}
                                                                     wp 4556.16.odt

             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO.4556 of 2016

 Kai. Hiraman Sonu Jat Shikshan and Samaj
 Prasarak Mandal, Kulthe
 Kulthe, Tq. & Dist. Dhule
 through Its Director
 Shri Sambhaji Shivaji Kavhad,
 Age: 26 years, occu: Agriculture,
 R/o Kulthe, Tq. & Dist. Dhule                                            Petitioner


          Versus


 1        The State of Maharashtra,
          Through Secretary,
          School Education & Sports Department,
          Mantralaya, Mumbai 32


 2        The Director of Education,
          Directorate of Education,
          Maharashtra State, Pune


 3        The Divisional Deputy Director of Education,
          Nashik Division, Nashik.


 4        The Education Officer (Secondary)
          Zilha Parishad, Dhule.                                    Respondents

Mr. N.B. Suryawanshi advocate for the petitioner Mr. S.B. Joshi, Assistant Government Pleader for Respondents _______________

CORAM : R.M. BORDE & P.R. BORA, JJ (Date : 22nd March, 2017.)

{2} wp 4556.16.odt

ORAL JUDGMENT (Per: R.M. Borde, J)

1 Heard.

2 Rule. With the consent of the parties, petition is taken-up

for final disposal at admission stage.

3 Petitioner is praying for quashing and setting aside the order

dated 11.3.2016 passed by respondent No.1 State of Maharashtra

and is also seeking further direction to the State to include village

Kulte in the Master Plan, for establishing secondary school and

permit the petitioner to start secondary school at village Kulthe.

The petitioner is also praying for issuing direction to the State to

include village Kulthe in Master Plan, prepared under the Right to

Education Act for commencement of Primary and Secondary

Schools and issue an advertisement, calling applications from

willing private managements for commencement of secondary

school in village Kulthe and to complete the exercise within

stipulated period.

4 The petitioner is an institution registered under the Societies

Registration Act. The petitioner contends that, village Kulthe which

comes within the area of operation of the petitioner society, is a

remote tribal village, situated in a basin having population of 3138

{3} wp 4556.16.odt

villagers. There is no primary and secondary school established by

any private management in this village. It is revealed that there is

a school operated by the Zilha Parishad, imparting education

from 1st to 6th standard. The petitioner contends that, the State

Government has prepared a Master Plan for the purpose of

establishing of schools in the State. However, since the village

Kulthe was not included in the Master Plan, petitioner tendered a

request to the State Government for inclusion of village Kulthe in

the Master Plan. However, the request of the petitioner was not

considered. The petitioner, as such, was constrained to approach

this Court by presenting Writ Petition No.1716 of 2013 which

came to be disposed of by the Division Bench of this Court on

9.4.2013, directing the Director of Education to forward the report

to the State Government, expeditiously, so as to facilitate the

State Government to take decision in respect of inclusion of

village Kulthe in the Master Plan. The State Government, however,

did not consider the request, and as such the petitioner was

required to approach this Court again by presenting Writ Petition

No.5937/2014. This Court, while disposing of the said writ

petition, has issued following directions as recorded in para Nos.3,

4 of the order, which read thus:-

" 3. We have considered the submissions canvassed by

{4} wp 4556.16.odt

the learned counsel for respective parties. It appears that, while passing the impugned order dated 12.5.2014 the State has not considered the peculiar facts existing in the present matter. There is no school at the distance of six and half kilometer. The village is situated under the deep valley i.e. it is village in basin. The same is tribal one. The petitioner already had about 270 students from Vth to Xth standards and considering location of the village in case there is excessive rain and water flows over the bridge, the students of the said village cannot go to nearby village. As it appears from the record the infrastructure is writ large. Over and above all these, the zilla parishad has also stated its inability to conduct Vth to Xth standard classes. All these aspects have not been considered while passing the impugned order. It would be appropriate for the Government to reconsider the said proposal which is submitted by the authorities for inclusion of village and to consider the case of the petitioner.

4 In the result, the impugned order is quashed and set aside. The respondent/State shall reconsider the proposal submitted by the petitioner and referred to it for inclusion of village Kulthe, considering the aforesaid aspects on its own merits within a period of six (6) months from today. The writ petition is disposed of. No costs. "

5 In spite of specific directions issued by this Court, taking

into account the geographical situation of the village, as well as

taking note of the fact that, the village is situated in remote area

{5} wp 4556.16.odt

surrounded by a tribal area, the State Government did not

consider the request for including name of the village Kulthe in

the Master Plan and rejected the same, which order is impugned

in this petition.

6 In the impugned order passed by the State Government on

11.3.2016, it is recorded that, the population of the village is

1159 and as such, requirement in respect of population is not

fulfilled. It is further recorded that, the State Government has

taken a decision to cancel the Master Plan and as such, there

arises no question for inclusion of the village in the Master Plan.

Since the State Government has taken decision to cancel the

Master Plan and to run the schools through Local Autonomous

bodies, the petitioner does not have any concern with the issue.

7 The reason recorded in the impugned order, so far as the

population is concerned, appears to be without application of mind

to the record i.e. census data. As per the census data, the

population of the village is 3113. The authorities are still relying

upon the earlier census figures, without taking a note of increase

in the population. As has been stated in the instant petition and

more specifically recorded in the order passed by this Court in

Writ Petition No. 5937/2014, the village is situated in a deep

{6} wp 4556.16.odt

valley and during rainy season in the event of excessive rain fall,

the flow of water reaches above the bridge, disconnecting the

contact of villagers with other part of the area in the district. The

students studying in the schools hailing from the village are

required to cross the bridge so as to reach the school, which is

approximately at a distance of more than five kilometers. There is

no proper road, infrastructure for reaching the village. The village

itself is situated in the deep valley. Though the State Government

has objected to the contention raised by the petitioner that, the

village falls within the tribal area, it cannot be disputed that,

considering the geographical situation of the village, it shall have

to be termed as difficult terrain. So also there cannot be a

dispute that, the student population in the village is sufficient to

establish a school, imparting education up to 10th standard. It is

contended by the State Government that, since the State

Government has decided to abandon the Master Plan, the request

made by the petitioner cannot be considered.

8 So far as the issue of providing facility of education for the

students in the village is concerned, it is contended that, the State

would instruct the Zilha Parishad to operate 7th and 8th standards

from 2017-2018 and 2018-2019 onwards. It is also contended

that, the State has adopted a policy to permit operation of the

{7} wp 4556.16.odt

schools on 'self-finance ' basis under the Maharashtra Right of

Children to Free & Compulsory Education (Manner of Reservation

of Seats for admission, and Child belonging to Weaker Section)

Rules, 2012. It is contended that, under the Said Act of 2012, the

State has sanctioned 3600 schools in the State. The petitioner

was also permitted to operate a school on ' self finance ' basis in

2013 at village Kulthe. However, it failed to establish the school. It

is also brought to our notice that, there is proper infrastructure

available with Zilha Parishad so as to set up a primary school for

7th and 8th standards as well as for establishing a secondary

school imparting education for 9th and 10th standards.

9 It does appear that, the petitioner has suppressed the fact

in respect of grant of permission to operate school on ' self-

finance ' basis. The petitioner has not only failed to disclose this

aspect while presenting the instant petition but also there is

failure on the part of the petitioner to disclose this aspect while

presenting Writ Petition No.5937/2014. The State Government

also did not bring this aspect to the notice of the Division Bench of

this Court while afore said writ petition was disposed of.

10 So far as the petitioner is concerned, we are of the opinion

that, the request of the petitioner for grant of permission to

{8} wp 4556.16.odt

establish a school at village, need not be considered. The

petitioner is guilty of suppression of the facts and as such, request

made by the petitioner, in the instant petition does not deserve

consideration. However, larger issue in respect of providing

educational facility to the students in the village, need to be

addressed, in the light of provisions of Right of Children to Free &

Compulsory Education Act, 2009.

11 The stand taken by the State Government is quite

intriguing. The State Government has conveniently neglected it's

responsibility cast under the provisions of the Act of 2009. It shall

have to be appreciated that, it is an obligation of the State to

provide educational facilities to the students residing in

inaccessible area. The State, cannot avoid it's responsibility of

establishing schools and more particularly in villages which are

situated in difficult terrain and because of the geographical areas.

It is not a matter of controversy that, the village Kulthe is situated

in basin and students of tender age, in order to avail of the facility

of education, are required to travel a long distance of about 5

kilometers. During monsoon season, they are required to cross

the bridge which occasionally gets submerged under the water.

The State Government and the officers dealing with the subject

{9} wp 4556.16.odt

are expected to be sensitive to the problem and shall take

appropriate decision in the interests of students.

12 Section 6 of the Act of 2009 mandates the Appropriate

Government and the local authority to establish, within such area

or limits of neighborhood, as may be prescribed, a school, where

it is not so established, within a period of three years from the

commencement of the Act. The provisions of the Act 2009 are

enforced since 1.4.2010 and as such, it is the statutory

responsibility of the Appropriate Government to establish school

within the prescribed geographical limits and before lapsing of

time frame laid down under section 6 of the Act of 2009.

13 Appropriate Government is defined under section 2-A of the

Act, which reads thus:

" 2(a)"Appropriate Government" means -

i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union Territory, having no legislature, the Central Government;

ii) in relation to a school, other than the school referred to in sub-clause (i) established within the territory of

{10} wp 4556.16.odt

A) a State, the State Government B) A Union territory having legislature, the Government of that Union territory . . . . ."

14 Section 8 casts an obligation on the Appropriate

Government to provide free and compulsory education to every

child and ensure availability of neighborhood school, in

consonance with section 6. The State Government has framed

Rules Viz. The Maharashtra Right of Children to Free &

Compulsory Education Rules, 2011, in exercise of powers

conferred in sub-sections 1 and 2 of Section 38 of the Act of

2009. Rule 4 casts obligation on the State to establish

neighborhood schools within the area and the limits to meet the

following criteria, namely:-

(a) In respect of children in Classes I - V, a school shall be established as far as possible within a distance of one kilometer of the neighborhood and has a minimum of 20 children in the age group of 6 to 11 years available and willing for enrollment in that school; and

(b) In respect of children in classes VI - VII, a school shall be established as far as possible within a distance of three kilometers of the neighborhood and which has not less than 20 children in class 5th of

{11} wp 4556.16.odt

the feeding primary schools, taken together, available and willing for enrollment in that school.

Sub-rule 2 of Rule 4 provides that, the State may suitably

alter the minimum distance specified in sub-rule (1) in cases of

hilly areas or areas that are not easily accessible and make

available the schools run by the Government or Local Authority for

the children having no facility of further elementary education in

their schools in such area.

15 The State is under obligation under Rule 5(3) to undertake

school-mapping to be carried out by the officers notified by the

Government, in that behalf, for the purpose of establishing a

neighborhood school and shall conduct a survey to identify and

obtain statistical information about all children in the area

including children, living in remote areas, children with disabilities,

children belonging to disadvantaged groups, children of weaker

sections of society, out-of-school children, as well as, children who

have dropped out school, within one year of the appointed date

and every year and thereafter.

16 Although it is stated that the State has taken a decision to

abandon Master Plan, it has not been stated as to whether the

State has complied with it's obligation of undertaking school-

{12} wp 4556.16.odt

mapping which is expected to be carried out by the officers

notified by the Government, for the purpose of establishing a

neighborhood school and whether the State has conducted a

survey to identify and obtain statistical information about all

children in the area including children, living in remote areas,

children with disabilities, children belonging to disadvantaged

groups, children of weaker sections of society, out-of-school

children, as well as, children who have dropped out of school. The

State does not appear to have conducted such a survey. It has not

been brought to our notice that the mandate of sub rule 3 of Rule

5 has been complied with.

17 So far as the instant matter is concerned, it has not been

disputed that, the facility of education for 7th and 8th standards

at village Kulthe, is not available although the village is situated in

a basin and is not easily accessible. It is also not disputed on

behalf of the State that, the facility of education is available for

7th and 8th standards and above in a School situated at a

distance of 5.5 kilometers. As such, there is non-compliance of

statutory obligation cast on the State Government in terms of

provisions of the Act as well as in view of Rule 4(b) of the

Maharashtra Right of Children to Fee & Compulsory Education

{13} wp 4556.16.odt

Rules, 2011.

18 The State is under obligation to provide educational facility

in schools up to 6th to 8th standard and establish school within a

distance of 3 kilometers. It was obligatory on the part of the State

to take a into consideration geographical situation of the village

and in view of Rule 4(2) of the Rules ought to have provided

educational facility to the students of village Kulthe. Although it is

informed to us that the State has abandoned the Master Plan, it

has not been stated whether the State has performed its

obligation of undertaking school-mapping and conducted a survey

to identify and obtain statistical information about the children

living in remote areas, children with disabilities, children

belonging to disadvantaged groups, children of weaker sections of

society, as well as, children who have dropped out of school as

provided under Rule 5(3) of the Rules 2011.

19 In view of the reasons recorded above, we issue following

directions:-

(I) The Respondent No.1 State shall ensure establishment of a

school with a view to providing facility of primary education i.e. 7th

and 8th standard at village Kulthe during the next academic year

{14} wp 4556.16.odt

i.e. 2017-2018;

(II) The State Government is directed, if not already

undertaken, to undertake school mapping to be carried out by the

officers notified by the Government for the purpose of establishing

a neighborhood schools in the State and shall conduct a survey to

identify and obtain statistical information about all children in the

areas, including children, living in remote areas, children with

disabilities, children belonging to disadvantaged groups, children

of weaker sections of society, out-of-school children, as well as,

children who have dropped out school as expeditiously as possible

and preferably within one year from today;

(III) If such exercise of school mapping is already undertaken,

the State shall conduct same exercise for the current year or at

least for the year 2017-2018 as required under sub-rule 3 of Rule

5 of the Maharashtra Right of Children to Free & Compulsory

Education Rules, 2011.

(IV) The State shall publish the information gathered during

survey, on the website immediately after conclusion of the

survey.

                                     {15}
                                                              wp 4556.16.odt


 20       Rule is made absolute in above terms.


 21       The Respondent State shall pay a nominal costs of

Rs.5,000/- within a period of four weeks from today, for not

adhering to the provisions of law and for not putting before the

Court correct information and exhibiting casual approach in the

matter.

                (P.R. BORA, J)             (R.M. BORDE, J)




 vbd