Bombay High Court
Pranav Haribhau Phapale Under ... vs The State Of Maharashtra And ... on 31 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8159 OF 2020
PRANAV HARIBHAU PHAPALE UNDER GUARDIAN OF
HARIBHAU MANJUL PHAPALE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for the Petitioners : Shri D.R.Irale Patil
AGP for Respondents 1 and 2 : Shri S.R. Yadav Lonikar
Advocate for Respondent 3 : Shri V.D. Patnurkar
Advocate for Respondents 4 and 5 : Shri S.K. Shinde
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 31st August, 2021
Per Court :-
1. By this petition, the petitioners have put forth prayer
clauses B and C as under :-
"B) The Hon'ble Court may be pleased to pass
necessary order and quash and set aside the
impugned order dated 29.09.2020 passed by
the respondent No.4 and 5 of cancellation of
admission in First Standard of child of
petitioners and restore original position of their
admission in respondent No.4 and 5 school
respectively.
C) Pending hearing and final disposal of this writ
petition, the Hon'ble Court may be pleased to
pass necessary order and direct the respondent
No.4 and 5 to allow the child of petitioners to
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prosecute First Std in English medium on their
earlier admission."
2. We have considered the submissions of the learned
advocates for the respective sides.
3. The grievance of the petitioners is that they were
admitted under 25% Free Education Quota as enshrined under
the Right of Children to Free and Compulsory Education Act,
2009 (for short, "the RTE Act"). However, their admissions were
cancelled by the impugned communications dated 29.09.2020 on
the ground that there were some deficiencies. It is not even
mentioned in the impugned communications as to whether, there
is any deficiency which could be cured by the petitioners. No
opportunity of hearing was given to them. Consequentially, both
the petitioners, in order to avoid sacrificing their academic year,
continued with their admissions on payment of fees.
4. The learned AGP places reliance upon the judgment
delivered by this Court dated 25.01.2021 in Writ Petition
No.6711/2020 (Sayyed Mohammadmisba Mukhij and others vs.
The State of Maharashtra and others), wherein, this Court did not
interfere in the cancellation of admissions of similar petitioners
therein. It was observed in paragraph 7 that those petitioners will
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have to pay annual tuition fees and continue with their
admissions in the same school if the seats are available.
5. The learned AGP, therefore, relies upon the
Government Resolution dated 16.01.2018 which prescribes
under clause E(1)(i) that the leave and licence agreement for
enabling students to reside in the vicinity of the school, should be
registered with the Sub- Registrar's office and only a registered
leave and licence agreement would complete the application
form of the students.
6. The learned advocate for the petitioners contends
that the parents of these petitioners students are below the
poverty line and they do not have the financial strength to secure
residential accommodation for their children without they being
sure of whether they would get admission in the school.
However, it is conceded that the said clause E(1)(i) of the
Government Resolution dated 16.01.2018 has not been
challenged.
7. The learned advocate for the petitioners points out
from the pleadings in the petition that the petitioners belong to
the weaker section.
8. We find that the definition of a child belonging to
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the weaker section is found under Section 2(e) of the RTE Act,
which reads as under :-
"(e) "child belonging to weaker section" means a
child belonging to such parent or guardian
whose annual income is lower than the
minimum limit specified by the appropriate
Government, by notification;"
9. We find from the form filled in by petitioner No.1
(Phapale) that he has written his family income as Rs.Zero and in
case of the second petitioner (Chaskar), it is written as
Rs.60000/- per annum.
10. It is informed that none of the petitioners have
applied afresh for free education for the academic year 2021-22.
11. The learned advocate for the petitioners prays for
liberty to amend the petition so as to challenge clause E(1)(i) of
the Government Resolution dated 16.01.2018 on the ground that
it is illogical and arbitrary. He further submits that both the
petitioners are presently taking education in two different schools
by paying regular fees.
12. In view of the above, we permit the petitioners to
amend the petition suitably for challenging clause E(1)(i) of the
Government Resolution dated 16.01.2018 and put forth
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appropriate prayers. The copy of the amended petition be
supplied to the learned advocates for the respective sides.
Additional affidavits in reply with proper pagination can be filed
by the respondents on or before 24.09.2021.
13. We direct the petitioners, while amending the
petition, to set out the annual earning details of their parents by
entering a specific affidavit supported with requisite documents.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
