Vivekanand Academy Of Human ... vs The State Of Maharashtra And Ors
2023 Latest Caselaw 5303 Bom

                                                    253-ASWP-9393-2022.DOC




 Gaikwad RD



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION
                   WRIT PETITION NO. 9393 OF 2022


 Vivekanand Academy of Human Excellence
 (CBSE) & Anr                                                    ...Petitioners
       Versus
 The State of Maharashtra & Ors                                ...Respondents


 Mr Kuldeep U Nikam, with Om Latpate, for the Petitioner.
 Mrs AA Purav, AGP, for the Respondents No.1,4 & 6.
 Mr Pankaj Deokar, h/f Ashok Misal, for the Respondents No.3,5 & 7.


                               CORAM     G.S. Patel &
                                         Neela Gokhale, JJ.

                               DATED:    8th June 2023
 PC:-

1. The Petition is at the instance of a school in Taluka Koregaon, District Satara. The 2nd Petitioner is its controlling Educational Charitable Trust. Added by amendment to the Petition are Respondents No. 8 to 31, all children around the age of 6 or 7 years. The case of the Petitioners is that under the Right of Children to Free and Compulsory Education Act, 2009 ("RTE"), the 1st Petitioner has been unlawfully asked to admit students such as Respondents No. 8 to 31.

2. There is an order of 19th December 2022 which reads thus:

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1. Leave to amend. Public Charitable Trust be added as petitioner No.2.

2. Amendment be carried out forthwith. 3

3. We have seen the affidavit placed on record on behalf of Respondent Nos.1, 2, 4 & 6 sworn on 1st December, 2022. The said affidavit goes exactly contrary to what has been observed in para Nos. 25 and 26 of the judgment delivered by the Nagpur Bench in WP/2303/2017 (Amol Vasantrao Patil vs. Bhartiya Vidya Bhavan's Lloyds Vidya Niketan and Ors) decided on 13 July, 2017 the very instructions of the State Government as reflected in letter dated 5th February, 2019 issued by School Education Department, so also the interim order passed by this Court in WP(L) No.625 of 2018 (Balmohan Vidyamandir Vs. State of Maharashtra & Ors. dated 10th April, 2018).

4. What can be noticed from the aforesaid observations is, in the case in hand, in spite of there being 267 schools in the Taluka, 250 schools are the Government Schools. It is stated by the officers swearing the affidavit that the schools which are receiving aid from the government are not eligible in online admission process under RTE Act. Paragraph 4 at page 340 of the said authority read thus:- "I state & submit that as per data available on Unified District Information System for Education plus, out of 267 schools following 250 schools who are the Government Schools and/or taking aid from the Government and therefore these Schools are not eligible in the online admission process as per RTE Act.

a) 183 Schools comes under Zilha Parishad

b) 59 Schools are private aided Schools

c) 5 Schools are Government aided Schools (Samaj Kalyan)

d) 2 Schools are partially aided Schools

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e) 1 School is government unaided School I state & submit that out of 267 schools, 17 schools are self financed schools running within Koregaon Taluka, however out of 17 schools, 2 schools are upper primary schools and 1 school is having Junior college and therefore these 3 schools not held eligible for 25% online admission process for the children belonging to weaker section and disadvantaged group. I state that as per the criteria prescribed under the aforesaid Government Resolution dated 16 January, 2018, out of 267 schools, only 15 schools including 1 school which shifted to Satara taluka are held eligible for 25% online admission process for the children belonging to weaker section and disadvantaged group."

5. In the aforesaid background, what can be noticed that either respondent who has sworn the affidavit i.e. respondent nos. 3, 5 & 7 are unable to understand the very scheme of the RTE Act and also the instructions issued by the Government from time to time thereby enrolling the schools on the RTE Portal. It is really shocking to note that out of 267 schools, only 15 schools are included in the RTE Portal in the concerned Taluka of Satara District.

6. In this background, we constrained to direct respondent No.2/Director of Education to file an affidavit explaining the steps taken in the matter of implementation of the aforesaid directives issued by this Court in the matter of registering Educational Institutions on RTE Portal, so as to make available the option to pupils in the matter of admission to such educational institution. We would also like to have the stand of the respondent No.2 as to whether he adopts and stands by the affidavit which is placed on record referred above. The affidavit should be sworn by Director of the Education (Primary) and not by any other officer particularly having regard to the serious issue which is sought to be canvassed. We direct such affidavit to be

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placed on record, in any case, by 17 January 2023.

7. Petitioner is at liberty to file rejoinder within a period of two weeks thereafter.

8. Stand over 9th February, 2023."

3. The issue (as opposed to the present litigation) has a background because of the decision of the Division Bench of this Court in Amol Vasantrao Patil,1 mentioned above. Our attention has been drawn to that judgment and to subsequent developments including the Affidavits that were filed, and then Division Bench orders that strongly disapproved of the approach taken by the officers on behalf of the State Government. Most importantly, the decision of the Division Bench in Amol Patil, which has now attained finality, makes it clear that it is not only self-financed schools that are to be included in the RTE portal especially for fulfilling the requirement of neighbourhood schools. Paragraphs 25 and 26 of the judgment of this Court are clear in that regard.

4. Following the observations of this Court in this matter on 19th December 2022, there is an Affidavit filed by one Sharad Shankar Girigosavi. It is from page 358 and it is dated 16th January 2023. This Affidavit seems to us to be far less than satisfactory. It does not address the question at all either of what this Division Bench said on 19th December 2022 or what this Court required in its judgment of Amol Patil referred to above. We note that there is already an order of this Court which has held a senior officer of the Government prima facie to have filed an Affidavit that is contemptuous. The deponent of the Affidavit seems to have 1 2017 SCC OnLine Bom 6752

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misunderstood the question and therefore for the benefit of the officers concerned we will identify the question as accurately as possible. In paragraphs 25 and 26 of the judgment in Amol Patil, the Division Bench of this Court said:

25. The perusal of 2009 Act shows that Section 3 thereof provides and protects right of a child to a free and compulsory education in a "neighbourhood school". The right of an elementary education, therefore, can be enforced against the neighbourhood school. The provisions in Section 2(n) define "School" and 2009 Act, therefore, applies to schools run by Government or local authority or also to private schools receiving grant-in-aid or other assistance from Government or local authority. It also applies to unaided school not receiving any kind of aid or grants. Section 8 casts a duty on appropriate Government to provide free and compulsory elementary education to every child and to ensure availability of a neighbourhood school as specified in Section 6. The Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 in Rule 2(m) defines "Neighbourhood school". In respect of children in classes I-V, school within distance of one km. and in classes VI to VIll, a school within distance of 3 km. from residence has been envisaged as neighbourhood school if minimum 20 children in age groups specified therein are available and willing for enrolment in that school. The fact that such schools are available in present matter is not in dispute. Object of Parliament behind mandating the State to establish or provide such a school in neighbourhood cannot be lost sight of.

26. Section 12 of 2009 Act is on extent of school's responsibility for free and compulsory education. As per Section 12(1)(c) respondent nos. 1 & 2 have to admit 25% of its students in Class I or at pre-school level. Proviso to

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Section 12(1)(c) is very clear and if such school is imparting pre-school education, provisions of Clauses (a) to (c) apply even at such pre-school education level. Rule 9A of 2013 Rules is about on-line admission process. All schools on which obligation is cast under Section 12 must be considered for such neighbourhood admissions and have to enrol themselves under Rule 9A(2). Not only schools receiving grant-in-aid but other schools like respondent nos. 1 & 2 must register themselves for on-line admission process. The defence of respondent nos. 3 & 4 that certain schools though having pre-school facility have not enrolled/registered, therefore, cannot be accepted. Respondent nos. 3 & 4 have in their reply affidavit pointed out such schools. The petitioners or other respondents do not dispute this requirement as per 2009 Act or 2013 Rules. Respondent nos. 3 & 4 have attempted to explain position of such schools from paragraph no. 5 onwards of their reply affidavit filed vide Stamp No. 7150/17 on 28.6.2017. As we have already noted supra, these other schools are not parties before this Court and hence, we need not observe more on these rival contentions.

(Emphasis added)

5. Now in a later development, in Writ Petition (L) No. 625 of 2018, the Balmohan Vidya Mandir2 case, the Division Bench on 10th April 2018 referred to the Amol Patil decision. We quote paragraphs 3 to 9 of the order of 10th April 2018 from pages 333 to 336, which read as under:

"3. It would thus be clearly seen that the Division Bench at Nagpur has in unequivocal terms held that for

2 Balmohan Vidyamandir v State of Maharashtra & Ors., Writ Petition (L) No. 625 of 2018, decided on 10th April 2018.

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considering admission under the Right to Education Act, initially the students are required to be accommodated within a period of 1 km radius, if not possible, thereafter, 3 km radius, if that is also not possible then within 6 km, and only thereafter beyond 6 km. It has further been held that this is required to be done step by step.

4. On the basis of the judgment at Nagpur Bench, the petitioners have filed the present petition seeking for a direction to develop the software in accordance with the law laid down by the Division Bench at Nagpur in the case of Amol Vasantrao Patil Vs. Bhartiya Vidya Bhavan's Lloyds Vidya Niketan, Bhugaon - 2018(1) Mah.L.J.54.

5. In reply to the petition, an affidavit has been filed by Dr. Suvarna Kharat, Joint Secretary, School Education Department. It will be relevant to refer to para 12 of the averments made in the said affidavit.

"12 I say that in view of the aforesaid submissions, reliance on the said judgment of the Hon'ble Bombay High Court (Nagpur) bench reported in [2018(1) Mh.L.J. Amol Versus Lloyds Vidya Niketan] is totally misplaced for the reasons set out below:

(e) The Hon'ble Court (Nagpur Bench) in the said case was not concerned with the online admissions process impugned in the present Petition which process is as per GR dated 16- 01-2018 which is restricted only to section 12(1)(c) of the said Act whereas the Hon'ble Court in the said case was concerned with GR dated 10-1-2017 which has been modified/amended through GR dated 16-01- 2018. Copy of the said G.R. Dated 16-01- 2018 is annexed hereto as Exhibit 3.

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The said G.R of 2018 is not impugned herein.

(d) Further, it was brought to the notice of the Hon'ble Court in the said case that the schools referred to in rule 9A of the Maharashtra 25% rules are only schools contemplated under section 12(1)(c) since the qualification of section 2(d) and 2(e) is applicable only to schools contemplated under section 12(1)(c) regardless of the distance factor.

(e) With utmost respect it is submitted that said judgment is held as good law, section 12 in its entirety (including 12(1)(a) will have to be read with the qualifications laid down in section 2(d) and 2(e) which would completely frustrate the object of the said Act, thereby depriving more than 2 lakh students in the state of 100% free education in schools referred to in 12(1)(a) and 12(1)

(b).

6. We are of the considered view that the averments made in the said affidavit are totally contemptuous in nature. If in the view of the State Government, the judgment of Division Bench of this Court is not laying down correct law, then the only option before them is either to challenge before the Apex Court or to file a review of the said judgment. It appears from the affidavit that an impression is sought to be given by the author thereof that the Judgment at Nagpur Bench is per incuriam since it does not take into consideration the legal position correctly. The jurisdiction to decide as to whether a judgment of co-ordinate bench of this Court is per incuriam or not would at the most be available to

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another Bench if it finds that the earlier Division Bench has passed the judgment in ignorance of either the provisions of law or the judgment of the Apex Court or its own judgment.

7. No bureaucrat, be even the highest bureaucrat in the country, has the jurisdiction to call a Division Bench judgment of this Court either per incuriam or a judgment not good in law. We are therefore, of the considered view that Smt. Suvarna Kharat has committed contempt of this Court by making averments which are not only derogatory to the judgment of the Division Bench but are contemptuous in nature.

8. Issue notice to Smt. Suvarna Kharat calling upon her to appear before this Court on 17th April 2018 and show cause as to why she shall not be held guilty for having committed contempt

9. By way of an interim order, we direct that until further orders, no coercive steps shall be taken against the petitioner."

(Emphasis added)

6. The concern of this Court in its order of 19th December 2022 is that, despite these orders, the present Affidavit in Reply says that of the 267 schools, as many as 250 are not included and are not required to be included in the portal for the online admission process. Of the 17 self-financed schools in the Taluka in question, two are eliminated being upper primary schools, one because it has a junior college and therefore it is only the remainder which are enrolled in the portal.

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7. The further Affidavit dated 16th January 2023 does not explain this position at all. What the Court required is that all schools following the Amol Patil judgment must be enrolled in the RTE portal. Different schools may be thus selected by a software process for different purposes such as neighbourhood schools within a defined radius or proximity. But that does not mean that only select schools are to be entered or enrolled in the portal.

8. We need Ms Purav to tell the officer concerned to remain present in Court on the next occasion and to file an Affidavit explaining how many schools are presently enrolled in the RTE portal specifically for the Taluka in question, how many are not enrolled and to give us statewide figures as well. That Affidavit is to be filed by 19th June 2023.

9. List the matter on 22nd June 2023.

10. Having said all this, there remains an outstanding question about the locus of the Petitioner. This is a matter of some concern because we do not propose to allow any self-serving interest to prevail. We say this particularly because Respondents No. 8 to 31 are minors around the age of 6 or 7 years. We will not let them be prejudiced at the instance of a school which may have other motivations or factors. Even if there is merit in the cause, we are perfectly prepared to carry on the Petition without this particular Petitioner. At some point, the Petitioners will have to establish their locus and their bona fides. The Petitioners must make no mistake about this. It is entirely possible for us to issue mandatory directions

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to the State Government while at the same time refusing the Petitioners all relief. We note also that although the Petitioners seek mandamus, nowhere in the Petition is there any reference to the absolutely essential demand for justice having been made.

 (Neela Gokhale, J)                                      (G. S. Patel, J)





                               8th June 2023