Madras High Court
Deepak vs The Chief Educational Officer on 1 July, 2024
Author: Anita Sumanth
Bench: Anita Sumanth
2024:MHC:2875
W.P.Nos.14910 and 14913 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.07.2024
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.Nos.14910 and 14913 of 2024
Deepak
... Petitioner in W.P.No.14910 of 2024
Elango
... Petitioner in W.P.No.14913 of 2024
Vs
1. The Chief Educational Officer,
Office of the Chief Educational Officer,
No.500, Raja St., Near Five Corner,
Town Hall, Coimbatore – 641 001.
2. The District Education Officer,
Office of the District Education Officer,
Coimbatore – 641 001.
3. The District Educational Officer (Private Schools)
Office of the District Educational Officer (Private Schools)
Ondiputhur, Coimbatore -641 016
... Respondents in both W.Ps
4. N.G.R.A. Nursery and Primary School,
Rep. by its Correspondent,
Coimbatore Mahalingapuram,
Vellalur, Coimbatore – 641 111.
... Respondent in W.P.No.14910 of 2024
4. Kalaivani Matriculation School
rep. by its Correspondent,
Senthil Nagar, Ranganathapuram, Sulur,
Coimbatore – 641 402
https://www.mhc.tn.gov.in/judis
W.P.Nos.14910 and 14913 of 2024
(R4 amended vide order dated 07.06.2024)
.... Respondent in W.P.No.14913 of
2024
COMMON PRAYER: Writ Petitions filed under Article 226 of the
Constitution of India praying to issue a Writ of Mandamus directing the
respondents to admit the petitioners' daughter D.Lidharshana (W.P.No.14910 of
2024) and SinamikaElango (W.P.No.14913 of 2024) under The Right of
Children to Free and Compulsory Education Act, 2009 by considering the
petitioners' representations dated 28.05.2024 and 29.05.2024 and pass orders on
merits and in accordance with law within the period that may be stipulated by
this Hon'ble Court.
In both W.Ps.
For Petitioner : Mr.S.Lakshmi Narayanan
For Respondents : Mr.M.Rajendiran
Additional Government Pleader – R1 to R3
No appearance - R4
COMMON ORDER
The petitioner in W.P.No.14910 of 2024 is the father of one
D.Lidharshana and the petitioner is W.P.No.14913 of 2024 is the father of one
Sinamika Elango. Lidharshana and Sinamika are referred to as 'child' or
collectively, as 'children'. They seek a mandamus directing the respondents,
being the authorities of the Education Department of the State of Tamil
Nadu/R1 to R3, and R4, being N.G.R.A. Nursery and Primary School,
Coimbatore (W.P.No.14910 of 2024) and Kalaivani Matriculation School,
Coimbatore (W.P.No.14913 of 2024) to admit the children to Lower
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W.P.Nos.14910 and 14913 of 2024
Kindergarten under the Right to Children to Free and Compulsory Education
Act, 2009 (in short 'RTE Act').
2. Both the children belong to the Scheduled Caste (Arunthathiyar)
Community and come under the category of 'child belonging to disadvantaged
group'. The petitioners had applied for admission in R4 school online on
04.05.2024 vide application No.1727589 (W.P.No.14910 of 2024) and 8702905
(W.P.No.14913 of 2024) seeking benefit under Section 2(d) of the RTE Act.
3. Both the applications have come to be rejected by respective R4
schools on the ground that their residences were situated beyond one kilometre
from the schools. The rejection was reflected in lists that was put up on
28.05.2024 (W.P.No.14910 of 2024) and 29.05.2024 (W.P.No.14913 of 2024).
The petitioners have not challenged the same, but, in the facts and
circumstances of the case, this Court believes that the prayer for mandamus
would suffice to espouse the relief sought.
4. The petitioners state that 25% of the total seat capacity to be filled
under RTE is 14 seats in R4 school in W.P.No.14910 of 2024 and 15 seats in
R4 school in W.P.No.14913 of 2024. Hence there are sufficient vacancies in the
respective schools for the present academic year under RTE quota.
5. Mr.Lakshmi Narayan, learned counsel for the petitioners relies on the
following decisions in support of their prayer.
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W.P.Nos.14910 and 14913 of 2024
i) Lakshmanan V. The Chief Educational Officer and others (W.P.No.717
of 2023 dated 07.12.2023) ;
ii) A.Gopal V. The District Educational Officer and another (W.P.(MD)
Nos.12153 & 12472 of 2022 order dated 26.07.2022);
iii) Federation of Public Schools V. Government of NCT of Delhi (2012
SCC Online Del 613) and
iv) Amol Vasantrao Patil and ors V. Bhartiya Vidya Bhavan's Lloyds
Vidya Niketan, Bhugaon and ors. (2017 SCC Online Bom 6752).
6. At the hearing on 14.06.2024, the submissions of both parties as well
as the relevant facts have been captured as follows:
Read this order in conjunction with and in continuation of
order dated 07.06.2024, wherein I have directed learned counsel
for R1 to R3 to obtain the details of the seats filled under the Right
to Education Act, 2009 (in short 'RTE Act') by R4 schools for the
last two years as well as the present year.
2. The following details have been supplied by learned
counsel for R1 to R3.
Details submitted regarding admissions made under 25 of in
RTE Act 2009 in 4th respondent school for the period 2022 –
2024.
W.P.No.14910 of 2024 14913 of 2024
2022 – 2023
application
Reject Application 01 (1 Candidate above 1 04 (4 Candidate above 1
(Reason) Km) Km)
2023 – 2024
application
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W.P.Nos.14910 and 14913 of 2024
W.P.No.14910 of 2024 14913 of 2024
Reject Application 06 (4 Candidate above 1 --
(Reason) Km)
(2 Candidate admitted
other school)
2024 – 2025
application
Reject Application 09 (5 Candidate above 1 03 (1 Candidate above 1
(Reason) Km) Km)
(2 Candidate date of Birth (1 Candidate not
mismatch) produced income
certificate)
(2 Candidate admitted
other school) (1 Candidate admitted
other school)
3. For the purpose of the present Writ Petitions, it is clear
that R4 schools have vacancies for academic year 2024-25 to
consider the applications of the children. The applications have,
admittedly, been submitted before the school authorities (placed
at page 39 in both Writ Petitions) on 04.05.2024.
4. Though R4 schools have been served and description
printed, there is no appearance on their behalf. There is a
direction to R4 schools to consider the applications of the
petitioners' children in line with the prescriptions under the RTE
Act and the directions in the case of S.Lakshmanan V. The Chief
Educational Officer and others (order dated 07.12.2023 passed
in W.P.No.717 of 2023).
5. The petitioners will meet the concerned
Correspondents/Principals of R4 schools on 20.06.2024 at 11.00
a.m. along with a copy of order dated 07.12.2023 passed in
W.P.No.717 of 2023 and the present order, without awaiting any
further notice in this regard.
6. Let the needful be done by the respective
Correspondents/Principals in terms of admitting the children if
they satisfy all the required criteria.
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W.P.Nos.14910 and 14913 of 2024
7. The aforesaid process shall be monitored by R3 to ensure
that the spirit and object of the RTE Act is implemented by the
schools strictly.
8. List on 01.07.2024 in the same position.
7. Today (01.07.2024), a status report is filed by R3/District Educational
Officer (Private Schools), represented by Mr.M.Rajendiran, learned Additional
Government Pleader and the salient feature of that status report are as follows:
i) The residences of the petitioners are situated beyond 1 kilometre from
respective R4 schools.
ii) The petitioners are expected to have made an application under a
single ID, for upto 5 schools. However, the petitioner in W.P.No.14910 of 2024
has filed two applications by creating two IDs, i.e., 1697861 and 1727589 and
the petitioner in W.P.No.14913 of 2024 has filed five applications by creating
three IDs, i.e., 8234886 (three applications), 8702905 and 9263272.
iii) In both the matters, though the name of the father, child and address
are same, the mobile numbers are different. Hence, according to R3 there has
been suppression of facts.
iv) The cases relied on by the petitioners are distinguishable on facts.
v) There are two Panchayat Union Primary Schools, viz., Vellalapalayam
No.1 and Vellalapalayam No.2 as well as Angawadis close to the residence of
the petitioner in W.P.No.14910 of 2024 and one Panchayat Union Primary
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W.P.Nos.14910 and 14913 of 2024
School at Kalangal Village close to the residence of the petitioner in
W.P.No.14913 of 2024.
vi) All welfare schemes are available in those schools and the petitioners
could well have applied for admission there. The respondents prayed for
rejection of the petitioners' prayer based on the aforesaid contentions.
8. I have heard both learned and perused the material papers placed on
record. The RTE Act was instituted by virtue of sufficient educational
opportunities not being available to all sections of society. The interpretation of
that Act has thus to be made in a purposive manner so as to pursue that laudable
object rather than to frustrate it. This is not to say that the interpretation may be
expansive, and undoubtedly the stipulations contained therein must be adhered
to, though bearing in mind the spirit of the Act.
9. The respondents are right in contending that two applications have
been made by the petitioner in W.P.No.14910 of 2024 and five applications by
the petitioner in W.P.No.14913 of 2024. The mobile numbers referred to
therein are also different. However, admittedly, the Act, the Tamil Nadu Right
to Children to Free and Compulsory Education Rules, 2011 (in short 'TN
Rules') and Right to Children to Free and Compulsory Education Rules, 2010
(in short 'Rules') enable the parents/guardian to opt for/make, upto five
applications under the RTE Act based on one registration.
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W.P.Nos.14910 and 14913 of 2024
10. In the present case, the petitioners state that after registering on the
website, they were able to select only one option of school and it was for this
reason that multiple IDs were created and applications submitted. The
respondents do not deny the aforesaid facts. Perhaps there was a glitch in the
software that prevented the applicants from submitting more than one
application pursuant to a registration necessitating more than one registration to
be made. In any event, neither of the petitioners have submitted more than the
maximum number of applications.
11. The mere fact that two applications have been made by the petitioner
in W.P.No.14910 of 2024 and five applications by the petitioner in
W.P.No.14913 of 2024 is hardly of any consequence when the overall number
of applications is well within the total number of options that could be exercised
for choice of school. That apart, it is also common that persons use multiple
mobile numbers and this too is of no consequence. Hence, this objection is
misconceived and I find nothing untoward in the procedure followed by the
petitioners.
12. I now advert to the second objection raised, that the petitioners reside
beyond one kilometre from R4 schools. The provisions of Section 2(n) of the
RTE Act define 'school' and Sections 3, 6, 8 and 10 of the RTE Act use the
word ‘school’ in tandem with the word 'neighbourhood'. Rule 6 of the TN
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W.P.Nos.14910 and 14913 of 2024
Rules as well as Rule 8 of the Rules reveal that the school selected is expected
to be within one kilometre from the residence of the applicant.
13. However, the distance parameter is not inflexible and I have had
occasion to consider a similar objection in in W.P.No.717 of 2022, and vide
order dated 07.12.2023, have held as follows:
10. The Rule makes it clear that the one kilometer distance
between the student’s residence and the school is not inflexible.
Though the focus is to accord priority to children residing within
that distance, the idea is not to deny admission to children residing
beyond that distance, particularly when the school in question has
available quota that lies vacant.
11. A tabulation circulated by the State counsel reveals the
details of the number of seats ear-marked and number of children
admitted under RTE quota in R4 school. The total number of seats
for LKG for Academic Years 2022-23 and 2023-24 is 75 and 66
and the RTE intake capacity is 16 and 16 respectively. The total
number of applications received for the aforesaid academic years
is 14 and 12 and the number of students admitted under the RTE
quota are 3 and 8 respectively.
12. In such circumstances the school may well admit
children residing beyond the distance of one kilometre also. This is
necessary bearing in mind the object of the RTE Act which is ‘to
provide for free and compulsory education to all children of the
age of six to fourteen years’. There cannot be any gainsaying that
keeping a significant number of seats vacant merely on the basis of
a procedural Rule would be anathema to the spirit and object of the
Act.
13. The decision of the Delhi High Court in the case of
Federation of Public Schools V. Government of NCT of Delhi
(2012 SCC Online Del 613) has held likewise stating as follows:
'(i)Admission shall first be offered to eligible students
belonging to EWS and disadvantaged group residing
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W.P.Nos.14910 and 14913 of 2024
(ii) In case the vacancies remain unfilled, students
residing within 3 kms. of the schools shall be admitted;
(iii) If there are still vacancies, then the admission shall
be offered to other students residing within 6 kms. of the
institutions;.'
14. The Bombay High Court in the case of Amol Vasantrao
Patil and ors V. Bhartiya Vidya Bhavan's Lloyds Vidya Niketan,
Bhugaon and ors. (2017 SCC Online Bom 6752) considered the
issue of admission of students under RTE in non-aided pre-primary
schools. In that case, the petitioners were, admittedly, not residing
within the requisite distances from the concerned schools unlike the
present where the residential address of the petitioner is within the
stipulated distance.
15. The Court took note of the applications made in each of
the schools, and that a lottery was conducted in those cases, where
the number of applications far exceeded the number seats. In the
present case, the question of lottery does not arise, since the
number of applications made is less than the number of seats.
16. The stand of the respondents before me, both in counter
or orally, is not that there were specific schools in the
neighbourhood where the petitioner’s ward could have applied for
admission, and that the petitioner had restricted his choice to R4
school alone in an indirect attempt to secure admission in that
school. This court thus proceeds on the admitted basis that the
application of the petitioner to R4 school was appropriate in all
respects for consideration, and the only question that arose related
to the distance factor.
17. The Division Bench also agreed with the conclusions of
the Delhi High Court in this respect, holding as follows:
‘However, we cannot ignore right guaranteed to
children by2009 Act. We also find that the said right
must be honoured and preserved. It cannot be allowed
to be defeated by invoking distance equation, if school
is not available in neighbourhood or extended
neighbourhood. The exercise therefor in tune with
observations contained in this judgment or as pointed
out by Delhi High Court in its judgment need to be
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completed afresh. ........'
W.P.Nos.14910 and 14913 of 2024
14. Thus the mere fact that the petitioners are residing beyond one
kilometre from R4 school will not, by itself, come in the way of accepting their
applications. That apart, an argument is also put forth on the ground that there
are two Panchayat Union Primary Schools in the vicinity in respect of
W.P.No.14910 of 2024 and one Panchayat Union Primary School in the vicinity
in respect of W.P.No.14913 of 2024, all within the stipulated one kilometre.
That may well be so.
15. However, there is no lower or upper kindergarten in those schools
and the applications filed by these petitioners are for these classes. Thus, while
this argument may be considered in an appropriate case where a Government
School is available in proximity to the applicant's residence, it has no
application in the facts and circumstances arising in the present case.
16. Mr.Rajendiran points out that the application of the RTE Act is only
for children aged 6 to 14 years and children in kindergarten would be below that
age limit. However, the State Government has, over the years and since the
implementation of the Act, been reimbursing expenditure for all classes
commencing from the LKG, upto class VIII.
17. The most recent Government order is G.O.Ms.No.99 dated
02.06.2023 and the operative portion of the Order reads thus:
SCHOOL EDUCATION DEPARTMENT
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W.P.Nos.14910 and 14913 of 2024
Notification for per child expenditure incurred on education by the State for the
year 2022-2023, 2023-2024, 2024-2025 and 2025-2026 under the Right of
Children to Free and Compulsory Education Act.
[G.O. Ms. No. 99, School Education (MS), 2nd June 2023, itfhrp 19.
nrhgfpUJ. jpUts;s{th; Mz;L?2054]
Under sub-section 2 of Section 12 of the Right of Children to Free and
Compulsory Education Act, 2009 (Central Act 35 of 2009), the Governor of
Tamil Nadu hereby specifies the per child expenditure incurred on education by
the State of Tamil Nadu for the year 2022-2023, 2023-2024, 2024-2025 and
2025-2026 for classes from LKG to VIII as stated below for the purpose of
reimbursement to private schools:-
Per child expenditure for the year 2022-2023 (Rupees)
Class LKG & 1 std 2 std 3 std 4 std 5 std 6 std 7 std 8 std
UKG
Per child 6000 12076.85 12076.85 12076.85 12076.85 12076.85 15711.31 15711.31 15711.31
expenditure
Per child expenditure for the year 2023-2024, 2024 – 2025 and 2025 - 2026 (Rupees)
Class LKG & 1 std 2 std 3 std 4 std 5 std 6 std 7 std 8 std
UKG
Per child 6000 12659.57 12659.57 12659.57 12659.57 12659.57 16477.81 16477.81 16477.81
expenditure
18. Hence the State has suo motu, and appropriately, treated children who
are below 6 years as well, as being entitled to the benefit of the Act. This, in
fact, finds support from the proviso to Section 12(1) of the RTE Act, Extent of
school’s responsibility for free and compulsory education, coming under
Chapter IV, dealing with Responsibilities of Schools and Teachers which makes
reference to 'pre-school education', thus, implying that the benefit of the Act is
to extend to education from kindergarten to 8th standard. It is thus this
stipulation that would apply, irrespective of the age of the child.
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W.P.Nos.14910 and 14913 of 2024
19. This is all the more for the reason that the RTE Act is a Central
enactment and different States have prescribed different ages for
commencement of school education. The objection of the respondents thus has
no legs to stand as the re-imbursements are, admittedly, being made, year on
year for all classes from Lower kindergarten to 8th Standard. Since the
Panchayat Union Primary Schools do not have lower kindergarten, the option of
those schools is unavailable to the petitioners. Learned counsel for the
respondent would then submit that the Anganwadi Centres would serve as
substitutes for a kindergarten.
20. While this may well be so, this submission is not supported by any
details or statistics to demonstrate whether the Anganwadi centres have thus far,
been treated as part of the RTE scheme in the State. On the other hand, the State
is regularly reimbursing the expenditure incurred by the LKG and UKG classes
(pre-school education) in schools and hence is treating these classes as part of
the RTE scheme.
21. Since the categoric object of the Act is to make available education
for children from pre-school to 8th standard, it is this parameter that is
paramount in understanding the application of the Act. The object of providing
education for the children upto 8th standard will override any technical concerns
relating to the ages of the students itself.
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W.P.Nos.14910 and 14913 of 2024
22. In line with the above observations and the fact that R4 school in both
Writ Petitions has, admittedly, vacancies as on date, I am of the considered view
that both the children are entitled for admission to lower kindergarten in R4
school. Hence, mandamus is issued to respondents to take immediate action to
admit the wards of the petitioners in LKG in R4 school, viz., N.G.R.A. Nursery
and Primary School, Coimbatore (W.P.No.14910 of 2024) and Kalaivani
Matriculation School, Coimbatore (W.P.No.14913 of 2024) with all the benefits
of the RTE Act, after collecting necessary fee, forthwith.
23. These Writ Petitions are allowed. No costs.
01.07.2024
sl
Index : Yes/No
Speaking Order:Yes
Neutral Citation:Yes
To
1. The Chief Educational Officer,
Office of the Chief Educational Officer,
No.500, Raja St., Near Five Corner,
Town Hall, Coimbatore – 641 001.
DR.ANITA SUMANTH, J.
Sl
2. The District Education Officer,
Office of the District Education Officer,
Coimbatore – 641 001.
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W.P.Nos.14910 and 14913 of 2024
3. The District Educational Officer (Private Schools)
Office of the District Educational Officer (Private Schools)
Ondiputhur, Coimbatore -641 016
W.P.Nos.14910 and 14913 of 2024
01.07.2024
https://www.mhc.tn.gov.in/judis
