Tripura High Court
Master Ahil Choudhury (Minor) vs The State Of Tripura on 4 March, 2021
HIGH COURT OF TRIPURA
AGARTALA
W.A. No.50 of 2021
Master Ahil Choudhury (Minor),
represented by his father Sri Muzaffar
Alam Sekender, son of Lt. Kala Miah,
resident of 7/3/A Officer's Quarter Lane,
Krishnanagar, P.O. Agartala, P.S.- West
Agartala, Sub Division- Sadar, District-
West Tripura, Pin-799001
-----Petitioner(s)
Versus
1.The State of Tripura,
represented by the Secretary to the
Government of Tripura, Department of School
Education, having his office at New Secretariat
Complex, Khejurbagan, P.O.- Secretariat, P.S-
NCC, Sub-Division- Sadar, District- West
Tripura, Pin-799010
2.The Director of Elementary Education,
having his office at Office Lane, Agartala,
P.O. Agartala, P.S.- West Agartala, Sub
Division- Agartala, District- West Tripura,
Pin-799001
3. The Head Mistress
Shishu Bihar H.S. School, Agartala, P.O-
Agartala, P.S- West Agartala, Sub-
Division- Agartala, District- West Tripura,
Pin-799001.
4. Master Srijeet Sukla Das
C/o Head Mistress, Shishu Bihar H.S.
School, Agartala, P.O.- Agartala, P.S.-
West Agartala, P.O- Agartala, District-
West Tripura, Pin-799001
Page 2 of 9
5. Miss Aradhya Das
C/o Head Mistress, Shishu Bihar H.S.
School, Agartala, P.O- Agartala, P.S.-
West Agartala, P.O- Agartala, District-
West Tripura, Pin-799001
-----Respondent(s)
For Appellant (s) : Mr. A. Pal, Adv.
For Respondent(s) : Mr. D. Sharma, Addl. GA
Date of hearing & delivery
of judgment and order : 04.03.2021
Whether fit for reporting : Yes No
√
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G CHATTOPADHYAY
JUDGMENT & ORDER [ORAL]
(Talapatra, J)
Heard Mr. A. Pal, learned counsel appearing for the
appellant as well as Mr. D. Sharma, learned Addl. GA appearing for
the respondents who in terms of the order dated 25.02.2021 has
produced the written instruction, the file No.F.25(118)-
DEE/LA/2021.
[2] By means of this intra-court appeal the order dated
06.01.2021 delivered in W.P.(C) No.764 of 2020, has been
questioned. According to the appellant, represented by his father,
the neighbourhood school in which the appellant sought admission
in nursery for the academic year 2019-2020 did not accommodate
him. A lottery for admission was held on 29.03.2020. The
appellant participated in the said lottery through his father.
According to the appellant, 100 seats were available for admission.
Out of 100 seats, 52 seats were marked for admission of students
from UR category, 17 seats were marked for admission of students
from SC category and 31 seats were marked for admission of
students from ST category. After the lottery, 52 students
belonging to UR category were admitted, 17 students belong to SC
category were also admitted and 21 students belonging to ST
category were admitted, but out of 31 seats 10 seats could not be
filled up. As a result, the Director of Elementary Education has
initiated a proposal for de-reservation of those seats. While
granting de-reservation, the authorities concerned acceded to the
proposal to the Director of Elementary Education and provided that
against 3 UR students, one SC candidate [3:1], be admitted
against the available seats which could not be filed up. The said
formula for de-reservation has been referred as 3:1. Following that
formula, the available seats have been filled up. The appellant has
urged that he should be admitted to the said school, namely Sishu
Bihar H.S. School as neighbourhood school and the arrangement of
filling up of the additional seats, as arisen for non-availability of
the adequate number of the ST students, be followed. Learned
Single Judge by the order dated 06.02.2020 has for dismissal of
the writ petition observed as under:
It appears that the ST category seats could not be filled for non-
availability of sufficient number of candidates upon which the
authorities de-reserved 10 seats of which 8 were filled through
unreserved category students, 2 went to SC category students who
are respondents No.4 and 5. The petitioner who belongs to
unreserved category hopes that if the respondents No.4 and 5 are
not admitted, he could secure admission.
For a multiple reasons, the prayers cannot be granted. Firstly, the
admissions were granted almost a year back. The entire academic
year is virtually over. It would be nullifying admissions made in an
academic institution nearly a year back which cannot be undone at
this stage. More fundamentally, there is nothing on record to
suggest that the respondents No.4 and 5 though belong to SC
category, were admitted as reserved category students. Merely
because they were students of SC community, does not debar them
from being considered for admission in UR quota.
[3] Mr. A. Pal, learned counsel appearing for the appellant
has quite strenuously submitted that in terms of Section 3 of Right
of Children to Free and Compulsory Education Act, 2009 every
child has right to get admission in the neighbourhood school. For
this purpose, Mr. Pal, learned counsel has referred to Section 3 of
the Right of Children to Free and Compulsory Education, 2009
which provides thus:
3. Right of child to free and compulsory education: [(1) Every
child of the age of six to fourteen years, including a child referred
to in clause (d) or clause (e) of section 2, shall have the right to
free and compulsory education in a neighbourhood school till the
completion of his or her elementary education.]
(2) For the purpose of sub-section (1), no child shall be liable to
pay any kind of fee or charges or expenses which may prevent
him or her from pursuing and completing the elementary
education.
(3) A child with disability referred to in sub-clause (A) of clause
(ee) of section 2 shall, without prejudice to the provisions of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (1 of 1996), and a child
referred to in sub-clauses (B) and (C) of clause (ee) of section 2,
have the same rights to pursue free and compulsory elementary
education which children with disabilities have under the
provisions of Chapter V of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (1 of 1996):
Provided that a child with "multiple disabilities" referred to in
clause (h) and a child with "severe disability" referred to in clause
(o) of section 2 of the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999) may also have the right to opt
for home-based education.]
[Emphasis added]
[4] Since the appellant could not get the admission and in
the second phase there were 10 seats available for admission,
exclusion of the appellant has been stated to be arbitrary being a
child from the neihbourhood. The appellant ought to have been
admitted.
[5] Mr. D. Sharma, learned Addl. GA appearing for the
respondents had produced the records as stated above to
demonstrate before us that after the lottery was held, the
headmistress of Sishu Bihar Higher Secondary School has prepared
the waiting lists separately for the UR & SC category candidates. It
appears from the waiting list that as many as 30 names are
available in the waiting list for UR category candidates. Out of
those seats, 8 students from UR category have been given the
admission. When this waiting list was prepared and published, the
appellant did not raise any objection on the ground of Section 3 of
the said Act. When 10 seats were available for admission and the
appellant could not get berth, he had approached this court but
with the reasons as aforestated the writ petition has been
dismissed by the learned Single.
[6] By the order dated 25.02.2021, we had asked Mr.
Sharma, learned Addl. GA to take instruction on the following
points :
i. How the Tribal Welfare Development Department has imposed
condition that the seats which could not be filled up for non
availability of Scheduled Tribe candidates, would be filled up in 3
(UR):1(SC) basis and on the basis of what rule the said
formulation has been developed?
ii. As the exchange rule is to be applied before dereservation
whether after the de-reservation the exchange rule can be applied
in view of the Reservation Act & Rules as applied in the state?
[7] Mr. Sharma, learned Addl. GA has submitted the written
instruction on those points under the said file as noted before. It
appears that there was no common waiting list was maintained.
On applying the ratio of 3[UR] : 1[SC] has been followed while
filling up of those available 10 seats. From the written instruction it
surfaces that on the basis of the ratio 3:1 i.e. UR/SC candidates as
per percentage of the reservation [UR-52% and SC-17%] was
determined. A proposal for filling up of those posts was submitted
to the Director, Elementary Education [School] Department,
Government of Tripura when the Director of Elementary Education
had proposed for de-reservation. The said formula emerged in the
said consultative process for filling up of those vacant seats. Our
query was very specific. Whether any such provision exists under
the Tripura Scheduled Caste and Scheduled Tribe Reservation Act
and Rules whereby such ratio can be enforced. In the written
instruction which has been produced by Mr. Sharma, learned Addl.
GA it has been asserted as under:
"No provisions exists under the Tripura Scheduled Castes and
Scheduled Tribes Reservation Act and Rules made thereunder.
However, the ratio of 3[UR] : 1[SC] was considered for a
particular academic year 2016 and not as a whole due to non-
availability of ST students. The formulation was done based on
the percentage of reservation [UR-52% and SC-17%] and opinion
of SC Welfare Department since no common merit/waiting list
was maintained by the Sishu Bihar HS School for filling up of
those vacant seats during the year 2016."
[Emphasis added]
The said method, as devised, is grossly impermissible
and cannot be followed. The respondents have candidly admitted
that the provisions of 'exchange' method as per Rule 8(a) of the
Tripura Scheduled Casts and Scheduled Tribes Reservation Rules,
1992 cannot be applied in case of admission in Educational
Institutions.
[8] The respondents have acted against the constitutional
arrangement inasmuch as when the full reservation for SC
category was achieved, no further reservation can be created for
children from that community.
[9] We do seriously deprecate this kind of fanciful practice.
However, at this stage, we would not cancel admission of 2[two]
children from SC community considering that their future would be
at stake if such direction is issued. It is made absolutely clear that
when the reservation is achieved in respect of one community in
admission, the state cannot extend any method for further
reservation for that community as happened in this case. The
appropriate authority shall take serious note of this observation so
that in future such wrongful act is not indulged by the department.
The appropriate method have not been taken when adequate
candidates from ST community were not available. Those ought to
have been declared for the children from UR category. No
exchange rule can be applied in the case of admission. Since a
waiting list was maintained for the UR category candidate, as
noted, where the names of 30 children are incorporated, unless all
of them had refused, the appellant cannot be considered for
admission. What Mr. Pal, learned counsel has agitated, is a matter
of right for admission in the nursery. No right has been created
under the Right of Children to Free and Compulsory Education Act,
2009 for those children. The right has been created for the
children who are in the age group of 6-14 years.
[10] Having observed thus, we do not find any merit in this
appeal, subject to what has been observed and accordingly, this
appeal stands dismissed.
There shall be no order as to costs.
JUDGE JUDGE
Sujay
