SPA/166/2019
2022 Latest Caselaw 2525 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                               AND
         THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE


                 SPECIAL APPEAL NO. 166 OF 2019

                         17th AUGUST, 2022

Between:

State of Uttarakhand
through Secretary Primary
Education & others                        ......          Appellants


and

Manavta Higher Primary School             ......         Respondent

Counsel for the appellants : Mr. Anil Kumar Bisht, learned Additional Chief Standing Counsel / appellants

Counsel for the respondent : Mr. Anil Kumar Joshi, learned counsel

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

The present Special Appeal is directed against

the judgment dated 06.08.2018, passed by the learned

Single Judge in Writ Petition (M/S) No. 1820 of 2017. The

learned Single Judge has allowed the said writ petition

preferred by the respondent Manavta Higher Primary

School, Gandhi Nagar, Bindukhatta, District Nainital, and

directed the appellant to treat the said school for grant-in-

aid since 04.02.2014, when the said school was brought

under grant-in-aid.

2) The admitted position is that the State

Government issued an order on 04.02.2014, in respect of

several schools, including the respondent school, thereby

bringing the said school under grant-in-aid. The order

dated 04.02.2014 itself records that the respondent school

was a recognized school. Despite being brought under the

grant-in-aid, actually, the grant-in-aid was not released to

the respondent school. On 01.02.2016, the Government

issued another order, whereby granting token grant to

several institutions, including the respondent school for the

year 2015-16. This was on the premise that there were

certain deficiencies in respect of the institution to which

token grant was issued. The deficiency pointed out qua

the respondent school was that it was situated on forest

land. We may observe that there were other schools as

well, situated in the same village, which were also granted

token grant on the same premise that they were situated

on forest land. One such institution is Janta Purva

Madhyamik Vidyalaya, Chitrakut, Tiwari Nagar,

Bindukhatta, Nainital. Once again, a token grant was

granted to the respondent school on 23.12.2016, for the

year 2016-17.

3) Aforesaid being the position, the respondent

preferred the writ petition in question to seek a direction to

the authorities to include the respondent school's name in

the list of aided schools. The writ-petitioner sought parity

with other similarly situated schools. The petitioner

pointed out in the writ petition that the Janta Purva

Madhyamik Vidyalaya, Chitrakut, Tiwari Nagar,

Bindukhatta, Nainital had, in fact, been granted full aid

vide communication dated 04.01.2017, even though the

said school was also situated on forest land.

4) The appellant defended the writ petition on the

ground that the Government has issued an order on

04.01.2017, laying down the conditions which the schools

had to fulfill to be entitled to receive grant-in-aid. The

conditions, inter alia, laid down were that the Junior High

School - which the respondent is, should have at least 100

students (since it is situated in plain area); the land

whereon the school is situated should be registered in the

name of the institution or there should be an agreement in

favour of the institution in respect of the land where the

institution is running; the construction of the building

should be in terms of the regulations prescribed and lastly;

there should be no other Junior High School within a

distance of 5 kms. The appellant claims that these

conditions were not satisfied by the respondent school

and, therefore, it was not entitled to receive grant-in-aid.

The learned Single Judge has, however, rejected the

submissions of the appellant by the detailed impugned

judgment. The learned Single Judge has rejected the

reliance placed by the appellant on the order dated

04.01.2017 by observing that the same cannot have

retrospective effect. The respondent school had been

sanctioned grant-in-aid way back on 04.02.2014, and that

order had not been recalled. The learned Single Judge

also took note of the fact that Right to Elementary

Education had been elevated to a fundamental right and,

consequently, the "Right of Children to Free and

Compulsory Education Act, 2009" was passed by the

Parliament, which vested every child of the age of six to

fourteen years with a right to free and compulsory

education in a neighbourhood school till completion of

elementary education. Under the Act, every child was

entitled to free and compulsory education from classes VI

to VIII in a school situated within a walking distance of 3

kms. of the neighbourhood. The learned Single Judge also

took note of the fact that the closest school in the

neighbourhood, to that of the respondent, was at a

distance of 4.5 kms., and that too, was a only girls school

which did not admit boys. The learned Single Judge held

that the respondent school was, in fact, discharging the

responsibility of the Government to provide free and

compulsory elementary education. Consequently, the writ

petition was allowed.

5) The submission of learned counsel for the

appellant is that the learned Single Judge erred in rejecting

the appellant's reliance on the Office Order dated

04.01.2017. Learned counsel submits that the primary

conditions laid down in the said Office Order dated

04.01.2017 were also laid down as conditions for

recognition under the School Education Regulations 2009,

framed under Section 24 of the Uttarakhand School

Education Act, 2006. In this regard, learned counsel has

drawn the attention of the Court to the conditions for

recognition of Junior High School which, inter alia, lay

down that the land should be registered in the name of the

school. It further provides that the school should have its

own building. The said Regulations also lay down the

requirements that the constructed school should meet,

namely, that each school room should have an area of 7

meter x 6 meter. Thus, the submission of learned counsel

for the appellant is that since the respondent school did

not own the land on which it was situated, which was

forest land, the appellant was not obliged to release grant-

in-aid to the respondent school as, to be entitled to grant-

in-aid, a school should firstly, meet the requirements of

the Regulations for recognition of the school.

6) In response to our query, learned counsel

submits that though in the counter-affidavit there is no

explanation as to how the Janta Purva Madhyamik

Vidyalaya, Chitrakut, Tiwari Nagar, Bindukhatta, Nainital

has been granted grant-in-aid permanently, the learned

counsel submits that presumably the forest land has been

transferred in favour of the said school. He further

submits that a similar application has also been moved by

the respondent school.

7) Having heard learned counsels and perused the

record, including the impugned judgment, we are not

inclined to interfere with the same. Firstly, the respondent

school was granted recognition, which recognition has not

been withdrawn or recalled. Secondly, on the basis of the

said recognition, the State Government has passed the

order dated 04.02.2014, sanctioning grant-in-aid in

respect of the respondent school. Even that order has not

been recalled till date, and continues to remain in force.

Only in the year 2016, the appellant sought to grant token

aid to the respondent school on the premise that the land

on which it is situated is forest land. This position was

continued in the subsequent order as well. Pertinently, the

Janta Purva Madhyamik Vidyalaya, Chitrakut, Tiwari Nagar,

Bindukhatta, Nainital was also in the same boat. However,

the said school has been given permanent grant-in-aid

vide order dated 04.01.2017. There is no explanation by

the appellant as to why the respondent has been

discriminated against when it was similarly situated as the

Janta Purva Madhyamik Vidyalaya, Chitrakut, Tiwari Nagar,

Bindukhatta, Nainital. The objection with regard to the

school being situated within a distance of 5 kms. of

another school, namely, Government Girls Junior High

School Nagla Dairyfarm, in our view, has no merit for the

reason that the said school is only a girls school and it

does not cater to the educational need by boys. We also

find force in the reasoning adopted by the learned Single

Judge that under the Right to Education Act, the State is

obliged to provide free and compulsory elementary

education in a neighbourhood school within a distance of 3

kms. Admittedly, there is no other Government School

situated within a distance of 3 kms. of the school being run

by the respondent. Therefore, the respondent school is, in

fact, fulfilling the constitutional and legal obligation of the

appellant State by running the said school.

8) For the aforesaid reasons, we are no inclined to

interfere with the impugned judgment. The learned Single

Judge has directed release of the grant-in-aid from 2014

onwards when the order dated 04.02.2014 was issued

bringing the respondent school for grant-in-aid. It goes

without saying that the appellant shall be entitled to,

firstly, adjust the token grants granted to the respondent

school and, secondly, the arrears shall be disbursed after

due verification of the records of the respondent school

with regard to the teachers and other employees employed

by it in respect of whom the grant-in-aid would be issued.

9) The Special Appeal stands disposed of in the

aforesaid terms.

All pending applications stand disposed of

accordingly.

________________ VIPIN SANGHI, C.J.

__________ R.C. Khulbe, J.

Dt: 17th AUGUST, 2022 Negi