Smt. Namita Maniktala Petitioner v. State Of H.P. And Others S

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 355 of 2013 .

Judgment reserved on: 22.8.2 P 016 Date of Decision : Augus H t 30, .2016.

Smt. Namita Maniktala f …Petitioner Versus State of H.P. and others o .…Respondents. Coram t

The Hon'ble Mr. Justice Manso r or Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Ta u rlok Singh Chauhan, Judge. Whether approved for reporting ? Yes For the Petitione C r o : Mr. Rajnish Maniktala, Advocate. For the respo ndents : Mr. Romesh Verma, Addl. Advocate h

General with Mr. J.K.Verma and Mr. Kush Sharma, Deputy Advocate Generals,. g i Tarlok Singh Chauhan, Judge H

This petition has been instituted as pro-bono-publico raising seminal issue in regard to the implementation and enforcement of the provisions of Section 12 (i) of Right of Children to Free and Compulsory Education Act, 2009 (for short '2009 Act') more particularly with respect to providing 25% free seats to students of weaker section

and disadvantaged group in all privately managed aided schools

and privately managed non minority unaided schools. It is further

prayed that the respondents be directed to ensure that the provisions

of the Act are implemented within the State of Himachal Pradesh

in all categories of schools ensuring free and compulsory elementary

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1 Whether reporters of Local Papers may be allowed to see the Judgment?

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education to the children and lastly, a prayer is made that the State be directed to constitute State Commission for the Protection of Chi . ld Rights under the provision of Commission for Protection of C . hild P Rights Act, 2005.

2. The State Government had initially f pro mu H lgated the Rules known as "Right of Children to Free a o nd Compulsory Education, Himachal Pradesh Rules, 2011", h t ow ever, after filing of the writ petition, the same were amende r d vide notification No. EDN-C-F(10)-8/2009-L dated 16 th March, u 2013 whereby Rule 5 was amended by inserting Rules 5-A an o d 5-B. 3. The C other impact which the instant petition had was that the State Gov ernment vide letter dated 20.4.2013 issued guidelines for admissi h on of children belonging to weaker section and disadvantaged gr g oup as per provisions contained in Section 12 of the Act. i 4. During the pendency of the writ petition, the petitioner filed

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an application bearing CMP No. 18401 of 2014 for placing additional particulars on record. It was averred that after filing of the writ petition, the respondents had though notified the Right of Children to Free and Compulsory Education Himachal Pradesh Rules, 2013 (First

Amendment) vide notification dated 16.3.2013, however, the guidelines

dated 20.3.2014 which were framed for regulating the admission of

different sections of students as per the Act were still pending

consideration before the Government and the same had not been

finalized.

5. It was after intervention by this Court that the State Government vide notification No. EDN-C-A(3)-3/2013-Vol.I-L dated

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06.06.2015 notified the guidelines for 25% admission of children belonging to weaker section and disadvantaged group in priva . te unaided schools in Himachal Pradesh purported to be in a . cc P ordance with the provisions contained under Section 12 o f H the Act and the Rules framed thereunder.

6. Now, the only grievance of the o petiti f oner is that though the guidelines have been notified on 06 t .06 .2015, however, these do not implement the mandate of the Act in its entirety as the same contain no provision with respect to aid u ed scrhools, who mandatorily are required to provide free and co o mpulsory elementary education to the children proportionate to C the grant received subject to minimum of 25%. In addition to t his, the guidelines are contrary to the provisions as containe h d in Section 12 (c) of the Act. As per these guidelines, un g aided private schools are to initiate admission process only when i neighbourhood government school has enrolled more than 25 children,

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which is contrary to the mandate of the 2009 Act as the same does not contain any such inhibition and the guidelines, therefore, have virtually restricted the scope of the Act.

7. The respondents have contested this petition and in the reply affidavit have submitted that the guidelines dated 06.06.2015 duly comply with the provisions of the Act, more particularly, Section 12 thereof. It is further clarified that the State Government in exercise of the power conferred under Section 38 of the Act, had notified the Rules called "The Right of Children to Free and Compulsory Education, Himachal Pradesh Rules, 2011" on 5.3.2011 and the same were amended from time to time. However, in case where these Rules are

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silent, the provisions of the Act will prevail and, therefore, the provisions of 1 (a) of the guidelines issued on 06.06.2015 should b . e read with Part-III, Rule 4 (1) of the Rules issued by . th P e State Government on 5.3.2011 which reads as under:

"Part-III -DUTIES OF STATE GOVE H RNMENT AND

LOCAL AUTHORITY.

4. Areas or limits of N o eighb f ourhood Schools: (1) Neighbourhood schools mea ns and include - (i) a primar r y s t chool which is located within a walking distance of 1.5 Kms (one and half a kilometer u s) of a neighbourhood and has a minimum of 2 o 5 children in the age group of 6 to 11 years available and willing for enrolment in that school; C and (ii) an upper-primary school which is located h

within a walking distance of 3 Kms (three Kilometres) from a neighbourhood and which has

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not less than 25 children in class 5^th of the feeding primary schools, taken together, available and H

willing for enrolment in that school." 8. From the aforesaid rival submissions, it is clear that pivotal question that arises for adjudication is whether the respondents have complied with the provisions of Section 12 of the Act or are there still

certain shortcomings.

We have heard learned counsel for the parties and have

gone through the records of the case carefully.

9. Before we answer this question, it would be necessary to analyze the relevant provisions of the Constitution and 2009 Act, which are as under:

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"Article 21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liber . ty except according to procedure established by law . ." P

"Article 21-A. Right to education. - H The State shall provide free and compulsory educa f tio n to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

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10. Sections 2 (n), 3, 6, r 8 t and 12 of the 2009 Act read as under:

" 2 (n): "school u " means any recognised school imparting o elementary education and includes - (i) a school established, owned or controlled by the app C ropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole h or part of its expenses from the appropriate Government or the local authority; g

(iii) a school belonging to specified category ; and i (iv) an unaided school not receiving any kind of aid or H

grants to meet its expenses from the appropriate Government or the local authority." 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 Section2, 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

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elementary education which children with disabilities have under the provisions of Chapter V of the Persons wi . th Disabilities (Equal Opportunities, Protection of Rights P and Full Participation) Act, 1995:

Provided that a child with "multiple disabilities" ref.erred to in clause (h) and a child with "severe disability" referred to in

clause (o) of section 2 of the National TruHst for Welfare of

Persons with Autism, Cerebral P o alsy, f Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) may also have the right to opt for home-based t education. 6. Duty of appropriate Government and local authority to establish school :-Forr carrying out the provisions of this Act,

the appro o priate u Government and the local authority shall establish, within such area or limits of neighbourhood, as may be p C rescribed, a school, where it is not so established, within a p eriod of three years from the commencement of this Act. h 8. Duties of appropriate Government: The appropriate Government shall -- g

(a) provide free and compulsory elementary education to i

every child: H

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on

elementary education of the child in such other school.

Explanation--The term "compulsory education" means

obligation of the appropriate Government to--

(i) provide free elementary education to every child of the age of six to fourteen years; and

(ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;

(b) ensure availability of a neighbourhood school as specified in section 6;

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not

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discriminated against and prevented from pursuing and completing elementary education on any grounds;

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(d) provide infrastructure including school P building, teaching staff and learning equipment;

(e) provide special training facility spec H ified in. section 4; (f) ensure and monitor admissio n, attendance and completion of elementary education by every child;

(g) ensure good quality f elementary education conforming to the stand ar o ds and norms specified in the Schedule;

(h) ensure timel r y pr t escribing of curriculum and courses of study for elementary education; and

(i) provide u training facility for teachers. 12. Exten o t of school's responsibility for free and compulsory education: (1) For the purposes of this Act, a school,-

C (a) specified in sub-clause (i) of clause (n) of section 2 h

shall provide free and compulsory elementary education to all children admitted therein; g

(b) specified in sub-clause (ii) of clause (n) of section 2 i

shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its H

annual recurring expenses, subject to a minimum of twenty-five per cent.; (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent. of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and

compulsory elementary education till its completion:

Provided further that where a school specified in clause

(n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child- expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:

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Provided that such reimbursement shall not exceed per- child-expenditure incurred by a school specified in sub-claus . e (i) of clause (n) of section 2:

Provided further that where such school is already under

obligation to provide free education to a specified nuPmber of

children on account of it having received any lan.d, building,

equipment or other facilities, either fre e H of cost or at a concessional rate, such school sha f ll not be entitled for reimbursement to the extent of such obligation. (3) Every school shall provide o such information as may be required by the appropriate G overnment or the local authority, as the case may be."

11. The 2009 Act has be r en t enacted to protect and give effect to the right of the child to ed u ucation as enshrined in Article 21 and 21-A of the Constitution. It re o ceived the assent of the President on 26.8.2009 and came into C force w.e.f. 1.4.2010. The provisions of this Act are intended not only to guarantee right to free and compulsory education to child h ren, b ut it also envisages imparting of quality education by pr g oviding required infrastructure and compliance with specified norms i and standards in the schools. The preamble states that the 2009 Act

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stands enacted inter alia to provide for free and compulsory education to all children of the age 6 to 14 years. 12. The scope of the 2009 Act has been considered by the three Hon'ble Judges Bench of the Supreme Court in Society for

Unaided Private Schools of Rajasthan vs. Union of India, (2012) 6

SCC 1, and the same reads as under:

Scope of the 2009 Act

"9 . Section 3(1) of the 2009 Act provides that :

"3. Right of child to free and compulsory education. - (1) Every child of the age of 6 to 14 years shall have a right to free and compulsory education in a

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neighbourhood school till completion of elementary education. " .

10. Section 3(2) inter alia provides that .P

"no child shall be liable to pay any kind H of fee or charges or expenses which may pre f ven t him or her from pursuing and completing the elementary education."

11. An educational institutio n o is charitable. Advancement of education is a recognised t head of charity. Section 3(2) has been enacted with the r object of removing financial barrier which prevents a child u from accessing education. The other purpose of enacting Section 3(2) is to prevent educational institutions charging c o apitation fees resulting in creation of a financial barrier which prevents a child from accessing or exercising its righ C t to education which is now provided for vide Article 21A. T hus, sub-Section (2) provides that no child shall be liable to h pay any kind of fee or charges or expenses which may prevent him or her from pursuing or completing the elementary

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education. 12. Section 4 inter alia provides for special provision for

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children not admitted to or who have not completed elementary education. Section 5 deals with the situation where there is no provision for completion of elementary education, then, in such an event,

"a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of Section 2, for completing his or her elementary education."

13. Chapter III provides for duties of appropriate government, local authority and parents. Section 6 imposes an obligation on the appropriate government and local authority to establish a school within such areas or limits of neighbourhood, as may be prescribed, where it is not so established, within 3 years from the commencement of the 2009 Act. The emphasis

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is on providing "neighbourhood school" facility to the children at the Gram Panchayat level. .

14. Chapter IV of the 2009 Act deals with responsib P ilities of schools and teachers. Section 12 (1)(c) r H ead w . ith Section 2(n)(iii) and (iv) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to f me et its expenses from the appropriate government o r th o e local authority, is obliged to admit in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group r in thte neighbourhood and provide free and compulsory u elementary education till its completion. As per the proviso, if the School is imparting pre- school education, the same regim o e would apply.

1 5. C By virtue of Section 12(2) the unaided school which has not received any land, building, equipment or other facilities, h either free of cost or at concessional rate, would be entitled for g

reimbursement of the expenditure incurred by it to the extent of i

per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such H

manner as may be prescribed. Such reimbursement shall not exceed per child expenditure incurred by a school established, owned or controlled by the appropriate government or a local authority.

16. Section 13 envisages that:

"13. No capitation fee and screening procedure for admission.- (1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents to any screening procedure."

Section 15 mandates that a child shall be admitted in a school at the commencement of the academic year or within the prescribed extended period. Sections 16 and 17 provide for

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prohibition of holding back and expulsion and of physical punishment or mental harassment to a child. .

17. Section 18 postulates that after the comme . nce P ment of the 2009 Act no school, other than the excep H ted category, can be established or can function without obt aining a certificate of recognition from the appropriate aut f hority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period s pec o ifying the conditions there for, if the school fulfills the no t rms and standards specified under Sections 19 and 25 rea r d with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed autho u rity can withdraw recognition after giving an opportunity o of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the C children studying in the de-recognised school to be a dmitted to the specified neighbourhood school. Upon h withdrawal of recognition, the de- recognised school cannot continue to function, failing which, is liable to pay fine as per g

Section 19(5). If any person establishes or runs a school i

without obtaining certificate of recognition, or continues to run a school after withdrawal of the recognition, shall be liable to pay

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fine as specified in Section 19(5). 18. The norms and standards for establishing or for grant of recognition to a school are specified in Section 19 read with the Schedule to the 2009 Act. All schools which are established

before the commencement of the 2009 Act in terms of Section

19(2) are expected to comply with specified norms and

standards within 3 years from the date of such commencement.

Failure to do so would entail in de-recognition of such school.

19. Section 22 (1) postulates that the School Management Committee constituted under sub-section (1) of Section 21, shall prepare a School Development Plan in the prescribed manner. Section 22(2) provides that:

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"22.(2) The School Development Plan so prepared shall be the basis for the grants to be made by the appropria . te government or local authority, as the case may b P e." That plan, however, cannot have any impact on co . nsideration of application for grant of recognition fo H r establishing an unaided school. To ensure that teachers should contribute in imparting quality education in the scho ol itself, Section 28

imposes total prohibition on them to enfgage in private tuition or

private teaching activities. o

20. Chapter VI inter r alia t provides for protection of rights of children. Section u 32 thus provides that any person having grievance relating to the right of child under the 2009 Act, may make a o written complaint to the local authority having juris C diction, who in turn is expected to decide it within three m onths after affording a reasonable opportunity of being heard to the parties concerned. In addition, in terms of Section 31, the h Commissions constituted under the provisions of the g

Commissions for Protection of Child Rights Act, 2005 can i

monitor the child's right to education, so as to safeguard the right of the child upon receiving any complaint in that behalf H

relating to free and compulsory education. 21. By virtue of the 2009 Act, all schools established prior to the commencement of the said Act are thus obliged to fulfill the norms and standards specified inter alia in Sections 25, 26 and the Schedule of that Act. [See Section 19(2)]. The State is also

expected to first weed out those schools which are non-

performing, or under-performing or non-compliance schools

and upon closure of such schools, the students and the

teaching and non-teaching staff thereof should be transferred to

the neighbourhood school. The provision is meant not only to

strengthen the latter school by adequate number of students

but to consolidate and to impart quality education due to the

addition of teaching staff.

22. Needless to observe, that if there is inadequate response to the government funded school, it is but appropriate

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that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to . a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the P School Development Plan represent the correct position re.garding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meHaningful utilization of public funds. In absence of o such f exercise, the end result would be that on account of existing non-performing or under-performing or non-com t pl iance schools, the School Development Plan w r ould not reckon that locality for establishment of another school.

23. In o o ur view u , even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-orga C nise its financial outflow at the micro level by weeding out t he non-performing or under- performing or non-compliance h schools receiving grant-in- aid, so as to ensure that only such government funded schools, who fulfill the norms and g

standards, are allowed to continue, to achieve the object of the i

2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide

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quality education. Thus, there is a power in the 2009 Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the

neighbourhood school."

13. In addition to the above, the State, after the commencement of the 2009 Act, by virtue of Section 12 (1) (c) read with Section 2 (n) (iv), while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges.

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14. The Scheme of Article 21-A and the 2009 Act makes it clear that it is the primary obligation of the State to provide for free an . d compulsory education to children between 6 to 14 ye . ars P and particularly to children who are likely to be prevented from pursuing and completing the elementary education due to f ina bi H lity to afford fees or charges.

15. Though, primary obligatio t n t o p o rovide free and compulsory education to all the children of the specified age is on the State, however, the manner in whic u h thisr obligation is to be discharged by the State has been left to o the State to determine by law. The State may do so through its own schools or through aided schools or through private schools, so l on C g as the law made in this regard does not transgress any oth h er constitutional limitation. This is because Article 21-A vests th g e power in the State to decide the manner in which it will provide free i and compulsory education to the specified category of children.

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16. The 2009 Act was enacted to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all and also intended that private schools which did not receive government aid should also take the responsibility of providing free and

compulsory education of satisfactory quality to children from

disadvantaged and weaker sections.

17. By virtue of Section 12 (2) read with Section 2 (n) (iv), a private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child

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expenditure incurred by the State in a school specified in Section 2 (n)

(i) or the actual amount charged from the child, whichever is less. .

18. Under Section 12(1)(c) read with Section 2(n) . (iv P ) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or t he H local authority is required to admit in class I, to the extent of at lea f st twenty-five per cent of the strength of that class, children t be lon o ging to weaker section and disadvantaged group in the ne r ighbourhood and provide free and compulsory elementary ed u ucation till its completion. Under Section 12(2) of the 2009 Act o such a school shall be reimbursed expenditure so incurred by it to the extent of per- child-expenditure incurred by the State, or the ac C tual amount charged from the child, whichever is less, in such h manner as may be prescribed. Thus, ultimately it is the State wh g ich is funding the expenses of free and compulsory education of the i children belonging to weaker sections and several groups in the

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neighbourhood, who are admitted to a private unaided school. These provisions of the 2009 Act, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right under Article 19(1)(g) of the

Constitution, as interpreted by the Hon'ble Supreme Court in T.M.A.

Pai Foundation and others vs. State of Karnataka and others

(2002) 8 SCC 481 and are meant to achieve the constitutional goals of

equality of opportunity in elementary education to children of weaker

sections and disadvantaged groups in our society.

19. However, at this stage, it may be noticed that the majority judgment of the Hon'ble Supreme Court in Society for Unaided

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Private Schools of Rajasthan (supra) insofar as it holds the 2009 Act to be applicable to aided minority schools was over-ruled on th P is poin . t, while on other points, the same was affirmed by a Constitut . ion Bench in Pramati Educational and Cultural Trust vs. H Union of India, (2014) 8 SCC 1. It was held that the power un f der Article 21-A of the Constitution vesting in the State cannot ex o tend to make any law which will abrogate the right of the minoritie s to establish and administer schools of their choice. This was r for t the reason that in case the 2009 Act is made applicable to m u inority schools, aided or unaided, the right of the minorities und o er Article 30 (1) of the Constitution would be abrogated. The C refore, the 2009 Act insofar it was made applicable to minority scho ols referred in clause (1) of Article 30 of the Constitution was de h clared to be ultra vires as would be clear from para 55 of the ju g dgment which reads thus:

Hi ^"55. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants

so received bears to its annual recurring expenses, subject to a

minimum of twenty-five per cent. Thus, a minority aided school

is put under a legal obligation to provide free and compulsory

elementary education to children who need not be children of

members of the minority community which has established the

school. We also find that under Section 12(1)(c) read with

Section 2(n)(iv), an unaided school has to admit into twenty-five

per cent of the strength of class I children belonging to weaker

sections and disadvantaged groups in the neighbourhood.

Hence, unaided minority schools will have a legal obligation to

admit children belonging to weaker sections and disadvantaged

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groups in the neighbourhood who need not be children of the members of the minority community which has established th . e school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of com P munities other than the minority community which has esta.blished the school cannot be forced upon a minority institution because that may destroy the minority character of Hthe school. In our view, if the 2009 Act is made a o pplica f ble to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be t abrogated. Therefore, the 2009 Act insofar it is made ap r plicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We u are thus of the view that the majority judgment of this C o ourt in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds

that C the 2009 Act is applicable to aided minority schools is not c orrect."

20. h Judged in light of the aforesaid exposition of law, it would

i^nog w be necessary to advert to the guidelines notified on 6.6.2015 and relevant clauses read as under:

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"1. Provisions for reservation of seats: (a) Admission process for 25% children belonging to weaker section and disadvantaged group as per the provisions of Section 12 of RTE Act, 2009 and Rules made there under shall be initiated by the Government Primary Schools and unaided private schools, if the

neighbourhood government school has the enrollment

more than 25 children as per Rule 4(1) of the Rules.

(b) In-Charge of neighbourhood Government Primary School shall issue NOC to the neighbourhood private school regarding 25% admission of children belonging to weaker section and disadvantaged group on or before 15^th April after having been satisfied on clause 1(a) above.

(c) These schools must be recognized by the competent authority of the Department of Elementary Education as per the provision of Rule 9.

(d) Every recognized private school shall convey the class- wise breakup of approved seats and enrolment to their counterpart neighbourhood Government Primary Schools during admission process on or before 31^st March as per following format:-

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Primary Upper Primary Class Approved Enrolment 25% Classes Approved Enrolment 25% .

strength Free strength Free of the Ship of the Ship class Seats class .P Seats I VI

II VII

III VIII H

IV

V o f

Total Tota l

The Government is com r mitted and obligated to provide a Govt. Primary School at a disttance of 1.5 Km at the number of children are 25 u and similarly committed to provide a Govt. Middle School at a distance of 3 Km if the number of children are not le o ss than 25 in class 5 th . As the State has already opened Government Primary Schools and Government Middle Schools at almost all places, reimbursement for 25% Children of w C eaker section and disadvantaged group admitted in the p rivately managed schools shall be made if the enrolment of Children in Govt. Primary School situated within radial distance h of 1.5 Km is not less than 25 Children and similarly enrolment in the Govt. Middle School within the radial distance of 3 Km is not less than 40 children in class 8 th . Enrolments of students g

will be taken into account as on 30 th September of the year. For i

the purpose of this clause neighbourhood means:- "(i) a primary school which is located within a walking H

distance of 1.5 Kms (one and half a kilometers). (ii) an upper-primary school which is located within a walking distance of 3 Kms (three kilometers). The State Government shall not reimburse any amount if any student seat remains vacant in the neighbourhood Government School."

21. The expression 'child belonging to disadvantaged group' is defined in Section 2 (d) of 2009 Act, as follows:

" 'child belonging to disadvantaged group' means a child with disability or a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification."

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22. The expression 'child belonging to weaker section' is defined in Section 2 (e) as follows: .

" 'child belonging to weaker section' means a child belo P nging to such parent or guardian whose annual income is low . er than the minimum limit specified by the appropriate Government, by notification." H

23. Section 38 confers the r ule o mak

fing power upon the appropriate Government. The expre t ssion appropriate Government is defined in Section 2 (a) to mean r the Central Government in relation to a school established, owned u or controlled by the Central Government

or the administrator o o f a Union Territory, having no legislature. Other than the above, C the State Government is the appropriate Government in relation to a school established within the territory of the State. It is in exercise h of the rule making power conferred by the aforesaid provision

i^thg at the State Government has notified the Rules and thereafter issued consequent notifications.

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24. The issue which falls for our consideration relates to the provisions of Section 12 (1) (c). As noticed above, Section 12 in general defines the nature of the responsibility of a school to provide for free and compulsory education. Whereas the Section 12 (1) (c) in

specific covers schools belonging to specified categories and unaided

schools not receiving any grant or aid to meet expenses from the

Government or local authority. These schools are obligated to admit to

Class 1 to the extent at least 25% of the strength of that class, children

belonging to weaker sections and disadvantaged groups in the

neighbourhood and to provide free and compulsory elementary

education till its completion. The mandate of Section 12 is not

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contingent or dependent on any conditions like receipt of grant in aid . or providing for initiation of admission process only wh P en the neighbourhood Government school has enrolled more . than 25 children.

25. A plain reading of Sections 12 (1) (c ) a H nd 12 (2) would make it clear that there is a mandatory ob o ligatio f n imposed on schools specified in sub clauses (iii) and (iv) t to a dmit in class I to the extent of 25% of the strength of the class, children belonging to weaker sections and disadvantaged groups in the rneighbourhood and provide free and

compulsory education to the u m. There is no condition whatsoever that

such schools s C hould o be declared as neighbourhood schools by the State Gover nment or local authority. Thus, the corresponding obligatio h n of the State to reimburse the expenditure as provided in Se g ction 12 (2) of the Act is also independent of the such schools being i declared neighbourhood schools. It is an obligation consequent to the

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free and compulsory education that the private unaided schools are obliged to provide in terms of Section 12 (1) (c ). The objective behind the obligation so imposed even on private unaided schools was to achieve the constitutional goal of equality of opportunity through

inclusive elementary education of satisfactory quality to children from

weaker sections and disadvantaged groups.

26. The proviso to Rule 12 (1) (c) prescribes that if a school specified in clause (n) of Section (2), imparts pre-school education, then the school has to admit atleast 25% of the strength of that class of children belonging to weaker section and disadvantaged group in the neighbourhood. This has been so provided to ensure effective

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education of the children. To read Section 12 (1) (c) in a contrary manner so as to import an obligation to admit students from th . e weaker section and disadvantaged groups only where sea . ts P are not available in the State run schools or aided institutions would be to defeat the object of the provisions. H

27. The impugned notification creates a f hierarchy in availing of the benefits under Section 12 (1) t (c ) b o y stipulating that it is only after admission process for 25% r children belonging to weaker section and disadvantaged groups u has been specified by the Government Primary schools and u o naided private schools only then the In-Charge of the neighbou C rhood Government Primary School shall issue NOC to the neighbou rhood private school regarding 25% admission of the children h belonging to the aforesaid groups. This interpretation and un g derstanding of the respondent is evidently contrary to the provisions i of Section 12 (1) (c) of the Act. Such guidelines cannot be laid down

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by the State Government in violation of the provisions of the Act of Parliament and would be ultra vires. The plain effect of the guidelines would be to mandate that a child belonging to weaker section or disadvantaged groups cannot aspire for admission to an unaided

private school under Section 12 (1) (c) so long as admissions are

available in the Government Primary Schools or in aided schools. This

is impermissible. Therefore, we have no difficulty in concluding that

once no hierarchy was provided in the parent enactment, then the

State Government could not have and that too by instructions

(guidelines) provided for a hierarchy in violation of the provisions of the

Act.

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28. Identical issue came up for consideration before the Hon'ble Division Bench of the Allahabad High Court in Ajay Kuma . r Patel vs. State of U.P. and two others (2016) 3 All.L.J. 49 . 3, P wherein it was held as follows:

"14. The grievance of the petitio f ner , w H hen the petition was entertained on 27 January 2016 was two fold. Firstly, it was submitted on the basis of the Government Orders

dated 3 December 2012 t a nd o 6 January 2015 that the District Basic Educatio r n Officers have been directed that it is only where no seat is available in government schools or aided institutions that th u e provisions of Section 12 (1) (c) would apply. Secondly, o it was submitted that as a result of an artificial distinction between the urban and rural wards, Section 12 (1) (c) C is being applied only to urban wards with the result that t he rural population is not obtaining the benefit of the provision. On both these aspects, this Court directed the Secretary, Basic Education to file a short counter affidavit.

ghi 15. Accordingly, the Secretary, Basic Education has H

responded to the directions of this Court. The Secretary, Basic Education states that the submission of the petitioner that 25% of the seats in unaided private schools in Class 1, out of a total of 6.37 lac enrollment should be filled up from students from the specified groups is only a statistical calculation. In the view of the Secretary, Basic Education, this cannot be

construed as a target. According to the counter affidavit, the

provisions of Section 12 (1) (c) do not abrogate the

responsibility of the appropriate Government as prescribed in

Section 6. Dealing with the two specific issues which have been

raised by the petitioner, the affidavit of the State clarifies that

there is no distinction between the rural or urban areas in the

relevant Government Orders. The relevant averments in the

affidavit are as follows:

"13. That considering the provision of Section 12 of the Right of Children to Free and Compulsory Education Act,

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2009 in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 and in the releva . nt Government orders there is no distinction in the Rural or Urban Areas. In so far as the office orde P r dated 06.01.2015 issued by the Director of Educati.on Basic is concerned it does not restrict the a dmissions of children belonging to the disadvantaged f groHup and weaker section in the neighbor o hood schools to urban areas only, but considering the unavailability of space for establishing new t government schools or non-availability of r schools run by the Basic Education Board the u District Basic Education Officers were given directions that in the urban wards in which the schools run o by the Basic Education Board are not available the students/ children belonging to the weaker C section and disadvantaged group be given admission in the unaided private schools.... It is submitted that the h

Government Order dated 3.12.2012 does not make any distinction between rural and urban areas for coverage

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of the said act." 16. The first issue which falls for consideration relates to the

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interpretation of the provisions of Section 12 (1) (c). Section 12 defines the nature of the responsibility of a school to provide for free and compulsory education. Section 12 (1) (c) covers schools belonging to specified categories and unaided schools not receiving any grant or aid to meet expenses from the

Government or local authority. These schools have been

obligated to admit to Class 1 to the extent at least 25% of

the strength of that class, children belonging to weaker

sections and disadvantaged groups in the neighborhood

and to provide free and compulsory elementary education

till its completion. The mandate of Section 12 is not conditional

on the absence of schools established, owned or controlled by

the appropriate Government or local authority or of aided

schools. In other words, the obligation to admit students

belonging to the weaker sections and from disadvantaged

groups does not come into existence only upon the absence of

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seats in schools which are run by the State or local authority or by aided institutions. The obligation under Section 12 (1) ( . c) has not been made dependent on the non existence of State run schools or aided schools or the unavailability of P seats in those schools. To read Section 12 (1) (c) in .a contrary manner so as to import an obligation to admit students from the weaker sections and disadv anHtaged groups only where seats are not available in Sta f te run schools or aided institutions would be to defeat the o object of the provisions. The Government Order dated 6 t January 2015 reiterates the earlier Government Order dated 3 December 2012 by stipulating that it is only where the Dist r rict Basic Education Officer has found

that students u belonging to weaker sections or disadvanta o ged groups are unable to obtain admissions to government schools or schools run by the Basic Shiksha Par C ishad and in aided institutions due to unavailability of seats t hat such students would be entitled to obtain admission h against the 25% seats available in unaided institutions. This prescription creates a hierarchy in the availment of the benefits

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under Section 12 (1) (c) by stipulating that it is only in the absence of admissions being available in Government run H

schools or aided institutions that the obligation to admit students from disadvantaged groups or of weaker sections under Section 12 (1) (c) would arise. This interpretation and understanding of the State is clearly contrary to the provisions of Section 12 (1) (c).

17. Moreover, it is evident that the rules which have been prescribed by the State Government under the rule making authority do not establish any such hierarchy as indeed the rules could not have done in violation of the provisions of the parent enactment. Consequently, we find merit in the first submission which has been urged on behalf of the petitioner that laying down a hierarchy or condition for the availment of the benefits under Section 12 (1)(c) by restricting them only to a situation where admissions in schools which are conducted by the Government or in aided institutions are not available, would be contrary to the plain mandate of Section 12 (1) (c).

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Such a policy cannot be laid down by the State Government in violation of the provisions of the Act of Parliament and would b . e ultra vires. The plain effect of the policy would be to mandate that a child belonging to the weaker section or disadv P antaged groups cannot aspire for admission to an unaided. institution under Section 12 (1) (c) so long as admis sions are available in State run schools or in aided institution f s. ThiHs is impermissible. It is a matter of common knowledge that the facilities which are provided in unaided institut ion o s are superior to those in government institutions and aided institutions though may be

with certain exceptions. t The whole object and purpose of

Section 12 (1) (c u ) was r to provide for an assimilation of students belonging to the weaker sections and disadvantaged groups into the ma o in stream of education by allowing them access to facilities and means of learning provided in unaided institutions. Unf C ortunately, as a result of the policy which has been f ramed by the State Government to which we have made a h reference earlier, this object has been negated by depriving the most deserving of students from the grant of benefits which

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have been provided by the legislation enacted by Parliament in implementation of the fundamental right to free and compulsory H

education between the ages 6 and 14. ^" 29. At this stage, it would be apt to record that the Hon'ble Supreme Court in its recent decision in case titled Neon Laboratories Ltd Vs. Medical Technologies Ltd & ors, (2016) 2 SCC 672, has

directed that every High Court must give due deference to the law laid

down by the other High Courts. It is apt to reproduce para 7 of the

judgment, which reads thus:

"7 The primary argument of the Defendant-Appellant is that it had received registration for its trademark ROFOL in Class V on 14.9.2001 relating back to the date of its application viz. 19.10.1992. It contends that the circumstances as on the date of its application are relevant, and on that date, the Plaintiff- Respondents were not entities on the market. However, the

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Defendant-Appellant has conceded that it commenced user of the trademark ROFOL only from 16.10.2004 onward . s. Furthermore, it is important to note that litigation was P initiated by Plaintiff-Respondents, not Defendant-Appellant, even though the latter could have raised issue t.o Plaintiff-

Respondents using a similar mark to the one for which it had

filed an application for registration as ea rlyH as in 1992. The

Defendant- Appellant finally file o d a N f otice of Motion in the Bombay High Court as late as 14.12.2005, in which it was successful in being grant t ed an injunction as recently as on 31.3.2012. We may re r iterate that every High Court must give due deference to u the enunciation of law made by another High Court even though it is free to charter a divergent direction. However, t o his elasticity in consideration is not available where the litigants are the same, since Sections 10 and 11 of the CPC wou C ld come into play. Unless restraint is displayed, judicial b edlam and curial consternation would inexorably erupt since h an unsuccessful litigant in one State would rush to another State in the endeavour to obtain an inconsistent or

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contradictory order. Anarchy would be loosed on the Indian Court system. Since the Division Bench of the Bombay High H

Court is in seisin of the dispute, we refrain from saying anything more. The Plaintiff-Respondents filed an appeal against the Order dated 31.3.2012 and the Division Bench has, by its Order dated 30.4.2012, stayed its operation."

30. The State Government by issuing the aforesaid guidelines has negated the whole object and purpose of Section 12 (1) (c) which are enacted with an intention to provide for an assimilation of students belonging to the weaker sections and disadvantaged groups into the main stream of education by allowing them access to facilities and means of learning provided in unaided institutions.

31. The Upshot of the aforesaid discussion is that the provision of reservation of seats provided under the guidelines notified on 6.6.2015 (supra), more particularly, those contained in sub-clauses

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(a) and (b) thereof cannot withstand judicial scrutiny and are, therefore, declared as ultra vires. .

32. As regards, the prayer made by the petitioner fo . r d P irecting the State to constitute a State Commission for protection of child rights under the provision of Commission for Protection o f H Child Rights Act, 2005, the same has been rendered i o nfruct f uous in view of the constitution of such Commission.

33. Accordingly, the writ pet t ition is allowed and respondents are directed to issue fre u sh inrstructions in the matter strictly in conformity with the ma o ndate of Section 12 (1) (c) of the 2009 Act as interpreted in th C e present judgment not later than three months from the date of the judgment and report compliance to the Additional Registra h r (Judicial). g The writ petition is accordingly disposed of in the aforesaid i terms, so also the pending application(s) if any, leaving the parties to

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bear their own costs. ( Mansoor Ahmad Mir) Chief Justice August 30, 2016. (Tarlok Singh Chauhan),

(GR) Judge