Ganesh Roy & Ors. v. State & Ors.

Debasish Kar Gupta, J.:— On the prayer made on behalf of the petitioners, leave is granted to them to deposit the deficit Court fees in respect of the petitioner nos. 2 to 17 within three days.

The subject matters of challenge in this writ application are the provisions of Sub Rule (5), Clause (a) of Sub Rule (15) and Clauses (b)(g)(XXI) of Rule 10 of the West Bengal Right of Children to Free and Compulsory Education Rules, 2012 and Circulars issued under memo No. 424(85)-SE/(pry)/10M-31/2012 dated May 7, 2012 and No. 113(42)(SE(EE)/10M-31/12 dated June 21, 2012 under the provisions of the aforesaid Rules, 2012.

According to the petitioners, they have been running seventeen separate schools for imparting elementary education to the children up to the age of 14 years. According to them, they are entitled to run their schools without receiving any government aid in accordance with the provisions of Clause (IV) of Sub Section (n) of Section 2 of the Right of Children and Free Compulsory Act, 2009 (hereinafter referred to as the said Act, 2009). According to them, they are not in a position to comply with the provisions of the said Act for obtaining recognition from the Government of West Bengal due to their inability to comply with the provisions of Clauses (b) and (g) of the sub rule (15) of Rule 10 of the West Bengal Right of Children to Free and Compulsory Education Rules, 2012 (hereinafter referred to as the said Rules, 2012). According to them, those provisions are contrary to the provisions of Sub Section (1) of Section 21 and Schedule to the said Act, 2009. According to them, unless they are protected during the pendency of this writ application they will suffer irreparable loss or injury in view of their compulsion to pay fine in accordance with the provisions Sub Section (5) of Section 18 of the said Act, 2009.

On the other hand, it is submitted by Mr. Tapan Kr. Mukherhee, learned Additional Government Pleader, High Court, Calcutta that in accordance with the provisions of Article 19(6) of the Constitution of India reasonable restriction can be imposed by the State. Therefore, payment of fees for granting certificate of recognition and conditions for filing application for granting recognition of the institutions for imparting free and compulsory education to the children up to the age of 14 years could be improved. According to him, Section 38 read with Sub Section (1) of Section 18 of the said empowered the State to frame the rules.

Let the affidavit in opposition be filed within three weeks from date; reply thereto, if any, be filed within one week thereafter.

Liberty is given to the parties to mention the matter for early hearing before the appropriate bench after expiry of the aforesaid period.

With regard to the prayer for interim relief, I prima facie find that the provisions of Clause (IV) of Sub Section (n) of Section 2 read with the provisions of Section (1) of Section 21 of the said Act, 2009 enables an individual to run an institution for imparting elementary education and children up to the age of 14 years. I further prima facie find of Clause (a) of Sub Rule (15) of Rule 10 of the said Rules, 2012 does not entitle any individual to file an application for obtaining certificate or recognition to run such an institution. I further prima facie find that by virtue of the provisions of Clause (g) of Sub Rule (15) of Rule 10 of the said Rules, 2012 prescribes some conditions which are in conflict with the conditions prescribed in Schedule to the said Act, 2009.

In view of the above, I find that the petitioners have not only made out a strong prima facie case but the balance of convenience and/or inconvenience is in favour of restraining the respondents from giving effect and/or further effect to the aforesaid provisions of the said Rules, 2012. Otherwise the petitioners shall suffer irreparable loss or injury by paying fine in terms of Sub Section (5) of Section 18 of the said Act, 2009.

In view of the above observations, the operation and/or further operation of Clauses (b) and (g) of Sub Rule (15) of Rule 10 of the said Rules, 2012 and the impugned Circulars are stayed until further orders.

Liberty is given to the respondents to file application for vacating, variation and/or modification of the above interim order with notice upon the other side.

The petitioner is directed to communicate this order to the Office of the learned Advocate General, West Bengal together with a copy of this writ application, if the same has not already been served.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.