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2013 DIGILAW 1506 (RAJ)

Nagarmal Sharma v. The State of Rajasthan

2013-09-02

AMITAVA ROY, ARUN BHANSALI

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JUDGMENT 1. - This petition, styled as a Public Interest Litigation, has been filed by the petitioners seeking to question the order dated 09.11.2012 passed by the Dy. Secretary, Elementary Education, Education Department, Government of Rajasthan, whereby, permission was granted for merging the Schools indicated in form 2 enclosed with the said letter. 2. It is contended in the petition that Government Upper Primary School No.12, Jawahar Nagar, Sri Ganganagar ('School No.12') is located near Scheduled Caste Hostel and is providing education to needy and underprivileged section of the society and there is no other Government School within a radius of 2.5 kilometers. The State Government vide its order dated 09.11.2012 granted permission for merger of the said School No.12 with Upper Primary School, Naya Chak, Sri Ganganagar ('Naya Chak School'). The said order came to the knowledge of the petitioners on 30.04.2013 when, in pursuance of the said order dated 09.11.2012, the District Education Officer, Primary Education, Sri Ganganagar communicated the sanction vide his letter dated 29.04.2013. It is claimed that the permission has been granted on wrong footing because neither there is any other Government School in the vicinity of radius upto 2.5 kilometers and, in no case, the School can be merged with a distantly placed School at Naya Chak, Sri Ganganagar. A representation was made by the residents of the locality on 01.05.2013 and a telegraphic notice dated 01.05.2013 was also issued by the counsel, which remain unanswered. 3. Based on the above facts, it is prayed that the order dated 09.11.2012 be set aside. 4. A reply to the writ petition has been filed by the State, whereby, it has been indicated that the order impugned has been passed considering the larger object of imparting education and, by passing of the said order, none of petitioners' rights can be said to be infringed. It has been further submitted that vide the impugned order various Schools have been ordered to be merged looking to the object sought to be achieved i.e. the betterment of the education and looking to the fact that one or more Schools were functioning in the nearby area. It has been further submitted that vide the impugned order various Schools have been ordered to be merged looking to the object sought to be achieved i.e. the betterment of the education and looking to the fact that one or more Schools were functioning in the nearby area. It has been admitted that the School, in which, the School No.12 is sought to be merged is at a distance of 2.5 kilometers and it has been reiterated that the Schools have been decided to be shifted/merged having regard to the required parameters and objects. Rest of the allegations made in the petition have been denied. 5. It is submitted by learned counsel for the petitioners that in terms of Rule 7 of the Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 ('Rules of 2011'), a school, in respect of children in classes from I to V, is required to be within a walking distance of one kilometer and, therefore, the decision to merge the School No.12 with Naya Chak School is contrary to the said Rule and the order impugned consequently, deserves to be set aside; from Annexure-8, it is apparent that as on 30.09.2012, 127 students were studying at the said school, which included 66 boys and 37 girls belonging to Scheduled Caste and from the said annexure it is apparent that within 2 to 2.5 kilometers radius there is no Government Primary/Upper Primary/Secondary School and, as such, the decision to merge the two Schools is ex facie incorrect; and that the representations made by the residents of the colony and the telegraphic notice sent by the counsel have remained unanswered. 6. In reply to the submissions made above, it is submitted by learned Addl. Advocate General that merger of the Schools based on the parameters and the objects sought to be achieved i.e. the betterment of the education being an executive decision based on the circumstances available, is not open to question by the petitioners. It is further submitted that the reliance placed on the provisions of the Rules of 2011 is misplaced as the said provision is meant for establishment of Schools by the State Government and the same is not applicable to merger of Schools. It was prayed that no public interest is involved in the matter and the writ petition deserves to be dismissed. 7. It was prayed that no public interest is involved in the matter and the writ petition deserves to be dismissed. 7. We have considered the rival submissions made at the Bar and have perused the material placed on record by the petitioners and the reply filed by the State and have also gone through the relevant law cited. 8. A bare look at the order dated 09.11.2012 and the annexure thereto (Annexure-9) filed with the writ petition reveals that the merger of School No.12 with Naya Chak School and various other Schools indicated in the said list is on account of having more than one Upper Primary School in one building/mohalla. The same is the stand of the respondents in the reply, wherein, at para 4, it has been clearly indicated that as one or more schools are functioning in the nearby area, for betterment of education, the decision to merge the School was taken. 9. From the document Annexure-8, which is a certificate issued by the Head Master of the School No.12 and the reply filed by the State, it is apparent that the Naya Chak School is situated 2.5 kilometers away from the place where School No.12 is presently functioning. It is further apparent that 127 students, which include 103 students belonging to Scheduled Caste are studying at School No.12, which is sought to be merged with Naya Chak School, which is about 2.5 kilometers away from the present location. 10. Rule 7(1) of the Rules of 2011 reads thus:- "7. Areas or limits of neighbourhood.- (1) The areas or limits of neighbourhood within which a School has to be established by the State Government shall be,- (a) in respect of children in classes from I to V, a School shall be established within a walking distance of one km. of the neighbourhood. (b) in respect of children in classes from VI to VIII, a School shall be established within a walking distance of 2 km. of the neighbourhood." 11. of the neighbourhood. (b) in respect of children in classes from VI to VIII, a School shall be established within a walking distance of 2 km. of the neighbourhood." 11. Though the above provision of Rule 7, which relates to establishment of a School by the State Government may not be applicable as such to the present case, but the said provision clearly indicates the manner and parameters, through which, the right of children to free and compulsory education is sought to be achieved i.e. by providing School in respect of children in classes from I to V within a walking distance of one kilometer and for the classes from VI to VIII within a walking distance of 2 kilometers. When the said provision requires establishment of School to ensure availability of a School in the given distance, the same would necessarily enjoin upon the State not to close down a School so as to increase the distance for the students beyond one kilometer and 2 kilometers, respectively. 12. Admittedly, in the present case, the School is being shifted 2.5 kilometers away from its present location, which action is apparently contrary to the spirit of the Right of Children to Free and Compulsory Education Act ('the Act') and the reason indicated in the order Annexure-9 is contrary to the ground situation, which is alleged by the petitioners, supported by the certificate of the Head Master of the School and admitted by the respondents in their reply (para 4) that the Naya Chak School is 2.5 kilometers away from the place where the School No.12 is presently functioning. The School No.12 is admittedly catering to large number of students i.e. 127 (76 boys and 51 girls), which includes 66 boys and 37 girls belonging to Scheduled Caste and, apparently, there is no cogent reason forthcoming from the respondents for merging School No.12 with Naya Chak School. 13. In view of the above, we are of the considered opinion that the order dated 09.11.2012 passed by the Dy. 13. In view of the above, we are of the considered opinion that the order dated 09.11.2012 passed by the Dy. Secretary, Elementary Education, Government of Rajasthan (Annexure-9) in so far as the same relates to merger of Government Upper Primary School No.12, Jawahar Nagar, Sri Ganganagar with Upper Primary School, Naya Chak, Sri Ganganagar is apparently contrary to the reason indicated in the said order and the same being contrary to the letter and spirit of the right to the Act and the Rules cannot be sustained and to the extent indicated above, the same deserves to be quashed and set aside. 14. Consequently, this writ petition is allowed. The order dated 09.11.2012 passed by the Dy. Secretary, Elementary Education, Government of Rajasthan (Annexure-9) in so far as the same relates to merger of Government Upper Primary School No.12, Jawahar Nagar, Sri Ganganagar with Upper Primary School, Naya Chak, Sri Ganganagar is quashed and set aside. No order as to costs.Petition Allowed. *******