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Rajasthan High Court · body

2014 DIGILAW 1515 (RAJ)

IMRAN MALKANI v. STATE OF RAJASTHAN

2014-09-10

SANGEET LODHA

body2014
Order 1. By way of this writ petition, the petitioners are seeking directions to the respondents to provide them admission form for admission of their children in Sardar Senior Secondary School, Jodhpur, in the category of the children belonging to weaker section so also to consider their candidature for admission to the school as per the provisions of Right of Children to Free and Compulsory Education Act, 2009 (for short “the Act of 2009”). 2. The petitioners belonging to weaker section, aspiring for admission of their children in Sardar Senior Secondary School, Jodhpur, approached its Principal, the respondent no.5 herein, for providing the admission form. It is averred that the admission form was denied to the petitioners by the respondent no.5 saying that the form will be provided only to the candidates who have the Below Poverty Line (BPL) card. On 25.4.14, the petitioners served the respondent no.5 with a notice for demand of justice but to no avail. The petitioners also approached the District Collector, Jodhpur, by way of representation raising the grievance in this regard. In response thereto, the District Education Officer (Secondary), Jodhpur, the respondent no.3 herein, vide communication dated 25.4.14 directed the respondent no.5 to make available the admission form to the petitioners and their likes and to take appropriate steps for admission in accordance with the provisions of the Act of 2009. Despite the directions issued by the respondent no.3 as aforesaid, the respondent no.5 did not care to make the admission forms available to the petitioners. Hence, this petition. 3. A reply to the writ petition has been filed on behalf of the respondent no.5 taking the stand that as per the notification dated 29.3.11 issued by the State Government, in pursuance of clause (c) of Section 2 of the Act of 2009, only the child whose parents are included in the list of BPL families (both Central and State list) prepared by the Rural Development Department/ Urban Development Department of the State Government and whose parents' income does not exceed 2.50 lacs, is entitled to be considered for admission in the category of child belonging to weaker section. It is submitted that the legal position was clarified to the petitioners so also to the District Education Officer. It is submitted that the legal position was clarified to the petitioners so also to the District Education Officer. In this regard, a communication dated 26.4.14 of the Honorary Secretary, Education Committee ( Shri Singh Sabha) addressed to the respondent no.3 herein, is placed on record as Annexure R-5/2. Precisely, according to the respondent no.5, the petitioners who failed to produce the BPL card were not entitled for providing the admission forms. 4. The respondents no.1 and 3 in their reply to the writ petition have taken the stand that the respondent no.5 is under an obligation to follow the provisions of the Act of 2009 and the Rules made thereunder and therefore, necessary directions were issued to it vide communication dated 25.4.14. The respondents have placed on record a copy of the communication dated 7.5.14 (Annexure-R2) addressed to the respondent no.5, whereby it was clarified that in terms of provisions of Section 12(1)(c), the children belonging to the categories namely, BPL families, Lower Income Group i.e. having annual income not exceeding Rs.2.50 lacs and the Disadvantaged Group, are entitled to be considered for admission under the provisions of Act of 2009. That apart, it is averred that vide communication dated 6.6.14, the information was sought from the respondent no.5 as to how many students have been provided the admission forms for admission to the school under the provisions of the Act of 2009 and whether the petitioners herein have been provided the forms or not. It is submitted that in response to the said communication, vide letter dated 14.6.14, the Honorary Secretary, Education Committee (Shri Singh Sabha) informed the District Education Officer that the petitioners herein having preferred the writ petition, the appropriate action shall be taken by the school as per decision and orders of this court. 5. An additional affidavit has been filed by the respondent no.5, reiterating the stand that since the petitioners were not eligible for admission, they were not made available the admission forms. That apart, it is averred that admission forms were submitted by the petitioners for admission of their children in the school and after scrutiny thereof in their presence, they were informed to deposit the fees, but they did not turn up to do the needful. That apart, it is averred that admission forms were submitted by the petitioners for admission of their children in the school and after scrutiny thereof in their presence, they were informed to deposit the fees, but they did not turn up to do the needful. As a matter of fact, the aforesaid forms refer to the forms alleged to have been submitted by the petitioners in regular course for admission of their children and not as the children belonging to weaker section. 6. The petitioners in the rejoinder to the reply filed on behalf of the respondent no.5 have stated that the respondent-school is adamant for not providing forms to the petitioners and therefore, has taken the plea that to provide admission forms, it is necessary that the parents of the child seeking admission must have BPL card. It is submitted that for providing form for admission, it is not necessary that the parents of the child must have BPL card. Precisely, the stand of the petitioners is that at the stage of providing the admission forms, the respondent cannot insist upon the parents of the child to produce the documents showing that they are covered by weaker section category, as specified and the matter with regard to the entitlement of the children for admission in the said category is required to be considered by the concerned school only after submission of the admission form, in accordance with law. 7. Mr.M.R.Malkani, present-in-person on behalf of the petitioners submitted that despite the directions issued by the respondent no.3, the respondent no.5 did not provide the admission forms to the petitioners. It is submitted that as a matter of fact, no child belonging to weaker section entitled for admission in terms of provisions of Section 12(1)(c ) of the Act of 2009, has been considered and granted admission by the respondent no.5 in the school. It is submitted that the specific directions issued by the District Education Officer in this regard were also deliberately flouted by the respondent no.5. It is submitted that the specific directions issued by the District Education Officer in this regard were also deliberately flouted by the respondent no.5. Drawing the attention of this court to the notification dated 29.3.11 issued by the Government of Rajasthan placed on record as Annexure R-5/1, it is submitted that the child whose parents are included in the list of BPL families so also the child whose parents' annual income does not exceed Rs.2.5 lacs, are entitled to be considered for admission to the school, as child belonging to weaker section and therefore, the stand taken by the respondent that the parents of the child must be BPL card holder is ex facie contrary to the notification dated 29.3.11 issued by the State Government specifying the categories of the child belonging to weaker section. It is submitted that during the pendency of the petition, the admission forms have been provided to the petitioners but the same are not being accepted and processed saying that the last date fixed by the Government for the purpose of admission of the children in the said category has expired. It is contended that it is apparent on the face of record that the respondent no.5 deliberately avoided to make the admission forms available to the petitioners and therefore, their children cannot be made to suffer on account of no fault on their part. It is submitted that the right to education being a fundamental right, the respondents were under an obligation to take all appropriate steps for the enforcement of the right and should have considered the candidature of the petitioners' children for admission in the category of children belonging to weaker section. It is submitted that to the petitioners' information, no child has been admitted by the respondent no.5 in the said school in the category belonging to weaker section and thus, the violation of the provisions of the Act of 2009 and the Rules made thereunder, is apparent on the face of record. 8. On the other hand, Mr.Bajrang Singh Shekhawat, District Education Officer (Secondary-I), Jodhpur, present-in-person, supporting the case of the petitioners submitted that the respondent no.5 could not have refused to provide the admission forms to the petitioners. 8. On the other hand, Mr.Bajrang Singh Shekhawat, District Education Officer (Secondary-I), Jodhpur, present-in-person, supporting the case of the petitioners submitted that the respondent no.5 could not have refused to provide the admission forms to the petitioners. It is categorically stated that as per the notification issued by the State Government, the children belonging to BPL families as well as the children whose parents' annual income does not exceed Rs.2.5 lacs, are entitled to be considered for admission as children belonging to weaker section and therefore, the respondent no.5 was not justified in refusing to provide the admission forms on account of alleged non production of the proof regarding the parents of the children being the BPL card holders. It is submitted that as a matter of fact, the matter with regard to the entitlement to the admission is required to be considered after the submission of the admission form and therefore, even otherwise, the respondent no.5 could not have refused to provide admission forms to the petitioners. It is submitted that despite directions being issued, the respondent no.5 failed to provide the admission forms to the petitioners and therefore, their candidature could not be considered for admission to the school before the cut off date fixed by the respondents in this regard. It is submitted that if now the petitioners' children are found eligible and are admitted to the school, the respondent-school shall not be entitled for reimbursement of the expenditure to be incurred by it. 9. Ms. Mamta Tatiya, the Principal, Sardar Children Senior Secondary School, present-in-person, submitted that as per the notification dated 29.3.11, only the child belonging to BPL families whose parents' annual income does not exceed Rs.2.5 lacs, is entitled to be considered for admission as child belonging to weaker section. It is submitted that since the petitioners did not produce the proof showing that their children belong to BPL families, they were not made available the admission forms. It is submitted that even if the forms were not provided by the school, nothing prevented the petitioners from submitting their admission forms online, but they did not choose to do so. It is submitted that since the petitioners did not produce the proof showing that their children belong to BPL families, they were not made available the admission forms. It is submitted that even if the forms were not provided by the school, nothing prevented the petitioners from submitting their admission forms online, but they did not choose to do so. It is submitted that as a matter of fact, the petitioners later submitted the forms for admission to the school in the general category and after due scrutiny thereof, they were granted admission, however, they did not deposit the fees, which clearly shows that they are not desirous to undertake the studies in the respondent-school. It is submitted that during the course of hearing, the petitioners have already been provided forms for admission of their children, as children belonging to weaker section, but their admission forms cannot be processed and considered for admission in the said category inasmuch as, the web portal created by the State for the purpose, stands closed. However, it is not disputed before this court that the seats reserved for the children belonging to weaker section in the respondent-school remained unfilled. 10. I have considered the rival submissions of the parties, perused the material on record and gone through the relevant provisions of the Act of 2009 and the Rules made thereunder. 11. Indisputably, the right to education is basic human right, essential for empowerment and development of an individual and the society as a whole. In the first instance, by way of Article 45, a duty was casted upon the States to make endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years. Later, by way of Constitution (Eighty-Sixth Amendment) Act, 2002 (“the Amendment Act, 2002”), the Article 45 was substituted in terms that the State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years. But, at the same time, vide Amendment Act, 2002, the Right to Education was recognized as fundamental right by inserting Article 21A in the part III of the Constitution, which reads as under: “21A. But, at the same time, vide Amendment Act, 2002, the Right to Education was recognized as fundamental right by inserting Article 21A in the part III of the Constitution, which reads as under: “21A. Right to education.-The State shall provide free and compulsory education all children of the age of six to fourteen years in such manner as the State may, by law, determine.” 12. For enforcement of the fundamental right enshrined in Article 21A of the Constitution of India as aforesaid, the Parliament enacted the Act of 2009, providing for free and compulsory education to all children of the age of six to fourteen years. As per Section 3 of the Act of 2009, every child of the age of six to fourteen years including a child referred to in clause (d) or clause (e) of Section 2 of the Act of 2009 i.e. child belonging to disadvantaged group and child belonging to weaker section, shall have right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education i.e. the education from first class to eighth class [Section 2(f)] and for that purpose, no child is liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. 13. By virtue of provisions of Section 6 of the Act, a duty is casted upon the appropriate Government and local authority to establish the school within such area or limits of neighbourhood as may be prescribed. The financial and other responsibilities for carrying out the objects of the Act of 2001 are required to be borne by the Central Government and the State Governments concurrently. As per provisions of Section 8(b) & (c) of the Act of 2009, it is the responsibility of the appropriate Government to ensure availability of neighbourhood school as specified in Section 6 as also to ensure that a child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing education on any grounds. 14. The responsibilities of schools and teachers for free and compulsory education have been delineated in Section 12 of the Act of 2009. 14. The responsibilities of schools and teachers for free and compulsory education have been delineated in Section 12 of the Act of 2009. As per clause (c ) of sub-section (1) of Section 12, the school specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 i.e. a school belonging to specified category and unaided school not receiving any kind of aid or grants to meet its expenses from appropriate Government or the local authority, are under an obligation 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 in the neighbourhood and provide free and compulsory elementary education till its completion. As per the mandates of sub-section (2) of Section 12, the schools 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) as aforesaid 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. 15. The definitions of 'child belonging to disadvantaged group' and 'child belonging to weaker section' as set out in Section 2(d) and Section 2(e) of the Act of 2009 respectively, read as under: “(d) '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; (e) 'child belonging to weaker section' means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;” 16. It is a common ground between the parties that in terms of clause (e) of Section 2, ibid, the State Government by notification dated 29.3.11 has specified the child belonging to following categories as child belonging to weaker section: (a) A child whose parents are included in the list of Below Poverty Line families (both Central and State lists) prepared by the Rural Development Department/Urban Development Department of the State Government, and (b) A child whose parents' annual income does not exceed Rs.2.50 lacs.” 17. A bare perusal of the notification issued by the State Government specifying the categories noticed as above, makes it abundantly clear that the child whose parents are included in the list of BPL families and the child whose parents' annual income does not exceed Rs.2.50 lacs, are two separate categories covered by the definition of the 'child belonging to weaker section'. The contention sought to be raised on behalf of the respondents that a candidate belonging to BPL category having income less than Rs.2.50 lacs is only covered under the weaker section category, to say the least, is absolutely misconceived. As a matter of fact, as per the norms laid down for BPL families, a person having annual income a sum of Rs.2.50 lacs does not fall within the BPL families at all. Be that as it may, the stand taken by the State in this regard before this court is quite unequivocal and there remains no doubt that in the State of Rajasthan a child whose parents' annual income does not exceed Rs.2.50 lacs does fall within the category of 'child belonging to weaker section' and it is absolutely not necessary that his parents are included in the list of BPL families. 18. Moreover, the matter with regard to the entitlement of the child for admission needs to be determined by the school authorities only after the duly filled form accompanied by the requisite documents, is submitted for consideration. Suffice is to say that while issuing the admission form, the school authorities cannot insist upon the parents of child aspiring for the admission to produce the proof regarding his eligibility for admission to the school as a child belonging to the categories of 'weaker section' as specified by the State Government. Suffice is to say that while issuing the admission form, the school authorities cannot insist upon the parents of child aspiring for the admission to produce the proof regarding his eligibility for admission to the school as a child belonging to the categories of 'weaker section' as specified by the State Government. It is true that the applicants aspiring for admission in the school in the said category may submit their forms online as well but then, if the petitioners opted for submission of the admission forms off-line, when asked for, the respondent no.5 was under an obligation to provide them the admission forms. In any case, the respondent no.5, who has failed to discharge its statutory obligation cannot be permitted to contend that admission forms could have been submitted by the petitioners online as well. Thus, the action of the respondent no.5 in not providing the admission forms to the petitioners and consequently, depriving them from their right of consideration for admission to the school in the category of 'child belonging to weaker section' is avowedly arbitrary, illegal and falls foul of Article 14 & 21A of the Constitution of India. 19. As noticed hereinabove, the District Education Officer, had issued unequivocal directions to provide the admission forms to the petitioners but, the respondent no.5 and the Education Committee of the school, persisting in their obduracy did not issue the admission forms to the petitioners. It is really strange that in response to the directions issued by the District Education Officer instead of issuing the admission forms to the petitioners, the Honorary Secretary of the Education Committee of the school replied in terms that the appropriate action shall be taken as per the decision and order to be passed by this Court in the present writ petition. 20. 20. Though, during the pendency of the petition, the admission forms have been made available to the petitioners, it is really unfortunate that now the respondents who are under the constitutional obligation to enforce the Right to Education and to ensure that the statutory duty casted upon them under the provisions of the Act of 2009 is faithfully discharged, have taken the stand that the cut-off date for granting admission to the children belonging to the weaker section having expired, the admission forms of the petitioners' children cannot be processed and considered inasmuch as the, the web portal created for the purpose stands closed and the expenditure to be incurred by the school on the children shall not be reimbursed by the State Government. 21. It is pertinent to note that as per mandate of Section 4 of the Act of 2009, it is the responsibility of the State to ensure that every child above six years of age is admitted to the school and the child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years. Thus, the State cannot be permitted to contend that the last date for admission of the children belonging to the categories of weaker section having expired, the petitioners' children even if admitted to the school, the expenditure to be incurred upon them cannot be reimbursed. As a matter of fact, in the instant case, where the State Authorities have failed to ensure the compliance of the provisions of the Act of 2009, the contention sought to be raised as aforesaid, cannot be countenanced by this Court. 22. In view of the discussion above, in the considered opinion of this court, the candidature of the petitioners' children for admission to the respondent-school in the category of child belonging to weaker section deserves to be considered in conformity with the provisions of the Act of 2009 and the notification dated 29.3.11 issued by the State Government. Further, if the petitioners' children are found to be eligible for admission to the school, the State cannot shirk from its responsibility to reimburse the expenditure to be incurred by the respondent-school to the extent permissible in terms of provisions of Section 12(2) of the Act of 2009. 23. In the result, the writ petition succeeds, it is hereby allowed. Further, if the petitioners' children are found to be eligible for admission to the school, the State cannot shirk from its responsibility to reimburse the expenditure to be incurred by the respondent-school to the extent permissible in terms of provisions of Section 12(2) of the Act of 2009. 23. In the result, the writ petition succeeds, it is hereby allowed. The respondent no.5 is directed to process the admission forms of the petitioners' children for admission to the school in the category of children belonging to weaker section and if they are found eligible for admission, as per the norms laid down by the Government vide notification dated 29.3.11, shall forward the same to the District Education Officer concerned for approval within a period of three days from the date of receipt of this order. The District Education Officer concerned, in its turn, after verification of the documents as per the norms laid down, shall grant the requisite approval within a period of three days thereafter. The entire process of admission shall be completed within a period of one week from the date of receipt of this order. Needless to say that if the petitioners' children are found eligible for admission in the category of children belonging to the weaker section as specified by the State Government, they shall not be denied admission in the respondent-school. The petitioners shall be entitled for costs quantified at Rs.3000/-, to be borne by the respondents no.3 & 5 equally.