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Meghalaya High Court · body

2015 DIGILAW 88 (MEG)

Santanu Sannyashi v. State of Meghalaya

2015-06-17

T.NANDAKUMAR SINGH

body2015
ORDER : Heard Ms. K Chisa, learned counsel for the petitioner, Mr. ND Chullai, learned Sr.GA assisted by Mr. S Sen Gupta, learned GA appearing for the respondents No.1-4 and Mr. A Mabood, learned counsel for the respondents No.5-7. 2. The only case of the petitioner in the present writ petition is that the constitution of the Managing Committee of Kalapani SSA L.P. School under the impugned order dated 26.03.2014 is in clear infraction of the Right of Children to Free and Compulsory Education Act, 2009 and also the Meghalaya Right of Children to Free and Compulsory Education Rules, 2011 framed under Section 38 of the Right of Children to Free and Compulsory Education Act, 2009. Mr. A Mabood, learned counsel for the respondents No.5-7 by referring to the decision of this Court, incidentally authored by this Court (T. Nandakumar Singh, J) in Ebrahim Miah & Anr v. State of Meghalaya & Ors: (2015) 2 NEJ 192 (Meg) contended that the composition of the School Managing Committee of Kalapani SSA L.P. School vide impugned order dated 26.03.2014 is as per the composition as provided under Section 11 of the Assam Education Department Rules and Orders. Mr. ND Chullai, learned Sr.GA appearing for the respondents No.1-4 contented that this Court passed the said judgment and order in Ebrahim Miah’s case (Supra) without considering the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and also the Meghalaya Right of Children to Free Education and Compulsory Education Rules, 2011. On perusal of the record of the earlier case WP(C)No.2/2014 i.e. Ebrahim Miah’s case (Supra) and also the said judgment and order passed therein, it is clear that none of the parties brought to the notice of this Court the Right of Children to Free and Compulsory Education Act, 2009 and also the Meghalaya Right of Children to Free Education and Compulsory Education Rules, 2011 at the time of hearing of the said case i.e. WP(C) No.2/2014. Para 4 of the said judgment and order in Ebrahim Miah’s case (Supra) shows that it was the case of both the parties that the composition of the Managing Committee of Aided School should be as provided under Section 11 of the Assam Education Department Rules and Orders. Para 4 of the said judgment and order in Ebrahim Miah’s case (Supra) shows that it was the case of both the parties that the composition of the Managing Committee of Aided School should be as provided under Section 11 of the Assam Education Department Rules and Orders. On reading of the Right of Children to Free and Compulsory Education Act, 2009, the Meghalaya Right of Children to Free Education and Compulsory Education Rules, 2011, the said Assam Education Department Rules and Orders and the said judgment and order of this Court in Ebrahim Miah’s case (Supra) in juxtaposition, it is clear that the earlier order of this Court in Ebrahim Miah’s case (Supra) was passed without considering the Right of Children to Free and Compulsory Education Act, 2009 and also the Meghalaya Right of Children to Free Education and Compulsory Education Rules, 2011. Therefore, the earlier judgment and order of this Court in Ebrahim Miah’s case (Supra) is a judgment per incuriam. 3. The Parliament enacted the Act called the “Right of Children to Free and Compulsory Education Act, 2009” and this Act is extended to the whole of India except Jammu and Kashmir. The said Act i.e. Right of Children to Free and Compulsory Education Act, 2009 was brought into force on 01.04.2010. Section 21 of the said Act of 2009 prescribes the composition of the School Management Committee and for convenience Section 21 of the said Act is quoted hereunder:- “21. School Management Committee – A school, other than a school specified in sub-clause (iv) of clause (n) of Section 2, shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers: Provided that at least three-fourth of members of such Committee shall be parents or guardians: Provided further that proportionate representation shall be given to the parents or guardians of children belonging to disadvantaged group and weaker section: Provided also that fifty per cent of Members of such Committee shall be women. (2) The School Management Committee shall perform the following functions, namely:- (a) monitor the working of the school; (b) prepare and recommend school development plan; (c) monitor the utilisation of the grants received from the appropriate Government or local authority or any other source; and (d) perform such other functions as may be prescribed. (2) The School Management Committee shall perform the following functions, namely:- (a) monitor the working of the school; (b) prepare and recommend school development plan; (c) monitor the utilisation of the grants received from the appropriate Government or local authority or any other source; and (d) perform such other functions as may be prescribed. [Provided that the School Management Committee constituted under sub-section (1) in respect of,– (a) a school established and administered by minority whether based on religion or language; and (b) all other aided schools as defined in sub-section (ii) of clause (n) of Section 2, Shall perform advisory function only.]” 4. The composition and functions of the School Management Committee are provided under Rule 3 of the Right of Children to Free and Compulsory Education Rules, 2009 framed by the Central Government in exercise of the powers under Section 38 of the said Act, 2009. Rule 3 of the said Rules, 2010 read as follows:- “3.Composition and functions of the School Management Committee. – (1) A School Management Committee (hereinafter in this rule referred to as the said Committee) shall be constituted in every school, other than an unaided school, within six months of the appointed date, and reconstituted every two years. (2) Seventy-five per cent, of the strength of the said Committee shall be from amongst parents or guardians of children. (3) The remaining twenty-five per cent, of the strength of the said Committee shall be from amongst the following persons, namely- (a) one-third members from amongst the elected members of the local authority, to be decided by the local authority; (b) one-third members from amongst teachers from the school, to be decided by the teachers of the school; (c) one-third members from amongst local educationists or children in the school, to be decided by the parents in the said Committee. (4) To manage its affairs, the said Committee shall elect a Chairperson and Vice-Chairperson from among the parent members; the head teacher of the school, or where the school does not have a head teacher, the senior most teacher of the school, shall be the ex-officio member-convenor of the said Committee. (5) The said Committee shall meet at least once a month, and the minutes and decisions of the meetings shall be properly recorded and made available to the public. (5) The said Committee shall meet at least once a month, and the minutes and decisions of the meetings shall be properly recorded and made available to the public. (6) The said Committee shall, in addition to the functions specified in clauses (a) to (d) of sub-section (2) of Section 21, perform the following functions, namely : (a) communicate in simple and creative ways to the population in the neighbourhood of the school, the rights of the child as enunciated in the Act; as also the duties of the appropriate Government, local authority, school, parent and guardian; (b) ensure the implementation of clauses (a) and (e) of Section 24, and of Section 28; (c) monitor that teachers are not burdened with non-academic duties other than those specified in Section 27; (d) ensure the enrolment and continued attendance of all the children from the neighbourhood in the school; (e) monitor the maintenance of the norms and standards specified in the Schedule; (f) bring to the notice of the local authority any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission, and timely provision of free entitlements as per sub-section (2) of Section 3; (g) identify the needs, prepare a plan, and monitor the implementation of the provisions of Section 4; (h) monitor the identification and enrolment of, and facilities for education of children with disability, and ensure their participation in, and completion of elementary education; (i) monitor the implementation of the mid-day meal in the school; (j) prepare an annual account of receipts and expenditure of the school. (7) Any money received by the said Committee for the discharge of its functions under this Act, shall be kept in a separate account, to be audited annually. (8) The accounts referred to in clause (j) to sub-rule (6) and in sub-rule (7) should be signed by the Chairperson or Vice-Chairperson and convenor of the said Committee and made available to the local authority within one month of their preparation.” 5. Mr. N.D.Chullai, learned Sr. counsel appearing for the State respondents also contended that the Governor of Meghalaya in exercise of the powers conferred by Section 38 of the said Act, 2009 had framed the Rules called “The Meghalaya Right of Children to Free and Compulsory Education Rules, 2011. Mr. N.D.Chullai, learned Sr. counsel appearing for the State respondents also contended that the Governor of Meghalaya in exercise of the powers conferred by Section 38 of the said Act, 2009 had framed the Rules called “The Meghalaya Right of Children to Free and Compulsory Education Rules, 2011. Rule 13 of the said Rules, 2011 prescribes the composition and functions of the School Management Committee for the purposes of Section 21 of the said Act, 2009, the Rule 13 of the said Rules, 2011 read as follows:- “13. Composition and functions of the School Management Committee for the purposes of section 21. 1. A School Management Committee shall be constituted in every school, other than an unaided school, within its jurisdiction, within six months of the appointed date, and re-constituted every two years. 2. Seventy five percent of the strength of the School Management Committee shall be from amongst parents or guardians of children studying in the school. 3. The remaining twenty five percent of the strength of the SMC shall be from amongst the following persons. (a) one third members from amongst the elected members of the local authority, to be decided by the local authority. (b) one third members from amongst teachers from the school, to be decided by the teachers of the school; (c) remaining one third from amongst local educationists / children in the school, to be decided by the parents in the Committee. 4. To manage its affairs, the School Management Committee shall elect a Chairperson and Vice Chairperson from among the parent members. The Head teacher of the school or where the school does not have a head teacher, the senior most teacher of the school shall be the ex officio Member – Convener of the School Management Committee. 5. The School Management Committee shall meet at least once a month and the minutes and decisions of the meetings shall be properly recorded and made available to the public. 6. 5. The School Management Committee shall meet at least once a month and the minutes and decisions of the meetings shall be properly recorded and made available to the public. 6. The School Management Committee shall, in addition to the function specified in clauses (a) to (d) of section 21 (2), perform the following functions, for which it may constitute smaller working groups from amongst its Members : (a) communicate in simple and creative way to the population in the neighbourhood of the school, the rights of the child as enunciated in the Act; as also the duties of the State Government, local authority, school, parent and guardian; (b) ensure the implementation of clauses (a) and (e) of section 24 and section 28. (c) monitor that teachers are not burdened with non academic duties other than those specified in section 27; (d) ensure the enrolment and continued attendance of all the children from the neighborhood in the school. (e) monitor the maintenance of the norms and standards prescribed in the Schedule; (f) bring to the notice of the local authority any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission, and timely provision of free entitlements as per section 3(2). (g) identify the needs, prepare a Plan, and monitor the implementation of the provisions of Section 4. (h) monitor the identification and enrolment of, and facilities for learning by disabled children, and ensure their participation in, and completion of elementary education (i) monitor the implementation of the Mid Day Meal in the school. (j) prepare an annual account of receipts and expenditure of the school. 7. Any money received by the School Management Committee for the discharge of its functions under this Act, shall be kept in a separate account, to be made available for audit every year. 8. The accounts referred to in clause (j) to sub – Rule (6) and sub – Rule (7) should be signed by the Chairperson / Vice – Chairperson and Convener of the School Management Committee and made available to the local authority within one month of their preparation.” 6. It is also the submissions of the learned counsel for the petitioner and Mr. It is also the submissions of the learned counsel for the petitioner and Mr. ND Chullai, learned Sr.GA appearing for the respondents No.1-4 that the composition of the Managing Committee of Kalapani SSA L.P. School under the impugned order dated 26.03.2014 is not in compliance with the composition of the Managing Committee as provided under Section 21 of the said Act of 2009 and Rule 13 of the said Rules 2011. Mr. ND Chullai, learned Sr.GA appearing for the respondents No.1-4 submits that the procedures for constitution of the School Managing Committee are not clearly provided under the said Act of 2009 and the said Rules of 2011. However, he further submitted that under Rule 13 Sub-Rule 4 of the said Rules 2011, the School Management Committee shall elect a Chairperson and Vice Chairperson from among the parent members. The Head teacher of the school or where the school does not have a head teacher, the senior most teacher of the school shall be the Ex-officio Member-Convener the School Management Committee. 7. For the foregoing reasons, the impugned order dated 26.03.2014 for constitution of the Managing Committee of Kalapani SSA L.P. School is hereby quashed and set aside and the respondents No.1-4 are directed more particularly, the respondent No.4 to take appropriate steps for constitution of the School Managing Committee of Kalapani SSA L.P. School as provided under Section 21 of the said Act of 2009 and Rule 13 of the said Rules of 2011 within a period of six weeks from the date of receipt of a certified copy of this judgment and order. Till the new Managing Committee is constituted, the respondent No.4 shall look after the management of the Kalapani SSA L.P. School. 8. With the above observations and directions, this writ petition is disposed of.