Principal Jawahar Navodaya Vidyalaya v. Abhay Chaudhary (minor)
2016-06-21
K.M.JOSEPH, V.K.BIST
body2016
DigiLaw.ai
JUDGMENT : K.M. Joseph, J. Appellants are the respondents in the writ petition. The writ-petitioner sought the following reliefs: “i. Issue a writ, order or direction in the nature of mandamus commanding the respondents to include the name of the petitioner in the list of selected students of class 6th admission (session 2015-16), declared by the principal Jawahar Navodaya Vidyalaya, Rudrapur. ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to give admission to the petitioner in class 6th standard for the session 2015-16.” 2. Petitioner sat for the entrance test held by the appellants in February 2015 for admission to class 6th for the session 2015-16. By letter dated 22.06.2015, father of the petitioner was informed that his son was selected for the 6th standard. The maximum age limit for a student for admission in class 6th is 13 years. His date of birth is 07.12.2004, and on the date of the entrance test, he was less than 13 years. It was the case of the writ-petitioner that he was eligible. Annexure nos. 3 & 4 are the birth & transfer certificates issued by the school, in which the writ-petitioner was previously studying. Annexure No. 5 purports to be a certificate dated 17.04.2015 issued by the Principal of the previous school showing the date of birth of writ-petitioner to be 07.12.2004. The appellants, however, conducted a medical fitness test and the Medical officer suspected that the writ-petitioner was older. The Principal thereupon referred the petitioner for determination of age before the Chief Medical Officer concerned. The Chief Medical Officer submitted Annexure No. 7, indicating that the age of the writ-petitioner appears to be approximately 13-15 years. Complaining that there was no action taken and on the basis of the response to the queries sought under Right to Information Act finding that he does not figure in the select list, petitioner sought the reliefs, as already indicated. 3. Learned Single Judge allowed the writ petition relying on the case law under the Juvenile Justice (Care and Protection of Children) Act, 2000 and holding that the documents under Rule 12(3)(b) of the Juvenile Justice Rules would prevail over any medical certificate. The learned Single Judge relied upon the extract of the Family Register, which showed that the writ-petitioner was born in the year 2004.
The learned Single Judge relied upon the extract of the Family Register, which showed that the writ-petitioner was born in the year 2004. Besides the birth certificate issued by the Registrar of Births and Deaths, Rudrapur and the Scholar’s Register and Transfer Certificate issued by the Principal of the earlier school was relied on. Finding that the petitioner was certainly below 13 years at the time of the admission was ordered to be granted to the 6th standard for the year 2015-16. Feeling aggrieved, the appellants are before us. 4. We heard Mr. Vikas Pande, learned counsel for the appellants and Mr. Siddharth Sah, learned counsel for writ-petitioner. 5. Mr. Vikas Pande, learned counsel appearing for the appellants would submit that the learned Single Judge interfered with the matter disregarding the procedure adopted by the school. It is submitted that actually it was the Medical Officer, who felt that the age of the petitioner was in excess of the sanctioned age, which is 13 years for class 6th. The entrance examination was held for class 6th. Once medical certificate clearly showed that the petitioner is above 13 years, no reliance could be placed on the certificate produced by the writ-petitioner. He would point out certain discrepancies in the certificates and would submit that in this matter, when the school followed the procedure, which was provided in its prospectus, the learned Single Judge should not have interfered with the matter. Finally, he would also submit that the admission committee recommended the cancellation of the admission of the writ-petitioner to the Chairman of School Management Committee, i.e. District Magistrate, who in turn on 28.09.2015, accepted the recommendation of the admission cancellation proposal (Annexure-3). He would submit that actually the father of the writ-petitioner had received original documents, as can be seen from the endorsement therein and the said document indicates that the father of the writ-petitioner counter signed therein and also wrote that he has received the original certificates. He would submit that this decision is not challenged. More or less, he would submit that the writ petition is filed only in January, 2016 though the cancellation took place in September, 2015 and yet the relief is granted. 6. Per contra Mr. Siddharth Sah, learned counsel for writ-petitioner would submit that this is a case where interference was called for.
More or less, he would submit that the writ petition is filed only in January, 2016 though the cancellation took place in September, 2015 and yet the relief is granted. 6. Per contra Mr. Siddharth Sah, learned counsel for writ-petitioner would submit that this is a case where interference was called for. There were documents showing the date of birth of the writ-petitioner as 07.12.2004, which included the family register and also the ration card, wherein the name of the writ-petitioner was included. 7. Incidentally, the learned counsel for the appellants with reference to the ration card, would point out the discrepancies rendering it unreliable. He would point out that if the date of birth of the writ-petitioner is December, 2004, the date of entry in the ration card is in the first week of January, 2005 and yet the age of the writ-petitioner is shown as one year, which is inconceivable with the date of birth claimed by the writ-petitioner, which is 7th December, 2004. 8. He would also submit that Ajay, the brother of the writ-petitioner is shown in the family register to have been born in the year 1996 and the writ-petitioner as born in 2004, and therefore, there would be a gap of 8 years, whereas in the ration card the age of Ajay is shown as 6 years; whereas that of the petitioner is shown as one year and there would be a gap of only 5 years. Therefore, the documents are not reliable. 9. Mr. Siddharth Sah, learned counsel for the writ-petitioner, moreover, relied on the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the ‘Act’) and drew our attention to Section 14 of the Act, which reads as follows:- “14. Proof of age for admission.-(1) for the purposes of admission to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Birth, Deaths and Marriages Registration Act, 1886 (6 of 1886) or on the basis of such other document, as may be prescribed. (2) No child shall be denied admission in a school for lack of age proof.” 10. With reference to the same, he would submit that the matter must be resolved with Section 14 of the Act.
(2) No child shall be denied admission in a school for lack of age proof.” 10. With reference to the same, he would submit that the matter must be resolved with Section 14 of the Act. He would also refer to Rule 13 of the Right of Children to Free and Compulsory Education Rules, 2010 (hereinafter referred to as the ‘Rules’), which reads as follows:- “13. Documents as age proof- Wherever a birth certificate under the Births, Deaths and Marriages Certification Act, 1886 (6 of 1886) is not available, any one of the following documents shall be deemed to be proof of age of the child for the purposes of admission in schools:- (a) hospital or Auxiliary Nurse and Midwife (ANM) Register record; (b) anganwadi record; (c) declaration of the age of the child by the parent or guardian. 11. Per contra, the learned counsel for the appellants drew our attention to the fact that the appellants would come within the ambit of “specified category” in Section 2(p), of the Act which reads as follows:- “2(p) “specified category”, in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government;” Therefore, it is submitted that the Act is not applicable, and on the said basis, the writ-petition is not suitable. 12. When this matter was taken up initially, we noted that the writ-petitioner was already continuing in another school in the 6th standard and the writ-petitioner admittedly continued in the said school and therefore, the question is as to whether the writ-petitioner should be considered for admission for the 7th standard. In the entrance examination in regard to the appellant’s school for Class 6th, the writ petitioner has already qualified and only obstacle is the age factor. In fact, we notice that by the time the judgment was rendered, the Academic year was almost at its end; but still it assumes significance for deciding the question whether on the basis of the judgment passed by the learned single Judge admission could be effected to the 7th standard and therefore, the question remains alive and relevant. 13. The first question, which we are to resolve is effect of the provision of Acts and Rules.
13. The first question, which we are to resolve is effect of the provision of Acts and Rules. The Act was made to give teeth to the provisions of Article 21(A) of the Constitution of India by which State created a fundamental right to education till the age of 14. The Act, in fact, gives flesh to the constitutional provision through its provisions. We would first of all decide whether there is any merit in the appellant’s case based on it’s falling under “specified category”. We have already held that it undoubtedly falls within the specified category being a Navodaya Vidyalaya. We are of the view that the contention of the appellants based on it falling in the specified category is totally meritless as the definition of the word ‘school’ will clearly show a school belonging to the specified category is included therein. Section 2(n) reads as follows:- “2.(n) “school” means any recognized school imparting elementary education and includes- (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided school nor receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.” 14. There is nothing else which is brought to our notice, which would detract from the applicability of the provisions of the Act to the schools coming under specified category. Hence, we reject the contention of the appellants that the provisions of the Act would not impact the appellants’ school. Coming to Section 14 of the Act and Rule 13 of the Rules we find that there is considerable force in the argument of the writ petitioner in this regard. The intention of the legislature apparently is to facilitate the fulfillment of the promise contained in Article 21(A) to make education a fundamental right. It is therefore, apparently that no student is denied admission on the basis of objection raised to age, that the Act provides that for the purpose of admission, the age is to be determined on the basis of the birth certificate issued under the provisions of the Births, Deaths, Marriages Registration Act or on the basis of such documents, which have been prescribed in the Rules.
The Rules provide, as already noticed, that reliance can be placed on the documents, which are mentioned therein, which include hospital or auxiliary Nurse and Midwife (ANM) register record, anganwari record and also a declaration of the age of the child by the parent or guardian. We must further advert to sub-section (2) of Section 14, as besides providing for the manner in which the age is to be determined for the sake of admission, as already referred to in sub-section (1) alongwith the Rules, the legislative intention is unambiguously clear that no child is to be denied admission in the school for lack of age proof. The provisions of Section 14 & Rule 13 are undoubtedly applicable to the appellants’ school. Therefore, disregarding of this procedure while referring the matter for medical opinion and acting on the same to deny admission to the writ-petitioner would be impermissible and contrary to the mandate of the Act and the Rules. No doubt, there is no challenge to the prospectus as such, as being in violation of the Act and Rules. In fact no case was apparently canvassed by either of the parties before the learned Single Judge based on the Act and the Rules. The matter in fact proceeded with on the basis of the case law laid down in the Juvenile Justice Act, which appears to have no application in view of the provisions of the Act and the Rules. 15. In fact, the medical certificate itself says that the estimated age is between 13 to 15 years. In comparison to certificates produced, if it is to be acted upon, it would pale into insignificance. We would think that the provisions of the Juvenile Justice Act and the Rules would become inapplicable in view of the specific provisions contained in the Act and the Rules. The learned Single Judge, therefore, would not appear to be justified in relying on the decisions rendered under the Juvenile Justice Act and the Rules. 16. Ordinarily, in view of the above discussion, we would have confirmed the order, but on a different reasoning. Now, we must consider the fact of the petitioner not challenging the decision taken to cancel the selection, which may not have been justified on the reasoning, which we have indicated.
16. Ordinarily, in view of the above discussion, we would have confirmed the order, but on a different reasoning. Now, we must consider the fact of the petitioner not challenging the decision taken to cancel the selection, which may not have been justified on the reasoning, which we have indicated. It is trite that if there is a decision, which is adverse to a party, it cannot ignored even if it is void and it must be challenged. At least, when it was produced alongwith the counter affidavit, appropriate reliefs ought to have been sought by the writ-petitioner. This was not done and we have noticed the relief sought. Undoubtedly, learned counsel for the writ-petitioner drew our attention to the Judgment of Hon’ble Supreme Court in the case of Ramesh Chandra Saklani and others Vs. Vikram Cement and others reported in 2008 (14) SCC 58 , which reads as follows:- “98. From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience.” 17. There can be no dispute with the proposition that it is always open to a Court to mould a relief, but does it include the authority to disregard a decision and grant relief? Answer can only be in the negative. There is a decision, which stands in the way of the writ-petitioner getting further reliefs. Even if it is void, it must be put to challenge. We would understand the declaration of the law in para 98 that in respect of other matters, which does not go to the question of a decision left unchallenged, it may be open to the Court to grant relief by appropriately moulding the relief in keeping with the needs of a particular case and in the interest of justice.
We would understand the declaration of the law in para 98 that in respect of other matters, which does not go to the question of a decision left unchallenged, it may be open to the Court to grant relief by appropriately moulding the relief in keeping with the needs of a particular case and in the interest of justice. It is a far cry from the same that when there is a decision which becomes a hurdle, it can be ignored and relief sought. Of course we notice that petitioner is even now continuing in the 7th standard in some other school. In such circumstances, though we do notice as we have already held that the appellants have clearly acted in the teeth of Section 14 of the Act, though the appellants claimed to have followed the prospectus, but the appeal must be allowed on the ground, which we have found in their favour. In such circumstances, appeal is allowed and the judgment of the learned Single Judge is set-aside. No order as to costs.