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Allahabad High Court · body

2016 DIGILAW 2778 (ALL)

NIDHI KAUSHIK v. UNION OF INDIA

2016-08-11

SUNEET KUMAR

body2016
JUDGMENT Hon’ble Suneet Kumar, J.—Sri Amit Negi, has put in appearance on behalf of sixth respondent, [Sri V.P. Mishra holding brief of]1 Sri Pratik J. Nagar has put in appearance on behalf of second respondent and learned Standing Counsel has accepted notice on behalf of respondent Nos. 3,4 and 5. 2. On the consent of the parties, the petition is being decided without calling for counter-affidavit as per Rule of the Court. 3. The petitioners, are three in number and are minor children of Vijay Kumar Sharma (Kaushik), who have approached this Court seeking a direction to the respondents to permit the petitioners to pursue course of standard XI, IX and VI respectively, with the sixth respondent, Bishop Johnston School & College, Civil Lines, Allahabad (Institution). The Institution is affiliated with the second respondent, Council for Indian School Certificate Examinations, New Delhi (Board). The petitioners would insist that they may pursue their course with the respondent Institution free of cost pursuant to the provision of Right of Children to Free and Compulsory Education Act 2009 (Act 2009). 4. Sri Negi, learned counsel appearing for the sixth respondent would contend that the institution has been declared as a minority institution vide communication dated 3 April 2008, issued by the National Commission for Minority Educational Institutions. The first petitioner is a regular student of the Institution, she passed her Xth examination, thereafter, was granted admission in XI standard, however, she did not appear to complete the formalities for admission. The petitioner No. 2 and 3 were studying in some other institution and had approached the respondent Institution for admission in class IX and VI respectively, which was allowed by the management though petitioner No. 2 and 3 failed to qualify the entrance examination. However, considering the fact that they are girl students, their case was considered sympathetically by the Institution and were granted admission. However, parents of the petitioners did not complete the formalities for admission despite having being given opportunity, further, the fee prescribed by the Institution for the respective standard has not yet been deposited. 5. Sri Negi would further contend that the management of the Institution has no personal grievance or grudge against the petitioners or their parents, in the event, the petitioners are prepared to comply with the rules and regulation of the Institution and deposit the course fee regularly, the Institution would have no grudge against them. 5. Sri Negi would further contend that the management of the Institution has no personal grievance or grudge against the petitioners or their parents, in the event, the petitioners are prepared to comply with the rules and regulation of the Institution and deposit the course fee regularly, the Institution would have no grudge against them. 6. Sri Nagar, learned counsel appearing for the affiliating Board would submit that the petition would not be maintainable against a private institution, reliance is placed on a Full Bench decision rendered in M.K. Gandhi and others v. Director of Education (Secondary), U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB). 7. On a specific query to the learned counsel for the petitioner as to whether petitioners are prepared to deposit the fee within a stipulated time, learned counsel for the petitioners would contend that the petitioners intend to deposit the fee but due to certain financial difficulty, they are unable to deposit the fee immediately, however, the learned counsel would not specify as to when the fee would be deposited. He would rather insist that under Act 2009, the children upto age of 14 years have a right to pursue education in the Institution free of cost, therefore, would urge that they may be permitted to study free of cost. 8. Rival submission falls for consideration. 9. The question that arises for determination is as to whether the petitioners are entitled to free education under Act 2009?. 10. The contesting parties would not dispute that the Institution is a minority Institution established and administered by a minority community. Sri Negi would contend that the matter has been settled by the Constitution Bench of the Hon’ble Supreme Court in Pramati Educational and Cultural Trust v. Union of India, 2014 (3) BCR 496, wherein, it has been held that the provision pertaining to admit 25% of students belonging to marginalised section of the society would not apply to the minority institution. 11. In Fedral Bank Ltd. v. Sagar Thomas and others, 2003 (10) SCC 733 , Supreme Court culled out the categories of body/persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the judgment, specifying eight categories. Para 18 is extracted: “18. 11. In Fedral Bank Ltd. v. Sagar Thomas and others, 2003 (10) SCC 733 , Supreme Court culled out the categories of body/persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the judgment, specifying eight categories. Para 18 is extracted: “18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.” 12. The Court clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body which is the determinative factor as the Court is to enforce the said duty, therefore, the identity of the authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body. 13. Where a person or authority is a ‘State’ within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body, however, even in such cases writ would not lie to enforce private law rights, therefore, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. (Ref: Praga Tools Corporation v. C.V. Imanual, AIR 1969 SC 1306 , Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, 1989 (2) SCC 691 and K.K. Saxena v. International Commission on Irrigation and drainage, (2015) 1 SCC 369 and Binny Ltd. and another v. V. Sadasivan and others, (2005) 6 SCC 657 . 14. 14. Full Bench of this Court in M.K. Gandhi, upon considering large number of judgments of the Supreme Court, opined that private unaided intermediate institution would not be a ‘State’ within the meaning of Article 12 of the Constitution, however, the Central Board of Secondary Education (CBSE) was held to be a State within the meaning of Article 12 of the Constitution, therefore, was amenable to the writ jurisdiction. The service conditions or the contract of service of the teachers appointed by the private school is not enforceable in writ jurisdiction, the remedy would lie before the competent Civil Court. 15. The Full Bench decision was challenged before the Supreme Court in Committee of Management, Delhi Public School and others v. M.K. Gandhi and another, Civil Appeal No. 339 of 2007, decided on 16th August, 2007, the Court affirmed part of the judgment holding that the writ petition against Delhi Public School was not maintainable, however, set aside other part holding that the writ petition is maintainable against the Central Board of Secondary Education (CBSE). 16. In Ramesh Ahluwalia v. State of Punjab and others, (2012) 12 SCC 331, the petition under Article 226 of the Constitution against private unaided educational institution was held to be maintainable on the ground of performance of public functions. 17. In Vatsal Gupta v. State of U.P and others, 2015(11) ADJ 161 (LB), the Single Judge declined to issue a writ of mandamus to a private minority unaided institution refusing to grant admission to the student (petitioner therein) to standard XI for the reason that rules of the institution for admitting the students is not a “ positive obligation based on public law element.........., the fact that a writ petition is maintainable under Article 226 of the Constitution does not ipso facto lead to the issuance of a writ”. The petition was consequently dismissed as it was held that the admission to standard XI is a fresh admission and not an automatic promotion. 18. In Pramati Educational, the Constitution Bench was called upon to answer the following reference : (i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution. 18. In Pramati Educational, the Constitution Bench was called upon to answer the following reference : (i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution. (ii) Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution. 19. The Court answered the reference (para-47) holding therein that clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and is constitutionally valid, further, Act, 2009 is not ultra vires to Article 19(1)(g) of the Constitution. However, insofar as Act 2009 applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. “In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution.” 20. In view of the statement of law rendered in Pramati Educational, the students cannot insist free education as a matter of right in a private minority institution being aided or unaided. 21. In Master Satyam Gandhi v. Union Territory, Chandigarh and others, 2015 (6) AWC 5629 (SC), held as follows: “Before parting with the order, it goes without saying that the students who study up to Class X in any school whether aided or non-aided, such students are entitled to get admission in Class XI in the same school unless he or she declines before the admission is closed. However, in which stream they are to be admitted, it depends upon their merits and performance that shall be decided by the school authority.” 22. The appellant before the Supreme Court was Class X student of a private unaided school affiliated to CBSE. However, in which stream they are to be admitted, it depends upon their merits and performance that shall be decided by the school authority.” 22. The appellant before the Supreme Court was Class X student of a private unaided school affiliated to CBSE. The Institution refused to grant admission to Class XI in ‘medical stream’ considering his academic performance and grades of Class X, however, was offered seat in ‘commerce stream’ to which the appellant refused to take admission, consequently, High Court dismissed the petition refusing to grant relief sought by the appellant by issuing appropriate writ directing the school to admit the appellant even in commerce stream. The Supreme Court dismissed the appeal, upheld the order of the High Court, but held that a regular student of the institution is entitled to admission in standard XI, therefore, the observation in Vatsal Gupta that the admission in class XI is a fresh admission and no writ would lie is in the teeth of Master Satyam Gandhi case. 23. Having considered the statement of law, since the petitioners themselves have refused to take admission in the respective standard despite management admitting them, therefore, this Court declines to interfere in the matter. 24. The petition being devoid of merit is accordingly dismissed. 25. No order as to costs.