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2018 DIGILAW 421 (ORI)

Debasish Hati v. State of Odisha

2018-04-16

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. This writ petition has been filed under Article 226 and 227 of the Constitution of India wherein direction has been sought for upon the opposite parties to allow the petitioners to appear in the examination (entrance test) to be held on 10.4.2018 or to arrange separate examination for the petitioners before the publication of result. 2. According to the petitioners, the case in brief, which has been filed by the students represented by their guardians, is that even though they are possessing to participate in the examination (entrance test) for admission in the Odisha Adarsha Vidyalaya, has not been allowed to appear in the entrance test although the benefit has been extended in favour of one candidate, namely, Rudra Narayan Moharana. According to the petitioners, they are the students of Saraswati Shisu Mandir, Kalpathar, Cuttack and had applied for admission into Class-VI and Class-VII of Odisha Adarsha Vidyalaya of Jokidola under Banki Block of Cuttack Distrcit pursuant to advertisement floated by the State Project Director, Odisha Adarsha Vidyalaya Sangathana published on 17.3.2018. Their cases are that they have passed out from Saraswati Shisu Mandir Kalpathar, Cuttack and the competent authority has issued NOC on 20.9.2016 in favour of the school where the petitioners are prosecuting their studies. After expiry of the NOC, the school authorities have applied for obtaining certificate of recognition from academic session 2017-18 to 2021-22 (5 years) which was pending consideration before the authorities. It is their case that now provision of Right to Education Act to provide education to all children upto the age of 14 years is the right of the every child to have proper education for their bright future but without any rhyme and reason being small kids have been deprived from appearing in the examination (entrance test). As such, the instant writ petition has been filed. 3. It has been contended by Mr. Ganeswar Rath, learned Senior Counsel appearing for the petitioners that the petitioners had taken admission in the school in question after seeing that the school in question has been recognized for the academic session 2015-16 and applications for getting NOC for the next academic session 2017-18 has also been filed, keeping the said matter pending before the authorities, the petitioners have not been allowed to participate in the entrance test is highly illegal and unreasonable action on the part of the opposite parties. 4. 4. The opposite parties have appeared and filed counter affidavit inter alia therein it has been stated that the entrance examination for Odisha Adarsha Vidyalayas is to be conducted in pursuant to the general guidelines for admission of students wherein as per the provision contained in Clasue-1.3, it has been provided that the children passing out of schools running under State Government/ICSE/CBSE are eligible for taking admission in Odisha Adarsha Vidyalayas provided that the Institution possesses the status of recognition/got NOC/Certificate of recognition from the State Government or applied for NOC & Duly recommended by the Block Education Officer/District Education Officer of the District. According to them, the school in question has not got its NOC and as such, the students studying in the said school is not treated to be eligible candidates as per the provision made therein. It has been stated that as per the general guidelines for admission of students in the Odisha Adarsha Vidyalayas in order to be eligible for sitting in the entrance examination, the child must have passed/continuing Class/Std. V from any recognized Institution/School of the respective block for admission into Class-VI of the OAV. Similarly, the child continuing/passing out of Class Std.-VI of the respective block can seek admission into Class-VII of the OAV respectively. The child belonging to the respective block but passing/continuing Class V in a school other than the home block is eligible to apply provided he has to produce the residential certificate. Similarly, the child belonging to the respective block but passing /continuing in Class VI in a school other than the home block is eligible to apply provided he has to produce the residential certificate. As per Clause-1.7.1 of the general guidelines, it has been mentioned therein that the entrance examination of 2018-19 will be conducted at OAVs/ the block point in the block headquarter high school or the centre selected by the DEO. The Principal/BEO-cum-Principal-in-charge will act as the Centre Superintendent and remain in charge of conduct of the examination. As per Clause-1.7.1 of the general guidelines, it has been mentioned therein that the entrance examination of 2018-19 will be conducted at OAVs/ the block point in the block headquarter high school or the centre selected by the DEO. The Principal/BEO-cum-Principal-in-charge will act as the Centre Superintendent and remain in charge of conduct of the examination. It has been stated that the present petitioners those who had applied in respect of OAV, Jokidola which comes under the Block Education Officer, Banki had applied for admission to Block Education Officer, Banki and after scrutiny of their application forms it was found that they do not satisfy the Clause 1.3 of the general guidelines as regards passing out from a school which is the status of recognition/got NOC/got certificate of recognition from the Government or applied for NOC and duly recommended by the Block Education Officer/District Education Officer of the District. It has been contended that in the application form, against Column No.12, the petitioners had mentioned ‘yes’ but in fact their school does not have either NOC or certificate of recognition or applied for certificate of recognition with the recommendation of the DEO/BEO and after ascertaining the same their candidature has been rejected and they have not been issued with admit card. It has further been stated that the present petitioners belong to Cuttack district and they have applied for taking admission in the OAV, Jokidala under Cuttack district for which it could be immediately ascertained that their school does not have the certificate of recognition or certificate of recognition is pending before the authorities with the recommendation of the District Education Officer/Block Development Officer as because both the authorities conducting the entrance examination for admission into OAV as well as the recommending authority or issuance of certificate of recognition are same. But one Rudra Narayan Moharana, who was a student of the very same school from where the present petitioners have passed out from Class-V and VI respectively, but his application form has been honoured in respect of OAV, Nota, Nayagarh and he has been issued with admit card. But one Rudra Narayan Moharana, who was a student of the very same school from where the present petitioners have passed out from Class-V and VI respectively, but his application form has been honoured in respect of OAV, Nota, Nayagarh and he has been issued with admit card. It has been submitted that with respect to the grievance of the petitioners regarding Rudra Narayan Moharana that he had passed out Class-V from Saraswati Sisu Mandir, Kalapathara, from which the present petitioners have also passed out, but in the application form against the Clause-12 he had categorically mentioned that the school is a recognized school and since he had applied in respect of different district, the concerned authority, the District Education Officer, Nayagarh did not have immediate scope to verify the records, status of his school and as such, he was issued with admit card, but his admission will be subject to final verification of the documents. It has further been stated that the school where the present petitioners have passed out has applied for issuance of certificate of recognition, but the name of the school could not be recommended by the District Education Officer, Cuttack for issuance of certificate of recommendation as the school authorities did not submit relevant documents to satisfy that they fulfill the conditions of recognition as mentioned in the schedule to the Right of Children to Free and Compulsory Education Act, 2009 (in short ‘the Act’) and as per the schedule one of the condition at Clasue-2 is that the school must have of building basic amenities. Besides that the school should have teaching staff at the ratio of 30:1 i.e. 1 teacher for 30 students. Since the school is as per the roll strength, supplied by the school, has 489 students and accordingly in the 30:1 ratio, the school is supposed to have 16 qualifying teachers whereas as per the documents submitted by the school they have only 11 teachers and accordingly the school does not have satisfy the requirements for grant of certificate of recognition. It has been stated that the Managing Committee has purchased one acre of land in the name of the school and construction of the permanent building is on progress which itself suggest that the permanent building of the school is not there and as such, in this pretext, since the school in question has not followed the Act, 2009, hence the recognition/NOC has not been given to the same and in consequence thereof, the petitioners have been declined to be ineligible as per the provision of clause-1.3 of the general guidelines. 5. In response, learned Senior Counsel for the petitioners submits that since the school has submitted their application which is lying pending before the authorities, neither has it been rejected nor any order has been passed and as such, in this pretext denying the petitioners to not appearing in the entrance test is nothing but absolutely illegal exercise of power. He further submits that the opposite parties are putting reliance upon the guideline, but it is settled position of law that the guideline cannot be said to be its statutory force and further it is clear-cut case of discrimination, since with respect to Rudra Narayan Moharana, the admit card has been issued and he is allowed to participate in the selection process. 6. Heard the learned counsel for the parties and perused the documents available on record. 7. This Court thinks it proper before appreciating the rival submission of the parties to deal with the provision of the Right of Children to Free and Compulsory Education Act, 2009. The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) is an Act of the Parliament of India enacted on 4 August 2009, which describes the modalities of the importance of free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Indian Constitution India. The title of the RTE Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. Section-18 of the Act, 2009 provides that no school to be established without obtaining certificate of recognition. For ready reference, the same is quoted herein below :- “18. No school to be established without obtaining certificate of recognition.- (1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. (2) The authority prescribed under sub-section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed: Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19. (3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition: Provided that such order shall contain a direction as to which of the neighbourhood school, the children studying in the derecognised school, shall be admitted: Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed. (4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function. (4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function. (5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” It is evident from the provision contained in Section-18 of the Act, 2009 that no school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. The authority prescribed for such, shall issue the certificate of recognition in such form provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19. Section-19 of the Act, 2009 contains the norms and standards for school which stipulates as follows :- “19. Norms and standards for school.-(1) No school shall be established, or recognised under section 18, unless it fulfils the norms and standards specified in the Schedule. (2) Where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule, it shall take steps to fulfill such norms and standards at its own expenses, within a period of three years from the date of such commencement. (3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof. (4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues. (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues. It is evident from provision as contained in Section-19 that no school shall be established, or recognised under section 18, unless it fulfils the norms and standards specified in the Schedule. Where a school established before the commencement of this Act does not fulfill the norms ad standards specified I the Schedule, it shall take steps to fulfill such norms and standards at its own expenses, within a period of three years from the date of such commencement. Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof. With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. Section-25 of the Act, 2009 contains the Pupil-Teacher Ratio, as per which, within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school. As per the said schedule, the Pupil-Teacher Ratio in the instant case is 30:1. 8. The fact of the case herein is that the petitioners, who are studying in Saraswati Sisu Mandir admittedly is a school not controlled by the State Government and as such, as per requirement of the Act, 2009, the school is to be recognized under Section-18 subject to fulfillment of condition as laid down under Section-19. The petitioners contends that the school in question has been given conditional NOC during the academic year 2015-16 is allowed to function with the existing infrastructure for the current year i.e. 2016-17 with the stipulation that the school is supposed to fulfill all norms as per the RCFCE Act, 2009 and RCFCE Rules-2010 before filling up application for obtaining recognition/NOC for the next academic session 2017-18. The same would be evident from Annexure-3 to the writ petition. The same would be evident from Annexure-3 to the writ petition. The school in question has applied for getting recognition, but as per the pleading made by the opposite parties in counter affidavit, the basic requirement as stipulated under Act, 2009 as per schedule which requires that the school must have building consisting of :- (i) At least one class room for every teacher and an Office-cum-store room-cum-Head teachers room; (ii) Barrier free access; (iii) Separate toilets for boys and girls; (iv) Safety adequate drinking water facility to all children; (v) Kitchen where the MDM is cooked in the school; (vi) Play ground; and (vii) Arrangement for securing school building by boundary wall or fencing amongst other conditions. The Pupil-Teacher Ratio is also to be maintained as per schedule given therein. As per which, so far the present school is concerned, total number of students is 489. Accordingly, in the 30:1 ratio, the school is supposed to have 16 qualifying teachers whereas as per the documents submitted by the school they have only 11 qualified with B.Ed. teachers. Accordingly, the statement made in the statute under Section-25 has also not been fulfilled. It is also admitted position in the counter affidavit that the school in question has applied for getting permanent recognition as stipulated in Annexure-3, but the same has not been recommended by the District Education Officer under which jurisdiction, the school falls due to not fulfilling the criteria laid down under Section-19 and 25 of the Act, 2009 and accordingly, the District Education Officer has not made any recommendation for want of the relevant documents as required under the said provision, meaning thereby the school in question in which the petitioners are studying is not recognized. 9. In the light of the factual situation, it is to be examined as to whether the decision taken by the authority in not issuing the admit card in favour of the petitioners is correct or not? 10. This Court in order to appreciate the submission on this account of the rival parties has gone into general guidelines for admission of the students in Odisha Adarsha Vidyalaya wherein under Clause-1.3 the eligibility of the candidates has been provided which reflects herein below :- “The child must have passed/continuing Class/Std. V from any recognized Institution/School of the respective block for admission into Class-VI of the OAV. V from any recognized Institution/School of the respective block for admission into Class-VI of the OAV. Similarly, the child continuing/passing out of Class Std.-VI of the respective block can seek admission into Class-VII of the OAV respectively. The child belonging to the respective block but passing/continuing Class V in a school other than the home block is eligible to apply provided he has to produce the residential certificate. Similarly, the child belonging to the respective block but passing /continuing in Class VI in a school other than the home block is eligible to apply provided he has to produce the residential certificate. The children passing out of schools running under State Government/ICSE/CBSE are eligible for taking admission in Odisha Adarsha Vidyalayas provided that the Institution possesses the status of recognition/got NOC/Certificate of recognition from the State Government or applied for NOC & Duly recommended by the Block Education Officer/District Education Officer of the District.” It is evident from the eligibility condition stipulated in Clause-1.3 of the general guidelines that the children passing out of schools running under State Government/ICSE/CBSE are eligible for taking admission in Odisha Adarsha Vidyalayas provided that the Institution possesses the status of recognition/got NOC/Certificate of recognition from the State Government or applied for NOC & Duly recommended by the Block Education Officer/District Education Officer of the District. 11. Here in the instant case, the recognition/NOC/Certificate of recognition have not been extended in favour of the school in question. However, the application has been made for getting NOC, but as would be evident from the statement made in the counter affidavit that it has not recommended by the District Education Officer of the district due to non-fulfilling the required criteria as laid down under Section-19 and 25 of the Act, 2009. 12. However, the application has been made for getting NOC, but as would be evident from the statement made in the counter affidavit that it has not recommended by the District Education Officer of the district due to non-fulfilling the required criteria as laid down under Section-19 and 25 of the Act, 2009. 12. Learned Senior Counsel appearing for the petitioners contends that merely on account of the fact that the eligibility of candidates as contained under Clause-1.3 of the general guidelines that if the students are not fulfilling the said criteria, the petitioners who being kid may not be deprived from appearing in the entrance examination and in order to demonstrate his argument, he has taken aid of the provision of Right to Education Act which provides free education to all children in between the age of 6 to 14, but this Court is of the view that the Right to Education Act although provides to get free and compulsory education to the children in between the age group of 6 to 14, but simultaneously, the other provisions as also the law laid therein under which the liability has been casted upon the concerned school to maintain the norms and standards of school so that there may be uniform system of education across the country and for that certain provision has been made which is mandatorily to be followed i.e. regarding maintenance of the school, its standards, the pupil-teacher ratio etc. as discussed hereinabove. 13. The question of providing free and compulsory education is no doubt is there, but it can be said to be deprived to such section of students even if they are following the provision as contained in the Act, 2009. 14. Here in the instant case, the petitioners admittedly are students of the Saraswati Shisu Mandir. The said school has not got recognition rather has not also been recommended by the competent authority due to not filling of the candidature, the requirement as provided under the Act, 2009 and, therefore, the students who have submitted their application for sitting in the entrance test for their admission in Class-V and VI under the Odisha Adarsha Vidyalaya has not been issued the admit card. 15. According to my considered view, the action of the authority cannot be said to be unjustified. 15. According to my considered view, the action of the authority cannot be said to be unjustified. Admittedly, the institutions, where the petitioners are studying, are not fulfilling the norms as given under the Act, 2009 as discussed above. 16. The petitioners claims that one Rudra Narayan Moharana has been issued the admit card and as such, there is clear-cut violation of provision of Article-14 of the Constitution of India by discriminating them, as would be evident from the pleading made in the counter affidavit since the school in question situated in the district of Cuttack and record for getting recognition is available within the same authority, who is also scrutinizing authority of the application form and as such, the authority who is scrutinizing the application form has easily traced out regarding the status of the school in question and it has been found in course of scrutiny that the school in question has not been recognized rather it has also not recommended. Hence, decided not to issue admit card. However, one Rudra Narayan Moharana, who has applicant of district Nayagarh and in the application, under Column No.12, he has filled up the column showing therein that the school in question has been recognized and the authorities leaving upon them has issued admit card, but it has been stipulated in the counter affidavit that the final result selection would be done subject to verification of the documents. 17. It has been stated by Mr. S.K. Samal, learned Standing Counsel that although admit card has been issued in favour of Rudra Narayan Moharana, but the school in question has not been recognized and as such, there is no question of publishing his result. 18. This Court has also come across to the fact that the Column No.12, the petitioner has filled up by giving therein the details of recognition wherein it has been stated by them that the school in question has recognized, but on scrutiny, it was found that the school has not recognized. Hence, the petitioners have tried to mislead the authorities and as such, the petitioners cannot deserve any sympathy to try to mislead the authority. Moreover, the writ court being the court of equity, it is expected from the party to approach to court of law who is court of equity with clean hand and not with suppression of fact. 19. Hence, the petitioners have tried to mislead the authorities and as such, the petitioners cannot deserve any sympathy to try to mislead the authority. Moreover, the writ court being the court of equity, it is expected from the party to approach to court of law who is court of equity with clean hand and not with suppression of fact. 19. Learned Senior Counsel appearing for the petitioners, at this juncture, has submitted that the petitioners have taken fresh admission during the relevant time when the school in question was temporarily recognized and as such, there is no fault on their part since the day when they have taken admission, the school was recognized, but this argument is not worth to be considered for the reason that the authorities has come out with guideline stipulating therein condition for eligibility of students as per which the petitioners have not come upto mark. Hence, the authorities have decided not to issue admit card. He further submits that the guideline cannot be said to have its statutory force and as such, it is not mandatorily to be obeyed, but this contention is not worth to be considered by reading the guideline along with the Act, 2009 wherein it has been provided that to accord recognition to schools by fulfilling the norms as provided under Section-19 and 25 of the Act, 2009 and the competent authority of the State of Odisha while formulating the guideline has taken into consideration the provision of Right to Education Act, 2009 otherwise the action of the authority will be said to be contrary to the statutory provision as contained under the provision of Act, 2009 and as such, it cannot be said that guideline is of no statutory force after all the education is to be imparted to the students to maintain the standards in education in order to give quality education and for that purpose the provision of the Act, 2009 has been formulated and when this provision itself has been violated, the petitioners cannot be allowed to take part in the admission process which is contrary to eligibility clause contained in the guideline. He has also tried to impress upon the Court that the petitioners are small children and as such, the order may be passed by taking sympathetically view, but it is settled that on sympathy, no order cannot be passed and if it can be passed to the petitioners, then why not to the other schools which has not been recognized which this Court sitting under Article 226 of the Constitution of India cannot allow to flout the provision of law following the principle that if anything is to be done as provided in the statute, the thing is to be done strictly in accordance with law, since this Court is of the view that no positive direction can be passed otherwise there will be no rule of law. 20. This Court, after keeping all these facts into consideration, is of the view that the decision taken by the authority in not issuing admit card cannot be said to be unjustified and unreasonable. In view thereof, the writ petition fails and it is dismissed.