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2018 DIGILAW 531 (ORI)

SAROJ KUMAR SAHU v. STATE OF ODISHA

2018-05-09

S.N.PRASAD

body2018
JUDGMENT : Sujit Narayan Prasad, J - In all these writ petitions since common issuer is involved, as such all the cases have been heard together and are being disposed of by this common order. 2. The relief sought for in all these writ petitions is to issue direction upon the opposite parties to admit the children of petitioners in class VI and VII in Odisha Adarsha Vidyalaya, Sundarapal of Hatadihi Block in the district of Keonjhar for the academic Session 2018-19. 3. The grievance of the petitioners is that their children, pursuant to the advertisement published for admission through entrance test, in Odisha Adarsha Vidyalaya in class VI and VII for the academic session 2018- 19, have applied along with all required documents, after verification of documents, admit cards have been issued for sitting in the entrance examination held on 10.04.2018. The result of the entrance examination was declared and the list of provisionally selected as well as rejected candidates published but the petitioner were shocked when they did not find the name of their wards in the provisional select list but in the rejection list even though they have secured more marks than the last selected candidate, subsequently they have found that the names of their wards are not in the list of the selected candidates for the reason that there was no certificate of recognition of the school. According to the petitioners, their wards were students of Bharatiya Vidya Niketan, Bidyadharpur, Keonjhar which is a privately managed elementary school and has been granted conditional No Objection Certificate by the competent authority after careful examination of report of Block Education Officer and District Project Coordinator, SSA-RTE. It has been found by them on enquiry that the school authorities have already made application for obtaining Certificate of Recognition for the academic session 2017-18 to 2021-22 which is under consideration but as yet no field enquiry has been conducted by the Block Education Officer. 4. This court, after hearing learned counsel for the parties have issued notice upon the opposite parties, in terms thereof counter affidavit has been filed. Learned Standing counsel submits that the said counter affidavit may be adopted in all the cases. 4. This court, after hearing learned counsel for the parties have issued notice upon the opposite parties, in terms thereof counter affidavit has been filed. Learned Standing counsel submits that the said counter affidavit may be adopted in all the cases. In the counter affidavit stand has been taken by the competent authority who being the state functionary, that there is a guideline issued by the Adarsha Vidyalaya by way of issuance of a general guideline for admission of students wherein, as per the provision contained in clause 1.3, it has been provided that the children passing out of schools running under the State Government/ICSE/CBSE are eligible for taking admission in Odisha Adarsha Vidyalaya provided that the institution possesses the status of recognition / got NOC/ certificate of recognition from the state Government or applied for NOC and duly recommended by the Block Education Officer / District Education Officer of the district. But the school in question has not got its NOC, as such the students studying in the said school are not treated to be eligible candidates as per the provision made therein. According to them since the basic requirement as stipulated in the general guideline has not been fulfilled by the school in question, as such the wards of the petitioners studying therein have not been allowed to take admission and on that ground their candidature have been rejected. It has been contended that in column no.12 the declaration has been given that the school in question where the words of the petitioners are studying is recognized and on that pretext admit cards have been issued and in consequence thereof they have appeared in the entrance test, but merely on account of the fact that admit cards have been issued and they have possessed higher marks than the last selected candidate, they have got no legal vested right unless and until they will be found eligible as per the general guideline, basis upon which the entire selection process has been initiated. It has been contended that if the petitioners would have given correct declaration regarding status of the school in question, the admit card would not have been issued and even accepting that the authorities have committed illegality in issuing the admit cards without verifying the status of the school in question as to whether it has been recognized or not, the petitioners cannot be allowed to take advantage of the illegality committed by the authorities. On these grounds it has been submitted that the petitioners have got no case, hence the writ petitions may be dismissed. 5. Even though copy of the counter affidavit has been supplied to the learned counsels for petitioners but no rebuttal reply has been filed even in spite of the fact that ample opportunity was given, as would be evident from the order dtd.1.5.2018. 6. Heard the learned counsel for the parties and appreciated their rival submissions. Before going into the merit of the claim of the parties, it would be relevant to deal with the provision of Right of Children to Free and Compulsory Education Act, 2009 which is an Act of the Parliament of India enacted on 4th 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 21 A of the Indian Constitution. The title of the RTE Act incorporates the words 'free and compulsory 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. '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 being quoted herein below:- "Section 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. (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." It is evident from the provision as contained in Section-19 that no school shall be established, or recognized under section 18, unless it fulfills the norms and standards specified in the Schedule. 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. Where a school fails to fulfill 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 subsection (3), no school shall continue to function. Where a school fails to fulfill 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 subsection (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 PupilTeacher 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. 7. The fact of the case herein is that the wards of the petitioners are studying in the school which is admittedly a school not controlled by the State Government, as such as per requirement of the Act 2009, the school is to be recognized under the provision of Section 18, subject to fulfillment of conditions as laid down U/s.19. The contention of the petitioners is that the school in question has been given conditional NOC during the academic session 2015-16 (Annexure-4), subject to certain conditions laid down therein which is at page 26 of the brief. It is the case of the petitioners that the school in question has applied for getting recognition for the academic session 2017-18 to 2021-22 which is under consideration and no field enquiry has been conducted by the Block Education Officer and when the matter is lying pending before the authority, on that pretext the candidature of the wards of the petitioners cannot be rejected. It is evident from the pleading made in the counter affidavit that as per provision of Clause 1.5.3, the filled in applications with enclosures as mentioned in the advertisement shall be received by the Principal and Principal-in-charge of the Block with proper receipt till the notified cutoff date. As per clause 1.5.4, there will be an entrance test for admission of students in Odisha Adarsha Vidyalaya or in the selected venues as notified from time to time. As per clause 1.5.4, there will be an entrance test for admission of students in Odisha Adarsha Vidyalaya or in the selected venues as notified from time to time. The petitioners had applied in respect of Odisha Adarsha Vidyalaya, Sundarpal which comes under the Block Education Officer, Hatadihi for admission and at the time of scrutiny of their application form it was found that the petitioners had passed Class-VI from BVN English Medium School, Bidyadharpur, Hatadihi Block, but in the application form against the column 12 they have mentioned the status of school as recognized, in reply to whether the school is a government/aided/recognized school and have certificate of recognition from the Government of Odisha or not, at the time of scrutiny of applications it was found that the present petitioners had mentioned 'Recognized' against column no.12 and taking that into consideration admit cards have been issued and the wards of the petitioners have been allowed to sit in the entrance examination. It is further evident from the pleading made in the counter affidavit that the school from where the wards of the petitioners have passed out, admittedly does not have either no objection certificate or certificate of recognition for the Session 2017-18, although the school from where the present petitioners have passed out, i.e. B.V.N. English Medium School, Bidyadharpur, Hatadihi Block of Keonjhar district have applied for issuance of certificate of recognition, but the name of the school has not been recommended by the District Education Officer, Keonjhar for issuance of certificate of recognition as the school authorities have not submitted their documents for verification (para-9 of the counter affidavit) . This court, after considering the stand taken by the opposite parties in the counter affidavit, is of the view that the guideline stipulates a condition under Clause No.1.3 that the children passing out from the school running under the State Government /ICSE/CBSE are eligible for taking admission in Odisha Adarsha Vidyalaya provided that the institution possesses the status of recognition/got NOC/ certificate of recognition from the State Government or applied for NOC and duly recommended by the Block Education Officer / District Education Officer of the district but the institution from where wards of the present petitioners passed out Class-V does not have either NOC or certificate of recognition for the academic session 2017-18 during which they have prosecuted their Class-V studies. Further the school has not been recommended either by the concerned Block Education Officer or by the District Education Officer for issuance of certificate of recognition and accordingly the wards of the petitioners do not satisfy the above said condition of eligibility, hence they cannot claim admission as a matter of right. It is settled that merely on account of the fact that the students have been allowed to participate in the selection process after issuance of admit cards, does not confer any legal vested right for getting admission in the school in question if the condition stipulated in the general guideline is not being fulfilled. It is also settled position of law that if any guideline is being issued, it has to be adhered to and if it will not be adhered to, there will be no meaning of issuance of any guideline which will lead to chaotic situation and that is the reason guideline is there so that fairness and transparency be made in the matter of selection. 8. The admitted position herein is that the school in question from where the wards of the petitioners were studying was not recognized as also not recommended for its recognition. It is further evident from the counter affidavit that certain documents are lacking so that in absence of verification of documents even the field inspection has not been conducted and thereby no recommendation for its recognition has been made by the concerned Block Education Officer, meaning thereby, as yet the institution from where the wards of the petitioners have studies and submitted their applications either has not been recognized or even not recommended for recognition, hence the condition stipulated in clause no.1.3 is not being fulfilled. Further the petitioners have filled up the application forms of their wards by giving untrue disclosure at column no.12 stating therein that the school in question is recognized and on that pretext the authorities have issued the admit cards without scrutinizing the documents and merely on that ground the petitioners are claiming relief but that cannot be extended by this court, reason being that the duty of the applicants was to give true disclosure in the application form and if they are giving untrue disclosure, the application ought to have been rejected at the threshold, even assuming that it has not been rejected and the admit cards have been issued without scrutinizing the documents, but when at the time of admission the document has been scrutinized regarding recognition, it was found that the school in question was not recognized or even not recommended for recognition, hence they have been disallowed to take admission. 9. The further claim of the petitioner is that they have secured higher marks, as such they have to be admitted in the classes, but that contention is also not acceptable to this court for the reason that securing more marks than the last selected candidate does not confer any right, rather the right will be said to be accrued only when one or the other candidate will be found to be eligible as per the guideline and if the eligibility is not there, there is no question of any selection, rather it will be said to be wrong selection. In view of the facts stated above and in its entirety, this court is of the view that the petitioners have failed to make out a case for passing any positive direction in their favour and in consequence thereof the writ petitions fail and are dismissed. Final Result : Dismissed