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2019 DIGILAW 477 (MP)

Palaksha Malviya v. State of M. P.

2019-07-03

PRAKASH SHRIVASTAVA

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JUDGMENT 1. Shri Vivek Sharan, learned counsel for the petitioners. Shri Gaurav Chhabra, learned counsel for the respondent No. 4. Shri Abhishek Tugnawat, learned counsel for the State. Heard finally with consent. This order will govern the disposal of W. P. Nos. 6712/19, 7064/19, 7445/19 and 7574/19 as it is jointly submitted by counsel for the parties that all these writ petitions involve the same issue in the identical fact situation. 2. For convenience the facts have been taken from W. P. No. 6712/2019. 3. By this writ petition the petitioners have challenged the order dated 23-3-2019, whereby the District Project Coordinator, District Education Centre, Indore has conveyed to the respondent No. 4 that if the respondent No. 4 takes a decision to admit the petitioners in Daly College School, then the State has no objection but under the RTE Act the free admitted students cannot be transferred, therefore, the fee of the petitioners will not be reimbursed by the State to the respondent No. 4. 4. The short facts are that the respondent No. 4 Society was running the DC Day School in the premises of Daly College and the petitioners were given admission in the DC Day School under the Right to Education Act, 2009. The DC Day School has been abolished/closed by the respondent No. 4 from the academic session 2019-20 and intimation in this regard was sent to the respondent No. 3. The respondent No. 4 Society is ready to merge the DC Day School into Daly College as both the institutions were run by the respondent No. 4 and admit the petitioners in Daly College, but the State Government by the impugned communication though has given No Objection for the same but has put a condition that no reimbursement of fee will be granted to the Daly College School. 5. Learned counsel appearing for the petitioners submits that before passing the impugned order the petitioners have not been given an opportunity of hearing and that it is not a case of transfer from one school to another but it is a case of merger, therefore, the provisions relating to transfer will not apply and on the petitioners’ admission to Daly College the State is required to reimburse the fee amount. He has further submitted that the Daly College School is also covered under the RTE Act. 6. He has further submitted that the Daly College School is also covered under the RTE Act. 6. As against this, learned counsel for the State opposing the prayer has submitted that it is a case of transfer, therefore, in terms of section 5(2) read with section 2(n)(iii) and (iv) of the Act as also section 9 of the Act, the Daly College is not entitled to reimbursement of fee of the petitioners. 7. Learned counsel appearing for the respondent No. 4 has also supported the petitioners by submitting that the State Government is liable to reimburse the fee amount as it is not a case of transfer. 8. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that undisputedly the DC Day School where the petitioners were admitted and the Daly College School are run by the respondent No. 4 Society and they are run in the same premises and on the closure of the DC Day School, the respondent No. 4 has resolved in its Board meeting held on 18-9-2018 in respect of absorption of the petitioners in the Daly College Junior School and in this regard the communication dated 10-12-2018 was sent to the parents of the petitioners reading as under : “To, All Parents of DC Day School, Dear Parent, This is to inform you that in the Board Meeting held on September 18, 2018, a decision to abolish Daly College Day School and to merge its existing students to the Daly College has been taken. In pursuance to the decision of the Board, you are hereby informed that all the existing students of Daly College Day School shall be students of the Daly College from session 2019-2020. I reproduce below excerpts from the BOG Resolution: The Board in its Meeting held today, resolved to abolish DC Day School w.e.f. April 2019. New admissions for the next academic session 2019-2020 in Pre-Primary classes and Class 1 shall be taken by the Daly College. It is resolved that the students of DC Day School from PKG to Class III shall be absorbed in the Daly College Junior School which shall have classes from pre-primary to class VI. Direct admissions to class VII and above shall be taken in boarding only by the Daly College. It is resolved that the students of DC Day School from PKG to Class III shall be absorbed in the Daly College Junior School which shall have classes from pre-primary to class VI. Direct admissions to class VII and above shall be taken in boarding only by the Daly College. The decision of the Board of dissolving DCDS shall be communicated to the concerned education department and the parents of DCDS. All the relevant formalities necessary for implementation of the said decision shall be done by the office of the Daly College. You are requested to contact the office of Daly College for further guidance in the matter after January 8, 2019 when it re-opens after the winter break. Yours faithfully, Secretary, Daly College Society” 9. Learned counsel for the State has placed reliance upon the provisions of section 5(2) read with section 2(n)(iii) and (iv) of the Act but these provisions are attracted in case if the child exercises right to transfer from one school to another but present is not a case where the petitioners are seeking transfer, but it is a case where on account of the closure of one school the management of the school has taken a decision to merge it with the another school being run by the same Society in the same premises, therefore, the provisions of section 5(2) read with section 2(n)(iii) and (iv) will not be attracted in the present case. For the same reasons the State authorities cannot attract the provisions of section 9(a) of the Act as the admission of the petitioners is on account of merger and also for the reason that the Daly College School is also covered by RTE Act. 10. The respondent-authorities are required to take decision in the matter having regard to the object of the Right to Education Act. The object is to promote universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all by means of elementary education to one and all. [See : (1) Vikas Sankhala and others vs. Vikas Kumar Agarwal and others, (2017) 1 SCC 350 and (2) Society for Unaided Private Schools of Rajasthan vs. Union of India and another, (2012) 6 SCC 1 ]. 11. [See : (1) Vikas Sankhala and others vs. Vikas Kumar Agarwal and others, (2017) 1 SCC 350 and (2) Society for Unaided Private Schools of Rajasthan vs. Union of India and another, (2012) 6 SCC 1 ]. 11. The impugned order reveals that the State authorities have completely ignored the aforesaid aspect of the matter and have treated the admission of the petitioners in Daly College as transfer. 12. That apart, the petitioners are adversely affected by the impugned order but they have not been given any opportunity of hearing by the respondents. Hence the impugned order dated 23-3-2019 cannot be sustained and hereby set aside with liberty to the respondents to pass a fresh order in accordance with law after giving an opportunity of hearing to the petitioners and also keeping in view the observations made above. Interim order passed in the petition will continue till the fresh order is passed by the respondents. 13. The writ petitions are accordingly disposed off. 14. Signed order be kept in the file of W. P. No. 6712/2019 and a copy thereof be placed in the file of connected W. P. Nos. 7064/19, 7445/19 and 7574/19. C. C. as per rules. Petitions dismissed.