Harish Tandon, J.@mdashThese two writ petitions were heard together and are disposed of by a common judgment. The writ petition No. 19285
(W) of 2010 is at the instance of the Secretary, President, Head Sahayika and Sahayikas of Jhowbona Vikutala Colony Sishu Siksha Kendra and
also two of the guardians of the pupils studying in the said Sishu Siksha Kendra (SSK), praying for an order to rescind, cancelled and quashed the
Memo No. 649 (7VSSK/EN dated July 28, 2010 whereby and whereunder, the District Nodal Officer, Murshidabad directed the said S.S.K. to
run at Gram Sansad-4 instead of Gram Sansad-10.
2. The writ petition No. 24990 (W) of 2010 is filed by the permanent residence of Jhowbona Vikutala Colony situate under Gram Sansad-4 in the
district of Murshidabad who are also the respondent in W.P. No. 19285 (W) of 2010 praying for an order to implement of the said Memo No.
649 (7)/SSK/EN dated July 28, 2010.
3. Admittedly, the said SSK was located at Gram Sansad No. 4 which is adjoining to the village Trimohini under Gram Sansad-10 and both the
Gram Sansad are under No. 2 Kederchandpur Gram Panchayat. Both the Gram Sansad are separated by rivulet and are assessable to each other
by a bamboo bridge.
4. According to the petitioner of 19285 (w) of 2010 (herein after referred to as the Managing Committee for brevity), the said SSK has a large
number of pupils who are the permanent resident of Gram Sansad 10 whereas a negligible number of students belonging to the Gram Sansad-4
have enrolled their names with the said SSK. The said rivulet in rainy season shambles the bamboo bridge which is prone to any disaster and if any
untoward incident happens, a large number of students would suffer the casualty. The Managing Committee considered the above aspect and to
safeguard and protect the tendered children from such casualty, decided to shift the said SSK from Gram Sansad-4 to the adjoining village
Trimohini under Gram Sansad-10. The said resolution was forwarded to the Block Development Officer and subsequently, the Siksha Samskriti
Tathya ''O'' Krira Sthayee Samity of Nowda Panchayet Samity consented for shifting of the said SSK by adopting a resolution. The said SSK is
shifted to the said village Trimohini under Gram Sansad-10 at a piece of land donated to the said SSK.
5. The petitioners of W.P. 24990 (w) of 2010 (hereinafter referred to as the respondent for the sake of convenience) made a representation
before the District Nodal Officer complaining of the alleged shifting of the SSK from Gram Sansad-4 to Gram Sansad-10. The said representation
was unattended which prompted the respondents to initiate a writ proceeding being W.P. No. 6170 (w) of 2010 before this Court. While
disposing of the said writ petition, this Court directed the District Nodal Officer to consider and dispose of the representation made by the
respondents within certain period. In compliance of the said order, by impugned memo, the District Nodal Officer directed the shifting back of the
said SSK from Gram Sansad-10 to Gram Sansad-4.
6. Initially, the District Magistrate, Murshidabad was not made party in the writ petition. By order dated February 15, 2011, this Court added the
District Magistrate, Murshidabad as party-respondent with further direction to hold an inquiry as to the running and functioning of the concerned
SSK and also the actual state of affairs with regard to the controversy raised by the parties. In compliance of the said order, the report filed by the
District Magistrate, Murshidabad reveals that the shifting of the SSK from Gram Sansad-4 to Gram Sansad-10 has been done illegally and without
obtaining the permission from the competent authority.
7. Mr. Mukul Lahiri, the learned Advocate appearing for the Managing Committee submits that the resolution of the Managing Committee for
shifting the SSK from Gram Sansad-4 to Gram Sansad-10 was ratified and approved by the Sthayee Samity being competent authority and the
Nodal Officer cannot pass an order contrary to the above decision. He strenuously argues that the shifting was done to protect the children of
Gram Sansad-10 from any casualty and such interest when, in fact, large number of students belonging to Gram Sansad-10 are studying in the said
SSK He submits that the decision for shifting the SSK was done in the larger interest which has not been considered by the District Nodal Officer.
Lastly, he submits that the establishment of the SSK is a community based programme and the government only provided some financial assistance
and, therefore, the Managing Committee is the appropriate authority to take a decision relating to the establishment as well as the shifting of the
SSK
8. Mr. Harun Al Rashid, the learned Advocate appearing for the respondents, however, submits that the Managing Committee is misusing the
financial grant without imparting education to the students for whose benefit, the said SSK was established. He further submits that there is a
primary school already established in Gram Sansad-10 whereas there is no primary school in Gram Sansad-4 and as such, the shifting of the SSK
would deprive the pupils of Gram Sansad-4 to get the education at elementary level. He lastly submits that this Court directed the Nodal Officer to
consider their representation and the impugned memo cannot be said to be without any authority and/or jurisdiction. From the respective
submissions, it appears that both the writ petitions are counter litigation. The writ petition instituted by the Managing Committee is founded on the
resolution of the Managing Committee to shift the S.S.K. from the Gram Sansad-4 to adjoining village Trimohini under Gram Sansad-10 which
could not be superseded by the District Nodal Officer. According to the Managing Committee, the S.S.K. is established under the community
based programme where the Managing Committee enjoins the freedom relating to administration and management. The decision to shift the S.S.K.
was taken in the larger interest of the pupils of the Gram Sansad-10 which has been totally overlooked by the District Nodal Officer in issuing the
impugned memo.
9. The Sarba Shiksha Kendra were established to impart the elementary education to all children up to the age of 14 years at the base level to
provide the better assistance in reaching at the Gram Level. To provide the assistance for running the schools established by the Non-Government
Organization Financial Aids were provided by the State Government to cater the needs of the left out children. Although, it is a community base
programme but since the Financial Aid and Assistance is provided by the State certain norms and guidelines are issued from time to time for better
quality of education. The District Nodal Officers are appointed to supervise the Sishu Siksha Kendra in a district. Therefore, it cannot be said that
SSK getting financial aid/grant enjoins freedom relating to the establishment of the SSK as well as the shifting thereof from one Gram Sansad to
another. The guidelines are issued in a larger interest of the local peoples by government order dated March 30, 1999 which provides the minimum
eligible qualification of the sahayika/sahayikas administration and management and the responsibilities and obligation of the Panchayat and the
authorities appointed for such purposes. By government order dated June 8, 2004 there shall be no SSK within one-kilometer radius of an
existence primary school. The report of the District Magistrate reveals that there is an existence of Trimohini Natunpara SSK within the periphery
of half kilometer from the said village Trimohini which can cater the needs of primary education of the local children. It further appears therefrom
that the SSK was established in Gram Sansad-4 for the benefit of the children of the Trimohini village. Although, there is the primary school within
the Gram Sansad-4 but the same is 2.5 kilometer away from the said village. It is further reflected from the said report that the shifting of the SSK
to village Trimohini would make impossible for the children of the Jhowbona Vikutala Colony to avail the benefit of elementary education at the
doorstep. The shifting of the SSK would frustrate the entire scheme and/or programme as the children of Jhowbona Vikutala Colony would be
deprived of the elementary education. There would be a large number of children would remain outside the formal education system and shall not
have any access to an education which is one of the constitutional obligation on the State as well as the societies running the Educational Institution.
Right to Education flows directly from Article 21 and is one of the most important fundamental rights. Since there is no corresponding constitutional
right to the higher education. The fundamental stress should be made on a primary and elementary education so as to let a proper foundation for
higher education.
10. The District Nodal Officer in the impugned memo has showed his anguish relating to accessibility of the education at the primary and
elementary level if the shifting is permitted.
11. There is no hesitation in holding that the decisions to shift the SSK from Gram Sansad-4 to Gram Sansad-10 was arbitrary illegal and without
application of mind.
12. Thus, I do not find any merit in the contention of the Managing Committee. The writ petition being W.P. No. 19285 (w) of 2010 is, therefore,
dismissed.
13. Since the said memo issued by the District Nodal Officer is held to be legal and valid, there is no justification as to why the same should not be
implemented. By the said memo, the District Nodal Officer has directed the Block Development Officer to take necessary steps to start the
Jhowbona Vikutala Colony in its actual sanctioned place.
14. The writ petition No. 24990 is disposed of by directing the Block Development Officer, Nowda to implement the direction passed by the
District Nodal Officer within eight weeks from the date of the communication of this order.
15. In the facts and circumstances, there shall be no order as to costs. Urgent photostat certified copy of the judgment; if applied for, be given to
the parties on priority basis.