@JUDGMENTTAG-ORDER
Arun Mishra, J.
In these five writ petitions common question is involved. The challenge is made by the petitioners who are students and teachers, to the policy of the State Govt, in establishing the ''School of Excellence'' as per the policy decision P. 1 by which certain schools, one in each District within the State of M.P. have been declared as ''School of Excellence''.
The facts are taken from W.P. No. 3123/2002 (K.K. Maheshwari & others v. State of M.P. & others). Petitioners submit that the Govt. Model Multipurpose Higher Secondary School, Chhindwara, was established in the year 1911, about 91 years ago and has been graded as Model Multipurpose School in the year 1956 It is the only school in the entire Jabalpur division where the subject of ''Psychology'' is available as a subject of Arts group which is a rare combination. Vocational education is also available in the group with three different trades, namely (1) Poultry Farming (2) Dairy Farming and (3) Horticulture. The school has rich laboratory, library and play ground. There is spacious Auditorium as well as well furnished class rooms. The school is also a valuation center for the examinations conducted by the Board of Secondary Education, M.P. The other facilities like NCC, NSS, Junior Red Cross and Scouts are also available in the school since long. Seven students of this school have been commended at national level in the NCC representing Madhya Pradesh and Chhattisgarh. In NSS too the students have earned commendations and prizes at national level. There is a Eco-Club in the school as well as three Environmental Clubs affiliated to W.W.F. (World Wild Fund). The ''School Development Committee as per directions of the State Govt, is performing all the development works in the school out of the funds collected by the ''Development fee'' paid by the students and without any help from Govt. The Model School had produced the students who are becoming Doctors, Engineers, Advocates, Judges of the High Court, Technicians, Scientists, Educationists etc. About 56% of the students belong to poor and down trodden classes of the society and cannot afford to prosecute their studies in costly private schools. The fee structure for class XIth and XIIth is Rs. 163/- and Rs. 235 - per year whereas in the private schools the minium fees charged is Rs.250, - to Rs.300 - per month. Chhindwara is the backward District of the State of M.P
In the policy P. 1 formulated by the State Govt. 45 schools have to be converted into as school of Excellence one school in each district. The guidelines (P.2) have been issued by the State Govt. It is prescribed that (1) there has to be entrance examination (2) Students having 50% marks in class VIIIth can appear in the entrance examination for class IXth. The age of the students has to be between 13 to 14 years by 30th September, 2002.
100 students had to be admitted on the basis of the entrance test which strength is now enhanced to 240 in class IXth in every such school for next academic session 2003-2004.
It is averred in the petition that 63 students have appeared from model school in the Board examination of Class VIIIth, out of which 45 have passed. The scheme makes no provision for those students of the school who pass the Board examination of class VIIIth but would not be selected in competitive examination. The classes from VIth to VIIIth shall have to be closed down. These students from VIth class to VIIIth class have to leave the school and shall have to wander here and there for obtaining admission in the private schools having higher fee structure in the school concerned nominal fee is charged as students belong to poor class, they shall suffer irreparable injury. It is also submitted that students of the schools were to be accommodated in nearby Govt. Jawahar Middle Boys School Gulabara, Chhindwara. It is submitted that for middle school students there are only 3 class rooms in the school. The total furniture is 20 chairs and 10 tables. In one class room only 35 students may be accommodated sitting on the floor as no furniture is provided in the school for the students. Other basic facilities are also not available. The said school is having existing strength of 100 students, thus, cannot accommodate any more students. With respect to the other high schools it is submitted that they are already over burdened with the students and lack facilities to give admissions to the students who have to go out of the schools selected to be school of Excellence''. Thus, policy decision is challenged being arbitrary, picking of such schools which are already very good to be styled as School of Excellence'' has also been assailed. ''Right to Education'' is enshrined within the Right to Life in the purview of Article 21 of the Constitution of India. It is also averred that the certain subjects are to be closed down and the students who have offered "Psychology" as one of their subject shall have no school in the entire Jabalpur division for their admission.
The children have the right to get free education up to 14 years. The decision is going to harm because of educational, economical and socially backward sections of the society, shall not be able to pursue education any further in case they are not admitted as of right to the IXth class in schools where they are studying. This shall result into deprivation of educational opportunities to the members of the weaker sections of the society. The schools of Excellence shall start with IXth class and upwards, the students prosecuting studies in VIth, VIIth and VIIIth class, shall also have to leave the school. It is further submitted that the students who were admitted in VIth class have a legitimate expectation to continue their studies upto class XIIth in the same school, when the school is already an excellent school without being levelled as ''School of Excellence''.
It is also submitted that the State Govt, is not going to provide any fund and has no clear vision how to run these schools of Excellence. The State Govt, intends to run these schools on the crutches of Board of Secondary Education and M.P. Pathya Pustak Nigam without spending any amount and providing independent resources.
It is also averred that the policy provides lecturers have to below 50 years of age and to have capacity of working for a minimum period of 10 hours and possess ''will power'' and those are capable of teaching in Hindi and English mediums both. It is further required that the Lecturers should be physically fit & smart and should possess ''Attractive personality'' and able to take new challenges, have to be selected. It is not made clear what shall be the criteria for determining ''good personality'' whether beauty, good looks, height, fair colour or something else. Thus, the policy cannot be said to be legal and proper. If State Govt, wants to establish ''Schools of Excellence'' it must provide infrastructure, separate land and construction of buildings where a few hundred students may be accommodated. But it should not be done in a manner by which thousands of students shall be directly deprived from good education or education itself. Excellence of the school depends upon the quality of teaching. Other considerations have been provided in policy. The age limit prescribed in the scheme for admission to class IXth is arbitrary as large number of students who had appeared in the Board examination of class VIIIth are above the age of 13 to 14 years particularly backwards and down trodden sections the students shall be treated as overage under the scheme and would not be able to complete for admission to the IXth class. The students admitted in VIth class has a legitimate expectation to continue their studies in the higher classes upto class XIIth in the same school. The writ of certiorari is prayed to quash the impugned order of establishment of the ''School of Excellence'' so far as it relates to conversion of smoothly running Government Schools by restructuring and converting them into the ''Schools of Excellence'' depriving thousands and thousands of their present students from continuing their further studies. The writ of certiorari is also prayed to quash the impugned order dated 20.3.2002 by which the Govt. Model Multipurpose Higher Secondary School, Chhindwara, is included for its re-structure and conversion into one of the ''Schools of Excellence''. The respondents be also directed to continue middle classes and Psychology as a subject in Arts group in Govt. Model Multipurpose Higher Secondary School, Chhindwara, as well as to give admissions to all VIIIth class students of this school in the IXth class, who have passed the Board examination of class VIIIth.
In W.P. No.2404/2002 (Arvind Chaudhary & another v. State of M.P. and others) and W.P. No. 3021/2002 (Gopichandra Rathore v. State of M.P. & others) the school in question is "Pandit Lajja Shanker Jha" Model Higher Secondary School, Jabalpur. It is alleged to be already "existing Model School". The emphasis is laid on the weaker sections of the students. They comprise 30% of the total strength. Such students would be deprived of their right to education due to poverty in case they are ousted. Other facts are similar. It is also contended that the Govt, ought to have made the provisions for those students who are not selected in the competitive examination for admission in class IXth.
In W.P. No. 3023/2002 (Jagdish Rawat and others v. State of M.P. and others) the school in question is Govt. Maharaja Multipurpose Higher Secondary School No.l Chhatarpur. The school was established by the then Maharaja of erst while Chhatarpur State by his own funds about more than 110 years ago. The ex-ruler i.e. Maharaja of Chhatarpur later on transferred this school to State Government under an agreement in which there was a condition precedent that the State Govt, shall never charge any tuition fee from any student in future. The students also use to pay School development fund fee'' to the school since last ten years as the State Govt, had taken a decision not to provide any funds for development activities of any Govt, school. Thus, the students have the right to obtain education up to class XIIth. They have invested the amount in development of school. Other grounds are similar to W.P. No.3123/2002.
In W.P. No. 3374/2002 (Prabal Kumar Verma v. State of M.P. & others) and W.P. No. 3929/2002 (Neelam Verma & others v. State of M.P. & others) the conversion of school i.e. Govt. Multipurpose Higher Secondary School, Betul, Distt. Betul as ''School of Excellence'', is assailed. As the students have contributed in the development fund, they cannot be ousted from the school, moreover owing to poverty they cannot obtain instructions in the private schools. The well established school ought not to have been converted to ''School of Excellence'' and poor students shall suffer irreparable injury.
The main return has been filed by the respondents in W.P. No. 3021/ 2002 (Gopichandra Rathore v. State of M.P. & others) the same has been adopted in other writ petitions. It is contended by the respondents no. 1,2,3 and 5 in W.P. No. 3021/2002 that writ petition is in the nature of public interest litigation. The policy decision has been taken by the State Govt, in order to operate the standard of certain schools and also considering the interest of the students who are meritorious and talented, writ petition is baseless and frivolous. The total result in Pandit Lajja Shanker Jha, Higher Secondary School has not exceeded 60% in the Board examination. However, it has not been disputed that the said school is the only one where "agriculture" subject is being taught to the students who opt for it. Respondents have submitted that the allocation of funds in all the Govt. Schools has been at par all over the State. Now through the intervention and co-operation of the M.P. Text Book Corporation and Board of Secondary Education certain schools can be converted into ''Schools of Excellence'' wherein merit based creamy layer of students would be provided more suitable and better environment and facility. In all the Govt. Schools School Development Committees are formed in the State doors for voluntary public participation are open and at their own wish, desire and capacity the guardians of students create fund for the welfare of their children. In other schools also where students who may not be getting admission in IXth class in the proposed ''Schools of Excellence'' may have the similar opportunity to create fund through the Development Committee and no prejudice can be said to be caused to anybody through the implementation of the scheme in question. Pandit Lajja Shankar Jha Higher Secondary School is one where 3 schools are being run concurrently i.e. Middle School, High School and Higher Secondary School. No inherent right can be said to be created in favour of the students who are inducted in VIth class that they would continue till XIIth class. After completion of VIIIth class one has to take fresh admission in IXth class which continues up to Xth class only. Thereafter for XIth and XIIth classes again fresh admissions are to be taken. Thus, submission raised that the students are being deprived of their right to pursue the studies is baseless.
It is further submitted by the respondents that the actually willing and capable students will certainly secure admission in the institution on the basis of their merit. As many as 355 eligible students participated in the test, out of which 189 have qualified. All the students who would not be able to secure admissions, would be given admissions in Govt, schools in accordance with law. The good looking is not the criteria for assessing the personality of the teachers, therefore, the apprehension of the petitioners is baseless. The good mental and physical capacity is required for effective teachers. The students have to pursue their study as per their calibre and merit. The students belonging to SC/ST and backwards also to be given admissions in the ''School of Excellence'' in case of their failure to compete with other remaining students, they shall be given admissions in other Govt, schools available in the same locality as far as possible. As such there is no deprivation of the right to education.
Shri Adharsh Muni Trivedi, learned counsel appearing for the petitioners, (in W.P. No. 3021/2002, W.P. No.3023/2002 and W.P. No.3123/2002) has submitted that the decision of the State Govt, to convert existing best schools in the District as ''Schools of Excellence'' is bad in law. If the State Govt, considers it proper, the State Govt, should have come forward with some investment plan and to provide infrastructure in such schools which are lacking in it by the decision of the State Govt, to limit the number of students from class IXth the large number of students who have invested the money in the development of school by contributing in development fund after securing the admissions from class VIth onwards; under the legitimate expectation of continuing till class XIIth, have been dealt with arbitrarily. It is also submitted that in the most of the Districts it is not possible to accommodate the outgoing students from such ''Schools of Excellence'' in the similar schools. The other Govt, schools are already overburdened and they are illequipped infrastructurally to accommodate any more number of students. It is further submitted that closing down of the classes from VIth to VIIIth is absolutely bad in law. It is clearly arbitrary where there are facilities and infrastructure are available for large number of the students, the State Govt, ought not to have limited the number of students to 100 from class IXth onwards. It is also submitted that fixation of age between 13 to 14 years has the effect of depriving of large number of students who are meritorious and the student is expected to pass class VIIIth normally in the age of 14 to 16 years; considering the pattern of education which is prevailing of Nursery, Lower KG, Upper KG and then up to the class VIIIth, thus, one has to study 11 years before admission to class IXth, the range of 14 to 16 years is required for admission, the fixation of age limit to 13 to 14 years is illegal and arbitrary.
It is further submitted by the learned counsel that the students have the fundamental right to pursue their education and it cannot be dealt with arbitrarily as under the scheme the interest of poorest of poor student is going to suffer as they cannot obtain instructions in the private schools where the fee structure for one month in almost equal to one year fee payable in the existing school which is converted to ''School of Excellence''. It is also submitted attacking on the portion of the policy in which teachers are required to be good looking and having attractive personalities and below the age of 50 years, thus, it is submitted that due mind has not been applied while framing the policy and the policy ought not to have been implemented with respect to the existing good schools.
Shri Pranay Gupta, learned counsel appearing for the petitioner in W.P. No. 3374/2002 and W.P. NO. 3929/2002 submits that the students cannot be accommodated in other existing schools and when students have contributed in the development fund, they have right to continue in the school as development has been made out of the development fund of the school. The Govt, has not invested the money in making it model school; when infrastructure was already existing and education is imparted in various subjects, the State Govt, ought not to have converted such an excellent school into an School of Excellence''.
Shri Harbinder Singh, learned counsel appearing on behalf of the petitioner in W.P. No. 2404/2002, in addition has submitted that fixation of 50% qualifying the marks as eligibility in order to appear in the entrance examination is an illegal and arbitrary condition and deserves to be struck down.
Shri R.S. Jha, learned Dy. A.G. appearing on behalf of the State Govt, and other respondents, has submitted that the matter pertains to the policy made by the State Govt, and considering the best interest of the education the State Govt, has decided to identify one school in each district as an ''School of Excellence'' and an effort is made to raise the standard of the education in such school and that is why it is provided that admission to be given from IXth to XIIth class by conducting an entrance examination, otherwise grievance may be raised by the other meritorious students that they are not being allowed to stake claim in such schools of excellence. He has also submitted that the policy decision has been later amended; initially the decision was taken to admit only 100 students in each of such ''school of excellence''. This decision has now been modified by issuing corrigendum on 5.2.2003. Now it has been provided that number of students to be admitted is 240 in class IXth. It is also submitted that age has been enhanced to 15 years from 13-14 years which was the requirement earlier. The age of teachers have also been amended and made as 54 years instead of 48 years. He has also relied on circular R.2 dated 2.9.2002 in which it has been clarified by the State Govt, that existing subjects/faculties of schools converted into ''school of excellence'' have not to be closed down, thus, the apprehension of the petitioners is unfounded and baseless. The State Govt, has taken care of the grievance putforth. It is also submitted the classes from VIth to VIIIth wherever they are running are not to be closed down on conversion into school of excellence, however, ''school of excellence'' starts from class IXth onwards.
The main submission raised by the learned counsel for the petitioner is that by providing for entrance examination at the level of class IXth the students who have taken the instructions from class VIth are being deprived of right to pursue further studies in the same school which amounts to violation of first to education which is implicit in the Article 21.
Reliance has been placed by the learned counsel for the petitioners on the decision of the Apex Court in
21A. Right to education - The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
In my opinion, the State Govt, has taken the policy decision for raising the standard of education in the State and to provide proper avenue to the meritorious students and an effort has been made to raise the standard of the schools as provided in the policy, in my opinion, it is not necessary to start from the scratch in order to build up the School of Excellence'' which is far more difficult task. It is open to the State Govt, to identify the school out of the existing schools and to style it as an ''school of Excellence'' and to implement it policy decision. I find that by such a policy decision none of the fundamental rights of the students can be said to have been infringed rather if the interest of the education is considered in proper perspective, effort has been made so that students strive towards excellence. It is a different matter whether State Govt, succeeds or not in its effort to raise the level of education in particular school, one each in every District. I find nothing bad illegal or arbitrary so as to attract Article 14 and 21 of the Constitution of India to quash the entire policy decision.
The submission raised by learned counsel for the petitioners that students have invested in the development fund of the school as such have the corresponding right to pursue the studies upto class XIIth. Main question is whether imposition of such condition of facing entrance test for admission to class IXth can be said to be a condition which is undue, illegal or arbitrary or discriminatory. In case petitioner qualifies in the entrance test, he has to be admitted in class IXth onwards. Merit of student is being recognised. It is open to the State Govt, to lay down conditions for admission which are reasonable to prosecute the higher studies criteria for admission to the higher secondary school may be different one that for the middle classes. Contribution to the development fund is a common thing in every school and students now a days contribute in development fund of the school concerned where they are taking instructions. By merely contributing, it cannot be said that unfettered right is claimed which cannot be subjected to just, legal and valid conditions. The entrance test has been provided in order to give fair and equal chance to all the students of the district concerned to stake claim in such school as there is only one school of excellence identified in each district, otherwise there may be a room for levelling allegation that students of other schools have been deprived of taking admissions in the ''school of excellence'' and when an admission is to be granted on the basis of the merit, I find that the condition of entrance examination is reasonable and cannot be said to be taking away fundamental right of the education of petitioner students. The right to education in higher class is always subject to the just conditions; one has to clear the entrance examination for pursuing certain courses, I find that such condition has been validity imposed and does not violate the rights enshrined under Article 14 and 21 of the Constitution of India.
Coming to the next submission raised by the petitioner that class VIth to VIIIth cannot be closed down as infrastructure is already available though the policy couched is in the form as if class VIth to VIIIth have to be closed down which is alleged to be an illegal act. I find force in the submission of petitioner. Such sections cannot be closed down and it is conceded by learned counsel appearing for the respondent Shri R.S. Jha that State Govt, is not going to close down class VIth to VIIIth, however, that has not to be treated as part of ''school of excellence'' but class VIth to VIIIth have to be run wherever they are running throughout State as part of existing school that is enough to set rests the controversy with respect to class VIth to VIIIth.
With respect to the age, I find force in the submission of the learned counsel that fixation of age between 13 to 14 was imaginary and not keeping pace with the reality as per pattern of existing education set up, State Govt, has realized this flaw in the policy and has now prescribed age of 15 years which, in my opinion, is proper fixation of age as normally student enters Nursery at the age of 3 years and has to clear Nursery, Lower KG, Upper KG and up to class VIII and thereafter comes to class IX, thus, student normally has to undertake instruction for a period of 11 years prior to class IXth, there may be variation of one year; or more in initial admission; considering the circumstances, particularly that of down trodden class persons who are not able to send their children immediately to the school, thus, fixation of age of 15 years is now proper. The initial fixation of 13 to 14 years was unrealistic.
Coming to the next submission raised by learned counsel for the petitioner that initial decision to admit 100 students was illegal arbitrary whereas the infrastructure is available for much large number of students. The State has realized mistake and has amended the policy and now the admissions are being given to 240 students in class IXth. However, the fact remains the initial fixation of strength of 100 students, has taken away the rights of atleast 140 students of taking the instructions in the ''school of excellence'' facility for which was then available. The fixation of strength of 240 students also may have to be considered by the State Govt, suitably in particular case where facilities and infrastructure are available including the faculty for more number of the students. But that has to be done by the State Govt, on school to school basis and for that no categorical direction need be issued. However, it is expected that State Govt, to provide the education to the such number of the students in each of school of excellence'' in class IXth onwards; if there is unreasonable curtailing down of the number of the admissions as compared to the facilities available, State Govt, can be said to be acted arbitrarily, however, as State Govt, has revised its own decision and has increased the strength at this stage nothing further is required to be said over and above what is observed here in before.
I find substance in the submission of learned counsel appearing for the petitioner that such school of excellence'' which are having specialized subjects, trades/course which are now confined to the ''school of excellence'' or in any case are now existing in the school of excellence'' on conversion, cannot be closed down. This aspect also need not be deliberated any further as Shri R.S. Jha has fairly stated that and has filed during the course of the hearing the policy decision dated 2.9.2002 in which it has been clarified by the Director, Public Instructions, State of M.P. Bhopal that faculties/subjects which are existing, have to be continue,d. However, State Govt, is directed to continue with them and not to close down the faculties/subjects and in case State is not having the requisite number of students in such faculties on entrance test, it would be open to admit the students in such faculties besides conducting the entrance test in class IXth on the basis of merit directly in class where such subjects are chosen. This direction is being issued to the State Govt, with a view that wherever the facilities are available, they are the national wealth and should not be allowed to go waste. There may be situation that sufficient number of students do not opt for particular subject at class XIth level and seats remain unfilled.
Next submission is equally important with respect to the fate of the students who have to go out of such schools having failed in entrance test. 30% to 50% are shown to be from SC and ST class and other down trodden class and belongs to poorest of poor. True it is that they may not be able to obtain instructions in the private school in which the fee structure is beyond their reach in the return filed by the State Govt. It has been fairly stated that such students are to be accommodated in other Govt, schools. Let this assurance be carried out in true perspective.
From the data referred to in the petitions vis a vis availability of infrastructure in the other schools, there may also be a situation where it may not be possible to give admission to outgoing students in other Govt, schools going out of ''school of excellence''. Interim stay was granted in these writ petitions by this Court and students have pursued their studies of class IXth. It is the duty of the State Govt, and other officials of the State to ensure that each and every students of such school of excellence which have been converted into school of excellence are accommodated in other Govt, schools at the nearest possible place if situation arise that students may not be able to get admissions anywhere; it would be open to the State Govt, to continue such students as a special case in the ''school of excellence'' itself and more so considering the fact that initially State had taken the decision in the year 2002 to admit 100 students. Now State has considered that 240 students can be admitted in class IXth, thus, infrastructure is prima facie is available for class Xth, XIth and XIIth for 240 students and it is possible to continue with admission. State Govt, may continue such admission as a special case, as by interim order students have continued and facilities are available. Let the State Govt, make endeavour as directed above.
I refrain from dealing with conditions of service of teachers as that has to be raised before State Administrative Tribunal as teachers are in Govt, service.
In view of the aforesaid discussion writ petitions are partly allowed to the extent mentioned above. State Govt, is directed to carry out the directions made above and to abide by assurance made in this Court. No order as to costs.
