Rajan Roy, J@mdashHeard Sri Shanti Bhushan, Sri M.N. Rao learned Senior Advocates, assisted by Sri Manish Vaish and Sri P.K. Sinha, Sri Askari Naqvi and Indrapal Singh for the petitioners, Sri Z. Jilani, learned Additional Advocate General U.P., Sri Nagar learned Senior Advocate and Sri Manish Misra for the opposite parties. Writ Petition No. 2088 (M/S)/2015 has been filed by an educational institution challenging an order dated 13.4.2015 passed by District Basic Education Officer, Lucknow directing the petitioner to admit 31 students in Class 1 and Nursery as per the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the "Act, 2009") and the Government Orders issued in this regard. The petitioner has also challenged Clause 2 (Kha) and (Ga) of the Government Order dated 20.6.2013 and Clause 8/9 of the Government Order dated 8.5.20.13. Certain other relief''s have also been sought regarding the embargo on enhancement of fee, the amount of reimbursement of fee, drawing of a policy of neighborhood based on a reasonable criteria etc.
Writ Petition No. 3134 (M/S)/2015 has been filed by the guardians of the students belonging to the weaker section seeking admission in the petitioner school under the Act, 2009.
2. The facts, in brief, are as under:--Consequent to the promulgation of the Act, 2009 and the framing of U.P. Right of Children to Free and Compulsory Education Rules, 2011 (herein after referred as the "Rules, 2011) by the State Government in exercise of its power under Section 38 of the Act, 2009, certain Government Orders were issued viz. Government Orders dated 3.12.2012, 8.5.2013 and 20.6.2013. In pursuance to the aforesaid, the Basic Education Officer published a notice in the News Paper on 20.2.2015 identifying the unaided schools in respective Wards'' for admission of children belonging to the disadvantaged group and those belonging to the weaker section under Section 12(1)(c) of the Act, 2009, inviting applications for the said purpose. The last date of submission of application was notified as 16.3.2015. The name of the petitioner-institution did not figure in the said notice. A ''Note'' in the said notice mentioned that in addition to the schools mentioned in the notice, applications could also be submitted in other Schools in the ''Ward''. Note No. 3 of the said notice mentioned if there are more than one recognized school in the ward the allotment of school shall be made keeping in mind that the child is admitted to the school nearest to his residence.
3. According to the petitioner-school, as, it did not figure in the said list, therefore, it proceeded to fill up all the seats in its school under the belief that students were not to be allotted to it under Section 12(1)(C) of the Act, 2009. It is said by the petitioner that the admission process had already been completed and the academic session had started on 1st of April, 2015, when, a notice was issued by District Basic Education Officer, Lucknow on 6.4.2015, requiring the petitioner to admit 31 students under Section 12(1)(c) of the Act, 2009. All those students were residents of Luv Kush Nagar, Indira Nagar, Lucknow, 29 of them belonged to the disadvantaged category while 2 belonged to weaker sections. The petitioner immediately replied to the said notice vide letter date 9.4.2015 expressing its inability to admit the aforesaid students for various reasons mentioned therein, inspite of it, the District Basic Education officer, Lucknow, issued the impugned order dated 13.4.2015 directing the petitioner to admit them within 3 days. Being aggrieved this writ petition was filed.
4. This Court vide order dated 15.7.2015 had ordered the Basic Education Officer, Lucknow to conduct an inspection of the petitioner-school to ascertain whether the 31 students in question could be accommodated or not and there was sufficient room available for the said purpose. In compliance thereof, the Basic Education Officer conducted the inspection and filed his report alongwith the affidavit dated 17.7.2015 to which the petitioner had filed its reply. The report submitted by the Basic Education Officer shows that the petitioner-institution is being run on 4 Plots i.e. A-903, A-823, A-663 and A-807. The main building of the school exists on Plot No. A-823 and A-903. The school building also exits on Plot No. A-807, A-663. Plot No. A-807 and building thereon are on rent. The remaining 3 Plots and buildings are owned by the petitioner. He found one room measuring 16 x 26 ft. completely vacant at the ground floor in the building existing one Plot No. A-903 and also another room measuring 20 x 18 ft. vacant on the third floor of the said building which contained some sports equipment. Likewise he found one room measuring 11 x 18.6 ft. vacant at the first floor of the building existing on Plot A-823 which as stated by the Principal was a "Sick Room", another room measuring 12 x 22.6 ft. was found vacant at the second floor of the said building, which, as told by the school staff, was an "Optional Room". Further, as per the said report, at the first floor of the building situated at Plot No. A-663 classes of Nursery-A, Nursery-B and KG-A were being conducted in the first shift (8 to 11.40 a.m.), whereas, the class of Nursery-C was being conducted in the second shift (11.30 to 2.45) in the class room of KG-A. Class of 1A, 1B, 1C, 2A and 2B were being conducted in the building situated on Plot A-807. The report also discloses the Section Wise details of the students in each class room from Montessori to Class 1, which is as under:
5. The report also indicates that admissions have been made to various classes ever after April, 2015 till July, 2015. The Conclusion contained in the report are as under:
6. The contention of Sri Shanti Bhusan, learned Senior Counsel appearing for the petitioner is, firstly, the Right to Free and Compulsory Education available to the child under Section 12(1)(c) read with Section 6 is restricted to neighbourhood schools. The area or limits of neighbourhood for the purposes of admissions to Classes I to V as per Rule 7(3) read with Rule 4(1) of the Rules, 2011 means a school within one kilometer of the neighbourhood or vice versa. Based on the document filed as Annexure-4 to the Counter-affidavit filed by the petitioner to the Supplementary-affidavit dated 17.7.2015 filed by opposite party No. 3, the contention was, that, all the 31 students reside beyond the limit of one kilometer from the school, therefore, as per the aforesaid Rule 7(3) none of them are eligible for admission in the petitioner institution for the academic session 2015-16 as per the Act, 2009 and the Rules made thereunder. The distance of one kilometer has to be measured ''as the Road Travels'' and not ''as the Crow Flies''. In this regard he relied upon a decision rendered by the Punjab and Haryana High Court dated 7.1.2010 in the Case of Commissioner of Income Tax v. Satindra Pal Singh, based on the provisions contained in the Income Tax. He also referred to the affidavit filed by District Basic Education Officer, Lucknow on 21.7.2015 to show that even as per the said affidavit out of 31 only 13 children were within the radius of one kilometer from the school, therefore, according to him even as per the showing of the opposite parties the impugned order was not sustainable.
7. Even with regard to these 13 students he submitted that they were not entitled to admission in the petitioner-institution. As per Section 12(2) and 8(a) first of all the admissions have to be made in the three categories of schools mentioned in Section 2(n)(i), (ii) and (iii) and only when seats are no longer vacant in these schools, the school mentioned in Section 2(n)(iv) comes into the picture. In this regard he referred to the Para-6 (ka) and (kha) of Government Order dated 3.12.2012, which also was on the same lines. In this regard he also invited attention of the Court to Note No. 3 to the notice dated 20.2.2015. He also invited the attention of the Court to Page-199 of the writ petition containing a list of schools in Luv Kush Nagar itself, wherein, according to him, sufficient number of seats were vacant to accommodate these 31 students and as they are much nearer to their residence there was no justification for allotting the said students to the petitioner-institution. He also invited the attention of the Court to a Government School namely Rajkiya Prathamik and Purva Madhyamik Vidyalaya, Ghazipur Bastuali, wherein, according to him, out of 40 seats only 13 students had been admitted in Class 1. The said institution was only 800 meter from Luv Kush Nagar.
8. Sri Shanti Bhusan further submitted, as the petitioner-institution did not figure in the Notice dated 20.2.2015, therefore, it proceeded to fill up all the seats in respective classes, thus, it cannot be foisted with 31 students even after its seats had already been filled up. This was certainly not the object of the Act, 2009. The said Act confers a right to free and compulsory education in a neighbourhood school not necessarily a ''fashionable school'' like the petitioner, which sends its students abroad for various activities. The Act, 2009 does not confer any right on the children to study in a school of their choice, of course. If, such a fashionable school is available, in the neighbourhood as defined in Rule 7(3), then they can be admitted, but, not arbitrarily and unreasonably. All the 31 students can be accommodated in Munni Devi School, which is a private unaided school in Luv Kush Nagar itself, where the students reside and said school is even willing to do so. There has to be a rational basis for the State Government to decide the criteria on the basis of which the allotment for the purpose of admission is to be made.
9. Sri Bhusan further submitted that Article 21(A) as also the Act, 2009 confers the Fundamental Right to free and compulsory education of children of the age of 6 to 14 but not those below the age of 6. In this regard he invited the attention of Court to the proviso to Section 12(1)(c) read with Section 3 of the Act, 2009, and the definition of child contained in Section 2(c) which means a male or female child of age of 6 to 14 years. Thus, according to him the opposite parties cannot compel the petitioner to admit students below 6 years for the Pre-Nursery school. He emphasized on the use of word "may" in Section 11 of the Act, 2009. He also submitted that no provision had been made by the State Government in the budget for Pre School Education under the Act, 2009 for children below 6 years.
10. Sri M.N. Rao learned Senior Advocate, also appearing for the petitioner-school submitted, as the name of the petitioner institution was absent in the Notice issued by the District Basic Shiksha Adhikari, Lucknow on 20.2.2015, therefore, it amounted to a representation by the opposite parties that the school was not to be allotted to any children under the Act, 2009, which was acted upon by the petitioner, therefore, it held the admissions and filled up all the seats, otherwise, it would have kept the seats vacant. In view of this, according to the learned senior counsel, authorities were estopped, on the basis of principle of promissory estoppel, from issuing the impugned orders. In this regard he relied upon a decision of the Supreme Court in
11. Sri Z. Jilani, learned Additional Advocate General of India for the State of U.P. submitted, firstly, that there could be no estoppel against statute/law. No promise was made by the Notice dated 20.2.2015. He invited the attention of the Court to the ''Note'' contained in the said notice which made it clear that applications for admission could be submitted for other schools also. He relied upon the decision of the Supreme Court in Society for unaided Private Schools of Rajasthan v. Union of India and another, (2012) 6 SCC, to submit that the aim and object of the Act is to confer a right of free and compulsory education upon the children and not the schools. It confers a right not a charity. He invited the attention of the Court to Paragraph 14 of the aforesaid authority to submit that the Act was applicable to Pre-School Education also. He invited the attention of the Court to statement of the objects and reasons to bring home the point that the object of the Act, 2009 was to provide good quality of learning. No school should be beyond the reach of the poor child. The object is to achieve Socialism. The provisions contained in the Government Order dated 3.12.2012 had been explained and clarified by the subsequent Government Order dated 20.6.2013. Both Government Orders have to be read, understood and applied harmoniously. The subsequent Government Order will prevail.
12. According to him the neighbourhood limit of one kilometer mentioned in the Rule, 2011 was causing difficulty specially in urban areas, therefore, the same had been expanded by means of the Government Orders and now the neighbourhood consists of "ward" in such areas. He invited the attention of the Court to Annexure C.A.-2 to the Counter-affidavit filed by District Basic Education Officer, Lucknow to show that children of Luv Kush Nagar had been allotted not only the petitioner-institution but various other schools, which had not raised any objection. It is only the petitioner which was feeling aggrieved. The students who applied for admission opted for the petitioner institution as their choice, which is permissible under the Act, 2009, as, the right will fructify only then. In this regard he invited the attention of the Court to the Application Forms of the students/guardians annexed at page 92 and onwards to the writ petition. In this regard he also invited the attention of the Court to Para-28 of the Counter-affidavit of the District Basic Education Officer, Lucknow and Para 13 and 14 of the Counter-affidavit of the State stating that the students have opted for the petitioner-institution. He also submitted that the distance of the school from the residence of the students was measured by the District Basic Education Officer, Lucknow and out of 31, 13 students were found to be residing within one kilometer of the petitioner school based on the distance measured ''as the Road Travels'' not ''as the Crow Flies''.
He also submitted that as far as the reimbursement of expenditure is concerned though it has been mentioned as Rs. 450/- per child per month in the impugned order, the same is liable to be go up.
13. In Rejoinder, Sri Shanti Bhusan, learned Senior Counsel appearing for the petitioner submitted that the concept of "Ward" is absolutely alien to the Act, 2009. "Ward" is based on population. He also submitted that Application Forms required a declaration by the guardians of the students that there was no Government/Board/Aided School within a radius of one kilometer from his residence or there was no seat available in an established neighbourhood Government/Board/Aided School within a radius of one kilometer from his residence. He submitted that the guardians had submitted false declarations as is evident from the report of the Basic Education Officer himself, therefore, all these applications/proposed admissions are liable to be cancelled.
14. Sri M.N. Rao learned Senior Counsel appearing for the petitioner-school submitted that the State was bound by its Government Orders and could not disown the same.
15. Sri Ashok Agarwal, Advocate addressed the Court on behalf of Bharat Abhyuday foundation which sought permission to intervene in the matter. This being an adversarial litigation, the applicant is neither a necessary nor proper party in the writ petition filed by the institution. The application seeking permission for intervention is accordingly rejected.
16. Sri Askari Naqvi appearing for the petitioner-guardians in Writ Petition No. 3134 (M/S)/2015 submitted that students are liable to be admitted in the petitioner-institution so as to fulfill the aims and objects of the Act, 2009 as they had opted for the said school.
17. Heard the learned counsel for the parties and perused the records.
18. The Act of 2009 has been enacted by the parliament to implement the provision of Article 21(A) of the Constitution of India. It seeks to bring about not only a quantitative but also a qualitative change in the field of elementary education for one and all irrespective of economic, social and cultural divides. It is a step towards assimilation of the ''not so privileged'' section of society with the ''privileged'', even though belatedly. It seeks to achieve the true meaning of a ''Socialist'' Republic as declared in the Preamble of the Constitution of India.
19. Section 3 of the Act, 2009 read in juxtaposition with Section 2(n) shows that right of free and compulsory education conferred upon the child is in respect to a ''neighbourhood school''. The definition of the term ''school'' as in Section 2(n) includes 4 categories of schools. Neither Section 3 nor the definition of ''school'' contained in Section 2(n) lays down a preferential order in respect to the said schools for the purpose of admission therein. The area or limits of ''neighbourhood'' though not defined in the Act, 2009 has been specified in Rule 7(3) read with Rule 4(1) of the Rules 2011 framed by the State of U.P. to mean, in respect of children in Class I to V, a school ''within a distance of 1.0 Km and population of 300. Thus, as per a conjoint reading of the aforesaid provisions, a child residing within a 1.0 Km. of the Schools as defined in Section 2(n), is entitled to free and compulsory education in any of the said schools, therefore, the contention of learned counsel appearing for the petitioners that, first of all the admission are to be made in a Government/Board/Aided school and only if the seats are not available therein, the 4th category of unaided school, such as the petitioner, can be asked to make admissions, is not borne out from the provisions and scheme of the Act 2009. This is not the intention of the legislature. Having the option of more than one school in the neighbourhood, the child or the guardian has the right to choose therefrom. There can be no bar in this regard and none exists under the Act, 2009. Section 12(2) and 8(a) do not lend themselves to the interpretation as suggested on behalf of the petitioner. Prima facie Paragraph 6 (ka) and (kha) and the Government Order dated 3.12.2012 are not in tune with the object and the provisions of the Act, 2009, rather, they are in conflict.
20. The notice dated 20.2.2015 did not extend any promise so as to attract the principle of promissory estoppel, moreover, there can be no estoppel against law/statue.
21. Whether the distance of one kilometer as mentioned in Rule 4(1) read with Rule 7(3) of the Rules 2011 is to be measured ''as the Road Travels'' or ''as the Crow Flies'' can be considered at the time of final adjudication. Children, specially poor children, can walk to the school even in the absence of a metalled or "Kharanja" road. Leaving this question open for consideration at the time of final hearing, for the purpose of disposal of interim relief application 1.0 Km. is being taken ''as the Road Travels'', as, the District Basic Education officer, Lucknow has also measured the distance accordingly.
22. In pursuance to the order of this Court dated 23.7.2015, the Basic Education Officer, Lucknow measured the distance of the residence of the 31 students from the petitioner school on Motor Cycle and by use of Tape, as stated by him before the Court on 30.7.2015. He also filed an affidavit annexing therewith the result of the distance measurement exercise, according to which, 18 students were residing beyond one kilometer from the school, whereas 13 were residing within one kilometer.
23. Section 11 of the Act, 2009 contains an enabling provision for the appropriate Government which may make necessary arrangement for providing free Preschool Education for children above the age of 3 years so as to prepare them for elementary education and to provide early childhood care and education for all children until they complete the age of 6 years. The proviso to Section 12(1)(c) is in tune with Section 11, therefore, Clauses (a) to (c) of Section 12 (1) have been made applicable for admission to such Pre-School Education also. In view of this, prima facie, the contention of the learned counsel for the petitioner-School that the opposite parties cannot ask it to admit students in the Pre-School, as, the Act 2009 does not apply to Pre-School Education, does not appear to be correct. The term "children" used in Section 11 cannot be given the same meaning as the word "child" used in Section 3 and Section 2 (c) of the Act, 2009 as it would be self contradictory and incongruous with the express words contained in Section 11 as also the object the said provision seeks to espouse. The term "children" used in Section 11 refers to children above the age of 3 years but below 6 years. It has to be understood in the context in which it has been used.
24. As, Rule 7(3) of the Rules 2011 itself provides that the area or limits of neighbourhood specified in Sub Rule (1) of Rule 4 shall apply to admissions to be made under Clause (c) of Sub-section (1) of Section 12, therefore, it is not open for the opposite parties to contend that the said area for the purpose of neighbourhood school is now a "Ward" and not 1.0 Km. The Government Order on this issue prima facie is in conflict with the statutory rules referred herein above. It is trite a statutory Rule cannot be overridden by a Government Order.
25. The academic session starts from 1st of April and this fact has not been disputed by the opposite parties. The admission process starts much earlier, some time in February. The District Basic Education Officer, Lucknow issued the notice on 20.2.2015 mentioning the names of the only some neighbourhood schools, excluding others, that too, based on the territorial limits of Ward'' and not Rule 7(3) read with Rule 4(1) of the Rules 2011. It was not open for the District Basic Education Officer, Lucknow to leave out any school which was covered by the definition contained in Section 2 (n) of the Act, 2009 while issuing such notice. It is this omission which has created a contentious situation. The ''Note'' mentioned in the said notice did not help the cause either. There has to be a certainty in such matters. Every institution covered in the definition of School contained in Section (2)(n) is entitled to know, at the appropriate time, whether it is required to admit 25% of its seats in a class under Section 12(1)(c) of the Act, 2009 or not, as, in a given situation such an eventuality may not arise, considering the number of schools in the area and the choice exercised by the Student/guardian. Had the District Basic Education officer, Lucknow, published the name of all the schools as defined in Section 2(n), existing in the radius of one kilometer as defined in Rule 7(3) read with Rule 4(1), the dispute which has arisen would not have arisen. It is unreasonable to expect a school to keep 25% seats vacant, without it having been notified by the Basic Education officer and to wait till the admission under the Act, 2009 are over, as, such admission, though liable to be made at the commencement of the academic session can be made within an extended period which as per Section 15 read with Rule 14, in the state of U.P., may extend to 6 months from the date of commencement of the academic year of a school. The Basic Education Officer, Lucknow clearly erred in this regard. Section 15 read with Rule 14 does not mean that the admission process under the Act, 2009 can be finalized at the sweet will of the concerned officers. The extended period has been provided only to meet unforeseen and unavoidable eventualities so that the object of the Act, 2009 does not get defeated.
26. Having opined as above, the Court cannot loose sight of the fact that the Fundament and Statutory Rights involved are too valuable to be allowed to be scuttled merely because the Government and its authorities have misunderstood the object and the provisions of the Act, 2009 and have issued certain Government Orders and the notice dated 20.2.2015, which are not in keeping with the same.
27. The applicability of the Act, 2009 and Rules, 2011 made there-under is not disputed by the School except as regards Pre-School is concerned, which has already been considered hereinabove. It is aggrieved by the alleged arbitrary and unreasonable implementation of the Act and Rules and certain other ancillary matters connected therewith.
28. In view of the above discussion, irrespective of the errors committed by the opposite parties the object and provisions of the Act, 2009 and Rules made there under cannot be allowed to be frustrated, therefore, considering the fact that out of 31 students initially allotted to the petitioner-school, only 13 are eligible for admission in view of a conjoint reading of Section 2(n), Section 3 and 12(1)(c) of the Act, 2009 and Rule 7(3) and 4(1) of the Rules 2011 and even out of these 13, six (6) are to be admitted in Class I and 7 in Nursery, the Court is of view as the School has three Sections in Class I, two child per section can easily be accommodated likewise 7 children can be accommodated in the 3 Sections of Nursery class.
29. Irrespective of the replies submitted by the petitioner-school to the affidavit of the Basic Education Officer dated 17.7.2015 as also other replies, the report of the Basic Education Officer demonstrates that there is sufficient space available with the petitioner for reallocation of one or two class rooms, if required, for the purposes of accommodation of the aforesaid 13 students. As per the petitioners own showing by way of photographs, in one of the rooms some building material has been kept, which can easily be removed and kept elsewhere, likewise, if the need so arises other rooms referred in the report of the Basic Education Officer can also be utilized for the said purposes.
30. It is accordingly ordered as an interim measure that the petitioner-school shall admit these 13 students in the respective classes for the academic session 2015-16 adhering to the provisions of the Act, 2009 and the Rules 2011 without prejudice to its rights in these writ petition, within one week from the date a certified copy of this order becomes available to it.'' The Basic Education Officer, Lucknow is directed to ensure these admissions as aforesaid.
31. As regard the remaining students, the Basic Education Officer, Lucknow is directed to ensure their admission in any other neighbourhood school within 15 days.
32. The reimbursement of fee shall be as per existing rules, but, it shall be subject to final determination in these writ petitions.
33. It is further provided that the State Government shall revisit the Rules of 2011 and also the various Government Orders issued by it to ascertain as to whether the same are in tune with the object and provisions of the Act, 2009 or not. If it finds they are not, remedial action shall be taken by the State within a reasonable time, but in any case, much prior to the onset of the next academic session. In this regard it shall keep in mind the observations made herein above. The authorities shall ensure that the situation which has arisen in this academic year, as referred herein above, shall not be allowed to arise for the next academic session and the sessions thereafter.
34. It is made clear that the above discussion is only for the purpose of disposal of the interim relief applications. Subject to the above, all issues are open for consideration at the time of final hearing.
35. This Order shall not have any adverse bearing on admissions already made or those in the process of being made in other neighbourhood schools.
36. The applications for interim relief are disposed of accordingly. The application seeking leave to intervene also stands disposed of.
