Dismissed

Dinesh Upadhyay and Another v. State of U.P. and 4 Others

Allahabad HC7 Dec 2020WRIC/24327/2019

Case brief

AI extract

What is this about?

Petition challenging cancellation of school admission under RTE Act due to income misrepresentation was dismissed. Court found petitioner suppressed facts regarding business and income, sustaining the impugned order. Distinguished from Jai Prakash Sharma due to lack of similar findings.

What did the court decide?

Writ petition failing in dismissing the petition and confirming the cancellation of admission.

Dinesh Upadhyay and Another Vs State of U.P. and… — Education and Admissions | Allahabad HC (2020)

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Court No. - 43

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Case :- WRIT - C No. - 24327 of 2019

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Petitioner :- Dinesh Upadhyay And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shri Krishna Mishra,Sharad Chand Rai Counsel for Respondent :- C.S.C.,Krishna Mohan Asthana,Tripathi B.G. Bhai,Yatindra

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Hon'ble Vivek Agarwal,J. In Re : C.M. (Impleadment) Application No.3 of 2020

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This impleadment application has been filed on behalf of newly added respondent nos.6, 7 and 8.

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Application is allowed.

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Necessary corrections be carried out during the course of the day.

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Order on Merits

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Heard Sri Tripathi, B.G. Bhai, learned counsel for the petitioners, Sri S.P.S. Rathore, learned Standing Counsel for the State and Sri Krishna Mohan Asthana, learned counsel for respondent no.5.

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Learned counsel for the petitioners submits that this petition has been filed seeking issuance of an appropriate writ to quash the impugned order dated 17.7.2019 passed by respondent no.3 i.e. Basic Education Officer, District Bulandshahar, whereby the admission of petitioner no.2 in school of respondent no.5 under the Right of Children to Free and Commpulsory Education Act, 2009 (hereinafter referred to as “the Act, 2009) has been cancelled on

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the ground that petitioner no.1 is having income of more than Rs. 1,00,000/- and therefore, in terms of the provisions contained in the the Act, 2009, petitioner is not entitled to get his ward i.e. respondent no.2 admitted to such school.

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Learned counsel for the petitioners submits that before passing the impugned order, petitioner no.1 was not granted any opportunity of hearing and therefore, the petitioner's income certificate issued by the competent authority as is contained in Annexure-2 has not been cancelled. Similarly, the petitioner's name appears in the list of persons belonging to Below Poverty Line category and on this account also, admission of petitioner no.2 Nikhil Upadhyay, whose name is mentioned at Serial No.3 in Annexure-4, cannot be cancelled without cancelling such list of persons.

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Learned counsel for the petitioner also placed reliance on an order dated 15.10.2019 passed by a co-ordinate Bench in Writ-C No.27459 of 2019, whereby under similar facts and circumstances, writ petition of a similarly situated person has been allowed directing respondent no.5 to issue Identity Card to the petitioners and also to open scholarship account of the petitioner. It is also directed that petitioners shall not be discriminated from other children in any manner.

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Learned counsel for the State in his turn submits that this contention of the petitioner that he was not given any opportunity is factually incorrect. It is submitted that as per his instructions, opportunity of hearing was afforded to the petitioner no.1 before the Additional District Magistrate, Bulandshahar as is reflected from the order dated 16.11.2019, wherein it is clearly mentioned that petitioner no.1- Dinesh Upadhyay was called in person for

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recording of his statement.

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Sri Dinesh Upadhyay appeared before the State Authority and admitted in person that admission of his ward Nikhil Upadhyay has been cancelled on account of recording of a finding that income of the guardian namely, Dinesh Upadhyay is more than Rs.1,00,000/p.a.

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It is submitted that Tehsildar, Dibai, had formed a team of a Revenue Inspector and 2 Lekhpals which on the spot found that Dinesh Upadhyay is engaged in his own business and agricultural activities and is residing in the house of his father who retired from the Irrigation Department of the State. His one brother stays separately. Father is a pensioner, who is not dependant on Dinesh Upadhyay. Sri Dinesh Upadhyay is living separately in two rooms alongwith his wife and children. Petitioner no.1 has a readymade garment shop in the name of Sri Balaji Readymade Goods Wear at Satyapuri Narora . The shop is in two portions rent of which has been shown at Rs. 2,200/- per month. On the basis of the rent being paid by the petitioner no.1, and as was corroborated from the neighbours, income of the petitioner was estimated at Rs. 12,000/per month.

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It has come on record that before the A.D.M., petitioner no.1 admitted paying rent @ Rs.2,200/- per month and also admitted that last year, he had filed a Return of G.S.T. for a sum of Rs.50-60 thousand. On the basis of G.S.T. Return, income of petitioner no.1 was estimated at Rs. 3,00,000/- p.a. Therefore, the A.D.M. found that report on the basis of which certificate was issued showing annual income of petitioner no.1 as Rs. 28,000/- p.a. showing source of income as labour work is factually incorrect. In view of aforesaid order, it cannot be said that petitioner was not offered

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any opportunity of hearing. In fact his duly signed statement is on record which is dated 30th October, 2019.

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Learned counsel for respondent no.5 supports the plea taken by learned counsel for respondent nos.1 to 4.

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After hearing arguments advanced by learned counsel for the parties and going through the record, it is apparent that there is no dispute between the parties that criteria for admission to a school under R.T.E. is that children of only those parents are entitled to admission who have income of less than Rs. 1,00,000/- per annum.

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Though it may be true because State has not brought appropriate documents on record that certificates were issued by the competent authority showing income of petitioner no.1 to be less than Rs. 1,00,000/- and thereafter, name of petitioner no.2 was included in the Below Poverty Line list but the fact of the matter is that cancellation of such certificates is to be undertaken in totally different proceedings and merely because such certificate may or may not be cancelled, is not a criteria to perpetuate illegality.

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Once it has come on record that petitioner no.1 suppressed facts to get his ward admitted in a Central School where otherwise petitioner would have been in the last category prescribed for eligibility for admission, such admission cannot be sustained having been obtained by fraud.

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There is evidence of fraud being played by the petitioner to obtain admission inasmuch it is an admitted position that petitioner is not a labourer but has a shop of readymade garments. It is also admitted that he is paying rent of such shop to the tune of Rs. 2,000/- per month. In the preceding year, he had deposited Rs.50 to 60 thousand as G.S.T. which speaks of the turnover and the profit that can be drawn on the basis of such turnover

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conventionally available in a garment business, leading to a conclusion that income of the petitioner no.1 is definitely more than Rs.1,00,000/- per annum, thus disentitling him to get his ward admitted in a school under the Scheme of the Act, 2009 and the rules framed thereunder.

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As far as order passed by co-ordinate Bench in case of Jai Prakash Sharma is concerned, in that order it is categorically mentioned that on enquiry, income of the parents of the petitioners was found below the prescribed limit.

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There being no such material available in the present case, present case cannot said to be covered with the order passed in case of Jai Prakash Sharma and others especially, when there is a detailed enquiry report dated 16.11.2019 conducted by A.D.M. supported by statements of petitioner no.1 therefore, this Court is of the opinion that the impugned order cancelling admission given to the petitioner no. 2 on misrepresentation of petitioner no.1 cannot be sustained.

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Therefore, the petition fails and is dismissed.

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Order Date :- 7.12.2020

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Shalini

Dinesh Upadhyay and Another v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Dinesh Upadhyay and Another v. State of U.P. and 4 Others

Case brief

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