Allowed

Loyola School Bilaspur v. State Of Chhattisgarh

Chhattisgarh HC17 Nov 2024WPC/1358/2014

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed a writ petition challenging an order directing a minority unaided school to admit 25% BPL students. Relying on Supreme Court precedent, the court held the RTE Act is ultra vires Constitution Article 30(1) regarding minority schools and quashed the order.

What did the court decide?

The impugned order dated 7.7.2014 passed by the District Education Officer under the RTE Act, 2009 is set aside/quashed.

Loyola School Bilaspur Vs State Of Chhattisgarh — Education and Admissions | Chhattisgarh HC (2024)

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WPC No.1358 of 2014

2024:CGHC:44849

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPC No. 1358 of 2014

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Loyola School Bilaspur Runned and Governed By Madhya Pradesh Jesuits Society, Loyola Niketan Rajiv Vihar Bilaspur, Through its Manager/Principal, Father Fabianus Minj, Age About 56 Years S/o Late Stanislas Minj R/o Loyola Niketan Rajiv Vihar S.E.C.L. Post Bilaspur, P.S. Sarkanda Bilaspur Tahsil And Distt. Bilaspur, C.G.

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... Petitioners

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versus

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State Of Chhattisgarh Through its Secretary, School Education Department, Mahanadi Bhawan, Mantralaya, Raipur C.G.

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Government Of India, National Commission for Minority Educational Institutions, Through its Secretary, Gate No.4, 1st Floor Jeevan Tara Building No.5, Sansad Marg, Patel Chowk New Delhi – 110001

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Commissioner, Adim Jati Evam Anusuchit Jati Vikas Bhibhag Chhattisgarh, Raipur, C.G.

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Collector, Bilaspur, District Bilaspur C.G.

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District Education Officer, Bilaspur, District Bilaspur C.G.

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Nodal Officer/Principal, Government Higher Secondary School (Boys) Sarkanda, Bilaspur, District Bilaspur C.G.

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... Respondents

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For Petitioner : Shri Yatharth R. Singh, Advocate For Respondent : Shri Ankur Kashyap, Dy. Govt. Advocate

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Digitally
K GOWRI signed by KGOWRI Hon'ble Shri Bibhu Datta Guru, J.
SANKARA RAO
SANKARA
RAO Date:2024.11.19 Order on Board
17:43:11
+0530

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WPC No.1358 of 2014

18.11.2024

Challenge in this petition is to the order dated 7-7-2014 (Annexure P/1) passed by the respondent No.5, by which the petitioner school has been directed to fill up 25% of seats to the students of BPL families in primary classes as per the directions issued by the Nodal Officer within the poor students under the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the Act 2009’), failing which appropriate action will be taken against the petitioner as provided under the Act, 2009.

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The facts of the case, in short, are that the petitioner is a private unaided minority school, which is being run and managed by a Minority Society named and styled as “M.P. Jesuits Society’. According to the petitioner, the provisions of the Act 2009 are not applicable to the schools which are minority unaided schools. Further case of the petitioner is that inspite of law laid down by the Supreme Court in the matter of Pramati Educationnal and Cultural Trust (Registered) and Others Vs. Union of India & Others¹ , the respondent No.5 passed the order impugned.

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Learned counsel appearing for the petitioner would submit that the petitioner is a public school, which is not getting any aid either from the Central Government or from the State Government. The school is being run and managed by a Minority Society namely “M.P. Jesuits Society’. He would further submit that the petitioner was fulfilling all the required conditions for which the affiliation was granted to it by the Central Board of Secondary Education (CBSE). By placing a copy of the

1 (2014) 8 SCC 1

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WPC No.1358 of 2014

certificate dated 31-5-2016 issued by the Secretary to the Government of India, National Commission for Minority Educational Institutions, New Delhi, which is taken on record, learned counsel would submit that the petitioner Loyola School run by M.P. Jesuits has been declared as a Minority Educational Institution convered under Section 2(g) of the National Commission for Minority Educational Institutions Act, 2004.. In support of his contention, he would place reliance upon the decision of the Supreme Court in the matter of Pramati Educational and Cultural Trust (Registered) (supra) and also the decision of the coordinate Bench of this Court in the matter of Loyola School v State of Chhattisgarh and Another² .

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Learned counsel appearing for the State, on the other hand, would submit that as per Section 12(2) the unaided school, which has not received any land, building, equipment or other facilities, either free of cost or at concessional rate, would be entitled for reimbursement of the expenditure incurred by it to the extent of per child expenditure by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Such reimbursement shall not exceed per child expenditure incurred by a school established, owned or controlled by the appropriate Government or a local authority. He would further submit that the act of the petitioner society and the institution is within the ambit of the provisions of the Act 2009. He would submit that the order impugned is just and proper warranting no interference of this

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Court.

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2 WPC No.1837 of 2017 (decided on 16-3-2020) and other connected matter

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WPC No.1358 of 2014

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I have heard learned counsel appearing for the parties and perused the documents.

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It is not in dispute that the petitioner is a private unaided minority school which is being run and managed by the minority society namely; “M.P. Jesuits Society”. It is also not in dispute that the impugned order has been passed by the respondent No.5 by exercising power conferred under the Act 2009, on the ground that the petitioner establishment is not fulfilling or following the provisions of the Act 2009 by providing 25% seats to the students of BPL families in primary classes as per the directions issued by the Nodal Officer.

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At this juncture, it would be relevant also to take note of the Constitutional Bench judgment of the Supreme Court in case of Pramati Educational and Cultural Trust (Registered) (supra), wherein dealing with this aspect, the Supreme Court in paragraphs 55 and 56 held as under :

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“55. When we look at the 2009 Act, we find that Section 12(1) (b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aide school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to

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WPC No.1358 of 2014

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weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct.

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In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed. All I.As. stand disposed of. The parties, however, shall bear their own costs.”

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(Emphasis supplied)

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Given the aforesaid authoritative decision of the Supreme Court, this Court does not have any hesitation in reaching to the conclusion that as per the Supreme Court, the provisions of the Act, 2009 would not be

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WPC No.1358 of 2014

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applicable upon a minority educational institutions. Accordingly, the impugned order passed by the District Education Officer under the provisions of the Act, 2009 would be null and void and would be without any authority, jurisdiction or competence and deserves quashment by this court and it is ordered accordingly. The impugned order dated 7.7.2014 stands set aside/quashed with consequences to follow.

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Ex-consequenti , the writ petition is allowed, leaving the parties to bear their own costs.

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Sd/-

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(Bibhu Datta Guru) Judge

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Gowri

Loyola School Bilaspur v. State Of Chhattisgarh

Case brief

What is this about?

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Loyola School Bilaspur v. State Of Chhattisgarh

Case brief

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