Allowed

Oriental Public School Ambikapur v. State Of Chhattisgarh

Chhattisgarh HC17 Nov 2024WPC/1757/2015

Case brief

AI extract

What is this about?

The High Court quashed an order imposing a fine on a private unaided minority school under the Right of Children to Free and Compulsory Education Act, 2009. Relying on the Supreme Court's Pramati judgment, the Court held the Act inapplicable to minority schools as its application is ultra vires Article 30(1), allowing the writ petition and dismissing the penalty.

What did the court decide?

The impugned order dated 16.09.2015 imposing a fine under Section 19 of the Act, 2009 is set aside and quashed.

Oriental Public School Ambikapur Vs State Of… — Education and Admissions | Chhattisgarh HC (2024)

WPC No. 1757 of 2015

2024:CGHC:44849

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPC No. 1757 of 2015

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Oriental Public School, Ambikapur Through its Principal, I.A. Khan, Son of Mohd. Ainul Haq Khan, Aged About 54 Years, Resident Of Hills Park, Near Mahamaya Mandir, Police Station Ambikapur, Tehsil Ambikapur, District Surguja Chhattisgarh,

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... Petitioner

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versus

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State Of Chhattisgarh Through Secretary, Department Of School Education Mantralaya Mahanadi Bhawan New Raipur Chhattisgarh

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District Education Officer, Ambikapur, District Surguja Chhattisgarh

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District Collector Surguja, District Surguja Chhattisgarh

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... Respondents

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For Petitioner : Shri Sunil Otwani, Advocate along with Shri Vinod Kumar Pandey, Advocate For Respondent/State : Shri Ankur Kashyap, Deputy Govt. Advocate

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Hon'ble Shri Bibhu Datta Guru, J.

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Order on Board

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K GOWRI SANKARA RAO

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Digitally signed by K GOWRI SANKARA RAO Date: 2024.11.19 14:42:04 +0530

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18.11.2024

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Challenge in this petition is to the order dated 16.09.2015 (Annexure P/1) passed by the respondent no. 2, by which the fine has been imposed upon the petitioner under Section 19 of the Right of Children to Free and

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WPC No. 1757 of 2015

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Compulsory Education Act, 2009 (for short ‘the Act 2009’), with the approval of the Collector Sarguja.

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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 “Fatimi Oriental Education 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.2 imposed the alleged fine on the ground that the petitioner has violated the provisions of Sections 18 & 13 of the Act 2009.

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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 “Fatimi Oriental Education 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). On 30.10.2012 the office of Commissioner, Tribal Welfare granted religious minority status to the petitioner. In spite of the fact that the petitioner school is managed by a minority society who is not getting any aid either from the Central Government or from the State Government, on 15.04.2015 an order was passed by the respondent no. 2 informing that

1 (2014) 8 SCC 1

WPC No. 1757 of 2015

the inspection would be conducted in the school premises under the applicable provisions of the Act 2009 and the petitioner was asked to furnish certain documents, which were furnished by the petitioner on the same date along with its reply vide Annexure P/9. On 07.05.2015, a letter was written by the respondent No.2 to the petitioner intimating it that the provisions of the Act 2009 are applicable to the petitioner also and the same are not being followed by the petitioner in its true spirit. On 29.05.2015, another letter was written to the petitioner by the respondent No.2 which was duly replied by the petitioner on 03.06.2015. However, without appreciating the facts and circumstances of the case, in its letter and spirit, passed the impugned order dated 16.09.2015 and the penalty has been imposed upon the petitioner by exercising power under Section 19 of the Act 2009. 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 though the petitioner establishment being a minority educational institution, but still they are imparting education and is not in any manner imparting religious teaching. 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 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. 1757 of 2015

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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; “Fatimi Oriental Education Society”. It is also not in dispute that the impugned notice has been issued by the respondent No.2 by exercising power under Section 19 of the Act 2009, on the ground that the petitioner establishment is not fulfilling or following the provisions of the Act

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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

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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 weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of

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WPC No. 1757 of 2015

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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 applicable upon a minority educational institutions. Accordingly, the

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WPC No. 1757 of 2015

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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 16.09.2015 stands set aside/quashed with consequences to follow.

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Ex-consequenti , the writ petition is allowed, leaving the parties to bear

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their own costs.

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Sd/-

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(Bibhu Datta Guru) Judge

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Gowri

Oriental Public School Ambikapur v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Oriental Public School Ambikapur v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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