This writ petition challenged an order by the local Panchayath directing an unaided school to reduce fees under the Right of Children to Free and Compulsory Education Act. The Court held that the order was without jurisdiction as the Act does not empower Panchayaths to fix fees for unaided schools.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934
WP(C).No. 28713 of 2011 (L)
PETITIONER(S) :
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EMGI KRISHNAN, S/O.KRISHNA, AGED 42 YEARS, `KRISHNA KRIPA', AVALOOKUNNU P.O., ALAPPUZHA.
BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA SRI.M.R.ARUNKUMAR
RESPONDENT(S) :
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1. BELIEVERS CHURCH ENGLISH MEDIUM SCHOOL, GURUPURAM, AVALOOKUNNU P.O., ALAPPUZHA-686 006 REPRESENTED BY ITS PRINCIPAL SRI.ISSAC.C.V AGED 55 YEARS, S/O.LATE C.M.VARGHESE, AVALOOKUNNU P.O. ALAPPUZHA-686 006.
2. ARYAD SOUTH GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KOMALAPURAM AVALOOKUNNU P.O., ALAPPUZHA-686 006.
3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.
R1 BY ADVS. SRI.CHERIAN GEE VARGHESE
SRI.P.HARIDAS SMT.S.SIKKY R2 BY ADVS. SRI.M.S.BREEZ SRI.V.E.ABDUL GAFOOR SC
KERALA STATE TEXTILE CORPORATION LTD R3 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/1/2013, THE COURT ON 15-03-2013 DELIVERED THE FOLLOWING:
BP
WP(C).No. 28713 of 2011 (L)
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1- COPY OF THE FEES PAYABLE IN VARIOUS STANDARDS FOR THE ACADEMIC YEAR 2010-2011.
EXHIBIT P2- COPY OF THE FEES STRUCTURE FOR THE YEAR 2011-2012. EXHIBIT P3- COMPARATIVE TABLE TO SHOW THE FEES HIKE. EXHIBIT P4- COPY OF THE MINUTES OF THE MEETING DATED 14.1.2011.
| EXHIBIT P10- COPY OF THE NOTICE DATD 15.9.2011. |
|---|
RESPONDENTS' EXHIBITS :
EXT.R1(a): COPY OF THE LETTER DT 15/9/2010 ADDRESSING THE DISTRICT COLLECTOR, ALLEPPY BY SECRETARY ALL KERALA UNAIDED SCHOOL STAFF ASSOCIATION.
WP(C).No. 28713 of 2011 (L)
//TRUE COPY//
P.A. TO JUDGE
BP
A.M.SHAFFIQUE, J
*** * * * * * * * * * * * *** W.P.C.No.28713 of 2011
Dated this the day of March 2013
J U D G M E N T
The president of a Parent Teacher Association of the 1st respondent School had filed this writ petition to implement Ext.P13 direction issued by the Aryad Grama Panchayath on 28/09/2011 directing the School to reduce the fee by Rs.50/-. The said order came to be issued purportedly on the basis of jurisdiction vested with the 2nd respondent Panchayath under the Right of Children to Free and Compulsory Education Act 2009 (hereinafter referred to as the Act). According to the petitioner, the 2nd respondent is the local authority as defined under Section 2(h) of the Act and it is the primary grievance redressal forum under Section 32 of the Act. Section 2(h) and Section 32 reads as under:
2(h) : “local authority” means a Municipal Corporation or Municipal Council or Zila Parishad or Nagar Panchayath or Panchayath,
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by whatever name called, and includes such other authority or body having administrative control over the school or empowered by or under any law for the time being in force to function as a local authority in any city, town or village;
(2) After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.
(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of Section 31, as the case may be.
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(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of Section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.
School during the academic year 2011-2012 had decided to increase the fee by about 40% in the LKG wing. Similar increase was proposed in all standards. This was opposed by the Parent Teacher Association, but without considering the request made by the petitioner's organisation, the 1st respondent had proceeded to increase the fee. Hence they had to approach the local authority under the Act which resulted in the above order.
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children guaranteed under Article 21 A of the Constitution and also under Section 3 of the Act. Hence they sought for implementing Ext.P13 order.
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expected the Panchayath to pass an order under the provisions of the Act. According to them, Ext.P13 is not binding, it is non est and cannot be enforced. Respondent has filed additional documents Exts.R1(h) to R1(l).
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compulsory education as specified in clause (c) of sub Section (1) the expenditure so incurred to the extent of per child will be reimbursed by the State.
3. Right of child to free and compulsory
education.- (1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education.
“8 . The right of children to free and compulsory education has now become part
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of fundamental right under Article 21-A of the Constitution and Parliament has passed the Right of Children to Free and Compulsory Education Act, 2009, on 26/08/2009.”
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prove that the 1st respondent institution has obtained minority status as provided under Article 30(1) of the Constitution of India. Therefore the said contention does not arise for consideration.
( iv ) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;
Section 3 would indicate that the children are entitled for free education. But Section 12 of the Act indicates the responsibility of different categories of Schools. Section 12 reads as under:
12. Extent of School's responsibility for free and compulsory
education.- (1) For the purposes of this Act, a school,-
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(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary 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;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class 1, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.”
unaided school can be fixed by the Panchayath or is it possible for the Panchayath to call upon the school authorities to reduce the fee.
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jurisdiction and therefore they have no obligation to comply with the said order. According to them, the said order can be treated as non est in the eye of law and therefore when the question of implementation arises, it is open for them to challenge the validity of the order by taking the contention as aforesaid.
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substantive provisions. Section 12 is the relevant provision which cast an obligation on the schools to provide free and compulsory education. Therefore one cannot separately consider Section 3 and make a uniform standard that free education is to be given by unaided schools. The manner in which children are to be given such free eduction is specified under Section 12 and various specifications had been made in respect of the schools responsible depending upon the nature of school as defined under Section 2(n) of the Act. In this case, we are only concerned with an unaided school defined under Section 2(n)(iv) of the Act. As evident from the Section itself, such schools have the obligation only to admit students in Class 1 to the extent of at least 25% of the strength of that class, from among children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and elementary education till its completion. The said provision also indicates that the Government shall reimburse such expenditure. Therefore,
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as far as the schools coming under Section 2(n)(iv) is concerned, their obligation is limited to Section 12(1)(c). Section 3 cannot have an application which is not connected with the obligation of the schools. Section 3 is an obligation cast on all concerned as a policy of the Legislature and the other substantive provisions controls the object provided under Section 3 of the Act. Therefore, if the Panchayath takes a decision to reduce the fee by Rs.50/- for all classes, the said decision does not come within the purview of the Act. Section 32 of the Act does not give power to the Panchayath to take a decision against the provisions of the Act. As already indicated when the respondent School's obligation is only confined to Section 12(1)(c), they cannot be imposed with an obligation which is not provided under the Act.
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Government permitting the unaided schools to admit students by giving free education and offers reimbursement of the expenditure incurred by them, I do not think that the Act can have any application to unaided schools. No other obligation is cast on unaided schools. Hence I am of the view that Ext.P13 order is passed without jurisdiction and is not enforceable.
In the result, this writ petition fails and is dismissed.
(A.M.SHAFFIQUE, JUDGE)
jsr
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3 issues framed by the court
Whether the 2nd respondent Panchayath had jurisdiction under the Right of Children to Free and Compulsory Education Act, 2009 to pass an order directing the unaided school to reduce fees.
Whether the Panchayath can fix the fee structure of an unaided school under Section 12(1)(c) of the Act.
Whether the impugned order passed by the Panchayath is enforceable despite the absence of an appeal by the school.
Colour shows how this judgement treated each authority
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5 provisions across 2 enactments
Emgi Krishnan
Believers Church English Medium School, Gurupam
Aryad South Grama Panchayath
State of Kerala
A.M. Shaffique
As recorded by the court registry
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