Dismissed

T.N. Mukundan v. State of Kerala

Kerala HC20 Mar 2023WP(C)/962/2022

Case brief

AI extract

What is this about?

A Public Interest Litigation filed to ensure compliance with Section 12 of the RTE Act by unaided schools regarding reserved seats for disadvantaged/ weaker section children and prohibition of screening tests. The Court found the State Government is the implementing authority and directed the Director of General Education to monitor adherence to specific Government Order guidelines.

What did the court decide?

Second respondent directed to monitor and ensure strict compliance of the guidelines issued in Government Order No. 158/2013 regarding admission procedures for un-aided schools.

T.N. Mukundan Vs State of Kerala — Education and Admissions | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 20^TH DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 WP(C) NO. 962 OF 2022

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PETITIONER:

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T.N. MUKUNDAN, AGED 57 YEARS, S/O.NARAYANAN, THADATHIL HOUSE, VELUPPADAM P.O., THRISSUR DISTRICT, PIN - 680 303.

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BY ADVS.ADV.RANJITH THAMBAN (SR) V.M.KRISHNAKUMAR P.R.REENA P.S.SIDHARTHAN MAYA M.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 DIRECTOR OF GENERAL EDUCATION OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.

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3 THE CENTRAL BOARD OF SECONDARY EDUCATION REPRESENTED BY REGIONAL OFFICER, CBSE REGIONAL OFFICE, HOUSING BOARD BUILDINGS, THAMPANOOR PANAVILA RD., SANTHI NAGAR, THYCAUD, THIRUVANANTHAPURAM, KERALA - 695 001.

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4 COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATIONS, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PRAGATI HOUSE, 3RD FLOOR, 47-48, NEHRU PLACE, NEW DELHI - 110 019.

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BY ADVS.SRI.K.P.HARISH, SR.G.P.

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ADV.M T SURESHKUMAR, SC

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ADVOCATE GENERAL OFFICE KERALA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)NO.962 OF 2022

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JUDGMENT

Dated this the 20^th day of March 2023

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S.MANIKUMAR, C.J.

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Petitioner, who is a public spirited citizen, has preferred this public interest litigation to ensure strict compliance of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 hereinafter referred to as ‘the RTE Act, 2009’.

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Section 12 of the RTE Act, 2009 provides that a school which is established by the Government or aided by the Government shall provide free and compulsory education to the children.

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Reliefs sought for in the writ petition are as follows:

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“i. issue a writ in the nature of mandamus commanding the respondents 1 to 4 to ensure that at least 25% of the seats in Class I to Class VII (elementary School) and pre-school of unaided schools functioning under the respondents are filled up by children belonging to disadvantaged group defined under Sec.2(d) and child belonging to weaker section as defined under Sec.2(e) of Right of Children to Free and Compulsory Education Act from the academic year 2021-22.

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ii. issue a writ in the nature of mandamus commanding the respondents to ensure that the children, his or her parents or guardian are not subjected to any screening test for admission to the schools functioning under respondents 1 to 4 in view of Sec.13 of the Right of Children to Free and Compulsory Education Act and no capitation fee is collected for such admission.

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iii. issue a writ in the mature of mandamus commanding the respondents to give wide publicity for informing the general public the availability of admission to class I of unaided schools functioning under the respondents under Sec.12(1)(c) of Right of Children to Free and Compulsory Education Act in order to ensure that the parents and guardians of such Children are aware of the aforesaid statutory right.”

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On the basis of the averments and grounds, it is submitted by Mr.V.M.Krishnakumar, learned counsel for the petitioner in the writ petition that the RTE Act, 2009 provides free and compulsory education to all children of age of six to fourteen years. Section 3 of the RTE Act, 2009 stipulates that every child of the age of six to fourteen years, including child referred to in clause (d) or clause (e) of Section 2 shall have a right to free and compulsory education in a neighbourhood school till the completion of his elementary education.

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Section 2(d) of the RTE Act, 2009 defines “child belonging to disadvantaged group” - a child with disability or a child belonging to the Scheduled Caste, Scheduled Tribe, the socially and educationally backward class or such other groups, having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification.

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Section 2(e) of the RTE Act, 2009 defines “child belonging to weaker section” - a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification.

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Section 3(2) of the RTE Act, 2009 provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education.

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As per Section 7 of the RTE Act, 2009, the Central Government and State Government shall have concurrent responsibility for providing funds for carrying out the

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provisions of the Act. Section 12 of the RTE Act, 2009 provides that a school which is established by the Government or aided by the Government shall provide free and compulsory education to the children.

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Section 13 of the RTE Act, 2009 provides that no school or person shall, while admitting the child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.

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Grievance of the petitioner is that in the entire State of Kerala, none of the unaided schools functioning under the Kerala Education Rule or the unaided schools functioning under the CBSE Board and ICSE Board are providing any seats to the children belonging to weaker section or disadvantaged group as provided under Section 12(c) of the RTE Act, 2009.

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The mandates of Section 12 of the RTE Act, 2009 is to ensure that the children belonging to weaker section of society or disadvantaged group are also provided with quality education in the schools including unaided schools functioning under the KER, CBSE Board and ICSE Board.

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WP(C)NO.962 OF 2022

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Since none of the unaided schools are complying with the statutory mandate under Section 12(c) of the RTE Act, 2009, the petitioner has preferred Ext.P2 representation requesting to direct the unaided schools functioning under the control of the respondents to comply with the statutory mandate under Section 12(c) of the Act, 2009.

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It is submitted by the petitioner that there is inaction on the part of the respondents in considering the representation submitted by him.

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Mr.K.P.Harish, learned Senior Government Pleader submitted that pursuant to the direction of this court, a detailed statement has been filed on behalf of the 2^nd respondent – Director of General Education, wherein, all the allegations raised in the writ petition are denied.

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It is stated therein that the Government as per G.O.(MS)No.158/2013/G.Edn. dated 4.5.2013 (Ext.P1) have issued guidelines regarding the procedure for admission in un-aided and specified category of schools under Section 12(1)(c) of the Right to Education Act.

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WP(C)NO.962 OF 2022

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It is further assured that this respondent shall ensure strict compliance of the provisions fully upholding the provisions of the Act and the State Rules issued there under.

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Relevant portions of the statement reads thus:

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“3. It is respectfully submitted that as per clause (c) of Section 8 of the RTE Act, 2009, it is the responsibility of the Appropriate Government to ensure that a child belonging to weaker section and to a disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds. Clause (c) of Section 9 of the Act invests with a similar responsibility on every local authority as part of their duty to provide free and compulsory elementary education to every child in the society. A child belonging to a disadvantaged group is to mean a child with disability or a child belonging to the Scheduled Caste, Scheduled Tribe, socially and educationally backwards class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate government by notification. As per clause (e) of the Section, a child belonging to a weaker section to mean a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate government by notification. In contemplation thereof, Government as per G.O.(MS)No.158/2013/G.Edn. dated 4.5.2013, has issued guidelines regarding the procedure for admission in un-aided and specified category of schools under Section 12(1)(c) of the RTE Act.

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It is respectfully submitted that in Ext.P1 order, Government have notified that for the purpose of the Act, a child belonging to weaker section to mean a

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WP(C)NO.962 OF 2022

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child belonging to a parent or guardian whose annual income is less than 60,000/- rupees. Further, a child belonging to disadvantaged group means a child belonging to Scheduled Caste, Scheduled Tribe, socially and educationally backward class and a child belonging to the following categories, namely:

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(i) HIV affected children and children of HIV affected parent.

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(ii) Orphans and children from recognized orphanages.

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(iii) Children with learning disabilities.

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(iv) Children with autism, cerebral palsy etc.

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(v) Children with special needs.

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The above order further specifies that while determining the number of seats for the above purpose, the admission of children from among the above group shall be in the ratio 1:1, provided that in the absence of students in any one category, such shortage shall be filled up from children belonging to the other category. For selection of such children to schools the school concerned shall publish a list of applicants and selection shall be by drawing lots from each category, the selection of which shall be displayed on the notice board of the School. The above order further insists on the Head teachers of such schools to ensure that the above category of children so selected are not subjected to any discrimination or being segregated from other children in the matter of facilities available and offered to the children. The above procedures prescribed are clearly in consonance with rule 10 of the RTE rules, issued by the Government.

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It is submitted that Ext.P1 guidelines clearly mentions that the school should formulate a policy by which admissions are to take place in respect of seats other than those apportioned for weaker and disadvantages children under Section 12(1)(c) of the

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Act and the policy should be placed by the school in the public domain, given wide publicity and explicitly stated in the school prospectus. There shall be no test and interviews for any child/parent failing within or outside the categories mentioned above and the selection should be on a random basis. It is respectfully submitted that Ext.P1 order was widely circulated to all educational officers for ensuring strict compliance and published through the Information and Public Relations Department. The same was uploaded in the Website of the General Education Department. Further being in the advent of the academic year 2022-2023, since during the vacation period, the schools may proceed with admission process this respondent by Circular No.H2/424545/2022/DGE/K.Dis dated 19.3.2022 has again circulated Exhibit P1 Government Order to all concerned to ensure that the safeguards contemplated for the weaker and disadvantaged children as per the provisions of the RTE Act, 2009 is reached to such categories of children. It is further assured before this Honourable Court that this respondent shall ensure strict compliance of the above provisions fully upholding the provisions of the Act and the State Rules issued there under.

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In this context it is submitted that on the question of reimbursement of the expenditure incurred by un-aided schools for providing free and compulsory elementary education as specified in clause (c) of subsection (1) of Section 12 of the RTE Act, another Writ Petition No.18727/2020 is pending before this Honourable Court. The same may be tagged along with for a common disposal. Respectfully submitted.

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The entire allegations raised by the petitioner are false. None of the grounds raised in the writ petition are sustainable either in law or on facts. The petitioner is not entitled to any reliefs, much less though sought for in this writ petition, based on the grounds raised in the writ petition on any other grounds.”

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WP(C)NO.962 OF 2022

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Mr.Nirmal.S, learned Standing Counsel appearing for the 3^rd respondent – the Central Board of Secondary Education submitted that CBSE is only an examination conducting body.

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The Board is only conducting examinations at the secondary stage of Education and the services of the Board are availed by the educational institutions in India or outside India, which wishes to prepare candidates for the examinations conducted by the board and the board shall have power to affiliate such institutions for the purpose of its examinations. It is also submitted that the Board is not a statutory functionary invested with any powers under the RTE Act.

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Heard learned counsel for the parties and perused the materials available on record.

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After considering the entire facts and circumstances of the case, it could be deduced that the State Government is the ultimate authority to implement Section 12(1)(c) of the Right to Education Act, 2009. Government, as per G.O.(MS)No.158/2013/G.Edn. dated

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4.5.2013, have issued guidelines regarding the procedure

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for admission in un-aided and specified category of schools

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under Section 12(1)(c) of the RTE Act.

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G.O.(MS)No.158/2013/G.Edn. dated 4.5.2013

reads thus:

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Giving due consideration to the facts and

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circumstances and the assertion of the State authorities, we direct the second respondent – Director General of Education, Office of the Director of General Education, Jagathy, to monitor and ensure that the compliance of the guidelines issued in the abovesaid Government Order is strictly adhered to, in letter and spirit, by all concerned.

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In so far as the prayer with respect to the admission fee is concerned, we do not wish to state anything further in this writ petition as the same is under consideration before the Hon’ble Supreme Court.

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Writ petition is disposed of.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/MURALI PURUSHOTHAMAN JUDGE

jes

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APPENDIX

PETITIONER’S EXHIBITS:

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Exhibit P1 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) 158/2013/GENERAL EDUCATION DATED 04/05/2013. Exhibit P2 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE RESPONDENTS 1 TO 3 DATED 22/12/2021.

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RESPONDENTS’ EXHIBITS:

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Annexure R2(a) TRUE COPY OF G.O.(MS)NO.158/2013/G.EDN. DATED 4.5.2013.

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// TRUE COPY //

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P.S. TO JUDGE

T.N. Mukundan v. State of Kerala

Case brief

What is this about?

What did the court decide?

T.N. Mukundan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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