Deepak Rana Vs. State [Uttarakhand High Court, 192016]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Coram: Hon’ble Rajiv Sharma, J. &Hon’ble Alok Singh, J.

Dated: November 19, 2016

Writ Petition (PIL) No. 201 of 2014

Deepak Rana S/o Late Jagat Singh Rana ……Petitioner.

Versus

State of Uttarakhand and others …… Respondents.

Present: Mr. P.S. Rawat, Amicus Curiae for the petitioner. Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand/respondents.

JUDGMENT

Per: RAJIV SHARMA, J.

The learned Single Judge of this Court, vide order dated 24thNovember, 2014, has observed that certain portion of school building was in dilapidated condition. The Chief Education Officer, Dehradun, Shri Shiv Prasad has sent his requisition for undertaking of urgent repairs. The class-rooms were found to be badly lit. In few class rooms, students were sitting on the floor as there were no chairs and desks in the class rooms. The Chief Education Officer, Dehradun, before the Court, has admitted that in many schools, furniture was not provided. In view of this, the learned Single Judge, came to the conclusion that the matter involved common public interest and was required to be examined by a larger Bench.

Thereafter, the Division Bench of this Court, vide order dated 1stDecember, 2014, taking into consideration the seriousness of the matter, ordered the Secretary, SchoolEducation, Government of Uttarakhand to submit a report within one week. Report has been filed by the Additional Chief Secretary, School Education, Dehradun on his affidavit on 10thMarch, 2015. According to the report, there are about 12533 Primary Schools, 2809 Upper Primary Schools and 2203 Secondary Schools which come under the Government control while there are about 4 Primary Schools, 184 Upper Primary Schools and 301 Secondary Schools, all these schools are private schools and aided by the Government under the Uttarakhand Education Board. The State Government gives grant-in-aid to these schools for payment of staff salary, whereas, in the case of Government Schools, the Government bears all the expenses. The total expenditure under the head school education for the Financial Year 2013-14 was about Rs.3738.89 crores which was about 17% of the total expenditure of the State Government, whereas, the total budget provision under the school education for the financial years 2014-15 was about Rs.5271.25 which was about 14% of the total budget provision of the State Government. The total grant received from the Central Government under the various schemes for the financial year 2013-14 was Rs.411 crores, whereas, total estimated amount to be received from the Central Government for the financial year 2014-15 was about 622 crores out of which 321.16 crores have already been received till 31stJanuary, 2015.

In the report, in the tabular form, the details of the facilities provided to the Primary Schools, Upper Primary Schools and Secondary Schools have been given.

Ours is a welfare State. Socialism is a basic feature of the constitution. Article 21-A of the Constitution of India,guarantees free and compulsory education of all children in the age group 6 to 14 years as a Fundamental Right in such a manner as the State may, by law, determine. Parliament has also enacted the Act called Right of Children to Free and Compulsory Education Act, 2009. The expression ‘free and compulsory’ education casts duty upon the State Government and other educational institutions to provide basic infrastructure in the schools to make the Article 21-A of the Constitution meaningful.

This Court, vide order dated 22ndDecember, 2014, had sought the following details from the State Government:-

“6. We, therefore, seek the following details from the Secretary, School Education, Government of Uttarakhand, Dehradun. He should file a detail counter affidavit before this Court furnishing details such as the amount of money spent on elementary and secondary education in the State by the Government and its share in the annual budget. The grants it is getting from the Central Government and other sources in this regard. What is the policy of the Government regarding providing infrastructure facilities in the elementary and secondary schools, such as Black Board, toilet facilities, furniture, etc. and if all these facilities are provided in these schools, at what level is it being done. Whether there are separate toilets for girls and boys in such schools. What is the situation of Mid day Meal in these schools and what are the hurdles to the Government in providing better facilities, as it has come to the knowledge of this Court that infrastructure facilities in schools are primitive and not conducive to goodeducational environment in schools.”

According to the queries raised by this Court, the State Government has given the details of money spent in the financial years 2013-14 as well as 2014-15 and also the details of grant-in-aid received from the Central Government and other sources.

The report filed by the Additional Chief Secretary, School Education, Government of Uttarakhand has not specifically dealt with the issues of infrastructure to beprovided in the schools, such as, blackboards, furniture, laboratory, etc. It is the duty cast upon the State Government to provide blackboards, furniture, well equipped science laboratory and computers to the schools. There is also an urgent need of separate toilets for girls and boys. Furniture has not been provided in all the schools and only mats have been provided. Majority of girl students have no access to the hygienic toilets. The report is silent on mid-day meal. The facilities provided in the schools are primitive and not conducive and healthy to the students as observed by this Court in order dated 22ndDecember, 2014.

It is pity that even after more than 68 years of independence, we are making the children sit on mats in winter as well as summer.

Mr. P.S. Rawat, learned Amicus Curiae has also filed objection to the report. According to him, numbers of class rooms are still to be constructed and there is no lavatory (toilet) for girls in 67 schools. The report furnished by the Secretary School Education should have given the details of the facility available in schools, school-wise, and not by giving the total strength of students. The real issue has been avoided in the affidavit. The affidavit is sketchy and vague.

Children, between the age group of 6 to 14 years have a fundamental right to free and compulsory education. They have the right to have a modern school building with furniture, black-board, toilet, free dress and books (stationery) and facility of mid-day meals including computers.

We have also noticed that the annual budget of education has been reduced by 3% in the financial year 2014-2015. The lack of infrastructure in the Government Schoolsand Government aided Schools has lowered the standards of education.

In winter-closing schools, all the school buildings should be kept warm by providing room heaters. In summer closing schools, all the school buildings should be provided with ceiling fans. It is duty of the State Government to ensure that students get pure water by providing adequate numbers of Water Purifiers in the schools building.

The Court can take judicial note of the fact thatMadarsasare also imparting education to the children. However, they are given grant of Rs.5,000/- per annum, which is inadequate. It is also stated, at bar, that the students belonging to the Below Poverty Line category and SC and ST categories are being given two sets of school uniform in a year but the same facility is not available to the students belonging to general category. All the students are entitled for free uniform.

Midday meals are only provided to the students of primary & upper primary schools and not to the students of secondary schools. The Court can take judicial note of the fact that the students leave their studies after middle or 10thStandards. In case midday meal is also provided to students at this level, it may decrease dropping out from the school.

According to the Article-46 of the Constitution of India, the State Government is required to take special care of education and the economic interests of the weaker sections of the society, particularly of the SCs and STs category students. The illiteracy amongst SCs and STs is higher due to their backwardness. The State should protect the students belonging to SC, ST and BPL categories from injustice.

Article 51 A(k) of the Constitution provides that it shall be the duty of every parent or guardian to provideopportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

Section 3 of the Right of Children to Free and Compulsory Education Act, 2009

(hereinafter referred to as “the Act”) provides that every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of section 2, shall have the right to get free and compulsory education in a school of neighbourhood till the completion of his/her elementary education.

According to the Section 7 of the Act, the Central Government and the State Government shall have concurrent responsibilities for providing funds for carrying out the provisions of the Act. The Central Government is to prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act.

It is the duty cast upon the State Government, under Section 8 of the Act, to provide free and compulsory elementary education to every child. Section 19 of the Act lays down norms and standards for school. The qualification for appointment and terms and conditions of service of teachers are provided under Section 23 of the Act. It provides that any person, possessing such minimum qualification, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. Where a State does not have adequate institutions offering courses or training in teacher education or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as ateacher, for such period, not exceeding five years, as may be specified in that notification.

The Central Government has also framed the Rules called as

The Right of Children to Free and Compulsory Education Rules, 2010

Rule 17 thereof provides for ‘minimum qualification’ for teachers. Rule 20 provides for salary and allowances and condition of service of teachers. The duties, which are required to be performed by teachers, are provided under Rule 21.

Their Lordships of Hon’ble Supreme Court in the case of

Society for Un-aided private schools of Rajasthan v. Union of India and anotherreported in (2012) 6 SCC 1

have held as under :-

5. Education is a process which engages many different actors: the one who provides education (the teacher, the owner of an educational institution, the parents), the one who receives education (the child, the pupil) and the one who is legally responsible for the one who receives education (the parents, the legal guardians, society and the State). These actors influence the right to education.

6. The 2009 Act makes the Right of Children to Free and Compulsory Education justiciable. The 2009 Act envisages that each child must have access to a neighbourhood school. The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The Directive Principles of State Policy enumerated in our Constitution lay down that the State shall provide free and compulsory education to all children upto the age of 14 years. The said Act provides for right (entitlement) of children to free and compulsory admission, attendance and completion of elementary education in a neighbourhood school.

7. The word “Free” in the long title to the 2009 Act stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling. The word “Compulsory” in that title stands for compulsion on the State and the parental duty to send children to school. To protect and give effect to this right of the child to education as enshrined in Article 21 and Article 21A of the Constitution, the Parliament has enacted the 2009 Act.8

8. The 2009 Act received the assent of the President on 26.8.2009. It came into force w.e.f. 1.4.2010. The provisions of this Act are intended not only to guarantee right to free and compulsory education to children, but it also envisages imparting of quality education by providing required infrastructure and compliance of specified norms and standards in the schools. The Preamble states that the 2009 Act stands enacted inter alia to provide for free and compulsory education to all children of the age of 6 to 14 years. The said Act has been enacted to give effect to Article 21A of the Constitution.

17. Section 18 postulates that after the commencement of the 2009 Act no school, other than the excepted category, can be established or can function without obtaining a certificate of recognition from the appropriate authority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period specifying the conditions there for, if the school fulfills the norms and standards specified under Sections 19 and 25 read with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed authority can withdraw recognition after giving an opportunity of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the children studying in the de-recognised school to be admitted to the specified neighbourhood school. Upon withdrawal of recognition, the de-recognised school cannot continue to function, failing which, is liable to pay fine as per Section 19(5). If any person establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of the recognition, shall be liable to pay fine as specified in Section 19(5).

18. The norms and standards for establishing or for grant of recognition to a school are specified in Section 19 read with the Schedule to the 2009 Act. All schools which are established before the commencement of the 2009 Act in terms of Section 19(2) are expected to comply with specified norms and standards within 3 years from the date of such commencement. Failure to do so would entail in de-recognition of such school.

19. Section 22 postulates that the School Management Committee constituted under Section 21, shall prepare a School Development Plan in the prescribed manner. Section 22(2) provides that

22.(2)the School Development Plan so prepared shall be the basis for the grants to be made by the appropriate government or local authority, as the case may be.

That plan, however, cannot have any impact on consideration of application for grant of recognition for establishing an unaided school. To ensure that teachers should contribute in imparting quality education in the school itself, Section 28 imposes total prohibition on them to engage in private tuition or private teaching activities.

20. Chapter VI inter alia provides for protection of rights of children. Section 32 thus provides that any person having grievance relating to the right of child under the 2009 Act, may make a written complaint to the local authority having jurisdiction, who in turn is expected to decide it within three months after affording a reasonable opportunity of being heard to the parties concerned. In addition, in terms of Section 31, the Commissions constituted under the provisions of the Commissions for Protection of Child Rights Act, 2005 can monitor the child’s right to education, so as to safeguard the right of the child upon receiving any complaint in that behalf relating to free and compulsory education.

21. By virtue of the 2009 Act, all schools established prior to the commencement of the said Act are thus obliged to fulfill the norms and standards specified inter alia in Sections 25, 26 and the Schedule of that Act. (See Section 19(2)). The State is also expected to first weed out those schools which are non-performing, or under-performing or non-compliance schools and upon closure of such schools, the students and the teaching and non-teaching staff thereof should be transferred to the neighbourhood school. The provision is meant not only to strengthen the latter school by adequate number of students but to consolidate and to impart quality education due to the addition of teaching staff.

22. Needless to observe, that if there is inadequate response to the government funded school, it is but appropriate that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the School Development Plan represent the correct position regarding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meaningful utilization of public funds. In absence of such exercise, the end result would be that on account of existing non- performing or under-performing or non-compliance schools, the School Development Plan would not reckon that locality for establishment of another school.

23. In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under-performing or non-complianceschools receiving grant- in- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education. Thus, there is a power in the 2009 Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school.

24. To begin with, we need to understand the scope of Article 21A. It provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. Thus, under the said Article, the obligation is on the State to provide free and compulsory education to all children of specified age. However, under the said Article, the manner in which the said obligation will be discharged by the State has been left to the State to determine by law. Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools. The question is whether such a law transgresses any constitutional limitation?

25. In this connection, the first and foremost principle we have to keep in mind is that what is enjoined by the directive principles (in this case Articles 41, 45 and 46) must be upheld as a “reasonable restriction” under Articles 19(2) to 19(6). As far back as 1952, in

State of Bihar v. Maharaja dhiraja Sir Kameshwar Singh of Darbhanga (1952) SCR 889

this Court has illustrated how a directive principle may guide the Court in determining crucial questions on which the validity of an important enactment may be hinged. Thus, when the courts are required to decide whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them. For example, the scope of the right of equality of opportunity in matters relating to employment (Article 16) to any office in the State appears more fully defined when read with the obligation of the State to promote with special care the economic and other interests of the weaker sections (Article 46). Similarly, our understanding of the right “to practice any profession or occupation” (Article 19(1)(g)) is clarified when we read along with that right the obligation of the State to see that the health of the workers and the tender age of the childrenare not abused (Article 39). Thus, we need to interpret the fundamental rights in the light of the directive principles.

27. At the outset, it may be stated, that fundamental rights have two aspects they act as fetter on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State’s endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word “for” in Article 45 is a preposition. The word “education” was read into Article 21 by the judgments of this Court. However, Article 21 merely declared “education” to fall within the contours of right to live.

28. To provide for right to access education, Article 21A was enacted to give effect to Article 45 of the Constitution. Under Article 21A, right is given to the State to provide by law “free and compulsory education”. Article 21A contemplates making of a law by the State. Thus, Article 21A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21Aprovides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education.

32. Article 21 says that “no person shall be deprived of his life…except according to the procedure established by law” whereas Article 19(1)(g) under the chapter “right to freedom” says that all citizens have the right to practice any profession or to carry on any occupation, trade or business which freedom is not absolute but which could be subjected to social control under Article 19(6) in the interest of general public. By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1)(a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.

33. It is true that, as held in T.M.A. Pai Foundation as well as P.A. Inamdar, the right to establish and administer an educational institution is a fundamental right, as long as theactivity remains charitable under Article 19(1)(g), however, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1)(g), on the other, was not under consideration. Further, the content of Article 21A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority school to admit 25% children in class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1)(g).

232. Article 21A has used the expression “such manner” which means the manner in which the State has to discharge its constitutional obligation and not offloading those obligations on unaided educational institutions. If the Constitution wanted that obligation to be shared by private unaided educational institutions the same would have been made explicit in Article 21A. Further, unamended Article 45 has used the expression “state shall endeavour…..for” and when Article 21A was inserted, the expression used therein was that the “State shall provide” and not “provide for” the duty, which was directory earlier made mandatory so far as State is concerned. Article 21 read with 21A, therefore, cast an obligation on the State and State alone.

234. Children have also got a constitutional right to get free and compulsory education, which right can be enforced against the State, since the obligation is on the State. Children who opt to join an unaided private educational institution cannot claim that right as against the unaided private educational institution, since they have no constitutional obligation to provide free and compulsory education under Article 21A of the Constitution. Needless to say that if children are voluntarily admitted in a private unaided educational institution, children can claim their right against the State, so also the institution.”

Accordingly, the writ petition is allowed. We issue the following mandatory directions to the State Government :-

1. To provide all the schools with Benches, desks, blackboards (with chalk and duster), computers, well stack library and well equipped science laboratory within three months.

2. The State Government is directed to construct hygienic toilets for Boys and Girls separately. The head of the institution shall be personally responsible to maintain hygiene of toilets.

3. The State Government is directed to provide two sets of uniform to all the students of Government Schools as well as Aided-Schools twice in a year.

4. The State Government is directed to provide mid-day meals to all the students upto secondary level.

5. The State Government is also directed to ensure that all the school buildings should be well-lit and duly ventilated.

6. The State Government is directed to provide sufficient number of Water Purifiers as per the strength of the students in all the schools for drinking water.

7. In winter closing schools, all the schools should keep adequate number of heaters and the building should be kept warm. In summer closing schools, the sufficient number of ceiling fans should be provided.

8. The State Government is directed to increase the grant for duly recognized and affiliatedMadarasto at least Rs.20,000/- per annum underSarv Shiksha Abhiyan.

9. All the students belonging to SC & ST and BPL categories shall be paid suitable stipend.

10. All the Primary Schools, Upper Primary Schools and Secondary Schools shall ensure the implementation of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 in letter and spirit.

The Secretary, Education, State of Uttarakhand shall be personally responsible to comply with the directions, issued hereinabove, punctually and obediently.