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Tuesday, September 29, 2015

सिटी मोंटेसरी स्कूल को करना होगा rte 2009 का पालन

5:07 PM

Hon. Supreme court of India ordered City Montessori School, Gomti nagar, Lucknow to take admission of 13 student according to RTE Act 2009.

ITEM NO.41+62                           COURT NO.13                SECTION XI&X

                               S U P R E M E C O U R T O F      I N D I A

                                       RECORD OF PROCEEDINGS

     Petition(s) for Special Leave to Appeal (C)               No(s).   27341/2015
     (Arising out of impugned final judgment and order dated 10/09/2015
     in SA No. 333/2015 passed by the High Court Of Judicature at
     Allahabad, Lucknow Bench)

     CITY MONTESSORI SCHOOL                                            Petitioner(s)

                                                 VERSUS

     STATE OF U.P. & ORS.                                              Respondent(s)

     (with appln. (s) for exemption from filing O.T. and interim relief)
     With
     WP(C) No. 700/2015
     (With Appln. For exemption from filing OT and Stay and Office
     Report)

     Date : 28/09/2015 
These petitions were called on for hearing today.
     CORAM :             HON'BLE MR. JUSTICE A.K. SIKRI
                         HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

     For Petitioner(s)             Mr.   Shanti Bhushan, Sr. Adv.
                                   Mr.   Kartik Seth, Adv.
                                   Mr.   Manish Vaish, Adv.
                                   Mr.   Srinath Agarwal, Adv.
                                   Mr.   R. P. Gupta,Adv.
                                   Mr.   Gopal Subramanyam, Sr. Adv.
                                   Mr.   K.V. Vishwanathan, Sr. Adv.
                                   Mr.   Manish Vaish, Adv.
                                   Ms.   Mehul Milind Gupta, Adv.
                                   Mr.   R. P. Gupta,Adv.
     For Respondent(s)
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2015.09.29
                          UPON hearing the counsel the Court made the following
                                                          O R D E R

14:41:50 IST
Reason:
      Special Leave Petition (C) No(s). 27341/2015
                                          
    Issue notice, returnable within four weeks on the Special
Leave Petition as well as on stay application.

    It is argued by Mr. Shanti Bhushan, learned senior counsel
appearing for the petitioner that 13 students, in respect of whom
directions are given to the petitioner school to admit them, are
not living in the 'neighbourhood'. He further submits that there
are various schools in the neighbourhood and vacancies in those
schools are also available. He makes a categoric statement that
those schools are ready to admit these students. His plea is that
it would be better in the interest of these students to seek
admission in those schools rather than the petitioner school.

    Having   regard    to   the   fact       that    the    Academic    Session    has
already been started, we direct the petitioner school to admit
these students forthwith. After notice to the respondents and
verifying the position as explained by Mr. Shanti Bushan, if it
becomes necessary, directions can always be given to shift those
students to other schools.

WP(C) No. 700/2015

    Issue    notice,   returnable within four weeks on the Writ
Petition as well as on stay application.

         (Ashwani Thakur)                                        (Renu Diwan)
          COURT MASTER                                           COURT MASTER


सिटी मांटेसरी स्कूल लखनऊ को देना होगा 13 गरीब बच्चों को अपने यहाँ दाखिला।
स्कूल द्वारा प्रवेश हेतु सीट खाली न होने का बहाना बनाया गया था तथा इस सम्बन्ध में एकल पीठ के निर्णय को डबल बेंच में चुनौती दी गयी थी जो ख़ारिज हुई।

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

Reserved

Case :- Special Appeal No. - 333 of 2015 

Appellant :- City Montessori School Lko.Throu. Founder Manager 2088(M/S)15 

Respondents :- State of U.P. through its Secy.(Basic Edu.) Lko. and others 

Counsel for Appellant :- Manish Vaish 

Counsel for Respondents :- C.S.C., Manish Misra

Hon'ble Satyendra Singh Chauhan, J.
Hon'ble Anant Kumar, J. 

This special appeal has been filed challenging the order dated 6.8.2015 passed by the learned Single Judge, whereby a direction has been given to the appellant school to admit 13 students in the respective classes for the academic session 2015-16 adhering to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 ( for short 'the Act') and the U.P. Right of Children to Free and Compulsory Education Rules, 2011 ( for short 'the Rules') without prejudice to its rights in this writ petition, within one week from the date a certified copy of this order becomes available to it. The Basic Education Officer, Lucknow was also directed to ensure these admissions as aforesaid. As regard the remaining students, a direction was also given to the Basic Education Officer, Lucknow to ensure their admission in any other neighbourhood schools within 15 days, which are recognised and unaided. 

A writ petition was filed challenging the order dated 13.4.2015 passed by the District Basic Education Officer, Lucknow, whereby a direction was given to the appellant-school to admit 31 students in Class-I and Nursery as per the provisions of the Act and the Government Orders issued in this regard. The learned Single Judge after hearing the parties, came to the conclusion that the arguments advanced by the counsel for the appellant-petitioner were not tenable under law and finally by means of impugned order, a direction was given to the appellant-petitioner to admit 13 students in the respective classes for the academic session 2015-16 adhering to the provisions of the Act by disposing of the interim relief application. 

Sri Shanti Bhushan, Senior Advocate assisted by Sri Manish Vaish, learned counsel for the appellant has submitted that irrespective of the fact that the Central Government and the State Governments have issued guidelines for implementing the purpose of the Act and whatever guidelines have been issued by the State Government, they clearly go to indicate that admissions can be directed by the Basic Education Officer in identified schools in pursuance to the exercise undertaken under Rule 4(3) of the Rules. He further submits that the process of identification has been provided under the Government Orders issued from time to time and in the circular issued by the Director of Education. Much emphasis has been laid by the learned counsel for the appellant in respect of the definition of the 'school' to conveys that the identification process has not been undertaken by the authority as contemplated under the Rules framed by the State Government, wherein an obligation has been cast upon the local authority i.e. Gram Panchayat/Nagar Nigam/Nagar Palika/Nagar Panchayat to identify a neighbourhood school where children can be admitted and make such information public for each habitation within its jurisdiction. To give force to his argument, learned counsel for the appellant has placed reliance upon certain Government Orders which have been issued from time to time in respect of identification of neighbourhood schools i.e dated 3.9.2012 and the circular issued in this regard by the Director of Education dated 16.7.2012 and the circulars dated 6.1.2015, 10.2.2015 as well as the advertisement issued by the Basic Education Officer. Placing reliance upon the aforesaid Government Orders and the circulars issued by the State Government, it has been submitted that identification of the schools in vicinity has not been made and the school of the appellant is about one kilometer, whereas the other schools situated in the neighbourhood will be falling in the same category and, therefore, admissions should have been directed to be made first in those schools which are much nearer to the house of the students rather than sending them to a far off place to the extent of one kilometer. It has also been submitted that the students belonging to Nursery and Class-I should not be made to travel for about one kilometer on each side daily to attend the school and rather they should be admitted in a school which is 100 or 200 meters from their residence. Learned counsel for the appellant has also advanced argument in respect of the word 'child' and has submitted that 'child' male or female has been defined in Section 2 of the Act who are falling between 6 to 14 years and some of the students are below six years and, therefore, they do not fall in the category of 'child' to be admitted under the Act. He has also submitted that the word 'neighbourhood' has also been defined under Rule 4 of the Rules. Learned counsel for the appellant by filing supplementary affidavit demonstrated the availability of vacancies in the other recognised and unaided schools, which are in the vicinity, and has submitted that the students should have been directed to be admitted in those schools first, which are having vacancies and much nearer to the house of the students than the school of the appellant and laid much emphasis on the fact that if the vacancies are available in the schools situated in the vicinity much nearer to the school of the appellant, then direction by the Basic Education Officer to admit those students in the school of the appellant is altogether illegal and arbitrary. He has further alleged mala fide against the Basic Education Officer and has submitted that the Basic Education Officer has targetted the school of the appellant with malicious intention. The appellant school has already taken admissions and the seats are full and now it has no seats to accommodate these students. In sum and substance, the argument is that if these students are allowed to be admitted in the appellant school in pursuance to the order of the learned Single Judge, then it is difficult for them to go one kilometer on foot on each side daily as they belong to economically weaker section and can not afford travelling expenses and the very purpose of the Act and the Rules framed in this regard will be frustrated. He, therefore, submits that the learned Single Judge has committed illegality in passing the impugned order ignoring the very object of the Act, Rules and the guidelines framed by the Central Government as well as by the State Government. 

Countering the submissions made by the learned counsel for the appellant, Sri Z. Jilani, learned Additional Advocate General assisted by Sri Manish Mishra, has submitted that the identification process was undertaken by the Basic Education Officer as far back as on 16.7.2012 and a meeting as contemplated under the Act was also held on 19.3.2015 under the chairmanship of the District Magistrate with the representatives of various schools falling in the category of admission, in which Sri Santosh Kumar Tewari, representative of the appellant school also participated and it was made clear to all the representatives that they will have to take admission according to the guidelines issued by the Central Government and the State Government. He has also drawn the attention of the Court towards an order passed by the Basic Education Officer, wherein it was mentioned that an inspection of the schools in question was made and further the availability of seats in Montessori, Nursery, K.G. and Class-I as well as class rooms in the school of appellant in the form of optional room as well as sick room has also been mentioned, in which the classes are being run in two shifts as informed by the Principal of the appellant school. In pursuance to the advertisement made, the students made applications through their parents opting the school of the appellant to study and the permission was accorded to the students in pursuance to the note appended in the advertisement, which specifically indicated that the schools which have been shown in the list are only optional and apart from the schools shown in the list, the students can also apply for admission in other schools falling in the ward/area of neighbourhood. He has further submitted that in pursuance to the note appended in the advertisement, it has to be presumed that the advertisement which was made, was not confined to the extent of schools indicated in the advertisement and the argument of learned counsel for the appellant that the admissions can be taken only in the identified schools, is belied from the aforesaid note in the advertisement. The advertisement contemplates that the application forms can be received from the office of the Basic Education Officer by the parents. He has also made reference to the judgment rendered by the apex Court in the case of Society for Unaided Private Schools of Rajasthan v. Union of India and another, (2012) 6 SCC 1, wherein the policy in regard to the Act was taken into consideration and the apex Court upheld the aforesaid policy. He has further submitted that the students were allocated to the appellant school on 6.4.2015, therefore, it can not be said that the list was sent at a belated stage and now they will not be able to cope with the course and, therefore, these students can not be admitted in their school. It was well within the knowledge of the appellant school that they were required to admit students particularly when Sri Santosh Kumar Tewari, representative of the appellant school participated in the meeting held on 19.3.2015 and the list of students was also forwarded to them on 6.4.2015. He has also drawn the attention of the Court towards Rule 14 of the Rules, wherein care has been taken in regard to delayed admission and it has been provided that delayed admissions can also be recommended and if such delayed recommendations are made for admissions, then the school is obliged to complete their education by giving special training. Learned Additional Advocate General has also submitted that the guidelines for implementing the provisions of the Act have been issued under Section 35(1) of the Act by the Central Government on 25.7.2011 and the same were to the appropriate Governments, which specifically provided that in providing for the right of every child to free and compulsory education in a neighbourhood school, the RTE Act does not restrict the choice of the child to seek admission in a school which may not be in the immediate vicinity, or the neighbourhood of the child's residence. In other words, there is no compulsion on the child to seek admission only in the school in his or her neighbourhood. The said Section has also given the power to the State Governments to issue guidelines for implementing the provisions of the Act by issuing guidelines, pursuant to which certain guidelines have been issued by the State Government which do not appear to be in conformity with the guidelines issued by the Central Government as contemplated under Section 35(1) of the Act. He further submits that if there is conflict between the two, then the guidelines issued by the Central Government are supposed to prevail and occupy the field. The Act is a Central Act and, therefore, the guidelines issued by the Central Government would be having over riding effect upon the guidelines issued by the State Government. He, therefore, submits that there is no illegality in the order passed by the Hon'ble Single Judge. 

We have heard learned counsel for the parties and perused the record. 

Learned counsel for the appellant has vehemently argued and pressed his point in regard to 'neighbourhood' and has submitted that the schools which are in more proximity to the residence of the students, they should be admitted there first rather than they should be allowed to go one kilometer, which is the distance of the appellant school from the residence of the students and they can not be compelled to travel one kilometer on each side everyday to attend the school. Apart from it, he has also emphasised on the point that if these students are allowed to be admitted in the appellant school, then it is difficult for them to go one kilometer on foot on each side daily as they can not afford travel expenses and the very purpose of the Act will be frustrated. The identification process has to be done by the local authority i.e. Gram Panchayat/Nagar Nigam/Nagar Palika/Nagar Panchayat as the case may be for identifying the neighbourhood school where children can be admitted and the authorities are obliged to make such information public for each habitation within its jurisdiction, but the same has not been done by the authority concerned. 

The reliance placed by the learned counsel for the appellant on circulars dated 16.7.2012 and the Government Order dated 3.12.2012, 6.1.2015 and 10.2.2015 do not indicate any such process to be adopted in identifying the schools in the neighbourhood . The circular issued by the Director of Education on 16.7.2012 cannot be said to be issued under Section 35(2) of the Act as under the said Section the power to issue guidelines, is vested with the State Government. The State Government issued guidelines by means of the Government Order dated 3.12.2012. The said guidelines do not contain any such process which has been mentioned in the circular of the Director of Education, which says that the school in the neighbourhood will be identified. Along with the circular dated 10.2.2015 a model copy of the advertisement has also been annexed, which itself is indicative of the fact that the terms and conditions provided in the advertisement have to prevail. The note appended in the advertisement itself goes to indicate that apart from the identified schools, which have been indicated in the list, the students are not precluded from applying in other schools which fall in the same ward. The aforesaid note appended itself gives ample opportunity to the students to apply in such schools which are situated in the ward though their names have not been mentioned in the advertisement. Much emphasis has been laid by the learned counsel for the appellant in respect of clause (3) of the advertisement where it has been said that the school nearest to the house of the students will be allocated. The aforesaid condition relied upon by the learned counsel for the appellant, itself stands diluted in view of the note appended in the advertisement itself where liberty has been given to the students to apply in other schools falling in the ward though they are not shown in the advertisement. The guidelines which have been issued by the Central Government on 25.7.2011under Section 35(1) of the Act in respect of the neighbourhood of the school and the students directed to be admitted in a school which is nearest to his house, reads as under :- 

" In providing for the right of every child to free and compulsory education in a neighbourhood school, the RTE Act does not restrict the choice of the child to seek admission in a school which may not be in the immediate vicinity, or the neighbourhood of the child's residence. In other words, there is no compulsion on the child to seek admission only in the school in his or her neighbourhood."
The aforesaid guidelines have been issued under Section 35(1) of the Act. Similar power has been given to the State Government under Section 35(2) of the Act to issue guidelines. The Act is a Central Act and, therefore, the guidelines which have been issued by the Central Government are to be adhered to by the State Government and have to be taken as a guiding factor in preparing the guidelines by the State Government. The State Government has prepared the guidelines in conformity with the guidelines issued by the Central Government, but has failed to consider particular question of neighbourhood, which has been otherwise not adhered to by the central Government. If there is any discrepancy in the guidelines which have been issued under the provisions of the Act or the guidelines of the Central Government as contemplated under Section 35(1) of the Act, then the learned Single Judge has rightly given a direction to the State Government in this regard to rectify the error and do the needful to make the guidelines for implementation of the provisions of the Act in conformity with the Act and the guidelines issued by the Central Government. 

Therefore, the argument of learned counsel for the appellant in respect of neighbourhood keeping in view the aforesaid guidelines issued by the Central Government has no force and is hereby rejected.
The next point which has been argued by the learned counsel for the appellant, is in respect of delay in admission. The delay in the session has to be considered in the light of the fact that meeting of the representatives of various schools took place under the chairmanship of the District Magistrate on 19.3.2015 and thereafter the students were allocated to the appellant school on 6.4.2015. It is the admitted case of the appellant school that admissions have been taken up till the month of April, 2015, whereas in the order of the Basic Education Officer he has informed that admission register of the appellant goes to indicate that admissions have been taken up till the month of July, 2015. The argument of learned counsel for the appellant has also to be appreciated in the light of Rule 14 of the Right of Children to Free and Compulsory Education Rules, 2010, which provides as under :-
"14. Extended period for admission.-- (1) Extended period of admission shall be six months from the date of commencement of the academic year of a school. 

(2) Where a child is admitted in a school after the extended period, he shall be eligible to complete studies with the help of special training, as determined by the head teacher of the school."
The aforesaid rule takes care of the delayed admission on account of the litigation if any. 

Section 15 of the Act deals with the question of denial of admission on the ground of delay and it provides that a child shall be admitted in school at the commencement of the academic year or within such extended period as may be prescribed. The prescription has been made under Rule 14 of the Rules, which says that the extended period of admission shall be six months from the date of commencement of the academic year of a school. Sub-rule (2) of Rule 14 further provides that where a child is admitted in a school after the extended period, he shall be eligible to complete studies with the help of special training, as determined by the head teacher of the school. The Act and the Rules themselves take care of the delayed admission and, therefore, the argument of learned counsel for the appellant that they can not take admission as the session has been delayed, does not find support from the provisions of the Act and the Rules, therefore, the same is also rejected. 

Learned Additional Advocate General has placed reliance upon the judgment rendered by the apex Court in the case of Society for Unaided Private Schools of Rajasthan (supra), specifically on para 14, which reads as under :- 

" 14. Chapter IV of the 2009 Act deals with responsibilities of schools and teachers. Section 12(1)(c) read with Sections 2(n)(iii) and (iv) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authority, is obliged to admit in Class I, to the extent of at least 25% 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. As per the proviso to Section 12(1)(c), if the school is imparting pre-school education, the same regime would apply." 

Learned Additional Advocate General by taking shelter of the aforesaid proposition of law rendered by the apex Court in the aforesaid case, has submitted that the weaker sections of the disadvantaged group in the neighbourhood are to be taken care for giving free and compulsory education to them. The emphasis is in regard to implementation of the Act and the policy framed thereunder and the Court finds that in order to implement the aforesaid policy, the learned Single Judge has committed no illegality in giving direction to the appellant school to take admission of 13 students when he has partially found that out of 31 students, 18 students were not otherwise eligible to be admitted in the appellant school and as such he has given direction in respect of those students to be admitted in other schools, whereas only 13 students have been directed to be admitted in the appellant school. The order of the Basic Education Officer also goes to indicate that two class rooms are vacant; one is optional room and the other is sick room. The strength of the students of appellant school has also been placed on record and the strength is not such that admission cannot be taken by the appellant school. 

The chart appended along with the order of the Basic Education Officer also goes to indicate the availability of seats in respective classes of the appellant school viz. in Class-I of Section-A there are 49, in Section-B 55 and in Section-C 46 for the academic year 2015-16, which itself goes to indicate that there are ample seats available for admitting the students. Thus, we find that the arguments of learned counsel for the appellant that admission in respect of neighbourhood, in respect of identification process, in respect of availability of seats and in respect of delayed admission in the sessions, are not substantiated under law. The provisions of the Act as well as the guidelines issued by the Central Government go to indicate that the aforesaid direction given by the learned Single Judge cannot be faulted in any manner. 

The special appeal is devoid of merit. It is accordingly dismissed.

( Anant Kumar, J.) ( S.S. Chauhan, J.)
Order Date :- 10th September, 2015
Rao/-

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