Emgi Krishnan v Believers Church English Medium School, Aryad South Grama Panchayath & State of Kerala

## **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) :** **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) :** **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 P5- COPY OF THE REPRESENTATION SUBMITTED BY PARENTS BEFORE THE PANCHAYATH.** **EXHIBIT P6- COPY OF THE TABLE OF FEES OF ST.MARY'S RESIDENTIAL SCHOOL.** **EXHIBIT P7- COPY OF THE NOTICE OF 2ND RESPONDENT PANCHAYATH DATED 14.7.2011.** **EXHIBIT P8- COPY OF THE NOTICE DATED 25.7.2011 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P9- COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT IN WP(C) NO.21272 OF 2011.** **EXHIBIT P10- COPY OF THE NOTICE DATD 15.9.2011.** **EXHIBIT P11- COPY OF THE COMMUNICATION OF THE REVENUE DIVISIONAL OFFICER DATED 15.9.2011.** **EXHIBIT P12- COPY OF THE MINUTES OF THE MEETING DATED 23.9.2011.** **EXHIBIT P13- COPY OF THE DECISION OF THE 2ND RESPONDENT DATED 28.9.2011.** **EXHIBIT P14- COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 23.9.2011.** **EXHIBIT P15- COPY OF THE NOTICE OF THE IST RESPONDENT DATED 03.10.2011.** **EXT.P16: COPY OF THE NOTICE ISSUED TO A PARENT, REVEENDRA DAS BY THE R1 DT 21/2/2012.** ## **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)** |**EXT.R1(b):**|**COPY OF THE MINUTES OF THE MEETING DT 11/1/2011 OF THE**| |---|---| ||**RESPONDENT AND ALL KERALA UN-AIDED SCHOOL STAFF**| ||**ASSOCIATION.**| |**EXT.R1(c):**|**COPY OF THE MINUTES OF THE PTA MEETING DT 14/1/2010.**| |**EXT.R1(d):**|**A TABLE SHOWING THE FEE PREVAILING IN THE R1 SCHOOL DURING**| ||**ACADEMIC YEAR 2010-11 AND 2011-2012.**| |**EXT.R1(e):**|**A TABLE SHOWING STUDENT TEACHER RATIO FOR THE YEAR 2010-2011**| ||**& 2011- 2012 OF HE R1 SCHOOL.**| |**EXT.R1(f):**|**A TABLE SHOWING THE COMPUTERS AND FEE HIKE WITH REASONS OF**| ||**THE R1 SCHOOL FOR CLASS 1-XI.**| |**EXT.R1(g):**|**A COMPARATIVE TABLE SHOWING THE FEE AND HIKE OVER THE YEAR**| ||**2010-2011 & 2011-2012.**| |**EXT.R1(h):**|**COPY OF THE TABLE SHOWING THE FEE STRUCTURE OF THIS**| ||**RESPONDENT FOR THE CURRENT YEAR UNDATED.**| |**EXT.R1(i):**|**COPY OF RELEVANT PAGES OF DIARY OF ST.MARY'S RESIDENTIAL**| ||**SCHOOL FOR THE ACADEMIC YEAR 2012-2013.**| |**EXT.R1(j):**|**COPY OF RELEVANT PAGES OF DIARY OF SANATHANA DHARMA**| ||**VIDYALAYA FOR THE ACADEMIC YEAR 2012-2013.**| |**EXT.R1(k):**|**COPY OF A FEES COMPARISON STATEMENT FOR VARIOUS SCHOOLS**| ||**FOR THE CURRENT ACADEMIC YEAR.**| |**EXT.R1(l):**|**COPY OF STATEMENT SHOWING THE IMPACT IF THE ORDER OF THIS**| ||**HONOURABLE COURT ON THE REVENUE ACOUNT OF THE R1 SCHOOL**| ||**UNDATED**| **//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 1[st] 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 2[nd] 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 2[nd] 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, W.P.C.No.28713/2011 2 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; 32. **Redressal of grievances.-** (1) Notwithstanding anything contained in Section 31, any person having any grievance relating to the right of a child under this Act may make a written complaint to the local authority having jurisdiction. (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. W.P.C.No.28713/2011 3 (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. 2. According to the petitioner, the 1[st] respondent 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 1[st] respondent had proceeded to increase the fee. Hence they had to approach the local authority under the Act which resulted in the above order. 3. According to the petitioner, despite the order being passed by the 2[nd] respondent, the 1[st] respondent is not taking any action to implement the same and as a result they are forced to approach this Court. It is contended that the increase in the fee is an invasion on the right of the W.P.C.No.28713/2011 4 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. 4. Counter affidavit is filed by the 1[st] respondent inter alia contending that the 2[nd] respondent has no jurisdiction to pass Ext.P13 order. The Act applies only to Government aided schools of local authorities. Unaided schools do not come within the purview of the Act. According to them, the expenditure incurred for running the school had increased several fold and therefore it is not possible to run the school without increasing the fee. They also relied upon Ext.R1(d) a table showing the fee prevailing in the school during the academic year 2010-2011 and 2011-2012. Still further it is contended that the Panchayath has no jurisdiction to fix the fee of the 1[st] respondent school. They have attended the meeting only on account of the direction issued by this Court in a writ petition to co-operate with the Panchayath. The whole idea was to have a mediation and they never W.P.C.No.28713/2011 5 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). 5. The 3[rd] respondent also has filed a counter affidavit stating that the 1[st] respondent school comes under the purview of Clause (iv) of sub Section (n) of Section 2. An unaided school which is not receiving any grant or aid from the Government also is covered under the provisions of the Act. According to them by virtue of Section 12(1)(c) of the Act, a school specified under sub Clauses (iii) and (iv) of Clause (n) of Section 2 shall admit in Class 1, 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 education till its completion. Reference is also made to Section 12(2) of the Act contending that the school specified in Section 2 (n) which includes unaided schools if they provide free and W.P.C.No.28713/2011 6 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. 6. The short question to be considered in the present writ petition is whether the 2[nd] respondent Panchayath has jurisdiction to pass Ext. P13 order by exercising power under the Act. The main contention urged by the petitioner is based on Section 3 of the Act which reads as under: ## **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. 7. Reference is made to judgment of the Supreme Court in **Environmental and Consumer Protection Foundation v. Delhi Administration and Others** _[2011_ _(7) SCC 55]_ in which paragraph 8 reads as under: **“8** . The right of children to free and compulsory education has now become part W.P.C.No.28713/2011 7 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.” 8. The learned counsel for the respondent relied upon the judgment of the Supreme Court in **Society for Unaided Private Schools of Rajasthan v. Union of India and Another** _[2012(6) SCC 1]_ in which the Supreme Court having considered the provisions of the Act in particular Section 12(1)(c) and 18(3) of the Act opined that the said provisions infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) of the Constitution of India and consequently the Act shall not apply to such Schools. The argument of the learned counsel for the 1[st] respondent is that it being a minority institution entitled to the protection under Article 30(1) of the Constitution of India, the Act does not apply. In fact, there is no basis for the aforesaid argument. Though a contention is raised, no documents have been produced to W.P.C.No.28713/2011 8 prove that the 1[st] 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. 9. A reference to Section 2(n) would show that the respondent school comes under Clause (iv), which reads as under: ( _iv_ ) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority; 10. Coming to the next question, a reference to 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,- W.P.C.No.28713/2011 9 (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.” 11. The question is whether the fee structure of an 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. W.P.C.No.28713/2011 10 12. The learned counsel for the petitioner submits that in so far as Section 3 of the Act contemplates free education to children between 6 to 14 years and substantial provision is made under Section 12 of the Act, necessarily the Panchayath being the local authority as defined under the Act has jurisdiction to interfere. If at all the 1[st] respondent School has any contention that the provisions of the Act does not apply or that the order is passed without jurisdiction, they have an appellate remedy under section 32 (3) of the Act itself. If they have not availed of the appellate remedy necessarily they will have to comply with the order. The order is not void or non est. It is passed by the local authority proceeding on the basis that it has jurisdiction to entertain the complaint. That being the situation, in the absence of any appeal being filed by the school, necessarily the order requires to be implemented. 13. On the other hand, it is the contention of the respondent school, that the order is passed without W.P.C.No.28713/2011 11 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. 14. In the light of the aforesaid contentions, the question to be considered is whether Ext.P13 order is one passed in accordance with the provisions of the Act and whether the 2[nd] respondent Panchayath has jurisdiction to pass such an order. The answer to this question will decide the fate of this case. 15. Going by the provisions of the Act, there is considerable doubt as to whether the Act applies to such unaided institutions. Though Section 3 makes it compulsory for a school child between 6 to 14 years to have free and compulsory education, the procedure by which such education is to be granted is specified under the other W.P.C.No.28713/2011 12 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, W.P.C.No.28713/2011 13 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. 16. The right to claim benefits under section 3 read with section 12(1)(c) of the Act depends upon the policy of the Government. Unless there is some policy decision by the W.P.C.No.28713/2011 14 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. 17. True that an appellate right is available to the 1[st] respondent and they have not availed such a remedy. But the fact remains that, if the order is passed without jurisdiction, it is open for the 1[st] respondent to ignore such an order and defend any proceedings for implementing the same. In the result, this writ petition fails and is dismissed. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.28713/2011 15 W.P.C.No.28713/2011 16 W.P.C.No.28713/2011 17