Kendriya Vidyalaya Sangathan v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 WP(C) NO. 13273 OF 2015** ## **PETITIONER/S:** KENDRIYA VIDYALAYA SANGATHAN(KVS) REPRESENTED BY THE DEPUTY COMMISSIONER, S.SELVARAJ, KENDRIYA VIDYALAYA SANGATAHN, REGIONAL OFFICE, ERNAKULAM, KADAVANTHRA, KOCHI-682020. BY ADV SRI.K.I.MAYANKUTTY MATHER ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE LEGISLATIVE DEPARTMENT, MINISTRY OF LAWA AND JUSTICE, ROOM NO.405, A WING, 4TH FLOOR, SHASTRI BHAVAN, , NEW DELHI-110 001. 2 THE SECRETARY TO THE DEPARTMENT OF SCHOOL EDUCATION AND LITERACY EX-OFFICIAO MEMBER NATIONAL ADVISORY COUNCIL U/S./ 33(1) OF RTE ACT. MINISTRY OF HUMAN RESOURCES DEVELOPMENT (HRD), 124-C, SHASTRI BHAWAN, NEW DELHI-110 001. 3 KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS THIRUVANANTHAPURAM, VANROSS JUNCTION, KERALA UNIVERSITY P.O., THIRUVANANTHAPURAM-695034, REPRESENTED BY ITS REGISTRAR. 4 P.K.MUHAMMED BASHEER GAYA, CHEMPOTHARA ROAD, PALAVAYAL, KOTTANADU P.O., MEPPADI, WAYANAND DISTRICT-673577. BY ADVS. SRI.DINESH R.SHENOY, CGC SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.C.V.MANUVILSAN ## **OTHER PRESENT:** CGC DINESH R SHENOY,GP ARUN AJAY SHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 13273 OF 2015** **2** ## JUDGMENT Multifarious reliefs have been sought in the writ petition. As far as Ext.P9 notice dated 19.3.2015 is concerned, I am of the view that the writ petition is totally premature as it is a notice issued by the 3[rd] respondent, Kerala State Commission for Protection of Child Rights whereby a complaint bearing No.CRMP No.1992/2014/12/LA2/KeSCPCR was registered and an action report was sought from the respondents. Petitioner, Kendriya Vidyalaya Sangathan (KVS) if aggrieved, has a right to contest the same on merits by raising all the pleas taken in the writ petition. Even the outcome of the further proceedings taken in response to notice have not been apprised. Thus the writ petition qua laying challenge to Ext.P9 is premature. 2. As far as the other reliefs are concerned, it has been averred that petitioner is a Kendriya Vidyalaya Sangathan (KVS) an autonomous organization, registered under the Societies Registration Act and an Autonomous body under the Ministry of Human Resources Development (HRD), Government of India with the objective to cater the educational needs of children of **WP(C) NO. 13273 OF 2015** **3** transferable Central Government employees including defence personnel by providing a common programme of education and to develop Vidyalaya as a model school in the context of national goal of Indian Education and to initiate/promote innovations and experiments in the field of education in collaboration with other bodies like CBSE and NCERT etc. The Chairman of the Kendriya Vidyalaya Sangathan (KVS) is the Union Minister of Human Resources Development and Vice Charman is the Additional Secretary (HE) of the Department of Higher Education, Ministry of Human Resources Development, Government of India. The Commissioner of the Kendriya Vidyalaya Sangathan is the Chief Administrator and Chief Executive to implement the policies approved by the Board of Governors. The policies and the decisions of Kendriya Vidyalaya Sangathan (KVS) are taken by the Board of Governors consisting of eminent educationists and administrators from all over the country. The Education Code for Kendriya Vidyalayas was brought out in the year 1970. Article 28 of the said Education Code pertains to establishment of Kendriya Vidyalayas. Vidyalaya Management Committee in every **WP(C) NO. 13273 OF 2015** **4** Kendriya Vidyalayas generally supervise the day to day management of such Vidyalayas with effect from 1970 and the powers of the Vidyalaya Management Committee has been defined under Article 31 of the Education Code of Kendriya Vidyalayas. Parents Association of Kendriya Vidyalaya approached the High Court vide WP(C) No.13900 of 2013 and WA No.1353 of 2004 alleging that in view of the provisions of Article 21 of the Constitution of India and the Right of the Children to Free and Compulsory Education, Act, 2009 (The RTE Act, 2009), the Kendriya Vidyalaya is not entitled to levy any fee from the students. This court in the judgment Kendriya Vidyalaya Parents Association, Kochi v. Union of India and Others (2014 (3) KHC 86) held that compulsory and free elementary education in Kendriya Vidyalaya cannot be claimed on the strength of Article 21 of the Constitution of India. 3. Learned counsel appearing on behalf of the petitioner submitted that the 4[th] respondent submitted a complaint before the Kerala State Commission For Protection of Child Rights on 24.8.2014 stating that the petitioner, Kendriya Vidyalaya Sangathan has not taken steps to constitute **WP(C) NO. 13273 OF 2015** **5** School Management Committees (SMC) as enshrined under Section 21 of the RTE, Act, 2009 and further alleged that a VMC has been functioning in the schools consisting of District Collector and Director of Public Instruction. Kerala State Commission for Protection of Child Rights had taken the cognizance of complaint and issued a notice dated 29.9.2014 and sought the report on the aforementioned complaint. In response to the notice, submitted a report dated 21.10.2014 before the 3[rd] respondent, Ext.P4. However on 14.11.2014 the 3[rd] respondent, Commission issued an order directing the petitioner to constitute School Management Committees (SMC) vide Ext.P5. 4. Learned counsel further contended that Section 31 of the RTE Act, 2009 empowers the National Commission for Protection of Child Rights as well as the State Commission for Protection of Child Rights to examine and review the safe guards of the rights provided by or under the RTI Act, 2009 as a recommendatory measures for effective implementation. There is no power to issue any directions. Similarly Section 15 of the Commission for Protection of Child Rights Act, 2005 **WP(C) NO. 13273 OF 2015** **6** contemplates the steps after inquiry whereas Section 24 prescribes the steps after the inquiry by the State Commission. Rule 40 of the Kerala State Commission for Protection of Child Rights Rules, 2012 prescribes the procedure for considering a complaint ie., for holding a preliminary inquiry, inquiry, final orders and follow up action. Section 21 of the RTE Act has no application to Kendriya Vidyalaya Sangathan considering its special constitution and set up. In fact Section 21 would be applicable to the schools defined under the provisions of the RTE Act whereas the petitioner is exempted from the provisions of Section 2(p) of the RTE Act, 2009 ie., 'Specified Category' as it does not receive any grant from the State and Centre but receives the grant from public and defence sector. 5. Constitution of a School Management committee as per the provisions of Rule 21 of the RTE Act and clause 2 of Rule 3 of the Right of Children to Free and Compulsory Education Rules, 2010 would not be viable or practical as far as the Kendriya Vidyalayas are concerned as the school is catering to three sectors ie., civil sector, defence sector and project/institute of higher learning. Project Sector schools are **WP(C) NO. 13273 OF 2015** **7** like Kendriya Vidyalaya, National Thermal Power Corporation) Kayamkulam, and KV No.1 CPCRI (Central Plantation Crops Research Institute), Kasargod etc. The salary of all the employees along with maintenance of school building and sports ground is also met by the concerned Project. It would adversely affect the smooth functioning of the school and may lead to closure of school even as all the expenses in respect with the running of the schools had to be provided by the Project authority/sponsoring authority. Some times, the authority concerned may not be in a position to accept additional financial burden also. A representation in this regard was submitted to Joint Secretary, Ministry of Human Resource Development for grant of exemption, Ext.P8, but of no avail. However in the meantime received a show cause notice Ext.P9 from the Kerala State Commission for Protection of Child Rights requiring the petitioner to submit an action taken report. 6. On the other hand, the learned Government Pleader submits that the petition is not maintainable either in law or facts as the petitioner is not entitled to relief, for, section 17 of **WP(C) NO. 13273 OF 2015** **8** the Commissions for Protection of Child Rights Act, 2005 envisages the establishment of the Commission and Commission will have power to inquire into the violation of the rights and recommend initiation of the proceedings. The writ petition qua challenge to Ext.P9 is premature and all the pleas taken with regard to the applicability or non applicability of the provisions of Section 21 of the RTE Act and other provisions of the RTE Act would be the point of determination by the concerned Commission. Section 21 of the RTE Act envisages that all schools than a schools specified in sub-clause (iv) of clause (n) of section 2, shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers. The only exemption allowed is in respect of unaided schools which do not receive any kind of aid of grant to meet the expenses whereas in the instant case, even if the State is not granting any aid but Kendriya Vidyalayas concededly are receiving the grants and therefore cannot claim a deemed exemption. School Management Committee would perform a vital functions like monitoring, the working of the schools, **WP(C) NO. 13273 OF 2015** **9** preparation and recommendation of school development plan, utilization of the grants from the appropriate Government or the local authority or 'any other source' and also perform such other functions as may be prescribed by the Rules under the Act. 7. Counsel representing the respondent No.4 countered the arguments of the petitioner and submitted that he is a parent of two children, who are pursuing their education from Kendriya Vidyalaya School, Kalpatta, Wayanad. The intention behind the constitution of SMCs in schools is to ensure involvement of the parents /guardians of the school going children, so as to improve the quality of their education. The petitioner has never implemented the RTE Act in full capacity in any of the schools across India. It is only at the instance of the complaint preferred by him before the Honourable Kerala State Commission for protection of Child Rights, the Commission has taken the cognizance. Even the Minister of Human Resource Development, declared before the Rajya Sabha that Kendriya Vidyalayas have fully implemented the provisions of the RTE Act, 2009 as evident from Unstarred **WP(C) NO. 13273 OF 2015** **10** Question No.1749 dated 26.8.2023 in its 229[th] Session, R4(B). The said Code was amended recently so as to include the mandatory provision of providing free education for 25% in the elementary section of the institutes. Apart from the regular salary, all other expenses of the teachers and other nonteaching staff of the Project Sector schools are borne by the Central Government which includes the training of the said employees, pension, dearness allowance and other benefits provided by the Central Government directly and not the Project Sectors. Even the teachers of Kendriya Vidyalaya have requested the Minister to constitute the monitoring committees and urge this Court for dismissal of the writ petition. 8. I have heard the learned counsel for the parties and appraised the paper book. Section 2(n) of RTE Act defines the school. The same reads as under: 2(n): school means any recognised school imparting elementary education and includes - (i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and **WP(C) NO. 13273 OF 2015** **11** (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority; 9. Similarly, 2(p) prescribes the specified category, in relation to a school which would mean a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified by the notification, by the appropriate Government and State Commission as per Section 2(q) would mean for protection of Child Rights constituted under Section 3 of the Commissions for Protection of Child Rights Act, 2005. The same reads thus: 2(p) specified category, in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government 2(q) State Commission for Protection of Child Rights means the State Commission for Protection of Child Rights constituted under Section 3 of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006). ## 10. Section 21 of the RTE Act is also required to be extracted. The same reads thus: 21 School Management Committee. (1) A school, other than a school specified in sub-clause (iv) of Clause (n) of Section 2, shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers: Provided that at least three-fourth of **WP(C) NO. 13273 OF 2015** **12** members of such Committee shall be parents or guardians: Provided further that proportionate representation shall be given to the parents or guardians of children belonging to disadvantaged group and weaker section: Provided also that fifty per cent. of Members of such Committee shall be women. (2) The School Management Committee shall perform the following functions, namely: (a) monitor the working of the school; (b)prepare and recommend school development plan; (c) monitor the utilisation of the grants received from the appropriate Government or local authority or any other source; and (d)perform such other functions as may be prescribed. 11. The expression 'school' other than a school specified in sub-clause (iv) of clause (n) of section 2 are mandatorily required to constitute a School Management Committee consisting of the members prescribed therein. In my considered view on plain and simple reading of the sub-clause (iv) of clause (n) of section 2, the school exempted is an unaided school not receiving any kind of aid/grants to meets its expenses from the appropriate Government or local authority. The averments in the petition are emphatic and candid with regard to receipt of the aid from the public sector undertakings and defence sector. Thus it would not merit any acceptance as it would not be falling in sub-clause (iv) of clause (n) of section 2 of the definition. In view of the fact that the school is not **WP(C) NO. 13273 OF 2015** **13** excluded as tried to be projected, petitioner has no substance to allege that the provisions of Section 21 of the RTE Act would not be applicable. Even otherwise, notice Ext.P9 is not a final adjudication but an opportunity to raise contentions. Despite knowing all these facts, have invoked the jurisdiction of this Court. Thus once the petitioner school is receiving the aids from the various sources, it cannot exclude from the applicability of the provisions under Section 21 of the RTE Act and therefore is required to constitute the school monitoring committees. Writ petition sans merit. Accordingly, dismissed. sab Sd/AMIT RAWAL JUDGE **WP(C) NO. 13273 OF 2015** **14** ## **APPENDIX OF WP(C) 13273/2015** PETITIONER EXHIBITS EXHIBIT P1: TRUE EXTRACT OF ARTICLES 28 TO 25 OF THE EDUCATION CODE FOR KENDRIYA VIDYALAYAS DATED NIL. EXHIBIT P2: TRUE COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDNT DATED 24.8.2014. EXHIBIT P3: TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 29.9.2014. EXHIBIT P4: TRUE COPY OF THE REPORT FILED BY THE PETITIONER BEFORE THE 3RDE RESPONDENT DATED 20/21.10.2014. EXHIBIT P5: TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 14.11.2014. EXHIBIT P6: TRUE COPY OF THE NORMS FOR OPENING NEW KENDRIYA VIDYALAYAS IN THE CAMPUS OF PUBLIC SECTOR UNDERTAKING/INSTITUTION OF HIGHER LEARNING DATED NIL. EXHIBIT P7: TRUE COPY OF THE NORMS FOR OPENING NEW KENDRIYA VIDYALAYAS UNDER CIVIL SECTOR/DEFENCE SECTOR DATED 9.5.2014. EXHIBIT P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT DATED 13.2.2015. EXHIBIT P9: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIOENR DATED 19.3.2015.