**WP(C) NO. 7903 OF 2021**
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
## **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943**
## **WP(C) NO. 7903 OF 2021**
## **PETITIONER/S:**
SATHEESAN P.K., AGED 45 YEARS, S/O. KESAVAN, PUNNAKKATTUTHARA HOUSE, PANAMBUKAD, VALLARPADOM P.O, PIN-682 034, ERNAKULAM DISTRICT. BY ADV C.P.JYOTHY
## **RESPONDENTS :**
1 THE PRINCIPAL, KENDREYA VIDYALAYA (KV-II) KATTARIBAG WILLINGTON ISLAND, KOCHI-682 003 2 HEADMISTRESS, KENDRIYA VIDYALAYA, KATTARIBAG, WILLINGTON ISLAND, KOCHI-682 003 3 THE DEPUTY COMMISSIONER, REGIONAL OFFICE, KENDREYA VIDYALAYA SANGATHAN, IGH ROAD, NEAR RAJEEV GANDHI INDOOR STADIUM, KADAVANTHRA, KOCHI-682 020 BY ADV SRI.K.I.MAYANKUTTY MATHER, SC, KENDRIYA VIDYALAYA SANGATHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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**“CR”**
## **JUDGMENT**
Can a child pursuing elementary education be held back in a class at the request of the parents of the Child? When the request of the father of a child, aged about 10 years, and studying in the IVth standard in Kendriya Vidyalaya, Kattaribag that his child be held back in the same class for another year was turned down by the school authorities, he has approached this Court seeking directions.
2. The father and mother are Government Servants and from the pleadings, it appears that they are educated. They contend that as they were very much involved in their respective jobs, they were not able to spare much time for their child. Due to COVID restrictions, the classes were held online. The petitioner states that on evaluation of his child, the parents realised that the child is below average in his studies. According to the petitioner, the teachers failed to supervise the child in a proper manner and ensure that the child understood the curriculum prescribed for the class that he was in. In the said circumstances, with the future of the child in mind, they submitted Exhibits P2 and P3 representations before respondents 1 and 2 requesting that the child be detained in the same class. They contend that the respondents did not pay heed to their request prompting the father to approach this Court with this Writ Petition.
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3. A statement has been filed by respondents 1 and 2 through their Standing Counsel. It is stated that the son of the petitioner had attended all the online classes in the session 2020-21 with an attendance of 160/207, i.e. 77% during the current academic year. He has also scored well in academics and has secured an overall ‘A’ Grade. It is further stated that the Kendriya Vidyalaya Sangathan has adopted a “No Detention” policy for the academic year 2020-21 due to the Covid 19 pandemic. Under no circumstances can the child be held back in the same class is the stand taken by the respondents.
4. I have heard Smt C.P. Jyothy, the learned counsel appearing for the petitioner and Sri K.I. Mayankutty Mather, the learned Standing Counsel appearing for the respondents 1 to 3.
5. In **Unnikrishnan vs. State of Andhra Pradesh** (AIR 1993 SC 2178) the Apex Court held that having regard to the fundamental significance of education to the life of an individual and the nation, the right to education is implicit in and flows from the right to life guaranteed by Article 21. It was held that every child up to the age of 14 years has a fundamental right to free education and directions were issued to the State to follow the directives in Article 45 of the Constitution. In tune with the directives of the Hon’ble Supreme Court, the 86th Constitution Amendment Act, 2002 added Article 21A to the Constitution which requires the State to provide free and compulsory education to all children from the age of six to 14 years. The Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) was enacted to give effect to the 86th Constitutional Amendment and
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to provide for free and compulsory education to all children of the age of six to fourteen years.
6. A child has been defined under Section 2(c) of the Act to mean a male or female child of the age of six to fourteen years.
7. Section 16 of the Act provides for the conduct of examination and holding back in certain cases. The said provision reads thus
16. Examination and holding back in certain cases.—
(1) There shall be a regular examination in the fifth class and in the eighth class at the end of every academic year.
(2) If a child fails in the examination referred to in sub-section (1), he shall be given additional instruction and granted opportunity for reexamination within a period of two months from the date of declaration of the result.
(3) The appropriate Government may allow schools to hold back a child in the fifth class or in the eighth class or in both classes, in such manner and subject to such conditions as may be prescribed, if he fails in the re-examination referred to in sub-section (2)
Provided that the appropriate Government may decide not to hold back a child in any class till the completion of elementary education.
(4) No child shall be expelled from a school till the completion of elementary education.
8. The statute provides for the holding of a regular examination in the fifth class and the eighth class at the end of the academic year. Even if a child fails in the said examination, the child has to be given additional instructions and granted re-examination within a period of two months from the declaration of the result. Only if he fails in the re-examination and if the appropriate Government allows the School to hold back a child can a child be retained in the same class.
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9. In the case on hand, the child has secured A grade marks. Under no circumstances can the child be retained in the same class even if so requested by the parents.
10. The United Nations Convention on the Rights of the Child (UNCRC), is one of the most widely ratified treaties that sets out the civil, political, economic, social and cultural rights of every child irrespective of their race, religion or abilities. The UNCRC is based on the premise that basic fundamental rights belong to every child. India has ratified the UNCRC in the year 1992 but with certain reservations on issues unrelated to the case on hand.
## 11. Articles 12 of the convention reads thus:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The convention has recognised that a child is capable of forming his or
her own views and that he/she will have the right to express those views freely in all matters affecting the child and that the views of the child should be given due weight in accordance with the age and maturity of the child.
12. It would be advantageous to refer to Section 4 of Act 35 of 2009
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which provides for special provisions for children not admitted to, or who have not completed, elementary education. The said provision provides that where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age. In other words, if the child has completed six years of age and has not been admitted to any class and expresses his desire to study then the child has to be granted admission in a class appropriate to his age.
13. In view of Section 4 of the Act, even if the child of the petitioner had not studied Class IV and expresses his desire to get admission to class V, the school concerned is bound to admit the child in the Vth standard. In order to be at par with other children, the child will have a right to receive special training. The statute also provides that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.
14. It is obvious that the petitioner is oblivious of the trauma that is likely to be caused to his 10-year-old child if he is detained in the same class for yet another year. The petitioner has no case that either the father or the mother had discussed the matter with the child and his opinion was sought before embarking upon this listless adventure. Assuming for a moment that Act 35 of 2009 was not in place and that the will of the parents were to prevail, the Child would have been forced to sit in the lower class. He would have been ridiculed and mocked by his classmates. This would cause
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irreparable harm to the psyche of the child.
15. I have no doubt in my mind that the father of the child has come up with this petition oblivious of the harm that his insensitive and unreasonable act would cause to the child. The counsel appearing for the petitioner was requested by this Court to seek counselling from an accredited counsellor so that they may not continue to traumatise the child under the mistaken notion that the child is not good enough in his studies. I exhort the petitioner and his wife to undergo counselling and also ensure they do not force their notions of education on their minor child.
None of the relief sought for by the petitioner is liable to be granted. This writ petition will stand dismissed. No costs.
**Sd/-**
**RAJA VIJAYARAGHAVAN V**
**JUDGE**
ps
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## **APPENDIX OF WP(C) 7903/2021**
PETITIONER(S) EXHIBITS :
EXHIBIT P1 TRUE COPY OF FEE PAYMENT RECEIPT OF THE PETITIONER'S CHILD.
EXHIBIT P2 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF POSTAL RECEIPT DATED 19.12.2020 PERTAINING TO EXT.P2 REPRESENTATION.
EXHIBIT P5 TRUE COPY OF POSTAL RECEIPT DATED 19.12.2020 PERTAINING TO EXT. P3 REPRESENTATION.
RESPONDENT(S) EXHIBITS : NIL
