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Chief Justice's Court AFR

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 3334 of 2016

Petitioner :- Ajay Kumar Patel

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Adarsh Bhushan,Arpan Srivastava

Counsel for Respondent :- C.S.C.,Nisheeth Yadav

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ)

These proceedings which have been instituted in the public

interest raise a seminal issue in regard to the implementation of the

provisions of the Right of Children to Free and Compulsory

Education Act, 2009

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in relation to students belonging to the

economically weaker sections. The submission of the petitioner is

that the salutary mandate of Section 12 (1) (c) of admitting at least

twenty-five percent students from children belonging to the weaker

sections and disadvantaged group in the neighborhood has been

defeated by the State Government. The Act was enacted to provide

for free and compulsory education to all children of the ages of six

to fourteen years. The object of the Act is to implement Article 21

A of the Constitution which provides for free and compulsory

education to children between the ages of six to fourteen years.

This is a fundamental right guaranteed by Part-III of the

Constitution and is to be implemented in such manner as the State

1Act

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may by law determine.

The expression “school” is defined in Section 2 (n) as

follows :

“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

(iv)an unaided school not receiving any kind of aid or

grants to meet its expenses from the appropriate Government

or the local authority.

Section 3 (1) provides for the right to free and compulsory

education in a neighborhood school to every child between the

ages of six to fourteen till the completion of his or her elementary

education. Elementary education is defined in Section 2 (f) to mean

education from first class to eighth class. Among the mandatory

duties of the appropriate government under Section 8 and of the

local authorities under Section 9 is to provide free and compulsory

elementary education to every child and to ensure the availability

of a neighborhood school as specified in Section 6. Under Section

6, the appropriate Government and local authority are required to

establish within such area or limits of a neighborhood, as may be

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prescribed, a school, where it is not so established within a period

of three years from the commencement of the Act. Under Section 8

(c) and Section 9 (c), the appropriate Government and the local

authority are obligated to ensure that a child belonging to the

weaker section and a child belonging to a disadvantaged group are

not discriminated against and prevented from pursuing and

completing elementary education on any grounds. The local

authority is required under Section 9 (d) to maintain records of

children up to the age of fourteen years residing within its

jurisdiction, in such manner as may be prescribed and under Clause

(e) to ensure and monitor admission, attendance and completion of

elementary education by every child residing within its

jurisdiction. Section 12 forms a part of Chapter IV which deals

with the responsibility of schools and teachers.

Section 12 (1) (c) provides as follows :

“specified in sub-clauses (iii) and (iv) of clause (n) of section

2 shall admit in class I, 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

neighborhood and provide free and compulsory elementary

education till its completion:

Provided further that where a school specified in

clause (n) of section 2 imparts pre-school education, the

provisions of clauses (a) to (c) shall apply for admission to

such pre-school education.”

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The expression 'child belonging to disadvantaged group' is

defined in Section 2 (d) as follows :

“child belonging to disadvantaged group” means a child with

disability or a child belonging to the Scheduled Caste, the

Scheduled Tribe, the socially and educationally backward

class or such other group having disadvantage owing to

social, cultural, economical, geographical, linguistic, gender

or such other factor, as may be specified by the appropriate

Government, by notification.”

The expression 'child belonging to weaker section' is defined

in Section 2 (e) as follows :

“child belonging to weaker section” means a child belonging

to such parent or guardian whose annual income is lower

than the minimum limit specified by the appropriate

Government, by notification.”

The rule making power is conferred upon the appropriate

Government in Section 38. The expression appropriate

Government is defined in Section 2 (a) to mean the Central

Government in relation to a school established, owned or

controlled by the Central Government or the administrator of a

Union Territory, having no legislature. Other than the above, the

State Government is the appropriate Government in relation to a

school established within the territory of the State.

In exercise of the rule making power conferred by Section

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38, the State Government has made the Uttar Pradesh Right of

Children to Free and Compulsory Education Rules 2011

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, which

were notified on 27 July 2011.

Rule 4 (1) provides for the area or limit of a neighborhood

and is in the following terms :

“4 (1). The area or limit of neighborhood within which a

school has to be established by the Committee authorized by

the State Government shall be as under :

a) in respect of children in classes I-V, a school shall be

established in habitation which has no school within a

distance of 1.0 Km. and has population of at least 300;

b)in respect of children in classes VI-VIII, a school shall

be established in habitation which has no school within a

distance of 3.0 Km. and has population of at least 800.”

Rule 7 which deals with the admission of children belonging

to the weaker sections and disadvantaged groups is in the following

terms :

“7 (1)The schools referred to in sub-clauses (iii) and (iv) of

clause (a) of section 2 shall ensure that children admitted in

pursuance of clause (c) to section 12 (1) shall not be

segregated from the other children in the classrooms nor

shall their classes be held at places and timings different

from the classes held for the other children.

(2) The schools referred to in sub-clauses (iii) and (iv) of

clause (n) of section 2 shall ensure that children admitted in

pursuance of clause (c) to section 12 (1) shall not be

2Rules

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discriminated from the rest of the children in any manner

pertaining to entitlements and facilities such as textbooks,

library and Information, Communication and Technology

(ICT) facilities, extra-curricular activities and sports.

(3) The areas or limits of neighborhood specified in rule 4

(1) shall apply to admissions made in pursuance of clause (c)

to section 12 (1):

Provided that the school may, for the purposes of

filling up the requisite percentage of seats for children

referred to in clause (c) to section 12 (1), extend these limits

with the prior approval of the State Government.

(4) The local authority (Gram Panchayat/Nagar

Nigam/Nagar Palika/Nagar Panchayat, as the case may be)

shall maintain a name-wise list and record of all children

belonging to weaker section and disadvantaged group,

studying in private and specified category schools under its

jurisdiction.”

Under Rule 8, provisions have been made for the grant of

admission to children inter alia referred to in Section 12 (1) (c).

Insofar is material, sub-rule (1) is in the following terms :

“The process of admission of children referred to in clauses

(b) and (c) of section 12 (1) shall be totally transparent. The

detail of such children applying for admission shall be

maintained by the school regularly, which shall include the

name, address, sex, caste, date of birth of the child and the

name, address, occupation and monthly income of

father/mother/guardian, detail of whether child belongs to

weaker section or disadvantaged group. Such information

shall be made public through website. Out of the total

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applicants, all the children who applied for admission, but

not admitted for whatsoever reason, shall be informed in

writing with the reason thereof. It shall also be binding for

the school to follow the process of admission prescribed by

the State Government from time to time.”

The State Government has issued Government orders from

time to time in the exercise of its administrative authority to

regulate admissions under Section 12 (1) (c). On 3 December

2012, a Government Order was issued by which in clause 6-(Kha),

the following provision was made :

“¼[k½ ftyk csfld f'k{kk vf/kdkjh }kjk ;g ik, tkus ij fd

“vykfHkr lewg” rFkk “nqcZy oxZ” ds ckydksa dks iM+kslh

jktdh;@ifj"knh; ,oa lgk;frr fo|ky;ksa esa LFkku@lhVksa ds vHkko

ds dkj.k nkf[kyk ugha fey ik jgk gS rks jkT; ljdkj }kjk cukbZ xbZ

uhfr ds vuq:i ,sls fo|kfFkZ;ksa dks futh vlgk;frr fo|ky;ksa esa 25

izfr'kr LFkku@lhVksa dh lhek rd d{kk&1 esa izos'k ikus dk vf/kdkj

iznku djus gsrq izkFkZuk i= izkIr gksus ds vf/kdre 10 dk;Z fnol esa

vkns'k ikfjr djds futh fo|ky;ksa esa nkf[kyk nsus dk nkf;Ro gksxk]

tks lEcfU/kr fo|kFkhZ gsrq d{kk&8 rd dh f'k{kk rd ekU; jgsxkA

ftyk csfld f'k{kk vf/kdkjh }kjk mijksDr dk;Zokgh gsrq 05 fnol esa

Lor% Li"V izLrko lfgr i=koyh ftykf/kdkjh ds vuqeksnu gsrq izLrqr

dh tk;sxh rFkk ftykf/kdkjh }kjk vf/kdre 05 fnol esa izdj.k ij

vfUre fu.kZ; fy;k tk;sxk ,oa ekrk&firk@vfHkHkkod dks rn~ijkUr

ftyk csfld f'k{kk vf/kdkjh }kjk lwfpr Hkh fd;k tk;sxkA”

Subsequently, a further Government Order was issued on 20

June 2013. By a further Government Order dated 6 January 2015,

the State Government issued directions by which, inter alia, it was

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provided as follows :

“1& tuin eq[;ky; esa izkFkfedrk ds vk/kkj ij uxj {ks= dk

losZ{k.k djk fy;k tk; rFkk ,sls okMZ fpfUgr dj fy, tk;sa] ftuesa

jktdh;] ifj"knh; vFkok 'kklu }kjk foRr iksf"kr izkFkfed fo|ky;

lapkfyr ugha gSA ,sls vlsfor okMksZ esa fLFkr v'kkldh; xSj lgk;rk

izkIr fo|ky;ksa dks fpfUgr dj fy;k tk;s vkSj 'kklukns'k ds vuqlkj

ik= Nk=&Nk=kvksa dks bu v'kkldh; fo|ky;ksa esa d{kk&1@iwoZ

izkFkfed d{kk esa izos'k fnykus gsrq muds ekrk&firk@vfHkHkkod ls

vkosnu i= vkeaf=r dj fy, tk;saA blds mijkUr 'kklukns'k }kjk

fofgr izfdz;k ds vuqlkj okMZ esa fLFkr v'kkldh; xSj lgk;rk izkIr

fo|ky;ksa esa d{kk&1@iwoZ izkFkfed d{kk esa izos'k fnyk;k tk;A

bl gsrq le; lkfj.kh fuEuor~ dh x;h gS%&

¼1½&vlsfor okMksZ dk fpUghdj.k 24 tuojh] 2015 rd

¼2½&vlsfor okMksZ dh fpUghdj.k lwph dk

f'kfoj dk;kZy; f'k{kk funs'kd ¼csfld½

dks izs"k.k 31 tuojh] 2015 rd

¼3½&vlsfor okMZZ esa ;kstuk dk izpkj izlkj

,oa vkosnu i= izkIr djuk 01&28 Qjojh] 2015 rd

¼4½&vkosnu i=ksa dk ijh{k.k ,oa izos'k gsrq v'kkldh;

ekU;rk izkIr fo|ky; vkoafVr djuk 15 ekpZ] 2015 rd

¼5½&iqu% vkosnu i= vkeaf=r djuk 31 ekpZ] 2015 rd

¼6½&uohu vkosnu i=ksa dk ijh{k.k ,oa izos'k gsrq

fo|ky; vkoafVr djuk 15 vizSy] 2015 rd

2& 'kklukns'k l[;k&3087¼1½@79&5&2012&29@09Vh-lh-&11 fnukad

3&12&2012 ds izLrj&6 [k.M¼[k½ esa ;g izkfo/kku fd;k x;k gS fd “ftyk

csfld f'k{kk vf/kdkjh }kjk ;g ik;s tkus ij fd “vykfHkr lewg” rFkk

“nqcZy oxZ” ds ckydksa dks iM+kslh jktdh;@ifj"knh; ,oa lgk;frr fo|

ky;ksa esa LFkku@lhVksa ds vHkko ds dkj.k nkf[kyk ugha fey ik jgk gS rks

jkT; ljdkj }kjk cukbZ xbZ uhfr ds vuq:i ,sls fo|kfFkZ;ksa dks futh

vlgk;frr fo|ky;ksa esa 25 izfr'kr LFkku@lhVksa dh lhek rd d{kk&1 esa

izos'k ikus dk vf/kdkj iznku djus gsrq izkFkZuk i= izkIr gksus ds vf/kdre

10 dk;Z fnol esa vkns'k ikfjr djds futh fo|ky;ksa esa nkf[kyk nsus dk

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nkf;Ro gksxk] tks lEcfU/kr fo|kFkhZ gsrq d{kk&8 rd dh f'k{kk rd ekU;

jgsxkA”

The Government Order dated 20 June 2013 has been

amended on 24 February 2016 in certain respects.

In the writ petition, it has been stated that out of a total 56.53

lac enrollments of students for Class 1 in primary schools in the

State of Uttar Pradesh, 6.37 lac enrollments representing a quota of

25% prescribed under Section 12 (1) (c) should have been filled up

but as on 5 June 2015, only 2817 admissions were confirmed to

have been granted under the said provision.

The grievance of the petitioner, when the petition was

entertained on 27 January 2016 was two fold. Firstly, it was

submitted on the basis of the Government Orders dated 3

December 2012 and 6 January 2015 that the District Basic

Education Officers have been directed that it is only where no seat

is available in government schools or aided institutions that the

provisions of Section 12 (1) (c) would apply. Secondly, it was

submitted that as a result of an artificial distinction between the

urban and rural wards, Section 12 (1) (c) is being applied only to

urban wards with the result that the rural population is not

obtaining the benefit of the provision. On both these aspects, this

Court directed the Secretary, Basic Education to file a short counter

affidavit.

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Accordingly, the Secretary, Basic Education has responded

to the directions of this Court. The Secretary, Basic Education

states that the submission of the petitioner that 25% of the seats in

unaided private schools in Class 1, out of a total of 6.37 lac

enrollment should be filled up from students from the specified

groups is only a statistical calculation. In the view of the Secretary,

Basic Education, this cannot be construed as a target. According to

the counter affidavit, the provisions of Section 12 (1) (c) do not

abrogate the responsibility of the appropriate Government as

prescribed in Section 6. Dealing with the two specific issues which

have been raised by the petitioner, the affidavit of the State clarifies

that there is no distinction between the rural or urban areas in the

relevant Government Orders. The relevant averments in the

affidavit are as follows :

“13. That considering the provision of Section 12 of

the Right of Children to Free and Compulsory Education

Act, 2009 in the Uttar Pradesh Right of Children to Free and

Compulsory Education Rules, 2011 and in the relevant

Government orders there is no distinction in the Rural or

Urban Areas. In so far as the office order dated 06.01.2015

issued by the Director of Education Basic is concerned it

does not restrict the admissions of children belonging to the

disadvantaged group and weaker section in the

neighborhood schools to urban areas only, but considering

the unavailability of space for establishing new government

schools or non-availability of schools run by the Basic

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Education Board the District Basic Education Officers were

given directions that in the urban wards in which the schools

run by the Basic Education Board are not available the

students/ children belonging to the weaker section and

disadvantaged group be given admission in the unaided

private schools.... It is submitted that the Government Order

dated 3.12.2012 does not make any distinction between rural

and urban areas for coverage of the said act.”

The first issue which falls for consideration relates to the

interpretation of the provisions of Section 12 (1) (c). Section 12

defines the nature of the responsibility of a school to provide for

free and compulsory education. Section 12 (1) (c) covers schools

belonging to specified categories and unaided schools not receiving

any grant or aid to meet expenses from the Government or local

authority. These schools have been obligated to admit to Class 1 to

the extent at least 25% of the strength of that class, children

belonging to weaker sections and disadvantaged groups in the

neighborhood and to provide free and compulsory elementary

education till its completion. The mandate of Section 12 is not

conditional on the absence of schools established, owned or

controlled by the appropriate Government or local authority or of

aided schools. In other words, the obligation to admit students

belonging to the weaker sections and from disadvantaged groups

does not come into existence only upon the absence of seats in

schools which are run by the State or local authority or by aided

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institutions. The obligation under Section 12 (1) (c) has not been

made dependent on the non existence of State run schools or aided

schools or the unavailability of seats in those schools. To read

Section 12 (1) (c) in a contrary manner so as to import an

obligation to admit students from the weaker sections and

disadvantaged groups only where seats are not available in State

run schools or aided institutions would be to defeat the object of

the provisions. The Government Order dated 6 January 2015

reiterates the earlier Government Order dated 3 December 2012 by

stipulating that it is only where the District Basic Education Officer

has found that students belonging to weaker sections or

disadvantaged groups are unable to obtain admissions to

government schools or schools run by the Basic Shiksha Parishad

and in aided institutions due to unavailability of seats that such

students would be entitled to obtain admission against the 25%

seats available in unaided institutions. This prescription creates a

hierarchy in the availment of the benefits under Section 12 (1) (c)

by stipulating that it is only in the absence of admissions being

available in Government run schools or aided institutions that the

obligation to admit students from disadvantaged groups or of

weaker sections under Section 12 (1) (c) would arise. This

interpretation and understanding of the State is clearly contrary to

the provisions of Section 12 (1) (c).

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Moreover, it is evident that the rules which have been

prescribed by the State Government under the rule making

authority do not establish any such hierarchy as indeed the rules

could not have done in violation of the provisions of the parent

enactment. Consequently, we find merit in the first submission

which has been urged on behalf of the petitioner that laying down a

hierarchy or condition for the availment of the benefits under

Section 12 (1)(c) by restricting them only to a situation where

admissions in schools which are conducted by the Government or

in aided institutions are not available, would be contrary to the

plain mandate of Section 12 (1) (c). Such a policy cannot be laid

down by the State Government in violation of the provisions of the

Act of Parliament and would be ultra vires. The plain effect of the

policy would be to mandate that a child belonging to the weaker

section or disadvantaged groups cannot aspire for admission to an

unaided institution under Section 12 (1) (c) so long as admissions

are available in State run schools or in aided institutions. This is

impermissible. It is a matter of common knowledge that the

facilities which are provided in unaided institutions are superior to

those in government institutions and aided institutions though may

be with certain exceptions. The whole object and purpose of

Section 12 (1) (c) was to provide for an assimilation of students

belonging to the weaker sections and disadvantaged groups into the

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main stream of education by allowing them access to facilities and

means of learning provided in unaided institutions. Unfortunately,

as a result of the policy which has been framed by the State

Government to which we have made a reference earlier, this object

has been negated by depriving the most deserving of students from

the grant of benefits which have been provided by the legislation

enacted by Parliament in implementation of the fundamental right

to free and compulsory education between the ages 6 and 14.

On the second aspect of the matter, we are equally of the

view that it would be impermissible for the State Government to

postulate, as a matter of policy, that the provisions of Section 12

(1) (c) will be applicable only to the urban as distinct from rural

areas. Neither the Act nor the Rules make any such distinction.

There can be no plausible justification whatsoever to restrict the

ambit of the provisions made under Section 12 (1) (c) to the urban

areas by depriving the rural population access to better education

facilities in primary education. The Secretary, Basic Education has

in his counter affidavit clarified that there is no distinction as such

between rural and urban areas but, considering the unavailability of

space for establishing new Government schools or non availability

of schools run by the Basic Education Board, the District Basic

Education Officers were given directions that in the urban wards in

which the schools run by the Board are not available,

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students/children belonging to the weaker sections or

disadvantaged groups be given admissions in unaided private

institutions. If the aforesaid formulation of the State Government is

intended to be inclusive by emphasizing the need to grant

admissions to the groups covered by Section 12 (1) (c), there can

be no objection. However, this formulation cannot be read in an

exclusionary manner so as to confine the benefits of Section 12 (1)

(c) only to students who are pursuing education in urban areas as

distinct from rural areas. The provisions of Section 12 (1) (c) must

be enforced by the State without distinction between the urban and

rural areas.

During the course of hearing, one aspect which has emerged

before the Court is the failure of the Principal Secretary, Basic

Education to deal specifically with the number of admissions

granted across the State under Section 12 (1) (c). Apart from

controverting the statement made by the petitioner, by submitting

that Section 12 (1) (c) is not a target, no specific disclosure of

statistics has been made before the Court. The State Government

shall ensure that the provision is implemented in letter and spirit in

the State of Uttar Pradesh from the coming academic session. The

State shall do so in accordance with the basic interpretative

principles that must govern the implementation of Section 12 (1)

(c) in the State as enunciated in this judgment. The State shall now

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revisit its earlier formulations so as to bring them in conformity

with the mandate of Section 12 (1) (c) as interpreted in the present

judgment of this Court no later than within a period of two months

from the date of receipt of a certified copy of this order.

The writ petition is, accordingly, disposed of. There shall be

no order as to costs.

Order Date :- 1.3.2016

RK

(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)