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2019 Supreme(Kar) 302
IN THE HIGH COURT OF KARNATAKA
L. NARAYANA SWAMY, P.S. DINESH KUMAR, JJ.
Education Rights Trust - Appellant
Versus
Government Of Karnataka - Respondent
Writ Petition No. 8028, 7889, 13729 of 2019
Decided on : 31-05-2019
Advocate Appeared:
Manasi Sharma, Adv., Udaya Holla, Adv., D. Nagaraj, Adv., S. Basavaraj, Adv., D.R. Ravishankar, Adv., Ashwini Kumar, Adv., Suman Hegde, Adv., Chethan B, Adv.
Headnote:
Constitution of India,1950 - Articles 21-A, 41 , 39, 38(a) & (b) and 21 - Directive Principles of the Indian Constitution - Article 45 - Violation of fundamental rights of children guaranteed - Seeking admission under provisions of Right to Education - Gross violation of spirit of the statute and the parent legislation - Whether unaided schools should also be identified under the RTE Act - Whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State - Whether a better or more comprehensive policy decision could have been taken - Petitioners herein consist of an organization, parents of the children seeking admission under provisions of Right to Education Act and a RTE Students & Parents Association (R). The aforementioned amendment, in substance, precludes identification of schools under the RTE Act wherever there exists a Government School or an aided school. If the amendment is declared ultra vires the Constitution of India, children entitled under the RTE Act may seek admission in any school in the locality. 86th Amendment to the Constitution of India has been brought in force by way of insertion of Article 21-A. As a result, myriad number of children got an opportunity to attend school for elementary education. The Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009, hereinafter referred to as Central Act, 2009 for the purpose of providing free and compulsory education to all children between six to fourteen years of age – Held, ascertain unreasonableness and arbitrariness in the context Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid “embarking on uncharted ocean of public policy - petitioners has been examined, and it is found that they have failed to show arbitrariness, mala fides or violation of law etc., as pointed out in the judgment of the Honble Supreme Court. Education under Article 21A of the Constitution is a fundamental right but the petitioners or such students have no right of admission to private schools only, as long as the government schools, local authorities schools or aided schools are available in the neighbourhood - we are of the view that the prayer sought for by the petitioners cannot be granted. If that is granted, the functioning of such schools established by the government - writ petitions are rejected
L. Narayana Swamy, J.
All these writ petitions are filed in the form of public interest litigation to declare the amendment of Rule 4 of Karnataka Right of Children to Free & Compulsory Education Rules, 2012, issued by means of notification dated 30.01.2019 by the Respondent No.2, as null and void on the ground that the same is in violation of fundamental rights of children guaranteed under Article 21-A of the Constitution of India.
2. The provision challenged in these proceedings reads as follows:
“provided that no unaided school falling under such clause (iv) of clause (n) of Section 2 shall be identified for the purpose of admission of disadvantaged group or weaker section, where government school and aided schools are available within the neighbourhood”.
3. The petitioners herein consist of an organization, parents of the children seeking admission under provisions of Right to Education Act and a RTE Students & Parents Association (R). The aforementioned amendment, in substance, precludes identification of schools under the RTE Act wherever there exists a Government School or an aided school. If the amendment is declared ultra vires the Constitution of India, children entitled under the RTE Act may seek admission in any school in the locality. 86th Amendment to the Constitution of India has been brought in force by way of insertion of Article 21-A. As a result, myriad number of children got an opportunity to attend school for elementary education. The Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009, hereinafter referred to as 'Central Act, 2009' for the purpose of providing free and compulsory education to all children between six to fourteen years of age. By powers conferred under Section 38(1) of the Central Act of 2009, the Government of Karnataka vide Official Gazette dated 28/4/2012, enacted Karnataka Right of Children to Free & Compulsory Education Rules, 2012, hereinafter referred to as 'State Rules, 2012'.
4. Section 12(2) of State Rules, 2012 and definition of 'school' as per Section 2(n) of Central Act, 2009 envisage reimbursement by the appropriate Government towards RTE quota seats in private-aided schools and such reimbursement amount is notified by the Government from time-to-time. Rule 8 of 2012 Rules seeks to compensate private-unaided schools for filling 25% seats [as per Section 12(1)(b) of Central Act, 2009] in their institution. The said provision provides equal opportunity to students to avail free and compulsory education within the vicinity of their place of residence.
5. On 30.01.2019, the Government of Karnataka in order to dilute the spirit and object of the said legislation, vide notification No.ED 36 PGC 2018 brought about amendment to Karnataka Rules, 2012 in gross violation of spirit of the statute and the parent legislation. As per the amendment, unaided schools are not required to provide admission to disadvantaged children where there are government schools and aided schools in the neighbourhood, and that such unidentified unaided/private schools will not receive re-imbursement for filling of 25% RTE quota seats.
6. It is stated in WP No.7889/2019 that Government schools are not preferred choice by parents. Majority of the Government schools do not have L.K.G. The 1st respondent cannot compel the parents to admit their children in the Government schools which do not have English medium. An opportunity to get admission in private schools, is taken away by way of amendment, affecting the fundamental rights of children as well as parents.
7. Petitioners have presented these petitions contending that provisions of Section 6 and Section 12(1)(c) of RTE Act 2009 indicate where there are no neighbourhood schools, the State Government and Local Authorities are required to establish schools in such neighbourhood within three years and till such time, the children belonging to weaker section and disadvantaged group ought to be admitted to such neighbourhood priva
