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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D.DHANUKA, ABHAY AHUJA, JJ.
Mast. Zillurrahman Shaikh s/o. Abdul Rab Shaikh – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No.1003 of 2021
Decided on : 23-12-2021
Constitution of India - Article 226 - Right of Children to Free and Compulsory Education Act, 2009 - Right to Education Act - Sections 2(c), 2(f) and 3 - Government Resolution - Right to Education admission process - Minimum age fixed for admission of a student - Elementary education - Whether Petitioner is eligible to be admitted to First Standard in school and what are implications of power of relaxation given to the head of School for 15 days and whether Petitioner would stand benefited if power of relaxation is exercised - This Petition has been filed under Article 226 of Constitution of India by father on behalf of his minor son, Petitioner, urging that Petitioner being born on 16.01.2016 completes age of 6 years on 15.01.2022 and seeks a direction of this Court to Respondent State to correct and alter date of birth from 15.01.2016 to 16.01.2016 in all its on-line application systems so as to enable Applicants who are born on 16.01.2016 and complete their age of 6 years on 15.01.2022 to be eligible for making their application online through official website of the Respondent under the Right to Education admission process for year 2021-2022.
Finding of the Court :
The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic - The two Government Resolutions referred to hereinabove providing for admission process for academic year 2021-2022, in our view are towards implementation of aforesaid provisions and cannot in any manner be read dehors Constitution of India or RTE Act which has been held to be constitutionally valid by Supreme Court in case of Society for Unaided Private School of Rajasthan Vs. Government of India, AIR 2012 Supreme Court 3445 - In view of discussion and law settled by Hon’ble Supreme Court as enunciated above and considering beneficent nature of Government Resolutions, as well as absence of any contrary provision, we are inclined to accept arguments of learned counsel for Petitioner in - person, father of petitioner - Court declare that Petitioner child will be 6 years old/6+ years on 15.01.2022 - Respondent is directed to consider Petitioner as an applicant eligible for making on-line application for 1st standard under Right to Education admission process for year 2021-2022.
Result: Writ Petition disposed.
JUDGMENT :
ABHAY AHUJA, J.
1. Heard father of the minor Petitioner, party in person, and the learned AGP for the Respondent-State. On 23.03.2021, when this matter was heard for the first time, the following order was passed:
2. This position will have to be made clear by the State by filing reply as to whether the Government Resolution dated 18 September 2019 envisaged retention of power of relaxation to the head of the school of 15 days.
3. As regard the cut off date is concerned, the Petitioner has already made application and if it is found that the power of relaxation exists, and cut off date stands extended to 15 January 2021, then necessary directions can always be issued since the Petitioner has submitted an application before 15 January 2021.
4. Stand over to 30 March 2021.”
2. Thereafter, when the matter was listed on 31.03.2021, the following order came to be passed:
2. On 23 March 2021, we had heard the Petitioner in person, the father of the Petitioner-student and the learned AGP and we had adjourned the matter to 30 March 2021 to ascertain whether the Petitioner is eligible to be admitted to the First Standard in school and what are the implications of power of relaxation given to the head of the School for 15 days and whether the Petitioner would stand benefited if the power of relaxation is exercised.
3. Reply affidavit is filed by the Deputy Secretary, School Education and Sports Department, Mantralaya where in para Nos. 7, 8 and 9, it is stated as under.
7) I say that by GR dated 25 July 2019 the State Government had granted permission/authority to all School Principals to relax the age of a child seeking admission in their School by a period of 15 days beyond the deemed date of 31 December of every academic year as a special case. Thus every child born on or before 15 January 2016 can opt for admission to class 1st in the academic year 2021-2022
8) I say that the Petitioner is seeking for admissions to 1st Standard under RTE for the academic year 2021-2022. I say that the date of birth of the Petitioner child is admittedly 16 January 2016. I say that as per GR dated 18 September 2020 read with GR dated 25 July 2019 the cut off date for admission to 1st standard is 15th January of every academic year. In this particular case it is 15 January 2022 to complete 6 years for the Petitioner child. The Petitioner child will be less than 6 years as on 15 January. His exact age on the cut off date will be 5 years 11 months 29 days. I say that hence he cannot be admitted to 1st standard for this academic year. I say that the Petitioner child can seek admission to Sr. K.G. Class (Pre-primary) for this academic year, as per his age. This should not be treated or counted as waste of one year, as a child can learn the basics equally well in Senior K.G.
9) I say that any relaxation in this particular case will create a problem as State Government has till date received 2,00,546 applications for admissions under RTE and all have followed the same cut off date of 15 January 2016 as the minimum age for applying for admissions for the academic year 2021-2022.
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