Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Ker) 408

IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.CHITAMBARESH, ALEXANDER THOMAS, ASHOK MENON, JJ.
Manager, Aysha LP School, Chedikkulam Aralam P.O, Kannur - 670 704. – Appellant
Versus
State Of Kerala – Respondent
W.A.Nos.1140, 1181, 1183, 1205, 1213, 1218, 1222, 1260, 1261, 1262, 1287, 1300, 1303, 1304, 1306, 1307, 1314, 1316, 1319, 1320, 1324, 1336, 1341, 1346, 1353, 1406, 1408, 1416, 1463, 1465, 1477, 1490, 1505, 1515, 1519, 1522, 1528, 1529, 1533, 1574, 1672, 1696, 1717, 1719, 1723, 1730, 1731, 1872,2108, 2130, 2159, 2161, 2180, 2184, 2185, 2186, 2204, 2205, 2212, 2222, 2300, 2313, 2320, 2324, 2357, 2358, 2371, 2372, 2373 & 2381 of 2018 and 13, 20, 911, 912 & 915 of 2019
Decided on : 10-07-2019

Advocates:
Advocate Appeared:
For the Appellant : SRI.S.M.PREM, SRI.H.NARAYANAN, SRI.P.RAMACHANDRAN PALAKKAD
For the Respondent:SRI.C.P.SUDHAKARA PRASAD, ADVOCATE GENERAL
SMT.NISHA BOSE, SRI.PRASANTH KUMAR R., CENTRAL GOVT. COUNSEL.

IMPORTANT POINTS:
• The educational need as contemplated under the Kerala Education Act, 1958 and the Kerala Education Rules, 1959 pales into insignificance after the Act and the Rules.
• Government having considered the whole aspect of meeting educational needs/rights of the children in the area, hereby order to provide transportation facility to the children of the 82 areas (list appended to this Government Order) to reach the nearest school with the co-operation/assistance of the local bodies, as provided in Rule 6(4) of the Kerala Right of Children to Free and Compulsory Rules, 2011.

Headnote:
The Right of Children to Free and Compulsory Education Act, 2009- The Kerala Right of Children to Free and Compulsory Rules, 2011 Rule 6(4) --Rule 6(4) of the Rules applies only for children from small hamlets identified by the Government or the local authority where no school exists within the neighbourhood as in the tribal area of Attappady. The intention is that no child even from a small hamlet shall suffer for want of transportation to school and the statute ensures that elementary education is completed without any hassles. The State cannot take refuge under Rule 6(4) of the Rules from establishing schools for elementary education mandated by Section 19 of the Act and Rule 6(1) of the Rules- order to provide transportation facility to the children of the 82 areas (list appended to this Government Order) to reach the nearest school with the co-operation/assistance of the local bodies, as provided in Rule 6(4) of the Kerala Right of Children to Free and Compulsory Rules, 2011--Kum. Sreya Vinod v. Director of Public Instruction and others [2012(4) KHC 49] and T.K.M.M.L.P. & U.P.School v. State of Kerala and others [W.A.No.2487/2017] are overruled.
       Statement of facts:
       Reference by the Division Bench doubting the correctness of the decisions in Kum. Sreya Vinod v. Director of Public Instruction and others [2012(4) KHC 49] and T.K.M.M.L.P. & U.P.School v. State of Kerala and others [W.A.No.2487/2017].
       Finding of the case:
       Providing transportation facilities by the State under Rule 6(4) of the Rules is for a specified contingency referred to earlier and is not a substitute to establish schools for elementary education. The statutory duty cast on the State under Section 19 of the Act read with Rule 6(1) of the Rules is not discharged by providing transportation facilities as held in the decisions afore-quoted. We overrule the decisions in Kum. Sreya Vinod's case (supra) and T.K.M.M.L.P. & U.P.School's case (supra) as contrary to the scheme of the Act and the Rules- the order dated 9.6.2017 of the General Education (F) Department which states that 'providing transportation facility will suffice their educational need' is arbitrary. The applications put in by the educational agency to upgrade the existing schools under Rule 14 of the Rules shall be dealt with in the light of the observations above- Kum. Sreya Vinod v. Director of Public Instruction and others [2012(4) KHC 49] and T.K.M.M.L.P. & U.P.School v. State of Kerala and others [W.A.No.2487/2017] are overruled.
       Result: Disposed of

ORDER :

Chitambaresh, J.

“Vidya Dhanam Sarva Dhanath Pradhanam” (Knowledge is supreme of all wealth) is an oft quoted Sanskrit verse. The knowledge can be gifted only by imparting education.

1. These cases come on a reference by the Division Bench doubting the correctness of the decisions in Kum. Sreya Vinod v. Director of Public Instruction and others [2012(4) KHC 49] and T.K.M.M.L.P. & U.P.School v. State of Kerala and others [W.A.No.2487/2017].

2. Article 21A of the Constitution of India was inserted with effect from 1.4.2010 and the same guarantees free and compulsory education to all the children of the age six to fourteen years by the State. The Right of Children to Free and Compulsory Education Act, 2009 ('the Act' for short) was accordingly enacted specifying the manner in which the education has to be so imparted. The Preamble of the Act which came into force on 26.8.2009 states that it is to provide for free and compulsory education to all children of the age of six to fourteen years. Section 19(2) prescribes an outer period of three years from the date of commencement of the Act for the schools to take steps to fulfil the norms and standards stipulated. The educational agencies lament that their applications to re-structure the schools by introducing classes in tune with the Act are not favourably considered even after nine years. The State resists this plea asserting that transportation facilities have been provided and that a child can seek transfer to another school for completing elementary education. Additional financial burden on the State exchequer to pay the teachers for the additional classes to be introduced in the schools is also a dissuading factor for the State. Can the reasons aforestated be a valid ground to deny sanction to the educational agencies to re-structure the schools by introducing classes in tune with the provisions of the Act?

3. We have heard Mr V.A.Muhammed, Mrs M.A.Zohra, Mr S.M.Prem, Mr Santheep Ankarath, Mr V.Varghese, Mr Benoy Vasudevan and Mr Keerthivas G., Advocates as well as Mr C.P.Sudhakara Prasad, the learned Advocate General, Ms. Nisha Bose, Senior Government Pleader and Mr Prasanth Kumar R., Central Government Counsel.

4. Section 19 of the Act is extracted below:

“19. Norms and standards for school.-(1) No school shall be established, or recognised under Section 18, unless it fulfils the norms and standards specified in the Schedule.

(2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.

(3) Where a school fails to fulfil the norms and standards within the period specified under subsection (2), the authority prescribed under subsection (1) of Section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.

(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.

(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” (emphasis supplied)

The term 'school' means any recognised school imparting elementary education and includes an aided school receiving aid or grant from the appropriate Government or the local authority under Section 2(n) of the Act. The term 'elementary education' means the education from first class to eighth class under Section 2(f) and 'Schedule' means the one annexed to the Act under Section 2(m). Therefore any school imparting elementary education loses its recognition under Section 18 of the Act unless it fulfils the nor