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2021 Supreme(Ker) 867
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Asna K.A. (Minor) & Ors. - Petitioners
Versus
The District Education Officer, Palakkad Fort Near Town Hall, Palakkad & Ors. - Respondents
W.P.(C) No. 19298 of 2021
Decided On : 21-10-2021
For the Petitioner: Ravi Krishnan, K.J. Manu Raj, K. Vinaya.
For the Respondent: Smt. Resmitha R. Chandran, GP.
Point of Law: Section 4 of Act comes to rescue of a child who either has not been admitted to any school or a child who though admitted was not able to complete his or her elementary education provision provides that child shall be admitted to a class appropriate to his or her age.
Headnote:
Constitution of India,1950 – Articles 21A, 21 and 254 - Right of Children to Free and Compulsory Education Act, 2009 - Sections 38, 2(f)and 4 - Kerala Right of Children to Free and Compulsory Education Rules, 2011 - Rule 5 - Child above six years of age has not been admitted in any school or though admitted - Elementary education - Special provisions for children not admitted to, or who have not completed, elementary education - Petitioners are aged around 12 years - While they were pursuing their V Standard education in ALP School, Kottassery, COVID-19 Pandemic struck nation and all activities came to a standstill. schools were closed down and like other students all over Country, petitioners were also forced to sit indoors and pursue their education - Fortunately for them, they were able to learn most of VI standard subjects by watching VICTERS - edutainment channel in Malayalam language operated by Kerala Infrastructure and Technology for Education under Department of General and Higher Education (Kerala) and wholly owned by Government of Kerala - Their parents also assisted them in their home-schooling endeavours - Transfer Certificate and armed with same, petitioners approached 4th respondent, who is Headmistress of SJHS and requested that they be permitted to join VII Standard class - Petitioners contend that without admitting them in class - grievance of petitioners is that no action was taken by 1st respondent - Petitioners rely on Exts.P2 to P18 birth certificates issued by Registrar of Births and Deaths.
Finding of the Court: Transfer Certificate can stand in way of petitioner securing admission to an age-appropriate class - Article 21A of Constitution provides that State shall provide free and compulsory education to all children of age of six to fourteen years in such manner as State may, by law, determine - It was with a view to give effect to Article 21A that Parliament has enacted Right of Children to Free and Compulsory Education Act, 2009 Under Articles 21 and 21A of Constitution, a child has a fundamental right to education up to age of 14 years - Child can claim from State will be in a manner as State may, by law, determine peremptory provisions of Act 35 of 2009 - Child to secure admission in an age-appropriate class without any restrictions whatsoever, conflicting provisions in Kerala Education Rules will have to fall by wayside in view of Article 254 of Constitution - Court of view that petitioners are entitled to succeed - There will be a direction to 4th respondent to grant admission to petitioners to VII standard in SJHS.
Result: Writ petition allowed
JUDGMENT :
Can the right of a child pursuing elementary education to get admitted in a class appropriate to his or her age be denied on the ground of non-production of a Transfer Certificate? Will the provisions of the Kerala Education Rules which insists on the production of Transfer Certificate for admission to schools stand in the way of the implementation of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (“Act 35 of 2009” for short). These are the questions posed for consideration in this writ petition.
2. The petitioners are aged around 12 years. While they were pursuing their V Standard education in the ALP School, Kottassery, COVID-19 Pandemic struck the nation and all activities came to a standstill. The schools were closed down and like other students all over the Country, the petitioners were also forced to sit indoors and pursue their education. Fortunately for them, they were able to learn most of the VI standard subjects by watching the VICTERS (Versatile ICT Enabled Resource for Students), an edutainment channel in the Malayalam language operated by Kerala Infrastructure and Technology for Education (KITE) under the Department of General and Higher Education (Kerala) and wholly owned by the Government of Kerala. Their parents also assisted them in their home-schooling endeavours.
3. Since the 3rd respondent school had classes only till V standard, they applied for a Transfer Certificate and armed with the same, the petitioners approached the 4th respondent, who is the Headmistress of the SJHS Puthokkode and requested that they be permitted to join the VII Standard class. The petitioners contend that without admitting them in the class, the 4th respondent forwarded the applications to the 1st respondent and sought clarifications. The grievance of the petitioners is that no action was taken by the 1st respondent. The petitioners rely on Exts.P2 to P18 birth certificates issued by the Registrar of Births and Deaths, Thrissur, to bring home the point that they have attained the requisite age to secure admission in the VII standard. It is in the above backdrop that the petitioners are before this Court seeking the following relief:-
(i) issue a writ of mandamus or other appropriate writ order or direction directing the 4th respondent to grant admission to the petitioners to the VIIth standard in the 4th respondent’s school at the earliest and without insisting transfer certificate from the 3rd respondent school.
4. The 3rd respondent has recorded their presence before this Court through their counsel. Though the notice was served on the 4th respondent, there is no appearance either in person or through counsel.
5. I have heard Sri. Ravi Krishnan, the learned counsel appearing for the petitioners, Sri. Sushanth J., the learned counsel appearing for the 3rd respondent school and Smt. Resmitha Chandran, the learned Government Pleader.
6. Ext.P2 to P18 birth certificates reveal that some of the petitioners have crossed the age of 12 years and some have attained 13 years of age. It is undisputed that the petitioners have all completed their V standard education and transfer certificates have been issued by the 3rd respondent. The fact that no classes were held in schools in the State of Kerala during the academic year 2020-2021 owing to the restrictions imposed due to the pandemic is also undisputed. The petitioners state that they did home-schooling and studied the subjects through the VICTERS Channel. The only question is whether the petitioners are entitled to get admission in a Class appropriate to her/his age.
7. Act 35 of 2009 was enacted to provide free and compulsory education to all children of the age of six to fourteen years. Section 2(f) of the Act defines “elementary education”.
Section 2(f) "elementary education" means the education from first class to eighth class.
8. Section 4 of the Act provides for special provisions for children not admitted to, or who have not completed element
