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2021 Supreme(Ker) 1076
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Satheesan P.K. S/o Kesavan – Petitioner
Versus
The Principal, Kendreya Vidyalaya, Kochi – Respondent
W.P. (C) No. 7903 of 2021
Decided On : 23-12-2021
Advocate Appeared:
For the Petitioner: Smt. C.P. Jyothy.
For the Respondent: Sri. K.I. Mayankutty Mather.
Point of Law: Every child up to age of 14 years has a fundamental right to free education and directions were issued to the State to follow the directives in Article 45 of the Constitution.
Headnote:
Constitution of India, 1950 - Articles 12 and 21A - Right of Children to Free and Compulsory Education Act, 2009 - Section 2(c), 4 and 16 - United Nations Convention on Rights of Child - Kendriya Vidyalaya Sangathan - Examination and holding back in certain cases - Free education - Covid-19 pandemic - Can a child pursuing elementary education be held back in a class at request of parents of Child - When request of father of a child, aged about 10 years and studying in IVth standard in Kendriya Vidyalaya that his child be held back in the same class for another year was turned down by the school authorities, he has approached this Court seeking directions - Father and mother are Government Servants and from pleadings, it appears that they are educated - They contend that as they were very much involved in their respective jobs, they were not able to spare much time for their child. Due to COVID restrictions, classes were held online.
Finding of the Court:
In view of Section 4 of the Act, even if the child of the petitioner had not studied Class IV and expresses his desire to get admission to class V, the school concerned is bound to admit the child in the Vth standard. In order to be at par with other children, the child will have a right to receive special training. The statute also provides that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years - It is obvious that the petitioner is oblivious of the trauma that is likely to be caused to his 10-year-old child if he is detained in the same class for yet another year- father of the child has come up with this petition oblivious of harm that his insensitive and unreasonable act would cause to the child. The counsel appearing for the petitioner was requested by this Court to seek counselling from an accredited counsellor so that they may not continue to traumatise the child under the mistaken notion that the child is not good enough in his studies. I exhort the petitioner and his wife to undergo counselling and also ensure they do not force their notions of education on their minor child.
Result: Writ Petition dismissed.
JUDGMENT :
1. Can a child pursuing elementary education be held back in a class at the request of the parents of the Child? When the request of the father of a child, aged about 10 years, and studying in the IVth standard in Kendriya Vidyalaya, Kattaribag that his child be held back in the same class for another year was turned down by the school authorities, he has approached this Court seeking directions.
2. The father and mother are Government Servants and from the pleadings, it appears that they are educated. They contend that as they were very much involved in their respective jobs, they were not able to spare much time for their child. Due to COVID restrictions, the classes were held online. The petitioner states that on evaluation of his child, the parents realised that the child is below average in his studies. According to the petitioner, the teachers failed to supervise the child in a proper manner and ensure that the child understood the curriculum prescribed for the class that he was in. In the said circumstances, with the future of the child in mind, they submitted Exhibits P2 and P3 representations before respondents 1 and 2 requesting that the child be detained in the same class. They contend that the respondents did not pay heed to their request prompting the father to approach this Court with this Writ Petition.
3. A statement has been filed by respondents 1 and 2 through their Standing Counsel. It is stated that the son of the petitioner had attended all the online classes in the session 2020-21 with an attendance of 160/207, i.e. 77% during the current academic year. He has also scored well in academics and has secured an overall ‘A’ Grade. It is further stated that the Kendriya Vidyalaya Sangathan has adopted a “No Detention” policy for the academic year 2020-21 due to the Covid-19 pandemic. Under no circumstances can the child be held back in the same class is the stand taken by the respondents.
4. I have heard Smt. C.P. Jyothy, the learned counsel appearing for the petitioner and Sri. K.I. Mayankutty Mather, the learned Standing Counsel appearing for the respondent nos. 1 to 3.
5. In Unnikrishnan vs. State of Andhra Pradesh, AIR 1993 SC 2178 the Apex Court held that having regard to the fundamental significance of education to the life of an individual and the nation, the right to education is implicit in and flows from the right to life guaranteed by Article 21. It was held that every child up to the age of 14 years has a fundamental right to free education and directions were issued to the State to follow the directives in Article 45 of the Constitution. In tune with the directives of the Hon’ble Supreme Court, the 86th Constitution Amendment Act, 2002 added Article 21A to the Constitution which requires the State to provide free and compulsory education to all children from the age of six to 14 years. The Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) was enacted to give effect to the 86th Constitutional Amendment and to provide for free and compulsory education to all children of the age of six to fourteen years.
6. A child has been defined under Section 2(c) of the Act to mean a male or female child of the age of six to fourteen years.
7. Section 16 of the Act provides for the conduct of examination and holding back in certain cases. The said provision reads thus:
16. Examination and holding back in certain cases:
(1) There shall be a regular examination in the fifth class and in the eighth class at the end of every academic year.
(2) If a child fails in the examination referred to in sub-section (1), he shall be given additional instruction and granted opportunity for reexamination within a period of two months from the date of declaration of the result.
(3) The appropriate Government may allow schools to hold back a child in the fifth class or in the eighth class or in both classes, in such manner and subject to such conditions as may be prescribed, if he fails in the re-examina
