Right to education under Art. 21-A and S.16 prohibits holding back a child in any class till completion of elementary education.

1. The petitioner was a student of Class - VIII in Delhi Public School, Durg for the academic year 2017-18. He was not allowed to appear in the examination of said class by the school authorities, but on the order of the District Education Officer, Durg, on 9-4 - 2018, he was allowed to appear in the examination, however, he only appeared in four papers and he remained absent in two papers namely Sanskrit and Mathematics. His result was declared on 28-3-2018, but he was not promoted to Class - IX leading to filing of writ petition stating inter alia that right to education up to the age of 14 years is a fundamental right guaranteed under Art.21 - A of the Constitution of India and by virtue of the provisions contained in S.16 of the Right of Children to Free and Compulsory Education Act, 2009 (for short, 'the Act of 2009'), no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education. Since the petitioner was a student of Class - VIII which also comes within the meaning of elementary education, therefore, the respondent School is not justified in holding back the petitioner and not promoting him to Class - IX and as such, an appropriate writ be issued directing the respondent School to promote the petitioner to Class - IX.

2. Return has been filed by respondent No.3 Delhi Public School (DPS) opposing the petition stating inter alia that the petitioner has appeared in class only for 11 days out of 207 school days, therefore, he has not been promoted to Class - IX as such, the writ petition deserves to be dismissed.

3. Mr. Abhishek Vinod Deshmukh, learned counsel appearing for the petitioner, would submit that the petitioner has regularly appeared in the class, but noticeably his appearance has not been marked for the reasons best known to respondent No.3 and he was not allowed to appear in the examination, but on the intervention of the District Education Officer on 9-4-2018, he was allowed to appear in the said examination, however, in two papers namely Sanskrit and Mathematics, he was not allowed to appear as such, by virtue of S.9 read with S.16 of the Act of 2009, the respondent School cannot hold back the petitioner and he has to be promoted to the next class, as the responsibility to ensure attendance is the responsibility of the school by virtue of the provisions contained in S.8(f) of the Act of 2009, therefore, appropriate writ be issued directing respondent No.3 to promote the petitioner on Class - IX.

4. Mr. Dharmesh Shrivastava, learned counsel appearing for respondent No.3 DPS, would submit that the petitioner has been a chronic absentee during the entire educational year and he only attended for 11 days out of 207 school days, therefore, he was not allowed to appear in the examination, but upon the order of the District Education Officer, he was allowed to appear, but he appeared only in four papers and did not appear in Sanskrit and Mathematics, therefore, the petitioner is not entitled to be promoted to Class - IX.

5. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and went through the record with utmost circumspection.

6. The Parliament has amended the Constitution of India by inserting Art.21 - A by the Constitution (86th Amendment) Act, 2002 on the basis of the law declared by the Supreme Court in the matter of J.P. Unnikrishnan v. State of Andhra Pradesh , 1993 (1) SCC 645 : AIR 1993 SC 2178 , holding that the right to education up to the age of 14 is a fundamental right to every citizen under Art.21 of the Constitution of India pursuant to which the children up to the age of 14 are guarantee