Kendriya Vidyalaya Parents Association Vs. Union of India
Constitution of India, 1950 - Article 21A - Right of Children to Free and Compulsory Education Act, 2009 - Right to education - Levy fee from the students - Fundamental right which declared free education for students aged between six and fourteen is not an absolute right to demand education without payment of any fees.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.M.JOSEPH & A.K. JAYASANKARAN NAMBIAR, JJ.
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W.P.(C).No.13900 OF 2013 & W.A.NO.1353 OF 2013 ()
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Dated this the 9th day of June, 2014
The writ petition and the writ appeal are connected and we dispose the same by a common judgment.
2. The writ
petition is filed by the Parents Association of the Kendriya Vidyalaya.
It is the case of the writ petitioner that in view of Article 21A of the
Constitution of India and the Right of Children to Free and Compulsory
Education Act, 2009, hereinafter referred to as the 'Act', the
respondents 2 and 3 are not entitled to levy any fee from the students.
However, according to them, the mandate of the Constitution and also the
Act is violated in the action of the respondents collecting a monthly
fee of Rs.160/- from the students. The prayer sought for is to quash
Ext.P3 and further to declare that respondents are not entitled to
collect any amount from the students in Kendriya Vidyalayas, as Tuition
fee, Vidyalaya Vikas Nidhi or under any other name. A statement has been
filed by respondents 2 and 3 producing Annexures A to F. It is their
contention that the hike which is challenged in the writ petition is
very reasonable and there is no scope for any judicial review. As per
Ext.P1, upto 31.03.1999, it would appear that the Kendriya Vidyalaya
Sangathan which is in control of Kendriya Vidyalayas was charging money
under three different heads:
(1) Pupil Fund
(2) Science Fund and
(3) Maintenance and Development Fund
Thereafter, they
decided to merge money collected under three heads to a single fund,
namely, "Vidyalaya Vikas Nidhi", hereinafter referred to as 'VVN' and
contribution towards VVN was collected from the students on quarterly
basis. There was a hike effected in the said amount vide Ext.P3 dated
19.03.2013. We notice that as far as Class I to VIII is concerned,
tuition fees is nil but they were collecting for Class III and above
Computer Fund at the rate of Rs.50/- and VVN contribution at the rate of
Rs.240/-. By the hike effected vide Ext.P3, Computer Fund has been
enhanced from Rs.50/- to Rs.100/- whereas VVN contribution has been
enhanced to Rs.500/- from Rs.240/-.
3. In the
statement filed, it is stated that Kendriya Vidyalayas are maintaining
School Fund account to which all the moneys received in the form of
Government grants and Tuition Fees received from the students are
credited. The VVN which is constituted has merged Pupil Fund, Science
Fund and Maintenance and Development Fund. Collection towards Computer
Fund is also credited into the VVN which is to be spent exclusively for
purchasing computer education consumables, remuneration of Computer
Instructors etc. It is further stated that at present Government
employees whose wards constitute approximately 73% of total students
enrolment are entitled for reimbursement of fees at the rate of
Rs.1,250/- per month per child. Therefore there will be no burden on the
parents as the entire amount of revised fee will be reimbursable to
them from their Office/Department concerned. Remaining 27% of the school
children are stated to fall under other categories.
4. It is further
stated that with effect from 01.04.2011 in pursuance to the
implementation of the Right to Education (RTE) Act in the Kendriya
Vidyalaya Sangathan, students admitted under the provisions of the RTE
Act are totally exempted from payment of fees and provided reimbursement
of expenditure incurred towards text books, note book, uniform and
transportation. Annexure C Circular is issued to extend financial
assistance to children who are in distress.
5. Learned Single
Judge passed an interim order in the writ petition, by which, subject
to result of the writ petition, a direction was given to stay the
operation of Ext.P3. It is against the same, W.A.No.1353/2013 is filed.
6. We heard the
learned senior counsel Sri.K.Jaju Babu for the petitioner and also the
learned senior counsel Sri.V.V.Asokan for respondents 2 and 3 in the
writ petition.
7. The learned
counsel for the petitioner no doubt would point out Section 3 of the Act
besides Article 21A of the Constitution. He would submit that the
enhanced VVN contribution was earlier quashed by the Orissa High Court
and the judgment of the Orissa High Court is produced as Ext.P2.
According to him, after the advent of the Act, respondents 2 and 3
Kendriya Vidyalaya Sangathan are bound to provide free and compulsory
elementary education. Instead it is flouting the mandate contained in
the Constitution read with the provisions of the Act. Without charging
any tuition fee, they are resorting to collection of other fees in the
form of Computer Fund and VVN contribution.
8. Per contra,
the learned senior counsel appearing on behalf of respondents 2 and 3
drew our attention to Section 12 of the Act and he would contend that
the obligation of answering respondents 2 and 3 is confined to what is
provided under Section 12(1)(c) of the Act. He placed before us the
judgment of the Delhi High Court reported in W.P.(C).No.2993/2013 in
support of his contention.
9. The Apex Court in Unni Krishnan J.P. and Others v. State of Andhra Pradesh and Others
(AIR 1993 SC 2178) had taken a view that the child upto the age of 14
has the fundamental right to be effected. The Apex Court acted on
Article 45 of the Constitution. The Apex Court also took the view that
there is a fundamental right even after a child attains 14 years but it
is subject to the State showing that financial resources cannot permit
the exercise of such right. Article 21A of the Constitution is the
response of Parliament to the judicial interpretation placed on Article
21 and it inserted Article 21A with effect from 01.04.2010, which reads
as follows:-
[21A. Right to education:- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]
The Right of
Children to Free and Compulsory Education Act was framed in the year
2009 to give effect to and fulfill the mandate of Article 21A of the
Constitution. This is for the reason that though Article 21A declares a
Right to Education, the content and limits of the right were to be as
provided by law and it is accordingly the Parliament enacted the Act in
the year 2009. The salient features of the Act are as follows:
Section 2(n) of the Act defines 'School' as follows:
"(n) "school" means any recognised school imparting elementary education and includes-
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
Section 2(p) relied on by the respondents reads as follows:
"(p) "specified category", in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government."
Section 3 reads as follows:
"3. Right to child to free and compulsory education:-
(1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education.
(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education:
Provided that a child suffering from disability, as defined in Clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 (1 to 1996), shall have the right to pursue free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act."
Section 6 reads as follows:
"6. Duty of appropriate Government and local authority to establish school:-
For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act."
Section 8
provides duties of the appropriate Government while Section 9 provides
the duties of the local authority. Chapter IV has the main heading
"Responsibilities of Schools and Teachers". Section 12, being of crucial
importance, we extract the same as follows:
"12. Extent of school's responsibility for free and compulsory education:-
(1) For the purposes of this Act, a school,-
(a) specified in sub-clause (i) of Clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of Clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty- five per cent;
(c) specified in sub-clause (iii) of Clause (n) of Section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in Clause (n) of Section 2 imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of Clause (n) of Section 2 providing free and compulsory elementary education as specified in Clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of Clause (n) of Section 2:
Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be."
Section 13 of
Chapter IV prohibits any School or person while admitting a child from
collecting any capitation fee. Section 2(b) defines "capitation fee" as
follows:
"(b) "capitation fee" means any kind of donation or contribution or payment other than the fee notified by the school;"
Section 15
provides inter alia that a child shall be admitted in a school at the
commencement of the academic year or within such extended period as may
be prescribed. It also provides that no child shall be denied admission
if such admission is sought subsequent to the extended period. Under
Section 16, no child admitted in a school shall be held back in any
class or expelled from school till the completion of elementary
education. Elementary education is in turn defined in Section 2(f),
which is extracted as follows:
(f) "elementary education" means the education from first class to eighth class;
Section 17
prohibits physical punishment or mental harassment to a child. Section
18 provides for the imperative need to procure recognition in respect of
a school which is established after the commencement of the Act. A
school cannot function without getting certificate of recognition.
Section 24 provides for the duties of teachers and redressal of
grievances. Section 25 provides that the appropriate Government and the
local authority shall ensure that there is a Pupil-Teacher ratio to be
maintained in each school.
10. The 2nd
respondent is a Kendriya Vidyalaya. Therefore, it would clearly answer
the definition of the term "specific category" under Section 2(p) of the
Act which we have extracted above. The definition of the word "school"
shows that it means a recognised school imparting elementary education.
It includes categories (i) to (iv). As far as category (i), which is
mentioned earlier, it is the school established, owned or controlled by
the appropriate Government or a local authority.
The word "appropriate Government" is defined under Section 2(a) of the Act which reads as follows:
"(a) "appropriate Government" means-
(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;
(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of-
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;"
11. The
contention of the learned senior counsel for the 2nd and 3rd respondents
is that being a school belonging to the 'specified category', there is
no obligation to provide free education for all the students who are
admitted in the School. It has the obligation no doubt to comply with
Section 12(1)(c) which we have referred to above. That is to say, its
obligation is fulfilled if it were to provide for reservation and admits
in class I, to the extent of atleast 25% of the strength of that class,
the children belonging to the weaker section and disadvantaged group in
the neighbourhood and it provides free and compulsory elementary
education. The word "child" as belonging to the age of six to fourteen
years is defined under Section 2(c) of the Act.
"Child belonging to disadvantaged group" is defined under Section 2(d) of the Act as follows:-
(d) "child belonging to disadvantaged group" means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;"
Section 2(e) defines the "child belonging to weaker section" as follows:-
"(e) "child belonging to weaker section" means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;"
12. It is the
contention of the school as appellants that it is honouring the said
statutory obligation and there its duty ends. He would submit that the
judgment of the Orissa High Court does not address the effect of Section
12(1)(c) of the Act. The dichotomy that is projected by the learned
senior counsel for the petitioner is that if the 2nd respondent school
is left free to only admit 25% students, it will be at liberty to not
follow the mandate under Section 3 of the Act. As far as Article 21A of
the Constitution is concerned, as we have already noticed, the
fundamental right which declared free education is not an absolute
right. The content of the right and the limitations of the right are to
be provided by law. Therefore, it may not be open to the petitioner to
contend that Article 21A of the Constitution entitles them to contend
that there will be compulsory and free elementary education in the 2nd
respondent school.
13. Next, we
would have to examine the contention of the learned senior counsel for
the petitioner that the petitioner is entitled to contend that the 2nd
respondent is obliged to provide free and compulsory education by virtue
of Section 3 of the Act. It is no doubt true that Section 3 provides
that every child at the age of six to fourteen years will have the right
to free and compulsory education. The institution in which such right
is vouchsafed is a neighbourhood school. Next, we have also to consider
the effect of sub section (2) of Section 3 of the Act. It provides that
for the purpose of sub section (1), no child shall be liable to pay any
kind of fee or charges or expenses which would prevent him or her from
pursuing and completing the elementary education. In this context, as we
have noticed, the right of compulsory and free education is given in a
neighbourhood school. The word "neighbourhood school" is not defined in
the Act. It is also not defined in the Rules as such. But we find that
in the Right of Children to Free and Compulsory Education Rules, 2010,
which was enforced with effect from 09.04.2010, it inter alia provides
as follows:-
"6. Area or limits of neighbourhood:-
(1) The area or limits of neighbourhood within which a school has to be established by the appropriate Government or the local authority shall be,-
(a) in respect of children in classes from I to V, a school shall be established within a walking distance of one km of the neighbourhood;
(b) in respect of children in classes from VI to VIII, a school shall be established within a walking distance of three km of the neighbourhood.
(2) Wherever required, the appropriate Government or the local authority shall upgrade existing schools with classes from I to V to include classes from VI to VIII and in respect of schools which start from class VI onwards, the appropriate Government or the local authority shall endeavour to add classes from I to V, wherever required."
There are other
areas with which we are not concerned as they relate to different places
with different terrain, risk of landslides, floods, lack of roads and
high population density etc. In fact, Section 6 of the Act, as we have
noticed, provides that it is the duty of the appropriate Government and
the local authority to establish, within such area or limits of
neighbourhood, as may be prescribed, a school, where it is not so
established, within a period of three years from the commencement of the
Act.
14. We are of the
view that on a consideration of the provisions, the 2nd respondent
appears to be correct in pointing out that it does not have an
obligation to provide free education except to the extent provided in
Section 12(1)(c) of the Act. Even though Section 3 appears to provide
for a right to the child, we must notice that as far as the obligation
of the schools which falls in various categories as defined in Section
2(n) is concerned, it is specifically and expressly set out in Section
12 of the Act. As far as a school run by a State or a local authority,
in respect of all the students admitted in such schools, these students
are entitled to compulsory free education. This is in keeping the
mandate under Section 3 and there is no conflict between the said two
provisions. The child has an absolute right and the duty is cast on the
State and the local body which would anyway answer the description of
'State' in Article 12 of the Constitution also. As far as the aided
schools are concerned, Section 12(1)(b) describes its obligations and as
we have seen, it is limited to providing free and compulsory elementary
education to such proportion of children admitted therein as its annual
recurring aid or grants so received bears to its annual recurring
expenses, for a minimum of 25%. What this means is that even if the
ratio of annual recurring aid or grants so received and its proportion
to the annual recurring expenses does not justify such free and
compulsory education, it is still obliged to provide a minimum of 25%.
As far as further obligations are concerned, it is made depending upon
the fulfillment of the statutory criteria. When it comes to institutions
and schools which are covered by Section 2(n)(iii) and (iv), in the
first of which category, the 2nd respondent in this case would fall, and
unaided school under clause (iv) of Section 2(n), their obligation
would appear to be covered by what is provided in Section 12(1)(c) of
the Act which we have set out. It is necessary in this context to notice
that unlike the duty cast on the Government Schools and those run by
the local bodies, which is to provide free and compulsory elementary
education to all students who are admitted or even in respect of the
duty which is cast on aided schools falling under clause (ii) of Section
2(n) which also essentially amounts to the same, but as limited
thereunder, in respect of the schools falling in the specific categories
and unaided institutions, they are charged with the specific duty of
admitting atleast 25% strength of the class from among the children
belonging to the weaker sections, in the neighbourhood. Not only that
they must be provided with free and compulsory education till its
completion. Thus, the nature and content of the obligation for the three
different categories of schools which are covered by Section 12 of the
Act are different. Their responsibilities have been spelt out by the
Legislature in unambiguous terms. Therefore we would think that this
petition cannot be maintained either relying on Article 21A or upon
Section 3 to carve out an absolute right in favour of the students aged
between six and fourteen to demand education without payment of any fees
as such.
15. Another
contention was raised by the petitioner that the Kendriya Vidyalaya is a
school which is controlled by the appropriate government, namely, the
Central Government and, therefore, it would come under class (i) of
Section 2(n) of the Act. It is contended that it has a dual capacity,
namely, it would be a specified category school coming under Section
2(n)(iii) read with Section 2(n)(p) and at the same time an institution
covered by Section 2(n)(i). Therefore, it is contended that not only
should the Kendriya Vidyalaya fulfill the mandate of Section 12(1)(c)
which is to admit students as provided in the ratio to the extent of 25%
but it is also to provide free and compulsory education in regard to
the balance 75% having regard to its position as a school controlled by
the Central Government. In this regard, again reliance is placed on
clause (1) and (2) of Section 3 of the Act besides Article 21A.
16. To appreciate
the arguments, it is necessary to consider as to what is the obligation
which is to be discharged by the schools run by the Government and the
local bodies. Section 8 delineates the duties of the appropriate
Government. It inter alia provides that the Government shall provide
free and compulsory elementary education to every child. Section 8(c) of
the Act reads as follows:
8. Duties of appropriate Government:
The appropriate Government shall -
(a) ...............
(b) ...............
(c) ensure that the child belonging to weaker section and the child belonging to the disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;
A similar
provision is contained in Section 9(c) of the Act in regard to the
duties of the local authority. This would mean that as far as the
Government and the local authority are concerned, they are expected not
to discriminate against a child belonging to a weaker section and the
child belonging to the disadvantaged section and the child is not to be
prevented from pursuing and completing elementary education on any
ground, but there is no positive mandate that it shall admit students
belonging to the weaker sections or the disadvantaged groups. The
Legislature has mandated that the schools run under the specified
category including the 2nd respondent herein must fulfill that mandate
and it is that role which has to be discharged by the said schools vide
the provisions contained in Section 12(1)(c) of the Act. Schools not
only provide admission to an extent of 25% of the total strength but for
them they shall also be bound to provide free and compulsory education.
In this context, it is also noteworthy that in the definition of the
word "school" though Kendriya Vidyalayas would fall under clause (i) of
Section 2(n), they have also carved out a differential category by
declaring a specific category under Section 2(n)(iii) for the purpose
namely to delineate their statutory duty vide Section 12(1)(c) of the
Act. We would think that in such a scenario, if we were to accept the
arguments of the petitioner that there is a dual role to be played by
the 2nd respondent, then we must also ask the question how the State
Government and local bodies need only provide education free to all and
yet the 2nd respondent would be obliged not only to provide compulsory
education to all but it would also have to reserve 25% of the total
strength in the first standard for children belonging to the groups.
This would also pave the way for a criticism that the 2nd respondent
school would be in a position to choose between two roles which are
allegedly reserved for them under Section 12 of the Act. We also take
notice of Section 5 of the Act which provides for right of transfer to
other school. Sub section (2) of Section 5 reads as follows:
5. Right to transfer to other school:-
(1)..............
(2) Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of Clause (n) of Section 2, for completing his or her elementary education.
17. We notice
that as far as the right of student to get transfer is concerned, he
cannot seek a transfer to a school specified in sub clauses (iii)
besides sub clause (iv).
18. There is
another aspect which must detain us and we must consider and answer.
Section 3(2) provides that no child shall be liable to pay any kind of
fee or charges which would prevent him from completing elementary
education. In the writ petition, there is no case that the fees which
are prescribed are such that it would prevent the children from pursuing
the elementary education. It is only stated that there is violation of
Section 3(2) of the Act. As far as Sections 3(1) and 3(2) are concerned,
it is noticed that the right is given to the child between the age of
six to fourteen for free education in the neighbourhood school. There is
no case for the petitioner that the 2nd respondent school is treated as
a neighbourhood school and therefore we need not probe that aspect
further. As far as the mandate of Section 3 (2) is concerned, we would
give life to it even in respect of the Kendriya Vidyalayas by holding
that in respect of the fees to be charged by it, even in regard to 75%
of the strength or a child which is admitted not only to first standard
but directly in any other higher standard upto the eighth standard, it
cannot be such as would prevent him or her from pursuing and completing
the elementary education. This interpretation, we would think, would
harmonize the various provisions. In this context, we also bear in mind
the definition of 'capitation fee', which we have referred above and
which fee is prohibited under Section 13 of the Act.
With these
observations, the writ petition is dismissed. As far as the writ appeal
is concerned, we set aside the interim order and allow the writ appeal.
K.M.JOSEPH JUDGE
A.K.JAYASANKARAN NAMBIAR JUDGE
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