V.M. Pancholi JUDGMENT
Jayant M. Patel, Actg. C.J.
1. As in both the appeals, more or less common questions arise for consideration, they are being considered simultaneously.
2. Writ Petition (PIL) No. 193/14 has been preferred by one Mr. Prakash Kapadia in capacity as the President of Jagega Gujarat Sangharsh Samity, one of the NGO for espousing the public cause under the Right of Children to Free and Compulsory Education, 2009 (hereinafter referred to as the "Act") and the petitioner has prayed for the appropriate writ to direct the respondent authorities to take immediate and appropriate steps in compliance of the Notification dated 18.02.2012 which is for bringing into force the rules known as the Right of Children to Free and Compulsory Education Rules, 2012 (hereinafter referred to as the "Rules") and further compliance is prayed of the Circular dated 23.05.2013 (hereinafter referred to as the "Circular") of the Government which is for making provision for admission on 25% seats to the children belonging to weaker section of the society in unaided primary schools. The another prayer made by the petitioner is to issue appropriate direction to the authorities to initiate appropriate steps in accordance with the above Rules and the Circular dated 23.05.2013.
3. The another Writ Petition (PIL) No. 51/15 is preferred by Dalit Hakk Rakshak Manch (NGO) and another seeking appropriate writ to direct the respondents to strictly implement the provisions of the Act across the State and to give wide publicity thereof by affixing banners, posters at the public places and schools so that the parents can avail of the benefit thereof. The said petitioners have also prayed to direct the respondents to ensure that the Act is implemented retrospectively and to scrutinize all admissions granted in non-granted school from the year 2009 onwards and to identify the students who have been deprived of the benefit of the Act and the fees paid by them be ordered to be refunded.
4. We have heard Mr. BB Oza and Mr. P.J. Joshi, learned advocates for the concerned petitioners in their respective petition and we have heard Mr. Sandeep Singhi with Mr. Shamik Bhatt, Mr. Zalak B. Pipalia, Mr. Shirish Joshi, Mr. A.J. Shashtri, Mr. Pritesh Parikh, Mr. Parth Divyeshwar, Mr. Nikunt Raval, Ms. Hiral Mehta for Mr. J.R. Dave, Mr. B.K. Oza, Mr. Harshadrai Dave, Mr. Amit R. Joshi, learned advocate for the concerned respondents in their respective matters. We have heard Ms. Manisha Shah, learned Govt. Pleader with Mr. DM Devnani, AGP for the State and its authorities for final disposal of the petitions. The other learned advocates appearing for the schools have declared that they support the contentions raised on behalf of the co-respondents.
5. Before we further consider the controversy, it would be useful to refer to certain factual aspects emerging from the record of the respective petitions.
Writ Petition No. 193/14
6. CASE OF THE PETITIONER
"6.1 Case of the petitioner is that the parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 and thereafter the Education Department, State of Gujarat, has framed Right of Children to Free and Compulsory Education Rules of 2012.
6.2 The Education Department, State of Gujarat, had issued the resolution on 23.05.2013, whereby State Government had provided the provision and procedure for admission of 25% students from weaker section and disadvantaged group.
6.3 Though the Act and Rules are enacted and framed, respondent authority is not properly implementing the provisions of the said Act and the Rules. The petitioner has, therefore, made representations from time to time to the respondent authority and also asked for certain information under the Right to Information Act, 2005. However, the respondent authority has not taken any steps for implementation of the provisions of the Act and the Rules.
6.4 It is the case of the petitioner that the provisions of the Act specifically provide the responsibility of government aided as well as non-government aided schools to absorb the students to the extent of 25% of weaker section voluntarily and mandatorily in each class for elementary education. However, the same is overlooked and not complied with and the approach of the schools is commercialized and therefore the object of the Act is not achieved.
6.5 The petitioner with his staff works on the data and information relating to the irregularities committed in giving admissions without complying with the provisions of the Act and the Rules by various schools registered with the respective Boards. Therefore, this Court may give guidelines and directions to the authorities for proper implementation of the provisions of the Act and the Rules. Petitioner has placed reliance on the document produced at page 149 (Annexure-K).
6.6 Petitioner has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Society for Unaided (P.) Schools of Rajasthan v. Union of India & Anr., reported in MANU/SC/0311/2012 : AIR 2012 SC 3445."
7. As per the petitioner, the Act is found to be constitutionally valid and applies to the following school -
"1) The school established or controlled by the appropriate Government or local authority.
2) An aided school including aided minority schools receiving aid or grant to meet whole or part of its expenses from the appropriate Government or local authority.
3) The school belonging to specified category.
4) An unaided non-minority school not receiving any kind of aid or grant to meet with its expenses from the appropriate Government or the local authority."
8. However, the Act would not apply to the unaided minority schools. In the meantime, the above referred Rules have been framed by the State Government so far as Gujarat State is concerned and such Rules have come into force from 18.02.2012. Not only that, but in furtherance thereof, the Circular has been issued by the State Government dated 23.05.2013, whereby 25% of the seats are to be made available to the children belonging to weaker and deprived class of the Society.
9. As per the petitioner, in spite of the aforesaid provisions of the Act read with the Rules and the above referred policy decision taken by the State Government, the benefit has not reached to the genuine students and such benefits are deprived of on various grounds, either the matter is not properly considered by the District Education Officer or even after the order passed by the District Education Officer, the schools have not acted for grant of admission by showing flimsy or non-genuine grounds. Consequently, the seats which are otherwise reserved for the above referred category of weaker section have not been fully filled up and they are being allotted by the school management to the other students by charging fees as per their desire. The principal grievance on the part of the petitioner is that inspite of the provisions of the Act, Rules and the above referred policy by Circular, the same has not been properly implemented and consequently, the right of free education as guaranteed under the Act has not been realized and therefore, appropriate direction is prayed as referred to hereinabove.
10. CASE OF THE RESPONDENT AUTHORITY
In this petition, this Court passed an order on 11.11.2014, whereby the learned AGP was directed to file an affidavit of the concerned authority on certain aspects. Thereafter, on 09.12.2014 also this Court passed further order and directed the respondent authority to file affidavit explaining the procedure for admission of 25% students of weaker section of society in private schools.
"10.1 The Administrative Officer (Legal), office of Directorate of Primary Education, has filed two affidavits dated 02.12.2014 and 05.01.2015 respectively.
10.2 Affidavit dated 02.12.2014 is at page 222 of the compilation wherein the respondent authority has mainly contended that in the State of Gujarat, total 2588 private schools are operating wherein total 12601 students have been given admissions in the said schools. The concerned school would make an application to the concerned District Education Officer or District Primary Education Officer for the purpose of reimbursement as per the provisions of the Act and the concerned DEO or DPEO would thereafter pay the amount to the concerned school from the amount given by the State Government. The State Government has paid an amount of Rs. 12,60,10,000/- to various DEOs and DPEOs for the purpose of reimbursement to the concerned schools as per Section 12 of the Act. The State has also paid Rs. 10,000/- per student per year by way of grant.
10.3 The State Government, vide resolution dated 21.02.2014, has reserved 25% of the seats for students belonging to weaker section of the society in private schools. 18300 seats have been reserved in the State of Gujarat for the said purpose. The office of Director of Primary Education has further issued circulars to DEOs, DPEOs and Administrative Officers of Municipalities throughout the State to ensure that resolution dated 21.02.2014 and the provisions of the Act are complied with.
10.4 In affidavit dated 05.01.2015, which is produced at page 237 of the compilation, the said officer has further stated that by resolution dated 23.05.2013, the State Government has prescribed procedure for implementation of 25% seats in accordance with the provisions of the Act. The said resolution is produced at page 243 of the compilation.
10.5 It is further the case of the respondent authority that by another resolution dated 02.12.2014, the Government has resolved that in case of violation of Section 12(1) of the Act, penalty of Rs. 10,000/- for the first violation has been prescribed and for every subsequent violation penalty of Rs. 25,000/- has been prescribed. The said resolution is produced at page 260 of the compilation.
10.6 As per para 2 of the resolution dated 02.12.2014, if the concerned school fails to pay the penalty imposed or in case the concerned school violates the provisions for five instances then in such case the school or the institution is liable to be proceeded against for cancellation of its registration.
10.7 Thus, it is the case of the respondent authority that the State Government has taken effective steps for proper implementation of the provisions of the Act and the Rules.
10.8 The private respondents i.e. the different schools have mainly stated on affidavit that as and when any application is sent by the office of DEO with regard to admission of the student they have given admission to such student. However, if the complete details are not provided by the parents of the concerned student, admission is denied."
Writ Petition PIL No. 51/15
11. So far another Writ Petition PIL No. 51/15, the case of the petitioner No. 1 is that it is a registered society under the Societies Registration Act, 1860 and is also registered as a public charitable trust under the Bombay Public Trust Act and is engaged in the activities of protection of rights of Schedule Caste and Schedule Tribes and also children.
"11.1 It is the case of the petitioners that the parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009. Section 3 thereof provides for right of child to free and compulsory education.
11.2 Section 12(1) of the Act provides for 25% quota in the schools mentioned in Section 2(n) (3) or schools mentioned in Section 2(n)(4) of the Act.
11.3 State of Gujarat has enacted the Right of Children to Free and Compulsory Education Rules, 2012.
11.4 It is the grievance of the petitioner that though the Act has come into force in the year 2009 and the Rules are framed by the State of Gujarat in the year 2012, due to the inaction, apathy, indifference and lethargy on the part of the respondent authorities the implementation of the Act has remained only on the paper. Only a show is being made that the Act is implemented but in fact the needy children are unable to get the benefit of this beneficial legislation.
11.5 State Government has not given wide publicity of the provisions of the Act, which has resulted into unawareness of the real beneficiaries of the provisions of the beneficial legislation in larger part of the State. Similarly, because of lack of desire to implement the provisions of the Act and apathy of the private unaided schools in admitting the students as per the provisions of the Act, the benefit of the said Act has not been reached to the real beneficiaries/needy class for which it has been enacted.
11.6 It is the case of the petitioners that procedure for admission for the academic year 2014 was required to be undertaken in time. However, as per the information of the petitioner, out of 1000 eligible students who wanted admissions in non-granted schools, only 400 students were successful in securing admission. In most of the schools the school authorities are not at all inclined to admit the students. When a student/parents approach the school for admission under the Act, the concerned school comes out with number of excuses and when the parents approach the District Education officer, they are not getting satisfactory reply. In some cases, DEO writes a letter to the school authorities but school authorities refuse to give admission on one or the other reasons.
11.7 Thus, the grievance of the petitioners is that though the Act has come into force in the year 2009, even after lapse of more than 5 years, it has not been fully and properly implemented in the State of Gujarat because of the inaction, indifference, apathy, lethargy and nexus between the respondents and unaided schools."
12. Even as per the present petitioners, the grievance is the same for non-implementation of the provisions of the Act, the Rules and the policy of the Government as referred by us hereinabove in respect of petitioners of Writ Petition PIL No. 193/14 and hence, we do not find it appropriate to repeat the same once again. But suffice it to state that the prayers made even in the present petition are substantially the same as that of Writ Petition PIL No. 193/14. But the only distinction is that the petitioners in this petition have tried to give broad picture of the dalit students and the class of weaker sections and the rights of such students for enforcement of the provisions of the Act, Rules and the policy of the Government are pressed in service. In any case, the ultimate prayer of the petitioners is for appropriate enforcement of the Act, Rules and the policy for ensuring the realization of right to free education as guaranteed under the Act. It is true that the petitioners have made prayer for giving retrospective effect of the Act from 2009 onwards and have also prayed for refund of the fees but the said aspect shall be considered by us at the later stage after we consider the scope and ambit of the Act, its implementation, mechanism, etc.
13. CASE OF THE RESPONDENT AUTHORITY
"13.1 Administrative Officer (Legal), Director of Primary Education, has filed affidavit which is at page 126 in which it has been stated that in the year 2014-15 public advertisements were issued on 02.02.2014 in three daily newspapers viz. 'Divya Bhaskar', 'Sandesh' and 'Gujarat Samachar', each of which have wide circulation in Ahmedabad. In the said advertisements it has been stipulated that between 03.02.2014 to 15.02.2014 parents/guardian may obtain the application form along-with income certificate and apply before the District Education Officer, Ahmedabad. Pursuant to the said advertisements, 1378 applications were received for 2000 seats. Thereafter, advertisements were re-published on 04.06.2014 in all the aforesaid three newspapers extending the period for obtaining the application and submitting the same. After the receipt of the applications and the documents the same were forwarded to the concerned schools and the admissions were given to the concerned students. In some of the cases, the schools asked for certain details and therefore the parents were informed to follow-up with the concerned school with prescribed documents and particulars for verification by the school authority. Out of 1509 valid applications, 710 students were granted admission by the schools. DEO called for the report from the concerned schools.
13.2 DEO and DPEO have not received any complaint in writing for the year 2014-2015.
13.3 For the year 2015-2016, 3000 seats have been allotted to the DEO, Ahmedabad city and 2500 seats have been allotted to DPEO for Ahmedabad Rural. Public advertisements were issued in the concerned newspapers. In January 2015, DEO, Ahmedabad conducted the workshops in 800 schools and educated the principals, teachers and the school management about the provisions of the Act. Meeting was convened headed by Ahmedabad Municipal Commissioner where important decision for effective implementation of the Act was taken. Press Conference was held on 28.01.2015 and entire media was called upon to make maximum publicity with regard to the provisions of the Act.
13.4 Students of IIM, Ahmedabad, Social Welfare Officer for SCST and Baxi Panch, ICDS officers, Block Resource Coordinators, etc. were involved in the propagation and facilitation of application under the Act.
13.5 Because of the advertisements and publicity for 3000 seats, 5,400 applications have been received for Ahmedabad city and for Ahmedabad District, out of 2,500 seats, 2406 applications have been received. 381 schools are earmarked for securing admission for students.
13.6 Thus, it is the case of the respondent authorities that endeavour is made by the State Authorities and the officers of the Department for proper implementation of the provisions of the Act.
13.7 In the affidavit of respondent No. 73 which is at page 401, it is the case of the said respondent that the said school is Central Board Affiliated School. It is a self-financed/un-aided school which does not receive any kind of aid or grant to meet its expenses from the Governmental or local authorities. The said school also falls within the definition of minority school and therefore the provisions of the Act and the Rules are not applicable to Minority Unaided School."
14. Before we consider the provisions of the Act and Rules, at the outset, we may mention that the object of the Act is to provide free and compulsory education to all children of the age of 6 to 14 years. The constitutional validity of the Act came to be challenged before the constitutional court and ultimately, the Apex Court, in its decision in the case of the Society of Unaided P. Schools of Rajasthan (supra) has concluded by its majority decision, which can better be extracted from paras 20 and 21 which reads as under:
"20. Accordingly, we hold that the Right of Children to Free and Compulsory Education Act, 2009 is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school including aided minority school(s) 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 non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of India [MANU/SC/0020/1957 : 1957 SCR 930 : (AIR 1957 SC 628)] principle of severability, the said 2009 Act shall not apply to such schools.
21. This judgment will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened."
15. The aforesaid conclusion, if considered in light of para 20, clearly goes to show that the Act would apply to all schools, viz. -
"(1) A school established and controlled by appropriate Government or the local authority.
(2) Aided minority school receiving grant from Government or local authority.
(3) School of the specified category.
(4) Unaided non-minority school not receiving grant.
However, the Act would not apply to unaided minority school."
16. Further, as observed by the Apex Court in para 21, the judgment would apply from the academic year of 2012-2013. Under these circumstances, one of the prayers made by the petitioners in Writ Petition PIL No. 51/15 for giving retrospective effect from 2009-2010 would have no legs to stand and we do not find it appropriate to make any further observations in this regard. But the Act read with the decision of the Apex Court would apply from the academic year of 2012-2013 and to be more specific, after the decision of the Apex Court in the above referred decision in the above referred matter or one can say that it would apply prospectively after 12.04.2012 since the decision has been delivered by the Apex Court on the said date.
17. We may now consider the provisions of the Act.
18. As there is no dispute on the right to free and compulsory education as envisaged under the Act, we do not find it appropriate to discuss in this regard, except reproduction of sections 3, 4 and 5 under Chapter II of Right to Free and Compulsory Education, which reads as under -
"3. Right of child to free and compulsory education.- (1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her 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.
(3) A child with disability referred to in sub-clause (A) of clause (ee) of section 2 shall, without prejudice to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995, and a child referred to in sub-clauses (B) and (C) of clause (ee) of section 2, have the same rights to pursue free and compulsory elementary education which children with disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Provided that a child with "multiple disabilities" referred to in clause (h) and a child with "severe disability" referred to in clause (o) of section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 may also have the right to opt for home-based education
4. Special provisions for children not admitted to, or who have not completed, elementary education.- Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age.
Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed.
Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.
5. Right of transfer to other school.- (1) Where in a school, there is no provision for completion of elementary education, a 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.
(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.
(3) For seeking admission in such other school, the Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate.
Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school.
Provided further that the Head-teacher or in-charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her."
19. Chapter III of the Act provides for duties of Appropriate Government, Local Authority and Parents. Section 6 of the Act provides for duties of appropriate Government and local authority to establish school in the neighbourhood area, if not established within a period of three years, but the limits of the neighbourhood area is to be prescribed. Section 7 of the Act provides for sharing of financial and other responsibilities between the Central Government and the State Government. Section 8 provides for the duties of the appropriate Government to provide free and compulsory education to every child. Section 9 provides for the duties of the local authority to provide free and compulsory elementary education to every child. Section 10 provides for the duty upon the parents and the guardians to admit or cause to be admitted his or her child or ward, as the case may be. Section 11 provides for appropriate Government to provide pre-school education to the children until they complete the age of 6 years.
20. Chapter IV provides for the responsibility of the school and the teachers. Section 12 provides for the responsibility for free and compulsory education upon the school and the expenses so incurred are to be reimbursed by the State or the actual amount charged from the child, whichever is less in the manner as may be prescribed. Section 13 of the Act prohibits capitation fees and screening procedure for admission and if in contravention of section 13(1), is made punishable to the fine which may extend to Rs. 25,000/- for the first contravention and Rs. 50,000/- for each subsequent contraventions. Section 15 of the Act provides that no child shall be denied admission if applied at the commencement of the academic year or within the extended period. Section 16 of the Act provides for holding back of any seat and prohibits expulsion from the school. Section 17 of the Act provides for prohibition of physical punishment and mental harassment to the child. Section 18 provides that the school shall not be established without obtaining certificate of registration. Section 19 provides for various norms and standards for the school. Section 21 provides for constitution of school management committee. Section 22 of the Act provides for school development plan. Section 23 of the Act provides for qualification for appointment and terms and conditions of the service of teachers. Section 24 of the Act provides for duties of the teachers and redressal of grievances. The redressal of the grievances against a teacher shall be as in the manner as may be prescribed. Section 25 of the Act provides for pupil teacher ratio. Section 26 of the Act provides for filling up of the vacancies of the teacher. Section 27 of the Act prohibits deployment of teaches for non-educational purposes except for population census, disaster relief duties or duties relating to the elections to the local authority or the State Legislatures or Parliament, as the case may be. Section 28 of the Act prohibits private tuitions by the teachers.
21. Chapter V provides for curriculum and elementary education. Section 29 of the Act thereof provides for curriculum and the evaluation procedure. Section 30 of the Act provides for examination and completion certificate.
22. Upto the above referred provisions of the Act, the rights, duties and norms and standards are provided. However, Chapter VI provides for the protection of the rights of children. Section 31(1) of the Act provides for the constitution of the National Commission for Protection of Child Rights. Section 31(2) of the Act provides for enabling power with the State Commission to inquire into the matters relating to child rights to free and compulsory education and the same power as that of section 15 and 24 of the said Commissions for Protection of Child Rights Act, 2005 (hereinafter referred to as the "Child Rights Act"). Sub-section (3) of section 31 provides that where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may for the purpose of performing the functions specified in clauses (a) to (c) of subsection 11 constitute such authority in such manner as may be prescribed. Section 32 of the Act provides for redressal of grievances before the local authority having jurisdiction in addition to the mechanism provided in section 31 of the Act. However, the order of the local authority is made appealable to the State Commission.
23. The other provisions of sections 33 and 34 of the Act are for constitution of National Advisory Council, State Advisory Council, etc. Chapter VII under the head of miscellaneous provides for the power to issue direction as per section 35 with the Central Government for guidelines of the appropriate Government and the power with the appropriate Government for guidelines and directions to the local authority or school management committee and further power with the local authority to issue guidelines and to give direction to the school management committee.
24. The aforesaid is the broad view of the provisions of the Act.
25. In exercise of the powers under section 38 of the Act, the State Government has framed rules. Such rules inter alia provide under the head of Chapter IV the responsibilities of the schools and the teachers. As per Rule 11, admission of children belonging to weaker section and disadvantaged group in unaided school is to be granted and such children are not to be discriminated, but the percentage of the seats is to be decided by the State Government. Rule 12 provides for the penal action by the Director if there is any contravention complained of the provisions of section 13(1) of the Act and the Director is clothed with the power to issue appropriate direction. Rules 31 and 32 of the Rules provide for constitution of Right to Education Protection Authority, which reads as under -
"31. Performance of functions by the State Commission for Protection of Child Rights: (1) There shall be Right to Education Protection Authority (hereinafter referred to as "REPA") in the State, which shall perform the same functions as the State Commission for Protection of Child Rights (hereinafter referred to as "SCPCR"), till such commission is formed.
(2) The REPA shall consist of the following persons, namely -
(a) A chairperson who is a person of high academic repute or has been a High Court Judge or has done outstanding work for promoting the rights of children; and
(b) Two Members, of whom at least one shall be a woman, from amongst persons of eminence, ability, integrity, standing, and experience in the following field of-
(i) education;
(ii) child health care and child development;
(iii) juvenile justice or care of neglected or marginalised children or children with disabilities;
(iv) elimination of child labour or working with children in distress.
(v) Child psychology or sociology; or
(vi) legal profession
(2) All records and assets of the REPA shall be transferred to the SCPCR immediately after its constitution.
(3) In performance of its functions, the SPCR or the REPA, as the case may be, may also act upon matters referred to it by the State Advisory Council.
(4) The State Government shall enable constituting a Cell in the SCPCR or the REPA, as the case may be, which may assist the SCPCR or the REPA in performance of its functions under the Act.
32. Manner of furnishing complaints before the SCPCR: (1) The SCPCR, or the REPA, as the case may be, shall set up a child help line, accessible by SMS, telephone and letter, which shall act as the forum for aggrieved child/guardian to register complaint regarding violation of rights under the Act, in a manner that records her identity but does not disclose it;
(2) All complaints to the helpline shall be monitored through a transparent 'alert and action' online mechanism by the SCPCR, or the REPA, as the case may be."
26. The aforesaid shows the constitution of REPA until State Commission for Protection of child rights is constituted. Further, Rule 32 provides for setting up of child helpline accessible by SMS, telephone, letter, etc. and further online mechanism to be set up by State Commission or REPA, as the case may be. As referred to by us hereinafter, as the State Commission is already constituted, we are informed by the learned Govt. Pleader that REPA is not constituted. Therefore, the duties and the powers so conferred under Rule 32 will have to be discharged by the State Commission
27. As per the Circular, the policy decision is taken for providing 25% admission to the children of weaker and deprived section of the society. Initially, the scheme is implemented for 5,300 students in all corporation areas.
28. It is with the aforesaid mechanism provided in the Act, we now need to further examine the matters.
29. As per the petitioners, the Act and the Rules and the policy by Circular are not properly implemented, more particularly for admissions of weaker and deprived class of the society whereas as per the respondent authority, in the initial period, the number of applications were less, but subsequently, it has gone much high and the applications are considered and the admissions have been given to large number of eligible students of weaker and deprived class as per the policy as made known to public at large through the advertisement, media, etc., but the petitioners find it as unsatisfactory. It is also the case of the petitioners that there are large number of students who were allotted school by the DEO of the respective area but the school management for one reason or another, have denied admission and thereafter, there is no proper enforcement so as to ensure the admission by such students.
30. Whereas the respondent authorities have contended that whenever it is brought to their notice, the appropriate actions are taken upto the stage of issuance of show-cause notice for de-recognition and for imposition of the penalty, etc. The respondent contends that all steps are taken for proper implementation of the Act. However, one of the grievance of the petitioner was that there are large number of students of weaker and deprived class who are not aware about their rights to have free education in the school and the Government has to bear the fees for such admission and the Government is not denied appropriate action for giving wide publicity so as to make it known to the deserving class of the students and their parents and guardians.
31. As such, in PIL jurisdiction, the individual case of each student who has been deprived of the admission or who is desirous to get the admission cannot be considered by this Court since each case would vary from facts to facts and the directions may also differ. But at the same time, the Government and its authorities are duty bound to ensure that the benefit reaches to the deserving and genuine class of the students for which the Act is enacted and more particularly after the policy decision by way of Circular to grant admission to the extent of 25% to the weaker and deprived class of the society.
32. Under these circumstances, we find that two broad aspects need to be addressed. One is to make the students, parents, guardians and the public at large aware about the right to free education as per the provisions of the Act and the another is availability of the mechanism for redressal of the grievances of the students through their parents or guardian in the event they are deprived of the benefits under the Act, which would include the admission in the school for which DEO has either not passed order or has passed the order but the school management has not complied with or that thereafter, after giving admissions, the student has been discriminated for the subsequent year etc., or otherwise. It may not be possible for the Court to exhaustively refer to the variety of the grievances, the nature and the gravity of such grievances by giving examples, but it may be possible for the Court to streamline the redressal of grievance mechanism. The third incidental aspect would be to activate both the aforesaid, viz., of making the people aware about the right to free education to the children from 6 years to 14 years together with the scheme and the policy of the Government and the another is for activating the mechanism provided for redressal of the grievances by the students, their parents and the guardians, as the case may be.
33. On the first aspect about making the public at large aware about right to free education as per the provisions of the Act, it can hardly be disputed that unless the children and the parents of the children are made aware about the various rights conferred by the Right to Education Act read with the relevant Rules read with the Government Resolution, the students or their guardians or parents would not press such rights in the event there is deprivation of such rights. As the rights broadly are already referred to by us in the earlier part of this judgment, we need not repeat, but the bridge could be said as print media, tv, etc., through which the State Government and the local authority, which is assigned with the duty to enforce the provisions of the Act, can make it known to the public at large.
34. At this stage, we may refer to certain statutory provisions. Section 13 of the Act of 2005, which is a part of the functions of the Commission so constituted in the said Act provides for functions of the commission and section 13(1) (h) reads as under:
"spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;"
When the very Commission has to discharge both the functions, viz., functions under the Act of 2005 as well as functions under the Act, the aforesaid provisions of the Act itself enjoins duty upon such commission to spread knowledge of the child rights and literacy to promote awareness and safeguard the protection of the rights of the children, through publication, media, seminar and other available means.
35. Apart from the above, even otherwise also, in the days of 21st century, the citizens, and more particularly the children and their parents should be well informed about the rights so conferred by the Act for free education to be protected by the State Government and the local authorities and therefore, we find that more the degree of wide publicity through print media, TV, etc., more knowledge will be gathered and awareness would be geared up about the rights of the children through their parents. As we have observed earlier, there is also obligation upon the State Commission to contribute substantially in this regard. Even State Advisory Council can recommend the State Government to take effective steps in this regard.
Furthermore, we find that the State Legal Services Authority will also have important role to play when they hold legal literacy camp. If the legal literacy camp are extended at the level of schools, we are sure it would be one of the additional and substantial contribution for making aware the class of citizens, viz., children and their parents about their rights and protection under the Act.
It also appears that even the NGOs who are operating in the field of protection of rights of the children can also contribute substantially in this regard by giving wide publicity of such rights so conferred by the statute and benefit accrued therefrom to the children in the field of promoting right to free education.
36. We need now to address on the mechanism for redressal of the grievances of the students through their parents or guardians in the event they are deprived of the benefits under the Act.
37. The aforesaid Rule 31 shows the constitution of REPA until the State Commission for Protection of Child Rights is constituted. Further, Rule 32 provides for setting up of child helpline accessible by SMS, telephone, letter, etc. and further online mechanism to be set up by State Commission or REPA, as the case may be. Rule 33 of the Rules provides for constitution and functions of the State Advisory Council which is conceived by the provisions of Section 34 of the Act.
38. As observed earlier, under Section 31(3) of the Act, if the State Commission for Protection of Child Rights has not being constituted, the constitution of authority like that of REPA may be required to be constituted. When we inquired with the learned Government Pleader as to whether any Commission for Protection of Child Rights as per the Act of 2005 has been constituted or not, the learned Government Pleader reported to us that vide notification dated 21.02.2013, such commission has been constituted. Under these circumstances, it would be useful to refer to section 31 of the Act, the same reads as under:
"31. Monitoring of child's right to education.-(1) The National Commission for Protection of Child Rights constituted under section 3, or, as the case may be, the State Commission for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely:--
(a) examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation;
(b) inquire into complaints relating to child's right to free and compulsory education; and
(c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act.
(2) The said Commissions shall, while inquiring into any matters relating to child's right to free and compulsory education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under sections 14 and 24 of the said Commissions for Protection of Child Rights Act.
(3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed."
The power clothed to the State Commission for protection of child rights by express incorporation of section 31 of the Act is also given to the State Commission which has to work under Act for the purpose of inquiring into the complaints relating to child's right for free and compulsory education and to recommend measures for effective implementation of the rights provided by or under the Act. Further, by virtue of section 31(1)(c) of the Act read with subsection (3), power under sections 14, 15, and 24 of the Act of 2005 are also conferred upon such commission. Hence, it would be useful to refer to sections 14, 15 and section 24 of the Act of 2005, which reads as under:
"14. Powers relating to inquiries.- (1) The Commission shall, while inquiring into any matter referred to in clause (j) of subsection (1) of section 13 have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and, in particular, in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office; and
(e) issuing commissions for the examination of witnesses or documents.
(2) The Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974)."
15. Steps after inquiry - The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:--
(i) Where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(iii) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary."
"24. Application of certain provisions relating to National Commission for Protection of Child Rights to State Commissions.-The provisions of sections 7, 8, 9, 10, sub-section (1) of section 13 and sections 14 and 15 shall apply to a State Commission and shall have effect, subject to the following modifications, namely:--
(a) references to "Commission" shall be construed as references to "State Commission";
(b) references to "Central Government" shall be construed as references to "State Government"; and
(c) references to "Member-Secretary" shall be construed as references to "Secretary"."
The aforesaid shows that by virtue of section 14 of the Act, such commission has the power to summon and enforce the attendance of any person and to examine on oath. It has power to compel discovery and production of any document and requisition of any public record, etc., as that of the power of the Civil Court while trying the suit. Further, after the inquiry is concluded by virtue of section 15 of the Act of 2005, if it is found by the commission that there is any violation of the rights or contravention of the provisions of the Act of 2005, it may recommend to the concerned Government or the authority the initiation of the prosecution or such action as may be deemed fit against the concerned person or persons. Not only that, but the commission is clothed with the power to approach before the Supreme Court or High Court for issuance of any appropriate direction, order or writ. The Commission is also clothed with the power to recommend to the concerned Government or authority for grant of such interim relief to the victim or the members of the family as it finds appropriate. By virtue of section 24, all powers which are possessed by all provisions which are applicable to National Commission for Protection of Child Rights are made available to State Commission also for the purpose of discharging the functions within the State. Under these circumstances, it can be said that the State Commission though constituted under the Act of 2005, is to exercise the power for enforcement of the provisions of the Act by virtue of section 31(3) read with section 31(1) of the Act read with the relevant provisions of the Act of 2005, under which the State Commission has been constituted. The aforesaid appears to be the mechanism provided under section 31(3) of the Act.
39. There is additional mechanism provided under section 32 of the Act by way of redressal of grievance mechanism. Section 32 of the Act for ready reference reads as under:
"32. Redressal of grievances.- (1) Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this Act may make a written complaint to the local authority having jurisdiction.
(2) After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.
(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.
(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31."
The aforesaid section 32 provides that in addition to the mechanism provided under section 31(3), the complaint can also be made to the local authority having jurisdiction and such local authority has to decide the complaint within a period of three months after hearing the parties concerned. If any person is aggrieved by the decision of the local authority, he may prefer appeal before the State Commission referred to in section 31(3) of the Act and the appeal is to be decided by the State Commission.
40. When we further inquired about any mechanism set up for regulating the functioning of the grievance redressal mechanism with the local authority, the learned Government Pleader reported to us that vide notification dated 01.02.2013, the State Government has passed the resolution and such mechanism is regulated. It has been further reported that vide notification dated 23.05.2014, Rules are also framed known as Gujarat State Child Right Protection Commission Rules for the functioning of the commission. The perusal of the said Government Resolution dated 01.02.2013, which has been submitted by the learned Government Pleader on behalf of the State that as per clause (1), the duties are provided as that of the local authority inter alia to ensure that there is no discrimination against the children belonging to weaker section or disadvantaged group. The local authority has also the monitor enrollment of each and every child. The duties as prescribed by the Government Resolution for ready reference can be reproduced as under:--
"Duties of local authority are as follows:
(1) To provide free and compulsory elementary education to each child through Government and Aided schools.
(2) As per RTE Act 2009 section -6 in case of non availability of schools local authority have to start school within three years of time period after implementation of RTE Act-2009.
(3) Their will be no discrimination among children belong to weaker section, disadvantaged groups and held back of any children for any reason is prevented.
(4) The Local Authority shall maintain a record of all children, in its jurisdiction, from their birth till they attain 14 years of age.
(5) Local authority have to monitor about enrollment of each and every child, their attendance and completion of their primary education in their jurisdiction.
(6) Local Authority should provided school building, academic staff and their study material.
(7) As per the RTE Act section - (4) it is compulsory to give special training for the child who is above six year and directly access to the age appropriate class.
(8) Local Authority should ensure to bring qualitative elementary education as per the indicators given in the Act for numbers of teachers in the school, school building, working days, library and sports.
(9) To ensure timely framework of curriculum designs for primary education.
(10) To organize training for teachers.
(11) To ensure child belongs to Nomadic tribe must enrolled in the school.
(12) Local Authority must take care of the school.
(13) To prepare academic calendar."
In addition to the provisions of the Act, the duties have been prescribed for the teachers in clause 3 of the resolution, which reads as under:
"(1) To attend school regular and on time.
(2) Curriculum will run and it will be complete as per section - (No. 29) of subsection (2).
(3) Complete the entire course within time.
(4) Evaluate each child's learning potential and when requires give them additional supplementary instruction.
(5) Regular meetings with parents and guardians. Regular attendance, punctuality, learning ability and progress of their children will be discussed with their parents in presence of the children.
(6) Perform all the duties prescribed by the authority."
Further, as per clause 4 of the said Government Resolution, in case of any written grievance of any person relating to the education, following local authorities are declared for the respective area. The same is reproduced as under:
By virtue of clause 5 of the Resolution, it has been provided that the grievance redress mechanism under the local authority will be determined with separate resolution and for such purpose, another Government Resolution has been passed dated 31.01.2003, which has also been tendered by the learned Government Pleader during the course of hearing and as per the said Resolution, any written complaint can be filed by any person to the local authority and after receiving the complaint by the local authority, the local authority has to listen the parties and take decision within three months. It has been provided that the appeal may be preferred before the State Commission against any decision of the local authority. After having considered the aforesaid aspect for the rural area as well as urban area in the State, following are identified as the grievance redressal mechanism of the area under the related local authority. The same are as under:
"1) For Rural Area
Under related District Primary Education Committee
2) For Urban Area
Under related town/local Primary Education Committee or related District Primary Education Committee related under Municipality.
Clause 5 of the said Resolution provides as under:
"Wide publicity of the instructions provide in this resolution shall be known to the public and information have to be display on the website of District Primary Education Officer, State Project Director, SSA and Education Department."
In the said resolution, detailed table has been provided for legal entitlement, authority charged with provision, authority charged with redressal, time limit for grievance redressal, appellate authority and the time limit for grievance redressal."
41. As per section 33 of the Act, the State Government has to constitute State Advisory Council to advise the State Government for effective implementation of the provisions of the Act. Further as per Rule 33 of the Rules, there is also provision made for constitution of State Advisory Council comprising of various persons. It has been reported on behalf of the State Government that such State Advisory Council is also constituted as per the notification of the government dated 21.03.2013.
42. The aforesaid goes to show that various inbuilt mechanisms are provided for the redressal of the grievances of the students by the aforesaid Government Resolution and the statutory provisions of the Right to Education read with the relevant Rules at the level of local authority and at the level of State Commission. The mechanism is to the extent that if the State Commission ultimately finds something beyond control or in a given case, the State Government itself is not taking any appropriate action in spite of its recommendation, it can approach to the Apex Court or this Court for issuance of appropriate direction or the writ. Under these circumstances, when the inbuilt mechanism has been provided upto the level of this Court, we do not find that on the aspect of set-up of the mechanism, more deserve to be said at this stage.
43. Further, still the aspect would remain for activation of the mechanism. One way is to make the beneficiaries of the mechanism aware about the mechanism available and to endure benefit therefrom and the another is to activate the functioning of the mechanism itself so that it works with full consciousness that they are operating in the field of child rights for education with the sensitization not only that children is a class which is the foundation for the future generation of the citizen in any country but is a class who will independently of its own will have very little capacity to complain unless aided by the parents or the guardians. Therefore, it would be expected for those clothed with the power to take up as a public cause for discharging their duty in a most efficient manner so that the object of the Act can better be achieved.
44. At this stage, we also find it proper to observe that for the mode and manner of ventilating the grievances, the Gujarat State Legal Services Authority will have a very important role to play. As observed by us earlier, the legal literacy camp if held at the level of schools, it would not only sensitize the children and the parents about their rights under the Right to Free Education Act, but it would also help the persons so clothed with the power to play role in grievance redressal mechanism. The Gujarat State Legal Services Authority if renders assistance through paralegal volunteers to help or through its consultant, if required, through its panel advocate, renders services to the children or the parents of the children, as the case may be, for ensuring their protection of right to free education as per the provisions of the Act, we are sure that a great contribution would be made by the Gujarat State Legal Services Authority, which is otherwise meant to help the class of citizen who really need the legal assistance for redressal of their grievances in accordance with law.
45. As observed earlier, there are allegations and counter allegations on the aspect that certain students did approach to the competent authority for getting admission, but the concerned schools were not directed to give the admission. Certain grievances are that though the competent authority referred the students for admission by giving direction to the school, the school did not comply with the direction by showing one excuse or the another and the additional grievance is that after the students were admitted in the first year, from the second year onwards, either the fees were charged higher or their admissions were not continued, etc. While exercising the power under Article 226 of the Constitution in PIL jurisdiction, it may not be possible by this Court to segregate each case and to examine the matter since each case would vary from facts to facts and the consequential direction would also be different. But at the same time, when as observed earlier by us hereinabove, there is enough and sufficient grievance redressal mechanism, this Court may relegate the adversely affected parties, may be children or their parents or guardians, to approach before such local authority, and if required, before the State Commission. It is thereafter only if the grievance is not ventilated in accordance with law or there is any laxity on the part of the competent authority clothed with the power to redress the grievance, such individual cases or group cases may be looked into and examined by this Court for further direction.
46. Apart from the above, we need to emphasize that various rights are provided under the Act but the realisation of such rights would depend upon the knowledge with the children or their parents approaching before the grievance redressal mechanism in the event such rights are breached or the provisions of the Act are not respected and thirdly, the consequential action taken by the competent authority clothed with the power to redress the grievance, may be the local authority or the State Commission, as the case may be.
47. In view of the aforesaid observations and discussions, we find that the following directions deserve to be issued -
"A) The State Government, through the State Commission as well as through local authorities, shall give wide publication of the rights provided under the Right of Children to Free and Compulsory Education Act, 2009 through print media, TV, etc., more particularly during the end of and in the beginning of the academic year within a period of six months initially. The action taken report shall be submitted by the Secretary of the Education Department to the Registrar General of this Court within a period of one month therefrom and if the report is not submitted, the matter shall be placed by the Registrar General of this Court before this Court on judicial side for appropriate action.
B) The children and the parents on whose behalf or for whose benefit the present petition has been filed or any other child/children or their parents/guardians, as the case may be, shall be at the liberty to approach before the concerned officer of the local authority, as referred to hereinabove, and the said officer of the local authority shall decide the complaint of the child/children or the parents, as the case may be, within a prescribed time limit, as mentioned in Section 32 of the Act and the Government Resolution.
C) In addition to the above, it would also be open to any child/children or their parents/guardians to approach before the State Commission for protection of child rights under section 31(3) of the Act for ventilating the grievance and if such grievance is raised, appropriate action shall be taken for inquiring into the complaints as per section 14 of the Protection of Child Rights Act, 2005 and further action under section 15 of the Protection of Child Rights Act shall be taken in accordance with law read with the section 31(3) of the Right of Children to Free and Compulsory Education Act, 2009.
D) A copy of this judgment shall be forwarded to the Gujarat State Legal Services Authority for doing the needful after considering the matter in accordance with law.
E) A copy of this judgment shall be forwarded to the State Commission for Protection of Child Rights, State Advisory Council under the Right of Children to Free and Compulsory Education Act, 2009 for appropriate consideration of the matter in accordance with law.
F) The State Government, through Secretary, Education Department, shall forward the copy of this judgment to the Secretary, Social Welfare and Social Defence for appropriate consideration in accordance with law, more particularly for circulation amongst NGOs which are receiving grant from the State Government and operating in the field of protection of child rights."
48. The petitions are disposed of in terms of the aforesaid directions. Considering the facts and circumstances, no order as to costs.
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