CORAMTHE HONOURABLE MR v. The Government of India

6.The Principal, D.A.V School, Sri Nantheeswarar Campus, Adambakkam, Chennai... Respondents 5 and 6 in W.P.No.10217 of 20125.The Head Master, Sri Nadesan Vidyalaya Mat. Hr. Sec. School, Muduchoor Road, Mannivakkam, Chennai-600 048... 5th respondent in W.P.No.10218 of 20125.The Commissioner, Ambattur Municipality, Ambattur, Chennai.6.The Regional Director, Central Board of Secondary Education, Plot No.1630, A, "J" Block, 16th Main Road, Anna Nagar West, Chennai-600 040.7.The Principal, Vellammal Vidyalaya CBSE School, Ayanampakkam, Chennai... Respondents 5 to 7 in W.P.No.12203 of 20124.The Regional Director, Central Board of Secondary Education, Plot No.1630, A, "J" Block, 16th Main Road, Anna Nagar West, Chennai-600 040.5.The Commissioner, Chennai Corporation, Ripon Building, Chennai-600 003... Respondents 4 and 5 in W.P.Nos.13337 and 13338 of 20126.The Principal, Vani Vidyalaya Senior Secondary & Junior College, No.12,Vembuli Amman Koil Street, K.K.Nagar (West), Chennai-600 078... Respondent No.6 in W.P.No.13337 of 20126.The Principal, Chinmaya Vidyalaya, Chinmaya Nagar, Stage II, Virugambakkam, Chennai-600 092... Respondent No.6 in W.P.No.13338 of 2012W.P.Nos.10217 and 10218 of 2012 are preferred under Article 226 ofthe Constitution of India praying for the issue of a writ of https://hcservices.ecourts.gov.in/hcservices/ mandamus to direct the third respondent to identify theneighbourhood school(s) where children can be admitted and makesuch information to public for each habitation by publicnotification by advertisement in all newspapers, in the website ofthe Education Department, consequently direct the 6th respondentschool to admit the petitioner's child Mathivathani (age 3) in LKGStandard and in W.P.No.10218 of 2012 to direct the 5th respondentschool to admit the petitioner's child Pavithra (age 6) in the 2ndstandard respectively without any screening test by providing freeeducation upto 8th standard with free uniforms, free educationmaterials, free books and other needs for education. W.P.No.10203 of 2012 is preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusto direct the 7th respondent school to admit the petitioner's childS.Swathi (aged 5) in 1st standard without any screening test byproviding free education upto 8th standard with free uniforms, freeeducation materials, free books and other needs for education.W.P.No.13337 of 2012 is preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusto direct the 6th respondent school to admit the petitioner's sonSanjay Bharathi, son of Manickam (age 9) in 5th standard without anyscreening test by providing free education upto 8th standard withfree uniforms, free education materials, free books and other needsfor education.W.P.No.13338 of 2012 is preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusto direct the 6th respondent school to admit the petitioner'sdaughter Vaishnavi (age 3) in L.K.G. without any screening test byproviding free education upto 8th standard with free uniforms, freeeducation materials, free books and other needs for education.For Petitioners : Mr.M.PariFor Respondents : Mr.P.Sanjay Gandhi, Spl.G.P. (Edn.) for RR2 to 4 in W.P.Nos.10217, 10218 and 12203 of 2012 and for RR2 and 3 in W.P.Nos.13337 and 13338 of 2012 Mr.R.Venkataraman for R-5 in W.P.No.10218 of 2012 Mr.T.Meikandan for R-6 in W.P.Nos.13337 and 13338 of 2012 Mr.N.Raja Senthoor Pandian for R-7 in W.P.No.12203 of 2012 Mr.M.S.Krishnan, SC in W.P.No.10217 of 2012 Ms.Karthikaa Ashok for R-5 for Chennai Corporation in W.P.Nos.10217, 12203, 13337 and 13338 of 2012 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERAll these writ petitions came to be posted on beingspecially ordered by the Hon'ble Chief Justice vide order dated06.06.2012.2.The petitioners in all these writ petitions are parentsof the children for whom they were seeking for admissions into someunaided private schools shown as the contesting respondents in therespective writ petitions. Inspiration for filing the writ petitionwas drawn from the provisions of The Right of Children for Free andCompulsory Education Act, 2009 (for short Free Education Act).3.On notice from this court, the contesting respondentshave also filed counter affidavits. Before going into the merits ofthe contentions, it is necessary to set out the facts pleaded bythe respective parties.I.W.P.No.10217 of 2012 :4.The petitioner in this writ petition seeks for adirection to the official respondents to identify the neighborhoodschools where children can be admitted and make such informationpublic and consequently to direct the 6th respondent (D.A.V. School,Sri Nandeeswarar Campus, Adambakkam) to admit his daughterMathivathani (aged 3 years) in the L.K.G. section without anyscreening test and by providing free education upto 8th standard,free uniform, free education materials and free books. According tothe petitioner, he belonged to the Most Backward caste anddisadvantage group. He is earning Rs.1,29,516/- per annum and alsobelonged to weaker section. Free education Act defines disadvantagegroup and weaker section. His daughter aged 3 years is willing tojoin the 6th respondent school in L.K.G. and to study upto 8thstandard free and compulsory education. The petitioner hadapproached the 6th respondent many times for admission. He was notgiven any application form. After enquiry, he came to know thatadmission was completed. He made a representation on 13.3.2012 tothe respondents requesting them to take steps to admit his childunder Rule 6(6) of the Right of Children to Free and CompulsoryEducation Rules, 2010. It is stated that the 6th respondent schoolhad not allotted 25% of seats as required under Section 12(c) ofthe Free Education Act in each standard from L.K.G to 8th standard.The official respondents were not supervising. His daughter notonly has legal right, but also fundamental right under Article 21of the Constitution to have free and compulsory education upto 8thstandard.II.W.P.No.10218 of 2012 :5.In this writ petition, the petitioner who is the fatherhas sought for an identical prayer in respect of his daughterPavithra aged 6 years to be admitted to 2nd standard with free https://hcservices.ecourts.gov.in/hcservices/ uniform, free education materials, free books and other needs inthe 5th respondent Sri Nadesan Vidyalaya Matriculation HigherSecondary School, Mannivakkam, Chennai-48.6.When both writ petitions came up for admission, since thepetitioners asked for a larger prayer, this court directed that itmay be treated as a Public Interest Litigation. Hence it should beposted before a division Bench. However, the division benchpresided by the Hon'ble Chief Justice vide order dated 26.04.2012held that the relief claimed is only personal and it should beheard only by a single bench. Subsequently, these two writpetitions were admitted by this Court on 27.04.2012. On notice, the5th respondent in W.P.No.10218 of 2012 has filed a counteraffidavit , dated 4.6.2012. In the counter affidavit, it was statedthat the writ petition is not maintainable as the Act only providesfor admission to 1st standard under Section 12(1)(c). But theirschool is having pre-school education from L.K.G. onwards. Sincethe petitioner seeks admission for his daughter in the 2nd standard,the writ petition is liable to be dismissed. It was also statedthat in the Mannivakkam village neighborhood, there is a GovernmentHigh school. It is not as if the petitioner cannot get admission tothe said school. Their school has been unnecessarily dragged intothe case.III.W.P.No.12203 of 2012 :7.This writ petition is filed by the father of a childseeking for an admission in the 1st standard to his daughterS.Swathi aged 5 years in the 7th respondent school, i.e., VellammalVidyala CBSE School, Ayanampakkam, Chennai without any screeningtest and free education upto 8th standard. In this writ petition,notice was ordered on 4.5.2012. The contention of the petitionerwas that he belonged to Most Backward class which is adisadvantaged group. He is earning Rs.1,15,500/- per year which isa weaker section under the said Act. He had approached the privaterespondent school for admission. He came to know that the admissionwas completed. Therefore, he made a representation on 21.4.2012 fortaking steps. The official respondents have not taken any steps.Hence this writ petition. 8.On notice from this court, the private respondent schoolhas filed a counter affidavit dated 7.6.2012. In the counteraffidavit, it was stated that their schools is an unaided schooland is having pre school education from the Lower Kinder Garden(L.K.G.). They are exempted from admitting students in terms ofSection 12(c)(1). Since their admission starts from pre schoolstage, the petitioner's claim to admit his daughter in the 1ststandard is not valid. They are not in a position to admit thepetitioner's child. The school is having the strength of 500students in respect of the 1st standard, who were admitted in theL.K.G itself. Further the petitioner in his representation dated21.4.2012 stated that he wanted Samacheer Kalvi (Uniform syllabus)and it is not applicable to the respondent school as it isaffiliated to the CBSE. Therefore, the petitioner cannot admit his https://hcservices.ecourts.gov.in/hcservices/ daughter in their school. IV.W.P.No.13337 of 2012 :9.The petitioner is the mother. In this writ petition, shesought for a direction to admit her son Sanjay Bharathi aged 9years in the 5th standard without any screening test and byproviding free education upto 8th standard in the 6th respondentschool, i.e., Vani Vidyalaya Senior Secondary and Junior College,K.K.Nagar (West), Chennai. This writ petition is yet to beadmitted. The petitioner was directed to issue a private notice tothe 6th respondent. 10.It is the case of the petitioner that she belonged tomost backward class and defined as a disadvantaged group. Herfamily income is less than Rs. 2 lakhs per year. When thepetitioner had approached the 6th respondent school for admission,she was not given application form. She came to know that admissionwas completed. The petitioner made a representation dated01.05.2012 to the respondents, but no action was taken. Hence shehas filed the present writ petition.V.W.P.No.13338 of 2012 :11.In this writ petition, the petitioner is the mother, whoseeks for a direction to admit her daughter Vaishnavi aged 3 yearsin the L.K.G. In the 6th respondent school, i.e. Chinmaya Vidyalaya,Chinmaya Nagar, Stage II, Virugambakkam without any screening testand by providing education upto 8th standard. It is her case thather family income is Rs.2 lakhs. She belonged to the weakersection. Inspite of her approaching school, she was not given anapplication form. Thereafter she came to know that admission of theschool was already over. Despite her representation, therespondents have not taken any action. In that writ petition,notice was ordered on 09.05.2012. 12.On notice from this court, the contesting respondentChinmaya Vidyala has filed a counter affidavit, dated 8.6.2012. Itwas stated that their school is affiliated to CBSE and no writpetition is maintainable against the said school. It was alsostated that their school gave wide publicity with reference to theadmission procedure in the local dailies and other newspapers forthe academic year 2012-2013 during January, 2012 itself. Theapplication were allowed to be downloaded from the website of theschool. Based upon the advertisement made in the newspapers, morethan 1265 applications were downloaded by the aspirants to L.K.G.admission for the ensuing academic year. They had specificallyinstructed and advertised that such applications should be sent tothe school on or before 18th, 19th, and 21st January, 2012. Manyparents took note of the details and applied to the school foradmission within time. The petitioner's contention that she hadapproached the school for application form was not accepted and itwas stated only for filing the present case. The petitioner nevermade any application to the school. https://hcservices.ecourts.gov.in/hcservices/

13.It was stated that apart from issuing application duringJanuary, 2012 the academic year for all CBSE schools starts inApril itself, i.e., from 4.4.2012. the condition that 25% ofvacancies to be filled up by weaker sections and disadvantage groupwere also filled up on "first come first served" basis and theentire admission in the school was over by April, 2012. Since thepetitioner did not approach the school, the question of her seekingfor admission from the school does not arise. The management hadconsciously kept in mind the provisions of the Act as upheld by theSupreme Court and had admitted 52 students under Section 12(1)(c)category out of 160 students. The list of students who wereadmitted in that category is also enclosed along with the counteraffidavit. In fact, their school had admitted more than 1/3rd ofthe category for admission which is more than the percentage fixedunder the Act. Apart from this even in the same neighborhood, thereare several schools, which are as follows :a)Marthoma Matriculation Higher Secondary School.b)Padma Sarangapani Matriculation Higher SecondarySchool.c)Balar Gurukulam School.d)Tagore Matriculation School.e)Kalaivani Vidyalayaf)Corporatino Primary School, Virugambakkam.g)Clarance Matriculation Higher Secondary School,Virugambakkam."But no attempt was made to seek admission in those schools thoughpetitioner claiming to be living in the neighborhood. Thepetitioner is only targeting the respondent school for the reasonsbest known to her. 14.In the light of these facts, it has to be seen whetherthe petitioners claim can be countenanced by this court? Since theentire claims of the petitioners have been rest on Section 12 moreparticularly Section 12(1)(c), it is necessary to extract the saidprovision in its entirety which reads as follows :"12.Extent of school's responsibilities for free andcompulsory 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 compulsoryelementary education to all children admitted therein;(b) specified in sub-clause (ii) of clause (n)of section 2 shall provide free and compulsoryelementary education to such proportion of childrenadmitted therein as its annual recurring aid or grantsso received bears to its annual recurring expenses,subject to a minimum of twenty-five per cent.; https://hcservices.ecourts.gov.in/hcservices/ (c) specified in sub-clauses (iii) and (iv) ofclause (n) of section 2 shall admit in class I, to theextent of at least twenty-five per cent. of thestrength of that class, children belonging to weakersection and disadvantaged group in the neighbourhoodand provide free and compulsory elementary educationtill its completion:Provided further that where a school specified inclause (n) of section 2 imparts pre-school education,the provisions of clauses (a) to (c) shall apply foradmission to such pre-school education.(2) The school specified in sub-clause (iv) of clause(n) of section 2 providing free and compulsoryelementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurredby it to the extent of per-child-expenditure incurredby the State, or the actual amount charged from thechild, whichever is less, in such manner as may beprescribed:Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified insub-clause (i) of clause (n) of section 2: Provided further that where such school is alreadyunder obligation to provide free education to aspecified number of children on account of it havingreceived any land, building, equipment or otherfacilities, either free of cost or at a concessionalrate, such school shall not be entitled forreimbursement to the extent of such obligation. (3) Every school shall provide such information as maybe required by the appropriate Government or the localauthority, as the case may be."(Emphasis added)15.The said provision when challenged by an unaided privateschools Association of Rajasthan, the provision was upheld by theSupreme Court vide judgment in Society for Un-aided Private Schoolsof Rajasthan Vs. Union of India and another reported in 2012 (4)Scale 272. In paragraph No.12, it has been observed as follows :"12....Thus, if one reads the 2009 Act including Section12(1)(c) in its application to unaided non-minorityschool(s), the same is saved as reasonable restrictionunder Article 19(6)."16.Before going into the rival contentions, it is alsonecessary to refer to the following passages found in the sameSupreme Court judgment. In paragraph 21, it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "21.This judgment will operate from today. Inother words, this will apply from the academic year2012-13. However, admissions given by unaidedminority schools prior to pronouncement of thisjudgment shall not be reopened."17.The judgment of the Supreme Court was delivered on12.04.2012. Therefore, wherever admissions were made before thedate, the petitioners cannot seek any enforcement of the provisionsunder this Act. In view of the stand taken by the respondent inW.P.No.13338 of 2012, that writ petition is not maintainable as thestand taken by the respondent has not been controverted by anyreply affidavit. Therefore, admissions in that school having beenmade before the cut off date, W.P.No.13338 of 2012 is liable to berejected on that short ground. Accordingly, it is rejected.18.In W.P.No.12203 of 2012, the claim for admission is forthe 1st standard. But the stand taken by the contesting respondentSchool was that their admission procedure starts from the L.K.Gstage. Therefore, the provisions of Section 12(1)(c) will applyonly from pre school education as can be seen from the proviso toSection 12(1) as noted above. Hence the stand of the managementthat admission during the 1st class is not maintainable as the Actitself recognizes admission at the pre-school stage. HenceW.P.No.12203 of 2012 is liable to be dismissed.19.In W.P.No.10218 of 2012, the admission was sought for inthe 2nd standard. Whereas Section 12(1)(c) itself clearly statesthat admission should be from Class-I for the ensuing year and doesnot talk about the subsequent standards fro the purpose ofenforcement of the Act. The question of compulsory admission of 25%of the strength of the class relates to Class-I as can be seen fromSection 12(1)(c). The Act never contemplated that the School comingunder Section 12(1)(c) must grant 25% admission in respect ofstandards 2 to 8 as the admission to those classes had already beenmade before coming into force of the Act as well as the Act wasmade applicable by the Supreme Court with effect from 12.4.2012. 20.Various types of schools are defined under Section 2(n)of the Act, which reads as follows :"2(n) "School" means any recognised school impartingelementary education and includes—(i) a school established, owned or controlled by theappropriate Government or a local authority;(ii) an aided school receiving aid or grants to meetwhole or part of its expenses from the appropriateGovernment or the local authority;(iii) a school belonging to specified category; and(iv) an unaided school not receiving any kind of aidor grants to meet its expenses from the appropriateGovernment or the local authority;"21.It is only in case of the school coming under section 2 https://hcservices.ecourts.gov.in/hcservices/ (n)(i), free and compulsory elementary education to all childrenadmitted is to be provided. Whereas the contesting respondentadmittedly comes under the category of Section 2(n)(iv) as unaidednon minority schools. In those cases, the process of admittingstudents with 25% reservation for children belonging to weakersections and disadvantaged group started only from Class I and itmay grow gradually from the 1st standard to 8th standard. But incases where there is pre school education, then it may start fromthe L.K.G. onwards. Hence the petitioners are under misconceptionthat automatically in respect of unaided private schools, therewill be complete free education including supply of uniform,education materials, books and other needs for education. But it isa complete misleading of the provisions of the Act.22.In case, if a child is unable to get Class-I admissionin any of the unaided private school, the only guarantee for freeand compulsory education provided for children from 6 years to 14years is set out under Section 9 of the Free Education Act, whichreads as follows :"9.Duties of local authority.- Every local authorityshall—(a) provide free and compulsory elementaryeducation to every child:Provided that where a child is admitted by hisor her parents or guardian, as the case may be, in aschool other than a school established, owned,controlled or substantially financed by funds provideddirectly or indirectly by the appropriate Governmentor a local authority, such child or his or her parentsor guardian, as the case may be, shall not be entitledto make a claim for reimbursement of expenditureincurred on elementary education of the child in suchother school;(b) ensure availability of a neighbourhood school asspecified in section 6;(c) ensure that the child belonging to weaker sectionand the child belonging to disadvantaged group are notdiscriminated against and prevented from pursuing andcompleting elementary education on any grounds;(d) maintain records of children up to the age offourteen years residing within its jurisdiction, insuch manner as may be prescribed;(e) ensure and monitor admission, attendance andcompletion of elementary education by every childresiding within its jurisdiction;(f) provide infrastructure including school building, https://hcservices.ecourts.gov.in/hcservices/ teaching staff and learning material;(g) provide special training facility specified insection 4;(h) ensure good quality elementary educationconforming to the standards and norms specified in theSchedule;(i) ensure timely prescribing of curriculum andcourses of study for elementary education;(j) provide training facility for teachers;(k) ensure admission of children of migrant families;(l) monitor functioning of schools within itsjurisdiction; and(m) decide the academic calendar."Therefore, the obligation to provide free and compulsory educationupto 14 years vest solely on the local authorities.23.In case there was any further grievance regardingadmission of a child, Section 32 provides for grievance redressalmachinery. Section 32 reads as follows :"32.Redressal of grievances.- (1) Notwithstandinganything contained in section 31, any person having anygrievance relating to the right of a child under thisAct may make a written complaint to the local authorityhaving jurisdiction.(2) After receiving the complaint under sub-section(1), the local authority shall decide the matter withina period of three months after affording a reasonableopportunity of being heard to the parties concerned.(3) Any person aggrieved by the decision of the localauthority may prefer an appeal to the State Commissionfor Protection of Child Rights or the authorityprescribed under sub-section (3) of section 31, as thecase may be.(4) The appeal preferred under sub-section (3) shall bedecided by State Commission for Protection of ChildRights or the authority prescribed under sub-section(3) of section 31, as the case may be, as providedunder clause (c) of sub-section (1) of section 31."24.Since the petitioners have emphasized the right toeducation as a fundamental right, the history behind the enactmenthas to be seen first. When the National Policy on Education (1986)was evolved, it guaranteed that the constitutional promise foundunder Article 45 will be redeemed before the end of the 20thcentury. It was in Mohini Jain’s case [Mohini Jain (Miss) Vs. State https://hcservices.ecourts.gov.in/hcservices/ of Karnataka (1992) 3 SCC 666], the Supreme Court came to theconclusion that the right of education is a fundamental right. Inthat judgment, in paragraphs 14 and 17, it was observed asfollows :“14.The “right to education”, therefore, is concomitantto the fundamental rights enshrined under Part III ofthe Constitution. The State is under a constitutionalmandate to provide educational institutions at alllevels for the benefit of the citizens. The educationalinstitutions must function to the best advantage of thecitizens. Opportunity to acquire education cannot beconfined to the richer section of the society. 17.We hold that every citizen has a “right toeducation” under the Constitution. The State is underan obligation to establish educational institutions toenable the citizens to enjoy the said right. The Statemay discharge its obligation through state-owned orstate-recognised educational institutions. “ 25.But, the dictum of Mohini Jain did not last long. Thatdecision was explained by Unni Krishnan’s case [Unni Krishnan, J.P.Vs. State of A.P., (1993) 1 SCC 645]. In that judgment, inparagraphs 171, 176 and 182, it was observed as follows :“171.….. it would not be correct to contend that Mohini Jain waswrong insofar as it declared that “the right to education flowsdirectly from right to life”. But the question is what is thecontent of this right? How much and what level of education isnecessary to make the life meaningful? Does it mean that everycitizen of this country can call upon the State to provide himeducation of his choice? 176.This does not however mean that thisobligation can be performed only through the StateSchools. It can also be done by permitting,recognising and aiding voluntary non-governmentalorganisations, who are prepared to impart freeeducation to children. This does not also meanthat unaided private schools cannot continue. Theycan, indeed, they too have a role to play. Theymeet the demand of that segment of population whomay not wish to have their children educated inState-run schools. They have necessarily to chargefees from the students. 182.The right to free education is available onlyto children until they complete the age of 14years. Thereafter, the obligation of the State toprovide education is subject to the limits of itseconomic capacity and development. “ https://hcservices.ecourts.gov.in/hcservices/

26.It was only after these two decisions and due to publicpressure, the Parliament was forced to amend the Constitution tointroduce Article 21A and it reads as follows : “The State shall provide free and compulsoryeducation to all children of the age of six tofourteen years in such manner as the State may, bylaw, determine.”27.Article 45 was also amended simultaneously to read :"45.Provision for early childhood care andeducation to children below the age of six years.-The State shall endeavour to provide earlychildhood care and education for all children untilthey complete the age of six years."The said Article 45 before its amendment reads as follows : “The State shall endeavour to provide, within aperiod of ten years from the commencement of thisConstitution, for free and compulsory education forall children until they complete the age of fourteenyears.” 28.Even after declaring the right to education upto 14years as a fundamental right, nothing was done concretely to makeit as a reality by bringing an appropriate legislation. After sevenyears after the Constitutional amendment, the new The Right ofChildren to Free and Compulsory Education Act, 2009 (Act 35 of2009) was enacted with effect from 1.4.2010. 29.In the meanwhile, a larger bench of the Supreme Court inT.M.A. Pai Foundation’s case [T.M.A. Pai Foundation Vs. State ofKarnataka (2002) 8 SCC 481] further nullified Unni Krishnan’s case.It was observed in paragraph 38 as follows :“38.The scheme in Unni Krishnan case4 has the effectof nationalizing education in respect of importantfeatures viz. the right of a private unaidedinstitution to give admission and to fix the fee. Byframing this scheme, which has led to the StateGovernments legislating in conformity with thescheme, the private institutions areindistinguishable from the government institutions;curtailing all the essential features of the rightof administration of a private unaided educationalinstitution can neither be called fair norreasonable.” 30.The need for private public partnership in the field ofeducation was noted in the T.M.A. Pai’s case. It was observed asfollows : https://hcservices.ecourts.gov.in/hcservices/ “India is a land of diversity — of different castes,peoples, communities, languages, religions andculture. Although these people enjoy completepolitical freedom, a vast part of the multitude isilliterate and lives below the poverty line. Thesingle-most powerful tool for the upliftment andprogress of such diverse communities is education.The State, with its limited resources and slow-moving machinery, is unable to fully develop thegenius of the Indian people. Very often theimpersonal education that is imparted by the State,devoid of adequate material content that will makethe students self-reliant, only succeeds inproducing potential pen-pushers, as a result ofwhich sufficient jobs are not available.”31.Therefore, the judicial process starting from MohiniJain’s case to T.M.A.Pai Foundation’s case via Unni Krishnan’s casegave sanctity to the “National Education Policy” by which the Statewanted to wriggle out of its commitment by bringing privateinitiative into the field on grounds of paucity of funds. TheSupreme Court in essence gave its seal of approval to the stand ofthe Union of India. Hence, notwithstanding education being afundamental right under Article 21A, when the Right of Children toFree and Compulsory Education Act, 2009 was enacted, the Governmenthad T.M.A.Pai’s case before it. Hence the Act instead of making theState to realise its responsibility, passed on the responsibilityto private partnership. Hence the definition of the term “school”under the Act made four different types of schools under Section 2(n).32.After enumerating four different types of schools, theAct was held inapplicable to unaided minority schools by the recentjudgment in Society for Un-Aided Private Schools of Rajasthan Vs.U.O.I. and another reported in 2012 (4) Scale 272. Section 12 whichcontemplates the extent of school’s responsibility for free andcompulsory education only provides for at least 25% of the strengthof the class to be filled up by the children belonging to weakersection and disadvantaged group in the neighbourhood and providefree and compulsory elementary education till its completion. Theschools, which are to provide education to such 25% of the childrenbelonging to weaker sections and disadvantaged groups, expenses areto be refunded on the basis of per-child-expenditure incurred bythe State.33.In this scheme of things, it is not clear whetherparents of the children whether belonging to weaker sections orwell-off sections will have any right to get their childrenadmitted to the school of their choice with the hope of right toget quality education granted to them. On the other hand, exceptfor a guarantee of 25% of admission to weaker sections, the rest ofthe 75%, who want to get admitted to such private schools, are tofend for themselves by paying the fees demanded as per law. https://hcservices.ecourts.gov.in/hcservices/

34.The Supreme Court in its latest decision [2012 (4) Scale272] in permitting private participation in the area of schooleducation made a distinction between the old Article 45 and the newArticle 21A in the following words :“To provide for free and compulsory education inArticle 45 is not the same thing as to providefree and compulsory education. The word “for” inArticle 45 is a preposition. The word “education”was read into Article 21 by the judgments of thisCourt. However, Article 21 merely declared“education” to fall within the contours of rightto live. To provide for right to accesseducation, Article 21A was enacted to give effectto Article 45 of the Constitution. Under Article21A, right is given to the State to provide bylaw “free and compulsory education”. Article 21Acontemplates making of a law by the State. Thus,Article 21A contemplates right to educationflowing from the law to be made which is the 2009Act, which is child centric and not institutioncentric. Thus, as stated, Article 21A providesthat the State shall provide free and compulsoryeducation to all children of the specified age insuch manner as the State may, by law, determine.The manner in which this obligation will bedischarged by the State has been left to theState to determine by law. The 2009 Act is thusenacted in terms of Article 21A.” (Emphasisadded)35.Therefore, according to the Supreme Court, the absenceof the word “for” in Article 21A had absolved the fullresponsibility of the State to provide free and compulsoryeducation. By the interpretative process, the right of the childrento have free and compulsory education upto 14 years is clearlydiluted. Further as to what constitutes a neighborhood school andif there are more than one school in a neighborhood as to whichschool the parent can have the choice and which authority candirect admission to such school and in case of an unaided privateschool who will supervise the admission is not made clear. Underthe present scheme of the Act if the school justified that it hadadmitted minimum of 25% of its seats to the children belong toweaker section and disadvantaged section, that will be a sufficientcompliance of Section 12(1)(c) of the Act. The process of admissionhas to be in a transparent manner. But there is no particular rightof a child to be admitted to a particular school is guaranteedunder the Act.36.The counsel for the petitioners placed reliance uponArticle 13.3 of the International Covenant on Economic, Social andCultural Rights, 1966 and stated that there is an obligation by theinternational law to provide right of the child to get admitted to https://hcservices.ecourts.gov.in/hcservices/ a school of his choice. Article 13.3 reads as follows :"3.The States Parties to the present Covenantundertake to have respect for the liberty of parentsand, when applicable, legal guardians to choose fortheir children schools, other than those established bythe public authorities, which conform to such minimumeducational standards as may be laid down or approvedby the State and to ensure the religious and moraleducation of their children in conformity with theirown convictions."The said provision only enables the parents not to be subjected tothe State law to admit only their children / wards in theGovernment or public school, but also have their choice to getadmitted their children other than public school. It is not clearas to how the said provision is helpful to the petitioner, sincethat provision did not deal with any free education, but only dealtwith the choice of parents to go to a school of their choice freefrom State compulsion. 37.In the light of the above discussion, it has to be seenwhether the petitioners have made out any case for interfering withthe admission procedure adopted by the contesting respondents.Admittedly, the contesting respondents are "unaided privateschools" coming under the definition of Section 2(n)(iv). Theirobligation to implement the admission to an extent of 25% for theweaker sections and disadvantagde group only starts from Class-I orin alternative from the pre school education. Therefore, some ofthe petitioners' claim for admission other than Class-1 is notmaintainable. Further since the stand taken by some of the schoolsthat their admission procedure started in the month of January andhad ended well during the first week of April, they were clearlyexempted from the application of the Act as the Supreme Court hadapplied the act prospectively from 12.04.2012. In W.P.No.13338 of2012, the definite stand of the respondent school was that thepetitioner never even made any application though application wasasked to be downloaded from the website. At the time of admission,they followed the procedure of either first come first serve basisor random method. Since admissions having been completed and therebeing no case to interfere with the admission procedure adopted bythe contesting respondents, the petitioners have not made out anycase to entertain the writ petitions. Their only option is toapproach the local authorities providing for free and compulsoryeducation. 38.Even in cases where pre school admission was rejected,it is under section 11, the appropriate Governments have beendirected to provide necessary arrangements for free pre-schooleducation for such children. Section 11 reads as follows :"11.Appropriate Government to provide for pre-schooleducation.- With a view to prepare children above theage of three years for elementary education and toprovide early childhood care and education for all https://hcservices.ecourts.gov.in/hcservices/ children until they complete the age of six years, theappropriate Government may make necessary arrangementfor providing free pre-school education for suchchildren."39.In cases where there is any specific extent of violationof the provisions of the Act or rules, it also provides forredressal of grievance by the competent authority and by localauthorities as well as by the State Governments as set out inSection 32. Hence the petitioners have not made out any case toentertain the writ petitions. Further, it is the stand of therespondent schools that seats have already been filled up as perthe guidelines issued under the Act and children have already beenstudying in the schools. In the affidavits filed by thepetitioners, there was no concrete details regarding any improperadmissions being made by the schools. The affidavits were filed ina stereotyped manner containing same allegations even though thecontesting respondents are different schools. Hence no furtherprobe is required with reference to the nature of admissions madein respect of these schools.40.In the light of the above, all writ petitions weremisconceived and bereft of legal reasons and hence will standdismissed. However, there will be no order as to costs.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary, The Government of India, Department of Human Resources and Education, New Delhi-110 001.2.The Secretary, The Government of Tamil Nadu, Department of School Education, Fort St. George, Chennai-600 009.3.The Secretary, The Government of Tamil Nadu, Department of Local Administration, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

4.The Director of School Education, Office of the Directorate of School Education, Nungambakkam, Chennai-600 034.5.The Commissioner, Alandur Municipality, Alandur, Chennai.6.The Commissioner, Ambattur Municipality, Ambattur, Chennai.7.The Regional Director, Central Board of Secondary Education, Plot No.1630, A, "J" Block, 16th Main Road, Anna Nagar West, Chennai-600 040.8.The Commissioner, Chennai Corporation, Ripon Building, Chennai-600 003.1 cc To Mr.B.Rabu Manohar, Advocate, SR.374742 cc To Mr.B.R.Shankaralingam, Advocate, SR.374772 cc To Mr.R.Venkataraman, Advocate, SR.37633 ORDER IN W.P.Nos.10217, 10218, 12203, 13337 and 13338 of 2012TS {CO}TP/12.7.2012.