Huzaifa Khan Thru. Their Father Quayum Khan And Another … v. State Of U.P. Thru. Prin. Secy. Deptt. Basic Edu. Lko. And 3 Others

Judgment

1. Heard the counsel for the petitioner, learned Standing Counsel and Sri P. K. Sinha the counsel for the respondents no. 3 and 4.

2. The present petition has been filed by the petitioners, who are two in number through their father and natural guardian, stating that the petitioner no.1aged about 11 years is studying at the respondent no.4 school, in Class V and the petitioner no.2 who is aged about 14 years is studying in Class IX. It is stated that both the children are outstanding sportsman and besides pursuing their studies with the 2 WRIT C - 8327/2025 respondent no.4 are also pursuing the skills in cricket and they have joined a Cricket Academy at Lucknow. It is stated that, although the petitioners have never been detained in past, have now been detained in the examination held for the session 2024-2025, in respect of the petitioner no.1 and vide progress report of the petitioner no.2 for the examination 2024-2025.

3. The contention of the counsel for the petitioner is that in terms of the prescriptions contained in the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as 'RTE Act'), the detention of the petitioner no.1 as well as the petitioner no.2 is contrary to the prescriptions contained in the RTE Act and also violates their rights under Article 21-A of the Constitution of India. It is stated that the respondents authorities were unhappy with the petitioners as, they were pursuing their hobby in Cricket and on account of the said grievance, they are not being permitted to undergo examination afresh, even if the respondent no.4 was of the view that, the petitioners needed improvement in their academic performance they ought to have been given a chance to appear in re- examination. It is further argued that the detention of the petitioners was contrary to the prescriptions contained in the RTE Act.

4. The respondent no 4 school has filed counter affidavit stating that although the petitioners have a right of free and compulsory education, guaranteed by Article 21-A read with the Act, however, it is emphasized that both the students were not having the requisite attendance and also did not qualify the examination and not detaining, students similar to the petitioners, affects the academic schedule and reputation of the school in question. It is further argued that, in terms of the prescriptions contained under the Act in question, the respondents, being unaided private school, are not amenable to all the provisions of the RTE Act and their obligations in terms of the Act, is confined only to the prescriptions contained 3 WRIT C - 8327/2025 under section 12 of the Act. It is further argued that Section 16 of the Act cannot be interpreted to apply to the general students in the same fashion as to the students who get benefits of Section 12(1)(c) so as to reduce their competence and excellence by giving them freedom of not to work towards excellence, not to learn, become ruffians of the school so as to disturb the entire atmosphere of the school in question. It is further argued that if, the school is not allowed to fail/detain students, the teachers would also stop paying attention to the children and in that case, even the teachers cannot be evaluated by the Management appropriately. In the light of the said, it is argued that both the petitioners, do not have the necessary minimum attendance also.

5. With regard to the petitioner no.1, it is stated that he had secured only 41.67% marks and the student's attendance was 57.8% and despite being made aware that 75% attendance is compulsory, he did not take any steps for avoiding the shortage of attendance while the student was in Class III and despite the same, he was promoted. In the academic session 2023-2024, his attendance percentage was down to 36% and attendance to 55.24% which is less than 75% attendance, which is made compulsory by the ICSE Rules, to which the respondent no.4 institution is affiliated. Similarly with regard to petitioner no.2, it is stated that his performance was below par and the attendance was also less. It is stated that in terms of the 'Discipline Rules' of school, minimum attendance is required 90%, failing which, the child is not permitted to undergo the examination.

6. It is also stated that the petitioner no.2 was given warning which was signed by the father of the petitioner no.2 himself. It is also stated that the father of the petitioner no.2 gave in writing that the petitioner no.2 would not be in a position to attend the remedial classes and the result will be his responsibility. It is also stated that the result of the petitioner no.2 has already been sent to the ICSE 4 WRIT C - 8327/2025

Board. In the light of the said, it is stated that the writ petition is liable to be dismissed.

7. Reliance is placed upon the judgment of the Supreme Court in the case of Society for Unaided Private Schools of Rajasthan vs. Union of India and another; (2012) 6 SCC 1 with emphasis on paragraphs 37 to 48 as well as paragraph 64, which are quoted herein below: "37. Thus, from the scheme of Article 21-A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6).

38. The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school(s) as also grant of recognition (see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges.

39. In T.M.A. Pai Foundation [(2002) 8 SCC 481] , this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the Government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as 5 WRIT C - 8327/2025 unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6).

40. Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), a private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects viz. upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.

41. We also do not see any merit in the contention that Section 12(1) (c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to Class I, to the extent of 25% of the strength of the class, of the children belonging to weaker sections and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on “free and compulsory education”. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees.

42. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence, Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.

Board. In the light of the said, it is stated that the writ petition is liable to be dismissed.

7. Reliance is placed upon the judgment of the Supreme Court in the case of Society for Unaided Private Schools of Rajasthan vs. Union of India and another; (2012) 6 SCC 1 with emphasis on paragraphs 37 to 48 as well as paragraph 64, which are quoted herein below: "37. Thus, from the scheme of Article 21-A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6).

38. The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school(s) as also grant of recognition (see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges.

39. In T.M.A. Pai Foundation [(2002) 8 SCC 481] , this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the Government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as 5 WRIT C - 8327/2025 unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6).

40. Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), a private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects viz. upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.

41. We also do not see any merit in the contention that Section 12(1) (c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to Class I, to the extent of 25% of the strength of the class, of the children belonging to weaker sections and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on “free and compulsory education”. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees.

42. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence, Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.