# M/s G.S. Convent School v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-g-s-convent-school-v-state-of-u-p-ors-44683
- **Pages:** 47

## Headnote

A. Constitution of India - Art. 21 A - Right of
Children to Free and Compulsory Education
Act, 2009 - Legislature partly redeemed a
promise made by the nation on the
fateful
midnight of August 1947
-
Promise can be redeemed in full measure
only by a faithful implementation of the
legislative and Constitutional mandate.
(Para 12)

B.
Right
of
Children
to
Free
and
Compulsory Education Act, 2009 - Is a
reflection of National vision, national will
and
national
organization
-
Is
an
authoritative guide to the nature of the
rights of the children, duties of the State
authorities as well as the obligations of
educational institutions. (Para 15 & 20)

C. Constitution of India - Art. 21 A -
Right of Children to Free and Compulsory
Education Act, 2009 - Scheme under
therein has education and welfare of the
child at its core-Every other activities
revolves around this centre and all other
activities subserve this noble object-It
contemplate establishment of temple of
learning called school not enterprises for
profit called literacy kiosks or education
shops. (Para 135)

D. Importance of Education - Education is
supreme act of nation building and
paramount
activities
of
civilizational
progress -It's purpose is to produce
enlightened citizens. (Para 41)

E.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Purpose of Educational institutions-All
children have different aptitude but the
same potentiality - The purpose of an
educational institutions is to unlock the
immense and diverse possibility in each
child- Acknowledgement and awakening
of the latent potentiality in each child is
mandated in this Act. (Para 42 & 45)

F.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Commercialization
of
Education
-
Education lie full prospect of national
building, but it also offers possibility of
private profiteering - Opportunity of
nation building cannot be approached
with minds of dishonest traders-Future
of many cannot be jeopardized for
benefit of the few-Legislature while
enacting RCFCE Act, 2009, was conscious
of the law laid down by Supreme Court
against commercialization of education -
Mushrooming schools without proper
infrastructure are the blatant example of
profiteering in education. (Para 58, 60 &
61)

G.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Necessity of playground Scheme of the
RCFCE
Act,
2009
unequivocally
mandates that playground and school
building shall be part of one campus - In
case school building and playground are
situated in separate plots of land which
are not compact or contiguous, school
will not satisfy the criteria of barrier free
access. (Para 77, 78 & 79)

H. Right of Children to Free and
Compulsory
Education
Act,
2009
-
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1867
Section 18 - Commence with negative
phrase namely, 'no school' and further
uses the word 'shall' while requiring the
school to obtain certificate of recognition
from
competent
authority
-
These
features establish that the provisions are
mandatory in nature. (Para 66, 67 & 69)

I. Uttar Pradesh Right of Children to Free
and Compulsory Education Rules, 2011 -
GOs. dated 08.05.2013 and 11.01.2019 -
Inconsistence with and in violation of
Art. 21A and RCFCE Act, 2009 - Ultra
vires - Writ of mandamus - he provisions
of UPRCFCE Rules, 2011 and of held ultra
vires, discriminatory and violative of Art.
14 of the Constitution of India - Writ of
Mandamus with necessary directions
issued. (Para 95, 103, 114, 116 & 155)

Writ Petitions decided (E-1)

Cases relied on: -

## Text

_Characters 0–39,792 of 146,297. This is a partial read: ask again with offset=39792 for what follows._

1866 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 1866

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 4400 of 2019 connected with 38
others

M/s G.S. Convent School ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Sharma.

Counsel for the Respondents:
C.S.C., Sri Ram Bilas Yadav, Sri Yatindra.

A. Constitution of India - Art. 21 A - Right of
Children to Free and Compulsory Education
Act, 2009 - Legislature partly redeemed a
promise made by the nation on the
fateful
midnight of August 1947
-
Promise can be redeemed in full measure
only by a faithful implementation of the
legislative and Constitutional mandate.
(Para 12)

B.
Right
of
Children
to
Free
and
Compulsory Education Act, 2009 - Is a
reflection of National vision, national will
and
national
organization
-
Is
an
authoritative guide to the nature of the
rights of the children, duties of the State
authorities as well as the obligations of
educational institutions. (Para 15 & 20)

C. Constitution of India - Art. 21 A -
Right of Children to Free and Compulsory
Education Act, 2009 - Scheme under
therein has education and welfare of the
child at its core-Every other activities
revolves around this centre and all other
activities subserve this noble object-It
contemplate establishment of temple of
learning called school not enterprises for
profit called literacy kiosks or education
shops. (Para 135)

D. Importance of Education - Education is
supreme act of nation building and
paramount
activities
of
civilizational
progress -It's purpose is to produce
enlightened citizens. (Para 41)

E.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Purpose of Educational institutions-All
children have different aptitude but the
same potentiality - The purpose of an
educational institutions is to unlock the
immense and diverse possibility in each
child- Acknowledgement and awakening
of the latent potentiality in each child is
mandated in this Act. (Para 42 & 45)

F.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Commercialization
of
Education
-
Education lie full prospect of national
building, but it also offers possibility of
private profiteering - Opportunity of
nation building cannot be approached
with minds of dishonest traders-Future
of many cannot be jeopardized for
benefit of the few-Legislature while
enacting RCFCE Act, 2009, was conscious
of the law laid down by Supreme Court
against commercialization of education -
Mushrooming schools without proper
infrastructure are the blatant example of
profiteering in education. (Para 58, 60 &
61)

G.
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
-
Necessity of playground Scheme of the
RCFCE
Act,
2009
unequivocally
mandates that playground and school
building shall be part of one campus - In
case school building and playground are
situated in separate plots of land which
are not compact or contiguous, school
will not satisfy the criteria of barrier free
access. (Para 77, 78 & 79)

H. Right of Children to Free and
Compulsory
Education
Act,
2009
-
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1867
Section 18 - Commence with negative
phrase namely, 'no school' and further
uses the word 'shall' while requiring the
school to obtain certificate of recognition
from
competent
authority
-
These
features establish that the provisions are
mandatory in nature. (Para 66, 67 & 69)

I. Uttar Pradesh Right of Children to Free
and Compulsory Education Rules, 2011 -
GOs. dated 08.05.2013 and 11.01.2019 -
Inconsistence with and in violation of
Art. 21A and RCFCE Act, 2009 - Ultra
vires - Writ of mandamus - he provisions
of UPRCFCE Rules, 2011 and of held ultra
vires, discriminatory and violative of Art.
14 of the Constitution of India - Writ of
Mandamus with necessary directions
issued. (Para 95, 103, 114, 116 & 155)

Writ Petitions decided (E-1)

Cases relied on: -
1. Ashoka Thakur Vs U.O.I. & ors. (2008) 6
SCC 1.
2. Apple Grove School Vs U.O.I. & ors. 2019
(3) ADJ 874.
3. St. of Haryana Vs Raghubir Dayal (1995) 1
SCC 133.
4. Sharif-Ud-Din Vs Abdul Gani Lone (1980) 1
SCC 403.
5. Vikas Trivedi Vs St. of U.P. & ors. (2013) 2
UPLBEC 1193.
6. Avinash Mehrotra Vs U.O.I & ors. (2009) 6
SCC 398.

(Delivered by Hon'ble Ajay Bhanot, J.)

Introduction

1. The writ petitions in this bunch
have been instituted by various schools
and school managements. One set of writ
petitions pray for grant of government
aid. The second set of petitions pray for
grant of recognition to the schools from
the U.P. Basic Shiksha Parishad (U.P.
Board of Primary Education).

Submissions
of
the
counsels

2. The learned counsels for the
petitioners submit that the petitioners claim
the reliefs in the writ petitions by virtue of the
rights conferred by Article 21A of the
Constitution of India read with the Right of
Children to Free and Compulsory Education
Act, 2009, the Rules framed thereunder and
the judgement of the Hon'ble Supreme Court
in the case of State of U.P. v. Pawan Kumar
Dwivedi, reported at (2014) 9 SCC 692 and
the judgment of this Court in Paripurna
Nand Tripathi Vs. State of U.P., reported at
2015 (3) ADJ 567. Learned counsels for the
petitioners also pressed the Government Order
dated 08.05.2013 and the Government Order
dated 11.01.2019 in aid of their claims. Some
counsels admit the schools lack playgrounds.
But the requirement for playgrounds has been
waived in the Government Order dated
08.05.2013. The need to have a playground in
the school premises is optional in the
Government Order dated 11.01.2019. As per
the Government Order dated 11.01.2019 the
playground need not be in the name of the
school, nor is it required to be in the school
premises. It is contended that the petitioners
satisfy the criteria for affiliation and grant of
aid posited by the Government Order dated
08.05.2013 and the Government Order dated
11.01.2019. Grant of government aid and
recognition respectively, on the foot of the
Government Order dated 08.05.2013 and
Government Order dated 11.01.2019 as are
applicable to the respective cases.

3. Sri Neeraj Tripathi, learned
Additional Advocate General assisted by
Sri Shashank Shekhar, learned Additional
Chief
Standing
Counsel
for
the
respondent-State would contend that the
1868 INDIAN LAW REPORTS ALLAHABAD SERIES
rights of the institutions are governed and
regulated by the the Right of Children to
Free and Compulsory Education Act,
2009 read with The Uttar Pradesh Right
of Children to Free and Compulsory
Education Rules, 2011. They further
submit that the Government Orders dated
08.05.2013 and 19.01.2013 prescribe the
mandatory criteria which need to be
satisfied before the institutions can claim
government aid or demand recognition.

4. I have heard the learned counsel
for the parties.

5. On the face of it, the prayers made in
the writ petitions are innocuous and orders
were passed routinely by this court to decide
the representations of the petitioners for grant
of aid or recognition as the case may be. I too
was inclined to dispose of these writ petitions
on similar lines. However, some facts were
troubling.

6. Admittedly, many petitioners' schools
do not have playgrounds. While others do not
have playgrounds in the school premises or in
their names. This deficiency as stated earlier,
is defended on the strength of the Government
Orders dated 08.05.2013 and 11.01.2019
respectively. However, this inadequacy does
not seem to be consistent with the Right of
Children to Free and Compulsory Education
Act, 2009 and Article 21A of the Constitution
of India.

7. Thus, in the course of arguments,
fault lines were exposed in the respective
cases
of
the
petitioners
and
the
Government
Orders.
These
facts
necessitated a more searching enquiry of
the issues at hand.

8. It is important to be simple but
dangerous to be simplistic. The issues
may look innocuous on the surface but the
provisions carry distant consequences.
Avoiding an in depth consideration of the
issues would amount to an abdication of
judicial functions by this Court.

9. The State was given adequate
opportunity to state their defence in
regard to absence of playgrounds in
schools in the Government Order dated
08.05.2013 and the vague provisions for
playgrounds in the Government Order
dated 11.01.2019 and reconcile the same
to Article 21A of the Constitution of
India, the Right of Children to Free and
Compulsory Education Act, 2009. The
respondents were also called upon to enter
details of implementation of the Right of
Children
to
Free
and
Compulsory
Education Act, 2009. Counter affidavits
of the respondents are in the record and
have been perused.

10.

The
ceaseless
quest
for
knowledge is a salient feature of Indian
civilization. The position of knowledge in
Indian civilization is in ways distinct from
the endeavours of other civilizations.
Hellenic thought is founded on reason
while Middle Eastern philosophy rests on
revelation. Indian quest for knowledge,
while always embracing reason and not
denying revelation, insists on realization
as it goal.

11. The constant war against
ignorance was a consistent preoccupation
of the founding fathers of modern India.
Eradication of ignorance in all forms and
educating all young Indians by all means,
is the avowed object of the Indian
Parliament in promulgating Article 21A
of the Constitution and enacting the Right
of Children to Free and Compulsory
Education Act, 2009. Literacy may equip
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1869
one
for
livelihood
but
education
empowers all for life. The legislature
chose education over literacy.

12. By promulgating Article 21A of
the Constitution of India and enacting the
Right of Children to Free and Compulsory
Education Act, 2009, the legislature partly
redeemed a promise made by the nation
on the fateful midnight of August 1947.
But the promise can be redeemed in full
measure
only
by
a
faithful
implementation of the legislative and
constitutional mandate.

13. Best legislation and most noble
intentions of the legislature can be
thwarted by indifferent application of the
law or defeated by poor implementation
of the enactments. In the instant case, the
stakes are too high and the intention too
sacrosanct for the authorities to fail the
legislature.

14. An education system manifests
the reach of human vision, the power of
human will, and the efficacy of human
organization to regulate and alter the
course of evolution of human society and
the destiny of human beings.

15. The promulgation of the Right of
Children to Free and Compulsory Education
Act, 2009 is a reflection of national vision,
national will and national organization. The
implementation of the Right of Children to
Free and Compulsory Education Act, 2009, is
the test of national vision, national will and
national organization.

Responsibility
of
Courts
(Ashoka Thakur v. Union of India and
others, reported at 2008 (6) SCC 1)

16. The Courts have a special
responsibility to uphold and implement
the fundamental right to education under
Article 21A of the Constitution and the
Right to Education Act, 2009. In the
scheme
of
the
fundamental
rights
guaranteed under the Constitution, the
Hon'ble Apex Court seated the right to
education conferred by Article 21A of the
Constitution at the summit. While holding
so, the Hon'ble Supreme Court in the case
of Ashoka Thakur vs. Union of India
and others, reported at 2008(6) SCC 1
also emphasized the special duties of the
judiciary in implementing the aforesaid
right. The Hon'ble Supreme Court in
Ashoka Thakur (supra) held thus:

"482.....It has become necessary
that the Government set a realistic target
within which it must fully implement Article
21A regarding free and compulsory education
for the entire country. The Government should
suitably
revise
budget
allocations
for
education. The priorities have to be set
correctly. The most important fundamental
right may be Article 21A, which, in the larger
interest of the nation, must be fully
implemented. Without Article 21A, the other
fundamental rights are effectively rendered
meaningless. Education stands above other
rights, as one's ability to enforce one's
fundamental
rights
flows
from
one's
education. This is ultimately why the judiciary
must oversee Government spending on free
and compulsory education. "

17. Article 21A of the Constitution
of India, being the pivot on which the
controversy hinges is extracted hereunder
for ease or reference.

"21A. Right to education.-The
State shall provide free and compulsory
education to all children of the age of six
to fourteen years in such manner as the
State may, by law, determine."
1870 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The statement of objects and
reasons of the Right of Children to Free
and Compulsory Education Act, 2009
manifests the legislative intent. The
objects and reasons of the Right of
Children
to
Free
and
Compulsory
Education Act, 2009 are as follows:

"STATEMENT OF OBJECTS
AND REASONS -The crucial role of
universal
elementary
education
for
strengthening
the
social
fabric
of
democracy through provision of equal
opportunities to all has been accepted
since inception of our Republic. The
Directive Principles of State Policy
enumerated in our Constitution lays down
that the State shall provide free and
compulsory education to all children up
to the age of fourteen years. Over the
years there has been significant spatial
and numerical expansion of elementary
schools in the country, yet the goal of
universal elementary education continues
to elude us. The number of children,
particularly children from disadvantaged
groups and weaker sections, who drop out
of school before completing elementary
education, remains very large. Moreover,
the quality of learning achievement is not
always entirely satisfactory even in the
case of children who complete elementary
education.

2. Article 21A, as inserted by
the
Constitution
(Eighty-sixth
Amendment) Act, 2002, provides for free
and compulsory education of all children
in the age group of six to fourteen years
as a Fundamental Right in such manner
as the State may, by law, determine.

3. Consequently, the Right of
Children
to
Free
and
Compulsory
Education Bill, 2008, is proposed to be
enacted which seeks to provide,--

(a) that every child has a right
to be provided full time elementary
education of satisfactory and equitable
quality in a formal school which satisfies
certain essential norms and standards;

(b)
''compulsory
education'
casts an obligation on the appropriate
Government to provide and ensure
admission, attendance and completion of
elementary education;

(c) ''free education' means that
no child, other than a child who has been
admitted by his or her parents to a school
which is not supported by the appropriate
Government, shall be liable to pay any
kind of fee or charges or expenses which
may prevent him or her from pursuing
and completing elementary education;

(d)
the
duties
and
responsibilities
of
the
appropriate
Governments, local authorities, parents,
schools and teachers in providing free
and compulsory education; and

(e) a system for protection of the
right of children and a decentralized
grievance redressal mechanism.

4. The proposed legislation is
anchored in the belief that the values of
equality, social justice and democracy
and the creation of a just and humane
society can be achieved only through
provision
of
inclusive
elementary
education to all. Provision of free and
compulsory education of satisfactory
quality to children from disadvantaged
and weaker sections is, therefore, not
merely the responsibility of schools run or
supported
by
the
appropriate
Governments, but also of schools which
are not dependent on Government funds.

5. It is, therefore, expedient and
necessary to enact a suitable legislation
as envisaged in article 21-A of the
Constitution.
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1871

6. The Bill seeks to achieve this
objective."

19. Certain amendments were made
in the Right of Children to Free and
Compulsory Education Act, 2009 by
amending Act No.30 of the 2012. Regard
has to be paid to the statement of objects
and reasons of the Amendment Act, 2012,
which is as under:

Amendment Act 30 of 2012Statement of Objects and Reasons.-
Consequent upon the enactment of the
Constitution (Eighty-sixth Amendment)
Act, 2002, the Right of Children to Free
and Compulsory Education Act, 2009
which provides for free and compulsory
education to all children of the age of 6 to
14 years was enacted.
2. Clause (d) of section 2 of the aforesaid
Act of 2009 defines the expression "child
belonging to disadvantaged group" to
mean a child belonging to the Scheduled
Caste, the Scheduled Tribe, the socially
and educationally backward class or such
other group having disadvantage owing
to
social,
cultural,
economic,
geographical, linguistic, gender or such
other factor, as may be specified by the
appropriate Government, by notification.
However, children with disabilities, even
though
disadvantaged,
are
not
specifically included in that clause.
Children
with
disabilities
constantly
experience barriers to the enjoyment of
basic rights, and to their inclusion in
society. It is, therefore, proposed to
include children with disabilities in the
definition
of
"child
belonging
to
disadvantaged group" with a view to
ensuring that their specific needs are
given precedence in the elementary
education system in the country, and
enable them, over time, to participate as
full and equal members of the community
in which they live. Secondly, the proviso
to sub-section (2) of section 3 of the Act
states that "a child suffering from
disability, as defined in clause (i) of
section 2 of the Persons with Disabilities
(Equal Opportunities, Protection and Full
Participation) Act, 1995 (Act 1 of 1996)
shall have the right to pursue free and
compulsory
elementary
education
in
accordance
with
the
provisions
of
Chapter V of the said Act"It has been
pointed out that Persons with Disabilities
(Equal Opportunities, Protection and Full
Participation) Act, 1995, does not cover
children with cerebral palsy, mental
retardation,
autism
and
multiple
disabilities, who are covered under the
National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act,
1992 (44 of 1999). Accordingly, it is
proposed that children with cerebral
palsy, mental retardation, autism and
multiple disabilities are also explicitly
covered under the Right of Children to
Free and Compulsory Education Act,
2009.

3. Sections 21 and 22 of the
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009
provides for the constitution and functions
of the School Management Committee
and preparation of school development
plan
by
the
School
Management
Committee. However, unaided schools,
not receiving any kind of aid or grants
from the appropriate Government or local
authority to meet their expenses, are
exempted
from
constituting
School
Management Committees. Article 30 of
the
Constitution
provides
that
all
minorities, whether based on religion or
language, shall have the right to establish
and administer educational institutions of
1872 INDIAN LAW REPORTS ALLAHABAD SERIES
their choice. It is, therefore, proposed to
amend section 21 of the aforesaid Act so
as to provide that the School Management
Committees constituted under sub-section
(1) of section 21 of the aforesaid Act in
respect of minority institutions shall
function only in an advisory capacity. It is
also proposed to amend section 22 of the
Act so as to provide that the functions
envisaged under the said section 22 for
School Management Committees would
not apply to minority institutions.

4. The Bill seeks to achieve the
above objects."

Scheme
of
the
Right
of
Children tFree and

 Compulsory Education Act,
2009

20. The scheme of the Right of
Children
to
Free
and
Compulsory
Education Act, 2009 (hereinafter referred
to as 'the Act of 2009), is an authoritative
guide to the nature of the rights of the
petitioners, the rights of the children, the
duties of the State authorities as well as
the obligations of educational institutions.
The scheme of the Right of Children to
Free and Compulsory Education Act,
2009 is considered in the succeeding
paragraphs.

21. Section 1(4) of the Right of
Children
to
Free
and
Compulsory
Education Act, 2009 confers rights upon
the Children without diluting the mandate
of Articles 29 and 30 of the Constitution
of India. Section 1(4) reads as under:

"1(4) Subject to the provisions
of articles 29 and 30 of the Constitution,
the provisions of this Act shall apply to
conferment of rights on children to free
and compulsory education."

22. Section 2 contains the definition
clauses. Section 2(a) defines appropriate
government as under:

"2(a)
"appropriate
Government" means--

(i) in relation to a school
established, owned or controlled by the
Central Government, or the administrator of
the Union territory, having no legislature, the
Central Government;

(ii) in relation to a school, other
than the school referred to in sub-clause

(i), established within the territory of--

(A) a State, the State Government;

(B) a Union territory having
legislature, the Government of that Union
territory;"

23. Sections 2 (c), 2(d), 2(e) and
2(ee) give the definition of child and
children of the different groups and
categories. The provisions of Sections
2(c), 2(d), 2(e) and 2(ee) state thus:

"2(c) "child" means a male or
female child of the age of six to fourteen
years;

(d)
"child
belonging
to
disadvantaged group" means [a child with
disability or] a child belonging to the
Scheduled Caste, the Scheduled Tribe, the
socially and educationally backward class or
such other group having disadvantage owing
to social, cultural, economical, geographical,
linguistic, gender or such other factor, as may
be specified by the appropriate Government,
by notification;

(e) "child belonging to weaker
section" means a child belonging to such
parent or guardian whose annual income is
lower than the minimum limit specified by the
appropriate Government, by notification;

[(ee) "child with disability"
includes,--
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1873

(A) a child with "disability" as
defined in clause (i) of section 2 of the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and
Full Participation) Act, 1995 (1 of 1996);

(B) a child, being a person with
disability as defined in clause (j) of
section 2 of the National Trust for
Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999);

(C)
a
child
with
"severe
disability" as defined 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 (44 of 1999).]"

24. The other clauses of Sections
2(f), 2(h), 2(l), 2(m), 2(n), 2(o), 2(p) and
2(q), which are relevant, speak as follows:

"2(f) "elementary education"
means the education from first class to
eighth class;

(h) "local authority" means a
Municipal Corporation or Municipal
Council or Zila Parishad or Nagar
Panchayat or Panchayat, by whatever
name called, and includes such other
authority or body having administrative
control over the school or empowered by
or under any law for the time being in
force to function as a local authority in
any city, town or village;

(l)
"prescribed"
means
prescribed by rules made under this Act;

(m)
"Schedule"
means
the
Schedule annexed to this Act;

(n)
"school"
means
any
recognised school imparting elementary
education and includes--

(i) a school established, owned
or
controlled
by
the
appropriate
Government or a local authority;

(ii) an aided school receiving
aid or grants to meet whole or part of its
expenses
from
the
appropriate
Government or the local authority;

(iii) a school belonging to
specified category; and

(iv) an unaided school not
receiving any kind of aid or grants to
meet its expenses from the appropriate
Government or the local authority;

(o)
"screening
procedure"
means the method of selection for
admission of a child, in preference over
another, other than a random method;

(p) "specified category", in
relation to a school, means a school
known as Kendriya Vidyalaya, Navodaya
Vidyalaya, Sainik School or any other
school having a distinct character which
may be specified, by notification, by the
appropriate Government;

(q)
"State
Commission
for
Protection of Child Rights" means the
State Commission for Protection of Child
Rights constituted under section 3 of the
Commissions for Protection of Child
Rights Act, 2005 (4 of 2006). "

25. Chapter II of the Right of
Children
to
Free
and
Compulsory
Education Act, 2009 vests the right of the
compulsory education in all children
between the ages of 6 to 14 years.
Sections 3 and 4, which create the
entitlement, are extracted hereunder:

"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.]
1874 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) For the purpose of subsection (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 (1 of 1996), 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 (44 of 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."

26. Chapter III is critical to the
controversy and deals with the duties of the
appropriate government, local authorities and
parents.
Understanding
the
duties
of
appropriate government and local authorities
provide the insight into the obligations cast by
the legislature upon various authorities to
achieve the goal set out by the Right of
Children to Free and Compulsory Education
Act, 2009. Sections 6, 7, 8 and 9 being
particularly relevant to the instant controversy
are stated below:

"6.
Duty
of
appropriate
Government and local authority to establish
school.--For carrying out the provisions of
this Act, the appropriate Government and the
local authority shall establish, within such
area or limits of neighbourhood, as may be
prescribed, a school, where it is not so
established, within a period of three years
from the commencement of this Act.

7. Sharing of financial and other
responsibilities.--(1) The Central Government
and the State Governments shall have
concurrent responsibility for providing funds
for carrying out the provisions of this Act.

(2) The Central Government shall
prepare the estimates of capital and recurring
expenditure for the implementation of the
provisions of the Act.

(3) The Central Government
shall provide to the State Governments, as
grants-in-aid
of
revenues,
such
percentage of expenditure referred to in
sub-section (2) as it may determine, from
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1875
time to time, in consultation with the State
Governments.

(4) The Central Government
may make a request to the President to
make
a
reference
to
the
Finance
Commission under sub-clause (d) of
clause (3) of article 280 to examine the
need for additional resources to be
provided to any State Government so that
the said State Government may provide its
share of funds for carrying out the
provisions of the Act.

(5) Notwithstanding anything
contained in sub-section (4), the State
Government
shall,
taking
into
consideration the sums provided by the
Central
Government
to
a
State
Government under sub-section (3), and its
other resources, be responsible to provide
funds for implementation of the provisions
of the Act.
(6) The Central Government shall--

(a) develop a framework of
national curriculum with the help of
academic
authority
specified
under
section 29;

(b)
develop
and
enforce
standards for training of teachers;

(c) provide technical support
and resources to the State Government for
promoting
innovations,
researches,
planning and capacity building.

8.
Duties
of
appropriate
Government.--The
appropriate
Government shall--

(a) provide free and compulsory
elementary education to every child:

Provided that where a child is
admitted by his or her parents or
guardian, as the case may be, in a school
other than a school established, owned,
controlled or substantially financed by
funds provided directly or indirectly by
the appropriate Government or a local
authority, such child or his or her parents
or guardian, as the case may be, shall not
be
entitled
to
make
a
claim
for
reimbursement of expenditure incurred on
elementary education of the child in such
other school.

Explanation.--The
term
"compulsory education" means obligation
of the appropriate Government to--

(i) provide free elementary
education to every child of the age of six
to fourteen years; and

(ii)
ensure
compulsory
admission, attendance and completion of
elementary education by every child of the
age of six to fourteen years;

(b) ensure availability of a
neighbourhood school as specified in
section 6;

(c) ensure that the child belonging
to weaker section and the child belonging to
disadvantaged group are not discriminated
against and prevented from pursuing and
completing elementary education on any
grounds;
(d) provide infrastructure including school
building,
teaching
staff
and
learning
equipment;

(e) provide special training facility
specified in section 4;

(f) ensure and monitor admission,
attendance and completion of elementary
education by every child;

(g) ensure good quality elementary
education conforming to the standards and
norms specified in the Schedule;

(h) ensure timely prescribing of
curriculum and courses of study for
elementary education; and

(i) provide training facility for
teachers.

9. Duties of local authority.--Every
local authority shall--

(a) provide free and compulsory
elementary education to every child:
1876 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that where a child is
admitted by his or her parents or
guardian, as the case may be, in a school
other than a school established, owned,
controlled or substantially financed by
funds provided directly or indirectly by
the appropriate Government or a local
authority, such child or his or her parents
or guardian, as the case may be, shall not
be
entitled
to
make
a
claim
for
reimbursement of expenditure incurred on
elementary education of the child in such
other school;

(b) ensure availability of a
neighbourhood school as specified in
section 6;

(c)
ensure
that
the
child
belonging to weaker section and the child
belonging to disadvantaged group are not
discriminated against and prevented from
pursuing and completing elementary
education on any grounds;

(d) maintain records of children up
to the age of fourteen years residing within its
jurisdiction, in such manner as may be
prescribed;

(e) ensure and monitor admission,
attendance and completion of elementary
education by every child residing within its
jurisdiction;

(f) provide infrastructure including
school building, teaching staff and learning
material;

(g) provide special training facility
specified in section 4;

(h) ensure good quality elementary
education conforming to the standards and
norms specified in the Schedule;

(i) ensure timely prescribing of
curriculum and courses 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 its jurisdiction; and

(m) decide the academic calendar."

27. The provisions under Chapter IV
pertain to responsibilities of schools. The
schools while claiming their rights under the
Right of Children to Free and Compulsory
Education Act, 2009 cannot be blind to their
obligations created by the statute. The said
provisions which merit consideration are
extracted below:

"12.
Extent
of
school's
responsibility for free and compulsory
education.--(1) For the purposes of this Act, a
school,--

(a) specified in sub-clause (i) of
clause (n) of section 2 shall provide free and
compulsory elementary education to all
children admitted therein;

(b) specified in sub-clause (ii) of
clause (n) of section 2 shall provide free and
compulsory elementary education to such
proportion of children admitted therein as its
annual recurring aid or grants so received
bears to its annual recurring expenses, subject
to a minimum of twenty-five per cent.;

(c) specified in sub-clauses (iii) and
(iv) of clause (n) of section 2 shall admit in
class I, to the extent of at least twenty-five per
cent. of the strength of that class, children
belonging
to
weaker
section
and
disadvantaged group in the neighbourhood
and provide free and compulsory elementary
education till its completion:

Provided further that where a
school specified in clause (n) of section 2
imparts pre-school education, the provisions
of clauses (a) to (c) shall apply for
admission to such pre-school education.

(2) The school specified in subclause (iv) of clause (n) of section 2
providing
free
and
compulsory
elementary education as specified in
2 All. M/s G.S. Convent School Vs State of U.P. & Ors.
1877
clause (c) of sub-section (1) shall be
reimbursed expenditure so incurred by it
to the extent of per-child-expenditure
incurred by the State, or the actual
amount charged from the child, whichever
is less, in such manner as may be
prescribed:

Provided
that
such
reimbursement shall not exceed per-childexpenditure
incurred
by
a
school
specified in sub-clause (i) of clause (n) of
section 2:

Provided further that where
such school is already under obligation to
provide free education to a specified
number of children on account of it
having received any land, building,
equipment or other facilities, either free
of cost or at a concessional rate, such
school
shall
not
be
entitled
for
reimbursement to the extent of such
obligation.

(3) Every school shall provide
such information as may be required by
the appropriate Government or the local
authority, as the case may be.

13. No capitation fee and
screening procedure for admission.--(1)
No
school
or
person
shall,
while
admitting a child, collect any capitation
fee and subject the child or his or her
parents or guardian to any screening
procedure.

(2) Any school or person, if in
contravention of the provisions of subsection (1),--

(a) receives capitation fee, shall
be punishable with fine which may extend
to ten times the capitation fee charged;

(b) subjects a child to screening
procedure, shall be punishable with fine
which may extend to twenty-five thousand
rupees for the first contravention and fifty
thousand rupees for each subsequent
contraventions.

14. Proof of age for admission.-
-(1) For the purposes of admission to
elementary education, the age of a child
shall be determined on the basis of the
birth certificate issued in accordance with
the provisions of the Births, Deaths and
Marriages Registration Act, 1886 (6 of
1886) or on the basis of such other
document, as may be prescribed.

(2) No child shall be denied
admission in a school for lack of age
proof. "

28. Sections 18 and 19 control the
spirit of the Right of Children to Free and
Compulsory Education Act, 2009 and the
substance of the instant controversy. The
provisions set the standards and norms
including the infrastructure requirements
for schools to obtain recognition. The
consequences of breach of infrastructure
requirements are set forth with clarity.
The imperative terms of the provisions
will be discussed later. The provisions
have to be read in conjunction with
Section 36 of the Right of Children to
Free and Compulsory Education Act,
2009.

18. No School to be established
without
obtaining
certificate
of
recognition.--(1) No school, other than a
school established, owned or controlled
by the appropriate Government or the
local
authority,
shall,
after
the
commencement of this Act, be established
or
function,
without
obtaining
a
certificate of recognition from such
authority, by making an application in
such form and manner, as may be
prescribed.

(2) The authority prescribed
under sub-section (1) shall issue the
certificate of recognition in such form,
within such period, in such manner, and
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to such conditions, as may be
prescribed:

Provided
that
no
such
recognition shall be granted to a school
unless it fulfils norms and standards
specified under section 19.

(3) On the contravention of the
conditions of recognition, the prescribed
authority shall, by an order in writing,
withdraw recognition:

Provided that such order shall
contain a direction as to which of the
neighbourhood
school,
the
children
studying in the derecognised school, shall
be admitted:

Provided
further
that
no
recognition shall be so withdrawn without
giving an opportunity of being heard to
such school, in such manner, as may be
prescribed.

(4) With effect from the date of
withdrawal of the recognition under subsection (3), no such school shall continue
to function.

(5) Any person who establishes or
runs a school without obtaining certificate of
recognition, or continues to run a school
after withdrawal of recognition, shall be
liable to fine which may extend to one lakh
rupees
and
in
case
of
continuing
contraventions, to a fine of ten thousand
rupees for each day during which such
contravention continues.

19. Norms and standards for
school.--(1) No school shall be established,
or recognised, under section 18, unless it
fulfils the norms and standards specified in
the Schedule.