statutory compulsion to have recognition of a school does not in any way derogate from the fundamental right of a citizen to establish an educational institution.
Simi.A.C. vs The Secretary
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936
WP(C).No. 27162 of 2014 (U)
----------------------------
PETITIONER:
SIMI.A.C., AGED 26 YEARS, D/O.LATHA,
ANANYA BHAVAN, T C 20/265, CRA 216,
PATHIRAPPILLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENTS:
1. THE SECRETARY,GENERAL EDUCATION
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR, COLLECTORATE,
CIVIL STATION, THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM.
4. DEPUTY DIRECTOR OF EDUCATION,
THIRUVANANTHAPURAM-695 001.
5. DISTRICT EDUCATIONAL OFFICER,
THIRUVANANTHAPURAM-695 001
6. ASSISTANT EDUCATIONAL OFFICER
THIRUVANANTHAPURAM(NORTH)-695 004.
7. THE PRINCIPAL, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY,KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
8. THE MANAGER, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
ADDL. RESPONDENTS 9 AND 10 ARE IMPLEADED
9. SHIHI A.G.NAIR, TEACHER, JAWAHAR ENGLISH MEDIUM
SCHOOL, KUDAPPANAKKUNNU VILLAGE, PATHIRAPPALLY,
MUKKOLA P.O., TRIVANDRUM-5 RESIDING AT KUZHIVILA
PUTHEN VEEDU, NETTAYAM, MANIKANTESWARAM P.O.,
THIRUVANANTHAPURAM-13.
Impleaded as per order dated 23.10.2014 in IA 14366/2014
10. THULASI.S., AKASH BHAVAN, TGRA-58
PATHIRAPPALLY, KUDAPPANAKKUNNU,
PRESIDENT, PTA, JAWAHAR ENGLISH
MEDIUM SCHOOL, PATHIRAPPALLY.
Impleaded as per order dated 30.10.2014 in IA 14558/2014
R1 TO R6 BY SPL.GOVT. PLEADER SRI.T.T.MUHAMOOD
R7&R8 BY ADVS. SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SMT.R.S.MANJULA
ADDL.R9 BY ADV. SRI.THOMAS ABRAHAM
SMT.MERCIAMMA MATHEW
SRI.ASWIN.P.JOHN
SRI.T.S.PRASANNAKUMAR
ADDL.R10 BY ADV. SRI.S.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
INFRINGEMENT OF FUNDAMENTAL RIGHTS:
45. As could be seen, apart from assailing Exhibits P1 and P4 as being violative of the principles of natural justice, the learned counsel for the respondents 7 to 10 have also called them in question on the ground that they grossly violate the fundamental rights of the private respondents. In that regard, it is appropriate to begin our discussion with ration in Society for Unaided Private Schools of Rajasthan v. Union of India ((2012) 6 SCC 1). To begin with, a three-Judge Bench of the Hon'ble Supreme Court prefatorily observes that article 19(6) is a saving and enabling provision in the Constitution as it empowers Parliament to make a law imposing reasonable restriction on the Article 19(1)(g). Then poses unto itself a question whether a law enacted by Parliament under Article 21-A, enabling the State to access the network (infrastructure as well) of schools including unaided non-minority schools would be said to be unconstitutional, not saved under Article 19(6). It was, in fact, answered in the negative.
46. Placing reliance on T.M.A. Pai Foundation ((2002) 8 SCC 481) and P.A. Inamdar ((2005) 6 SCC 537), their Lordships have held that all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26 but that right is subject to the provisions of Articles 19(6) and 26(a). It is very instructive to extract the observations of the Supreme Court with respect to a person's fundamental right to establish an educational institution in contradistinction to the legal compulsion to obtain recognition or affiliation. The Court has observed thus:
"36.4. Lastly, the fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of a fundamental right to establish and administer an educational institution can be controlled in a number of ways. Indeed, matters relating to the right to grant of recognition and/or affiliation are covered within the realm of statutory right, which, however, will have to satisfy the test of reasonable restrictions [see Article 19(6)].
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."
47. The upshot of the above precedential discussion is that the statutory compulsion to have recognition of a school does not in any way derogate from the fundamental right of a citizen to establish an educational institution. Accordingly, the contentions of the respondents 7 to 10 on the issue of violation of fundamental rights cannot but be rejected.