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The Rte Judgment of the Sc

The Rte Judgment of the Sc

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Published by pawan2225
rte judgement by the supreme court
rte judgement by the supreme court

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Published by: pawan2225 on May 09, 2013
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05/14/2014

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THE RTE JUDGMENT OF THE SC - TIME FOR BLAMEGAME
by Kv Dhananjay on Thursday, April 12, 2012 at 1:38pm 12-Apr-2012Dear FriendsI represent Karnataka Unaided Schools Managaments Association, (KUSMA) an association of more than 1700 privateunaided schools in the State of Karnataka. KUSMA did not participate in the Supreme Court case on RTE. I had advisedit that the RTE law is best challenged after it is implemented and it is seen in its practical version. So, based on myadvice, KUSMA had stayed away from the RTE case at the Supreme Court.Still, because school associations from most States were closely coordinating with each other on that case, I had feltthat schools needed to evolve a strategy whereby they could ask the Supreme Court to not rule right away but to keepthe schools challenge in abeyance and direct the Central Government to implement the law in any one select State. Sothat the practical version of the law could be seen and thereafter, the Supreme Court could decide on what to do withthe RTE. You see, the RTE seems to be well intentioned. But, in human history, we have seen some of the best intentionsproduce the worst of results.What happened next? Well, school associations across India rejected my suggestion. I was ridiculed for 'suggesting thatschools could lose in the RTE case in the Supreme Court'.Today, the Supreme Court has delivered its judgment. I thought that it would be a bit interesting to talk about somepast backstage events here:The following mail went out from me to all the leading school associations that were talking to me and to each otherand coordinating with each other on those days:31-JUL-2011EMERGENCY! TIME FOR PLAN B IN THE SUPREME COURT HEARING ON RTE.
Dear Friends
 
What is PLAN B?
 
PLAN B is a term used by defence lawyers to denote distress
 –
that they might be losing and they need todo something to minimize damage.
 
 Are private schools losing in the RTE matter at the Supreme Court?
 
Certainly not. In fact, private schools are doing exceptionally well at the Supreme Court. Some of thefinest lawyers in India are arguing for private schools
 –
Sri Parasaran, Sri Ashok Desai, Sri Harish Salve,Sri Rajeev Dhawan, Sri Datar, Sri Naphade and many more. However, several people are talking to theirclosest groups that the Supreme Court Bench hearing this case does not seem to be too impressed withanything said on behalf of private schools. And that the Bench seems inclined to accept the RTE Act andis likely to dismiss all the Writ Petitions.
 
Now, what do I think is likely to happen in this case?
 
Honestly, I do not know what will happen in this case.
 
OK. What is all of this talk for?
 
Well. It is never wrong or bad to think of failure in Courts. In the Indian tradition, to think of failure isfrowned upon. I respect that tradition. However, I should say that in a Court of law, that tradition has no
place. Rather, what should govern one’s attitude in a Court of 
law is this
 –
practical consideration.
 
Now, I strongly hope and wish that schools prevail in this ongoing battle. However, just in case, youshould also consider the consequences should this Bench proceed to dismiss all Writ Petitions.
 
 
 What will be the fate of schools in such a scenario?
There are no prizes for guessing what it will be. ‘Bad’.
 
Now, how ‘bad’ can it get?
 
This is where we need to brainstorm a bit.
 
How ‘bad’ can it get?
 
 Are schools going to shut down in droves? I hear it said often.
 
In fact, nobody really knows how ‘bad’ this law is going to be. Simply because, nobody can fairly predictwhat lies in store in the months ahead. Still, let’s make some attempt to lay it down here:
 
The Supreme Court proceeds to dismiss all Writ Petitions. And, blame game begins everywhere on whodid what wrong. Everyone will begin to blame everyone else. And I will be blamed for talking a lot inmeetings and on mail and for doing little or nothing in Courts.
 
 And your State Government will then begin its task:
 
Five days ago, a leading school in Mysore, a city about 160 kms from Bangalore, got in touch with me forthis problem
 –
that school has a capacity of 150 students for its Lower Kindergarten. It had interviewed450 students and had rejected 300 and had enrolled 150 at its discretion. One parent who also runs alocal newspaper and whose rejected child was one of 300 children moved the authorities by claiming thatthe school had admitted 150 students by exercising its discretion. And that the school should have
favoured children primarily on the basis of the distance between the child’s residence and the school.
Further, the argument went that between children shortlisted solely on the basis of distance, nodiscretion was vested in management and that no interviews should have been held and that alladmission was to be based on a lottery system.
 
I will be forwarding that email should the school concerned consent to it.
 
Next, after having admitted 75% of the Management seats in Standard I and 100% of the Managementseats for Standards I to VIII (for the first year of implementation of RTE) on a lottery basis, theGovernment should be satisfied that you did conduct a random method for selection and that you did notcheat on that lottery.
 
Further, the Government should determine the cost of educating a child in a Government school first.Now, what is the accounting method that is acceptable for this purpose? In India, the Institute of 
Chartered Accountants of India hasn’t issued suitable guidelines to determine ‘what is the most
appropriate accounting standard that should be adopted when drawing the books of accounts of a
Government run educational institution?’ So, considerable accounting freedom exists in this regard.
 
What if, the Government determines that rather than adopting one of five or eight different options toarrive at the cost of educating a child at a Government school, it could simply pass a law to say that thecost shall be determined by it at its sole discretion and that any such cost so determined by it shall bedeemed to constitute the fair cost of educating a child enrolled in a Government school. In fact,Governments routinely decide upon an arbitrary rate amongst several rates and pass a law to deem suchrate as its official rate. And Courts do not generally intervene in such issues.
 
 
 So, should you be hopeful that the Government will decide Rs.10000 as the cost of educating a child in aGovernment school and while you extend your arms to receive this much from each child, theGovernment issues a new law to say this much:
 
IN LIGHT OF PRACTICAL DIFFICULTIES EXPERIENCED IN THE MATTER OF DETERMINING THE FAIR COST OF EDUCATING A CHILD FOR THE PURPOSE OF AWARDING COMPENSATION TO AN EDUCATIONALINSTITUTION THAT ADMITS A CHILD UNDER THE 25% GOVERNMENT QUOTA IN TERMS OF THE RIGHTOF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009, THE GOVERNMENT OF YOUR STATEHAS DETERMINED, AFTER TAKING INTO CONSIDERATION, ALL APPLICABLE ASPECTS, THAT SUCH COSTSHALL BE DEEMED TO APPROXIMATE RS.500 PER CHILD PER ACADEMIC YEAR. ACCORDINGLY, YOUR STATE GOVERNMENT DETERMINES THAT A SUM OF RS.500 SHALL BE AWARDED TO AN EDUCATIONALINSTITUTION FOR AN ACADEMIC YEAR IN RESPECT OF EACH CHILD ADMITTED BY IT UNDER THE 25%GOVERNMENT QUOTA.
 
 And, we all know what will happen then. Schools will rush in droves to their nearest High Court. And HighCourts will simply stay the aforesaid Notification.
 
Oh! Wait. If the aforesaid Notification is stayed, how do schools benefit? So, schools will insist on a Courtdetermined rate. And, adopting the scheme of Government fee fixation for schools in Tamil Nadu now,committees will then be appointed by various High Courts to go into the fees for each private educationalinstitution. Lots of heartbreak for you when you appear before that committee. That committee wouldwant to know if your toilets were cleaned well on that morning and if you personally did inspect thosetoilets that morning. How dare you demand a bigger fee when your toilet is not all that sanitized?
 
 And then, after each school understands the quantum of fee it is entitled to expected, this might
happen…
 
 Your State Government is in a cash crunch. After all, can’t you see its budget statements and its Revenue
Statements and Statement of Assets And Liabilities? Is it overflowing with cash? Interests are due on its
bloated loan portfolio. Promised free electricity to farmers and colour televisions and bicycles haven’t
been delivered yet to all those hapless voters and how dare you ask it for cash now?
 
So, how dare you ask it to reimburse you for your money so quickly? You should wait for some time. Thatis, for a few months. Or, may be, for a few years. After all, can your Government run away without paying you? And, as
if all those people who wait for years for their refund aren’t human beings? And you are the
only person affected by all that delay? So, simply wait like everyone else.
 
But, if somebody mischievous is sitting at the helm of affairs, he need not even ask you to wait.Wondering? Simple. Do you know that schools in most States pay a slightly concessional tariff for theirelectricity consumption? So, a new Notification will be issued to increase the applicable electricity tariff and schools will be asked to set off what is owed to them to the extent of the increased tariff. Practical?Has happened often. Just a year ago, the Supreme Court had directed an agency in the State of UttarPradesh to provide certain promised benefits to a group of industries in a backward region of that State(as, relying upon the said promise, those industries were established there). Interestingly, theGovernment had promised that it will issue a discount on electricity tariff without specifying how muchdiscount it will provide. So, while those industries had factored in a 75% discount, after the Court Order,the Government hiked its electricity tariff so as to offer a discount of a mere 20%. And, those industrieswere told that they had an option to not pay 80% price and could instead pay 25% only for their

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