PRAYER 1: ALL GOVERNMENT OFFICIALS SHOULD SEND THEIR CHILDREN TO GOVERNMENT SCHOOLS – ALLAHABAD

JUDGEMENT.

I. What is the case about? (Hon’ble Sudhir Agarwal, J)

The case is a bunch of writ petitions filed before the Allahabad HC broadly on the procedure of appointment of
teachers to the government schools. These writ petitions are an offshoot of the Court’s earlier decision which
struck down certain provisions of UP Basic Education (Teachers) Service (Fifteenth Amendment) Rules 2012
which only considered the educational qualifications and did not give any weight to the scores of Teachers
Eligibility Test in preparation of merit list for the recruitment.

Nowhere in the case have the petitioners prayed for improving the conditions of the government schools. No
relief has been prayed before the court to order the children/ wards of the government servants, politicians etc.
to be sent to the government schools for primary education. However, looking at the shabby manner of the
government in dealing with state education system Justice Sundhir Agarwal needed to address this need.

The following was stated in this case:

The Department of Basic Education is under an annual budget allocation for maintaining basic schools recognized
by U.P. Board of Basic Education under the provisions of U.P. Basic Education Act, 1972 is one of the highest
budgetary allocations. The total number of Primary Schools, i.e. Jr.P.S. and Sr.P.S. is around 1.4 lacs which are
maintained by Board. The number of teaching staff and Head Masters, therefore, also come to be in lacs. Division
Bench judgment in Shiv Kumar Pathak and others Vs. State of U.P. and others has noticed that about 2.70 lacs
posts of Assistant Teachers in Primary Schools run by Board are lying vacant. That was in November'2013. The
recruitment of thousands of posts at a time used to commence but got trapped in huge litigation due to
unmindful, irregular and casual approach of the official(s) responsible for managing such recruitment, lack of
accountability and credibility as well as sincerity. Unmindful and casual legislation by way of frequent amendment
of Rules has worsened the situation.
The government schools are still struggling to have basic amenities for children, like drinking water, space for
natural calls etc. Even classrooms are in extremely shabby and bad conditions. At many places, classes are being
run in open space. The structure, if any, is in dilapidated condition. Though huge money is being
invested and spent every year in the name of welfare, of basic education to the wards of poor people but actually
nothing has improved.
There is no real involvement of administration with these Schools. Any person who has some capacity and
adequate finances, sends his child/children in Elite and Semi-Elite Primary School. They do not even
think of sending their wards for primary education to Schools run and managed by Board. Whether it is the
District Collector or Police Chief in the District or any other Government Servant, they ensure that their children
should get primary education in Primary Schools having better infrastructure
and other facilities. The public administration therefore has no actual indulgence to see functioning and
requirements of these schools. These schools have become a mode of earning political mileage instead of real
catering to its need.

The hard real fact is that these institutions, run by Board of Basic Education, are victim of highest level of
misappropriation, maladministration and widespread corruption. Standard of teaching is the biggest casualty.
Nobody cares for making improvement in the standard of tutorial staff. A competition is going on for political
reasons to make lacs of vacancies available in Primary Schools as a source to create committed voters by
appointing persons, if not illiterate, but not really competent to teach children of Primary School.
Therefore, the state must make it compulsory to all those who gets salary, perks and other benefits from State
exchequer to have their wards sent to Primary Schools maintained by Board which I have termed Common-men's
Schools and not to Schools which is an Elite and Semi- Elite and are privately managed. In case, any one flouts this
condition, a penal provision should also be made. It is only then the improvement of these institutions will be
ensured by those who are responsible for its management in a proper way. It will also boost social equation. It will
give an opportunity to children of common men to interact and mix-up with children of so-called high or semi high
society, giving them a different kind of atmosphere, confidence and other opportunities. This would give a boost
and bring revolution in changing Society from grass root level. The initial level mixing among all children will have a
different consequence. Moreover, when Officials/Government servants would be required to send their wards for
primary education in institutions maintained by the Board, they would become serious enough to look into the
requirements of concerned Primary Schools and would ensure that same are made available and Schools are run in
good/best conditions and standard, else it may affect their own wards.
It is the lack of accountability and casual approach on the part of officials of Basic Education Department that
mindless, negligent, casual amendments in Rules; defective Government Orders have been issued from time to
time creating cause for multifarious litigations resulting not only in delay in appointment of Primary Teachers but
also a very heavy pressure on this Court also. Had a little care been there on the part of responsible Officers in
making legislation for making recruitment, huge litigation resulting in lacs of vacancies in Primary Schools
maintained by Board would not have caused.
Therefore, the Chief Secretary, U.P. Government is directed to take appropriate action in the matter in consultation
with other Officials, responsible in this regard, to ensure that the children/wards of Government servants, semi-
Government servants, local bodies, representatives of people, judiciary and all such persons who receive any perk,
 benefit or salary etc. from State exchequer or public fund, send their child/children/wards who are in age of
receiving primary education, to Primary Schools run by Board. He shall also ensure to make penal provisions for
those who violate this
condition;
For example, if a child is sent to a Primary School not maintained by Board, the amount of fee etc. paid in such
privately managed Primary School, an equal amount shall be deposited in the Government funds, every month, so
long as such education in other kind of Primary School is continued. This amount collected can be utilized for
betterment of schools of Board. Besides, such person, if in service, should also be made to suffer other benefits
like increment, promotional avenues for certain period, as the case may be.
This is only illustrative. The appropriate provisions can be made by Government so as to ensure that
ward(s)/child/children of persons, as detailed above, are compelled necessarily to receive primary education in the
Primary Schools run by Board.
With this regard, effective steps shall be taken by Chief Secretary within six months so as to make the aforesaid
directions effective from the next academic session of Primary Schools, and, a compliance report shall be
submitted to this Court by way of affidavit immediately after expiry of period of six months.

II. SUPPORTIVE ARGUMENT:

When the Government of India can make it mandatory for the Government employees, claiming LTC and
medical facilities, to travel by Air India and avail treatment at Government hospitals, respectively, then why
can’t it make mandatory for the Government employees, claiming reimbursement of fees, to send their children
to Government school?

III. JAMMU AND KASHMIR ON ALLAHABAD HIGH COURT JUDGEMEMT:

The teachers' body demanded that the government improve the quality of education in Jammu and Kashmir
taking a cue from the Allahabad High Court's order directing the government employees to send their children
to state-run primary schools.
"The Landmark decision (of Allahabad High Court) has opened a window for the government to improve the
quality of education in the State and the opportunity should not be wasted," Chairman of Jammu and Kashmir
Teachers Forum Abdul Qayoom Wani said in a statement.
Mr Abdul Qayoom Wani, who is also the president of Employees Joint Action Committee - a representative of
various government employees' associations, also appealed to the civil society to impress upon the government
to take a call on the issue. He said the Teachers' Forum would move the state High Court if the government
 failed to take a call on the issue. The Teachers' Forum will appeal the High Court "to direct the state government
to follow the suit", he said.

Convener Joint Committee of Private Schools G N Var said the High Court of Jammu and Kashmir should take a
Suo-Motu cognizance as Allahabad High Court that has already taken a view on the subject. “If government is
serious to bring a radical change or revolution in education sector then the high court ruling was an innovative
way of ensuring participation, quality control and accountability in government schools,’ G N Var said, adding that
parents should file a PIL in HC regarding this issue.

Chairperson Kashmir Centre for Social and Development Studies (KCSDS) Hameeda Nayeem said the
government has already taken some positive measures to revamp the education sector and should also pass such
an order which makes it compulsory for politicians and government employees other babus to admit their wards
in government educational institutions. “The education minister has already taken some initiative to revamp the
education sector, so let this type of order be passed here as well which will augment the prestige of the
government schools,” she said.

IV. COUNTER ARGUMENTS:

 Overreach of judiciary over legislation in making laws: it is in violation of the Supreme Court judgment
in Divisional Manager, Aravali Golf Course vs. Chander Haas which says that Judges must not ordinarily
encroach into the domain of the legislature or executive. Legislation is the task of the legislature. Here
the Judge has legislated, and also sought to enforce his legislation.
 Violates the right and the freedom of a child to study in the school of their choice. The right to free
speech and expression carries with it the freedom of the mode of receiving education. The Court cannot
direct a child, even if it is a child of a government servant, to receive education in a particular institution.
It violates the personal liberty of the child.
 Violation of fundamental rights of parents to select child’s educational institution.
 Not a condition stated to a government servant while offering him/her post.
IMPORTANT LINKS:
 http://indianexpress.com/article/cities/lucknow/up-to-move-supreme-court-against-allahabad-hcs-govt-
school-for-govt-servants-kids-order/
 http://www.greaterkashmir.com/print/jk-govt-takes-cue-from-allahabad-hc-decision/194913.html
 http://www.livelaw.in/make-all-public-servants-children-go-to-government-schools-rti-activists-plea-in-
sc/
 https://www.deccanchronicle.com/nation/current-affairs/150516/sc-worried-about-low-enrollment-in-
telangana-schools-asks-report.html
  https://www.deccanchronicle.com/nation/current-affairs/150516/sc-worried-about-low-enrollment-in-
telangana-schools-asks-report.html

PRAYER 2 – IMPROVING QUALITY EDUCATION BY CONCENTRATION ON LANGUAGE AND LIFE SKILLS DEVEOPMENT
PROGRAMMES.
I. Pragat Shaikshanik Programme (22nd June 2015) – Maharashtra (Improving quality of Education)
The objective of the programme is to ensure that not a single child remains below the expected norms, and
gains age-appropriate proficiency in reading, writing, and arithmetical concepts and operations. It thus became
necessary for all schools in the state to be on par. For this to happen, each child had to achieve the educational
level expected at her age. The most important factor in this plan to empower students would be the teacher.
Pragat Shaikshanik Maharashtra aimed to create an environment that would be conducive to learning and
would empower each element within the educational system, starting with the teachers. The programme
decided to give teachers the freedom to do their work, and to recognize their efforts publicly. The underlying
message was that an empowered student makes for a stronger, more developed nation. This becomes the
success of the teacher. The programme also gave officers the liberty to step out of the age-old ‘inspector’ role.
Instead of being strict administrators keeping a watch on teachers, the officers were asked to find out the level
of competence among students – to discover whether the students had age-appropriate mathematical and
language skills, whether they appeared happy and confident, whether the atmosphere in their school was free
and relaxed. Instead of studying paper records, the officers now opened their eyes to the truer indicator of
development, the student.
For a strong educational foundation, Pragat Shaikshanik Maharashtra aims to ensure that each child acquires
age-appropriate language and mathematical skills. It is important to test these skills in order to map the success
of the programme. Under Pragat Shaikshanik Maharashtra, baseline tests are one of the main methods to
evaluate a student’s progress. A massive exercise was conducted in the academic year 2015-16. Students from
standards 1st to 8th of all schools, publicly funded and private, in all the different languages of instruction,
were tested for their first language proficiency and mathematical skills.
The aim of these tests was not to check the children’s scores as in a conventional test, but to give teachers a
useful tool to check how students were doing. The tests were designed to identify areas of difficulty and to
measure comprehension. Based on the results, teachers could focus on the problematic areas. Rather than
testing memory, the questions ensured that the student had to demonstrate her understanding, and her ability
to use her knowledge to write the answers.
The results of these baseline tests are encouraging. These results were assessed to arrive at data on student
ability, and subject awareness, mapped against their age. The findings helped teachers understand the learning
difficulties of each student, and the level of her basic skills with respect to her age. The tests not only pointed
out the areas where the student was weak, but the student’s capacity to grasp concepts compared to that of
her classmates. This showed the teacher which students required more attention, so that the teacher could
help them do better.
That each child should learn, and that the standards of each school should be raised, is the goal of Pragat
Shaikshanik Maharashtra. Teachers have the freedom to choose their own methods to achieve this goal. The
basis for this change is the constructivist approach, which has proven more effective than the traditional
behaviorist approach in learning. This is combined with practical education in which children learn to observe
nature, grow vegetables, prepare organic fertilizer, and so on.
The government has prepared a list of 25 indicators to measure student progress. Each school is expected to
conduct a self-assessment, and upload the information on the website. Until April 2016, almost 14,000 (13,996
to be exact) declared themselves as “progressive” after assessments based on these indicators. The District
Education Officers and Principals of DIETs will examine the validity of these self-assessments, which will be
followed by a state-level inspection of these schools. Only then, with care not to compromise on educational
standards, will the school officially be declared “progressive”.

PRAYER 3 – NON IMPLEMENTATION OF RIGHT TO EDUCATION ACT:

1. Trends in Litigation (2010 – 2015):
Some provisions of the Act are more litigated than the others. As much as 49 per cent of the cases on the RTE
Act have dealt with questions of access to education. This may be because issues such as denial of admission,
fixing age-limits for admission to a particular class, transfer of students from one school to another, and
conducting screening tests at the time of admission, are urgent in nature. Accordingly, they feature prominently
in the priorities of litigants.

Further, out of the total disputes settled, almost 24 per cent exclusively refer to Section 12(1)(c) of the Act,
which mandates all non-minority, unaided private schools to reserve 25 per cent seats for children belonging to
economically weaker sections and disadvantaged groups. The denial of admission by private schools, delayed
reimbursement by State governments to private schools, ambiguity over definitions of ‘economically weaker
sections’ and ‘disadvantaged groups’ are some of the most prominent issues that have arisen in relation to this
provision.
The provisions which are relatively less litigated are facilities for disabled students prescribed under the Act,
which account for merely 5 per cent of the total litigation. Further, provisions mandating basic facilities and
adequate infrastructure in schools constitute 11 per cent of the total disputes settled under the RTE Act.
Very few litigants seem to have approached courts for relief over infrastructural norms and availability of
qualified teachers as required under the RTE Act. However, this does not necessarily imply that these norms are
better implemented than the ones which litigated upon more.

Provisions on banning corporal punishment and prescription of pupil-teacher ratio in classrooms have NOT
been contested at all, even though anecdotal evidence and news reports suggest clear violations of these.

2015 – 2018:
Cases regarding 25% quota reservation in unaided private institutions have increased in number. Many Writ
Petitions and PIL have been filled for implementation of section 12(1)(c) of the right to education act.
Simultaneously private non aided institutions have filled cases against the state for reimbursement of fees.

2. Current Cases on Non Implementation of Right to Education:

TELENGANA AND ANDHRA PRADESH HIGH COURT:

Y Thippa Reddy V. Union of India (Pending)

Writ of Mandamus relating to non – implementation of Right to Education Act 2007.
Rules – Article 45 – Free and compulsory education to all children up to the age of 14 years.
Article 21 –A (86th Amendment) – Free and compulsory education for all children in the age group of 6 to 14
years as a Fundamental Right.
Right of Children to Free and Compulsory Education Act
Prayer – Implement RTE Act and safeguard 100 percent free and compulsory education rights

Thandava Yogesh V. Chief Secretary, State of Telangana State & 5 others (Pending)
Writ of Mandamus relating to failure to implement at least 25% Quota for free education in Private schools up
to class 8.
Rules – Section 12(1)(c) Right to children to free and compulsory education act 2009.
Article 14, 21A, 21, 24 & 19(1)(a) of the Constitution of India.
The Right to Children to Free and Compulsory Education Act 2009.
Andhra Pradesh Right to Education Rules 2010.
Prayer – impose obligation upon the state of Telangana and Andhra Pradesh to ensure that the various schools
in state are registered with District Education officers as per the requirement under 2010 Andhra Pradesh Rules
and to prohibit private schools not implementing section 12(1)(c) and other provision of Right to Education Act.
BOMBAY: (2018)
Independent English School Association V. State of Maharashtra and Others (Writ Petition 687/2018)
All unaided non-minority schools in the country have to reserve 25% of their seats at the entry level for students
from economically weaker sections. Several schools this year have however not agreed to complete the
admission process due to a dispute with the government over unsettled RTE reimbursements for the past five
years.

In an order issued, the high court stated that the schools cannot refuse to abide by the mandate of law and must
admit students according to the list furnished by the education department. “In the event of failure of the
school to abide by the mandate, it would be open for the competent authority to take appropriate steps as
permissible in law,” read the order. The state has in the high court also assured that the payments will be made
accordingly and in the best interest of the children.

Schools that do not comply with RTE will lose candidacy: zilla parishad

Schools denying admission to students under the 25 per cent seat reservation of Right to Education (RTE) Act
will now face cancellation of candidacy, said an official from the education department of the city’s zilla
parishad.

“It is high time that strict action is taken against schools denying education to the students who need them the
most. Hence, all the schools in the district who have denied admission will have to face strict repercussions,
leading up to the cancellation of candidacy,” said Ganpat More, education officer, zilla parishad.

Delhi High Court: (2018)

Social Jurist, A Civil Rights Group VS S.L.S. D.A.V. Public School and Ors.

A PIL was filed in the Delhi High Court to seek change in law to ensure students from poor families who pass
Class 8 from private schools can complete their education up to senior secondary level. Civil rights group Social
Jurist, which moved the court through advocate Ashok Agarwal, sought directions on extending Section 12
(1)(C) of the Right of Children to Free and Compulsory Education Act beyond Class 8 and up to Class 12. The
petitioner said that it will help avoid interruption in studies, harassment of students of certain categories after
passing Class 8 and help them in completing their basic education.
Karnataka High Court: (2017)

Soujanya Patel Trust & Ors V. State of Karnataka & Ors.

Held that reservation to the extent of at least 25 per cent under the RTE Act applies to both the entry levels, if
the school is imparting education at both the levels. No school has the option to pick and choose one entry level
to provide reservation. In the present case, the state government’s actions of admissions of students under the
RTE Act, at both LKG and 1st standard level in private schools affiliated to the CBSE and imparting education at
both pre-primary and elementary level, were challenged. Counsel AS Ponnanna, appearing for the state
authorities, argued that based on the experience of implementation of the RTE Act, it was necessary to prescribe
additional guidelines, which are in accordance with Section 35(2) of the RTE Act. The Additional Advocate-
General further submitted that the object behind the RTE Act was to integrate children from the lower strata of
the society, to ensure social equity. This was implemented at the earliest level so as to save the children the pain
of transition and ensure organic growth. However, unaided schools evaded this provision by deliberately starting
pre-primary classes that were much lower in strength than elementary classes and fresh admissions (without
reservation) were conducted for the elementary classes. It was held that a reading of Section 12(1)(a) to (c)
along with the proviso would indicate that it is mandatory to make reservations at both the entry levels.
Simultaneous entry to both the levels is within the framework of law. In order to avoid evasion of the RTE Act,
unaided schools have substantially higher seats in 1st grade that in pre-primary. The Government Order
rightfully curbs such practices.

Gujarat High Court: (2018)

Sandip Harshadray Munjyasara V. State of Gujarat & Director of Primary Education:
The Gujarat High Court directed the state government to ensure that schools that are granted affiliation by the
state board starting next academic year implement 25 per cent reservation in each class for poor children, as
required under the Right to Education (RTE) Act. The second division bench of Justice MR Shah and Justice Biren
Vishnav, while disposing of a Public Interest Litigation filed by Sandip Munjyasara, has ordered the state
government to see to it that all schools, while granting admission, abide by the 25 per cent quota stipulated by
the RTE Act from next year itself. The court also said that in the event any school is found violating the norms or
is unwilling to implement the RTE, the state government should initiate action against them. If any child has
been left out from the admission process, the government has to take up the issue with the respective school to
see that the child gets admission, the bench said. The motive behind this is that each and every child gets basic
literacy and is able to exercise their fundamental right to education. Hence, it is the government's responsibility
to ensure successful implementation of the Act. The court also said the government should make the
implementation of the RTE Act more transparent.
PUNJAB: (2018)
The National Commission for Scheduled Castes has asked the Punjab government to ensure proper
implementation of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, in the state. In a
letter to the Punjab principal secretary, the apex panel said the act was being implemented in its letter and spirit
everywhere in the country except in Punjab. The National Commission for Scheduled Castes also asked the state
government to learn from Chandigarh and Haryana in this regard. The letter was issued on February 16, a day
after the Punjab cabinet had formed a subcommittee to oversee the RTE implementation and examine
suggestions for revamping the department. The commission has specifically raised concern over the act’s
implementation in regard to reserved categories and those below poverty line, who should get free and
compulsory education in private unaided schools under the 25% reserved quota. The fees are to be reimbursed
to schools by the state. Asking the state to write the provisions in front of every private unaided school, the
commission said not even a single child was admitted to such schools under this act in the state and no funds
have been reimbursed to any private unaided schools in this regard. The panel also objected to the fact that the
district education officer issued recognition certificate to the school despite its failure to fulfil various RTE
norms. Commission director Raj Kumar Chhanena said the state government has been told about provisions in
its notification that are contradictory to the central legislation and has been directed to rectify them
immediately. Citing the beginning of a new academic session, the commission has asked Punjab to act swiftly to
make the right accessible to all children.

SUPREME COURT: (2018)

Akhil Delhi Prathmik Shikshak Sangh General Secretary Ram Chander Dabas V. Union Of India

Secretary, Union Territory Of Andaman And Nicobar Administrator, The State Of Andhra Pradesh Chief

Secretary, The State Of Arunachal Pradesh Chief Secretary,The State Of Assam Chief Secretary, The State Of

Bihar Chief Secretary, The State Of Chhattisgarh Chief Secretary, Union Terrotory Of Chandigarh

Administrator, The Union Territory Of Dadra And Nagar Havelia Administrator, Union Of Daman And Diu

Administrator, National Capital Territory Of Delhi Chief Secretary, The State Of Goa Chief Secretary, The State

Of Gujarat Chief Secretary, The State Of Haryana Chief Secretary, The State Of Himachal Pradesh Chief

Secretary, The State Of Jammu And Kashmir Chief Secretary, The State Of Jharkhand Chief Secretary, The

State Of Karnataka Chief Secretary,The State Of Kerala Chief Secretary, The Union Territory Of Lakshadweep

Administrator,The State Of Madhya Pradesh Chief Secretary, The State Of Maharashtra Chief Secretary,The

State Of Manipur Chief Secretary, The State Of Meghalaya Chief Secretary: (PENDING)
The PIL was about irregularities in implementation of Right to Education Act, 2010, which promised free and
compulsory education for children between 6 and 14 years. Senior advocate Colin Gonsalves, from the
petitioners side, reeled out official data to claim that seven states — Assam, Bihar, Chhattisgarh, Jharkhand,
Odisha, UP and West Bengal — had lopsided children-teacher ratio as over 9.59 lakh posts of teachers in these
states were lying vacant. Bihar had a vacancy of 3.23 lakh teachers, UP 3.15 lakh and West Bengal 1.49 lakh,
Gonsalves said. He claimed that implementing the RTE Act got further hampered by non-identification of target
children, thus leaving out 3.68 crore children. “The primary work of identification of children has not been done
even seven years after Parliament enacted the law,” he said. A bench of CJI Dipak Misra and Justices A M
Khanwilkar and D Y Chandrachud wondered whether the judiciary was equipped to handle such a huge task by
seeking response from each state and dealing with the enormous statistics. However, with Gonsalves arguing
that the issue posed a serious problem to the nation, the bench called upon attorney general K K Venugopal and
sought his view. Venugopal said education was a state subject and it would not be possible for the court to
deal with it. He said he had seen similar nationwide issues pending for years before benches headed by Justices
Madan B Lokur and A K Sikri and suggested it would be appropriate that the petitioner be asked to petition the
Centre on the issue. The bench kept the petition pending and asked the petitioner to give a copy of the plea to
the government. “The Union government shall focus on the issues raised by the PIL petitioner and assist the
court on implementation of RTE Act,” the bench said.