In the High Court of Punjab & Haryana at Chandigarh
CWP No. 36086 of 2019
Dr. Neetu Kukar
Union of India and ors.
Date of Judgement
February 28, 2020
Hon’ble Mr. Justice Sudhir Mittal
Facts of the case:
CWP No. 36086 of 2019 has been filed by the parent of a child studying in Dashmesh Public School, Talwandi Road, Faridkot (hereinafter referred to as ‘the School’), the Director and Principal of which have been implemented as respondents No. 8 and 9, respectively. Her basic grievance is that from Class VI onwards, children are being classified into sections on the basis of marks secured in the previous examination. Another parent had raised a similar grievance by sending a representation dated 20.05.2019 to respondent No. 9. The representation was necessitated because the child of the said parent had become extremely upset as she could not make it to the top section. She had even taken the extreme step of gulping liquid hand wash in an attempt to end her life. No action was taken upon the said representation and, therefore, the petitioner sent a representation dated 23.05.2019 to respondent No. 9 and to various officials of the Central Government, State Government, Central Board of Secondary Education and the National and State Commissions constituted for protection of child rights.
The Punjab State Commission for Protection of Child Rights (respondent No. 12) took cognizance and issued notice to respondent No. 9. A reply dated 19.06.2009 was filed on behalf of the said respondent wherein grouping children into sections on the basis of their marks was not denied. Infact, the same was defended on the ground of being an age old norm for the purpose of bringing homogeneity in the class. The allegation that the top sections are being provided better teaching facilities were, however, denied. The complaint was labeled as ‘motivated’ as the child of the petitioner was not able to get the section of her choice. Respondent No. 12 – Punjab State Commission for Protection of Child Rights (hereinafter referred to as ‘the Commission’) decided the issue vide order dated 07.08.2019 and directed respondents No. 8 and 9 to discontinue the practice of forming sections on the basis of merit forthwith. The directions were also issued to reshuffle the sections within 10 days from the date of receipt of the order. The parties were not given an opportunity to lead evidence as the allegations had been admitted by respondent No. 9 although the said respondent had tried to justify the same. The School failed to implement the directions of the Commission and, therefore, the the petitioner got a legal notice dated 18.08.2019 sent through her lawyer. The Deputy Commissioner, Faridkot, also asked the School to implement the order to which the School responded vide communication dated 20.08.2019 that the order shall be implemented after conclusion of the half yearly session, the examination for which ended on 03.08.2019.
Thereafter, the School and some parents of children of the top section approached the Commission for review/modification of its order dated 07.08.2019. The Commission modified its order on 09.09.2019 without issuing notice to the petitioner or granting her an opportunity of hearing. Modification was to the extent of permitting the School to continue with the existing sections till the end of the academic session. Consequently, the present writ petition has been filed with the prayer of quashing order dated 09.09.2019 passed by the Commission and for direction to respondents No. 1 to 6 to get the order dated 07.08.2019 implemented. Directions have also been sought to the said respondent to take appropriate action against respondent’s No. 8 and 9 for discrimination and causing mental trauma.
(a) Whether the action of the School of grouping students of Class VI onwards into Sections on the basis of marks is arbitrary, discriminatory and violative of child rights?
(b) Whether order dated 7.8.2019 passed by the Commission was within its jurisdiction?
(c) Whether the Commission has the right to review/modify its order?
Arguments advanced by the petitioner:-
- The basic argument of learned counsel for the petitioner is that the practice of grouping students into sections based on their marks at the elementary level is a discriminatory practice and it is violative of Article 14 of the Constitution of India.
- It is also violative of the provisions of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ‘2009 Act’). The Commission has been established pursuant to enactment of the Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘2005 Act’) and one of its functions is to enquire into complaints of violation of child rights.
- The order dated 07.08.2019 has been passed in exercise of its statutory functions and the functionaries of the State are bound to implement the order. However, the Commission being a creature of the statute, could not have reviewed or modified the said order as no power of review has been vested in it under the statute.
- Thus, order dated 09.09.2019 is without jurisdiction apart from the same being violative of principles of natural justice as no notice was issued to the petitioner before passing the said order.
Arguments advanced by respondent:-
- Learned counsel for respondent’s No. 8 and 9 submits that the Commission is only a recommendatory body and in case its enquiry reveals violation of child rights, it can recommend appropriate action to the concerned Government or authority for initiating prosecution. It can also approach the High Court concerned or the Supreme Court for necessary directions.
- It can not issue any executive directions to the violator and, thus, the order dated 07.08.2019 is without jurisdiction. For this purpose reliance has been placed upon Section 15 of 2005 Act.
- It has been further argued that the impugned order has been passed by the Principal Secretary, Government of Punjab, Department of Social Security of Women and Child Development. The said official could not have exercised the powers of the Commission. The constitution of the Commission is governed by Section 17 of the 2005 Act. According to this provision, the Commission comprises a Chairperson and six members. Its business is transacted through decisions taken by majority as is evident from Section 10 of the said Act. Thus, a single person could not have constituted the Commission and on this ground also the impugned order is illegal and without jurisdiction.
- Carrying this argument further learned counsel has submitted that the complaint was against 12 separate entities but notice was issued only to his clients. No order could have been passed without hearing the other parties.
- On merits of the case, it has been argued that only the top section has been constituted on the basis of marks and all other sections have students possessing different merit. A top Section has been created in the interest of the students so that the School can get better results. Malafides have also been alleged against the writ petitioner as her daughter had failed to make it to the top section in Class VII.
By virtue of Article 21-A of the Constitution of India, elementary education is a fundamental right. Thus, it is the duty of the State to provide free and compulsory elementary education. Education is not bookish knowledge alone. It is an inclusive concept, the object being all round development of children. It encompasses moral as well as mental development. Thus, a child is entitled to an atmosphere conducive to all round development. Necessarily, stimuli which impair such development have to be kept out. It is the duty of a school to ensure that children are not subjected to negative inputs which have the effect of inducing a feeling of inferiority. It is for this specific reason that provisions of Sections 16 and 17 have been made incorporated in the 2009 Act. Classification of children into sections on the basis of their marks has the tendency of creating a feeling of inferiority amongst children securing less marks and, thus, the practice is a violation of the fundamental right of elementary education. Regarding the jurisdiction of the Commission, learned counsel for respondents No. 8 and 9 has argued that impugned order is without jurisdiction as –
(a) It was passed by an improperly constituted commission and;
(b) the Commission can only make recommendations and cannot issue executive directions. The Commission has been created by virtue of the 2005 Act and this Act does not confer any power of review upon it. The 2009 Act under which the Commission exercises the duty of monitoring a child’s right to education also does
not vest in it the right to review its orders. Thus, the order dated 07.08.2019 could not have been modified, especially without notice or grant of opportunity of hearing to the petitioner. Thus, the order dated 09.09.2019 is held to be illegal and without jurisdiction.
Edited by Sree Ramya
Approved & Published – Sakshi Raje