The Bombay High Court speaking through the Chief Justice, Dr. Manjula Chelur and Justice M S Sonak has rejected the challenge of a parent against a minority school, which decided to detain his child, due to absenteeism.
The Petitioner, natural guardian of the student, approached the Court approached the Court with complaint of intentional deprivation of Right to Education to his daughter and seeking directions against the School to allow the students to continue her future education in Lokhandwala Foundation School, an unaided minority institution. The Petitioner was mainly relying on Section 16 of RTE Act which says that no child admitted to the school be held back in any class or expelled from school till completion of elementary education.
The petitioner admitted his daughter in this school from nursery class. When studying in 5th Std, she remained absent for three months during the second term of the school. However, shortage of attendance condoned and management permitted her to appear for the final examination. During the Academic year 2013-14, she attended the school between June to August, and abruptly absented from school since 30th August 2013. The Management then decided not keen to allow his daughter to appear for the examination.
Thereafter he sought intervention of the Government authorities seeking assistance in terms of Right to
Education Act, 2009, which directed the School to promote the child. The School was also threatened with withdrawal of ‘NOC’ granted to them. Maharashtra State Commission for Protection of Child rights in terms of Maharashtra Right of Children for free and Compulsory Education Rules, 2011 (for short ‘Rules of 2011) directing the respondent authority to take action so that the student is able to complete her elementary education. The school however refused to abide by all this directions.
The Court while writing the judgement observed that in the case on hand, the child and its parents are seeking implementation of provisions of Right to Education Act which provides not to expel, not to withhold a child from its school once admitted till it completes elementary education. On the other hand, the Court was dealing with the rights conferred upon the minority institution to establish and administer the school.
The Court also dealt with the issue that, having regard to the fact that the institution in question is a minority institution, whether one could impose the terms of Right to Education Act, compelling the respondent institution to readmit the student to the respondent institution recognizing the right of the student under the Right to Education Act that she cannot be expelled or withheld in terms of section 15 and 16 of the Act.
The Court while referring to earlier judgements opined that that the application of 2009 Act, to minority schools (aided and unaided) would lead to abrogation of right of the minorities under Article 30(1) of the Constitution. The Court also observed that it is also well settled that even in the case of minority institutions when it comes to imposition of regulations by the State, such regulations have to be followed by the institution so long as they do not invade into the constitutional protection conferred upon the minority institutions under the Constitution of India.
The Court therefore dismissed the Petition denying the relief sought by the petitioner seeking readmission to the respondent institution in question in terms of Sections 15 and 16 of the Act and was of the opinion that rights of the parent / child must yield to the right of the minority institution protected under the constitution. The constitutional protection given to a minority institution recognizing their right to establish and administer educational institutions stand on a higher pedestal than the rights conferred upon the student under Right to Education Act, a statute in terms of Article 21A of the Constitution.
The Court before parting with the judgement also noted that the present case is not a case where the child is totally denied of a right under Education Act in terms of Section 15 and 16 of the Act since State, in the present case, is coming forward to provide admission in any other neighborhood school upon which the State can impose such obligation and directed the state accordingly to provide admission to the student to any of the neighborhood school to a class which is appropriate to her age and further, allow her to take examination, if any, for this academic year of 2016 and 2017.