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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. 

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