Right of Children to Free and Compulsory Education Act, 2009 – Section 16 – Does a child have a right to promotion in a minority institution upto elementary school level?”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Muhamed Mustaque, J.
W.P.(C)No.30712 of 2015
Dated this the 10 th day of June, 2016
Sobha George Adolphus Vs State of Kerala
1. Petitioner is the grandmother of a child, by name, Acquin Victor, a student of 6 th standard in St.Joseph Public School, Pattanakkad, Cherthala, the 3 rd respondent herein.
2. The issue in this writ petition is about the denial of promotion to the child from 6 th to 7 th standard by the 3 rd respondent school during the academic year 2015-16. Petitioner’s claim is based on
Section 16 of the Right to Education Act
(hereinafter referred to as the “RTE” Act, for short). Petitioner approached the various authorities, including the Government. Though the Government appeared to have issued certain directions, those directions have not been complied with by the school authorities, stating that, the school is an unaided recognized minority institution. It is also seen that an order has been passed by the Kerala State Commission for Protection of Child Rights, Thiruvananthapuram, recommending the school authority to promote the child from 6 th to 7 th standard, forthwith. The order was passed on 13.10.2015. However, all attempts of the petitioner ended in vain, on account of non-compliance. Accordingly, the petitioner approached this Court.
3. In the counter filed by the school authority, a certificate issued by the Government of India has been produced, conferring minority status to the school. Therefore, it is contended that, in the light of the judgment of the Hon’ble Supreme Court in
Pramati Educational and Cultural Trust v. Union of India, 2014 (2) KLT 547
the petitioner, cannot claim any right based on Section 16 of the RTE Act.
4. The question in this writ petition is, “does a child have a right to promotion in a minority institution upto elementary school level?”.
5. The question, as above, would depend upon the maintainability of the writ as against a private unaided school. Therefore, before considering the issue of the right claimed by the petitioner, it is appropriate to refer to the nature of function being discharged by the school authority.
6. The nature of the function has to be considered to determine whether a particular body is amenable to writ jurisdiction. If the school discharges the State function or public function, necessarily, the functional duty carried out by the school, to that extent would be amenable under Article 226 of the Constitution.
7. This Court in
Karthikeya Varma v. Union of India, 2015 (3) KLT 424
had adverted to the approaches to be made to determine the public function, which is structural approach and functional approach.
8. The structural approach is about an entity, though a private body, but whose control, financially or functionally or administratively, is vested with the State. The functional approach is essentially about the function discharged by that body.
9. In this case the issue cannot be approached as though the school is a State or other authority, considering the nature of composition of the entity, within the meaning of Article 12 of the Constitution. However, it can be treated as one, coming under the functional activities of the State, in imparting education. 10.The Hon’ble Supreme Court in the case of
Dr. Janet Jeyapaul vs. SRM University & Anr., AIR 2016 SC 73
held that, imparting higher education is a public function. In this case, the school is affiliated to the Council for the Indian School Certificate Examination, New Delhi. The recognition granted to the school to impart education is through a deemed agency, created under the State, for imparting education. In
Mohini Jain (Miss) v. State of Karnataka and others, (1992) 3 SCC 666]
it was observed by the Hon’ble Supreme Court that:
“Right to life” is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.”
J.P. Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645
the Supreme Court held as follows:
“The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles of Part IV of the Constitution.”
12. Imparting education is a State function. Therefore, when a private entity performs such a State function, it can be treated as a discharge of public function by the private body. In
Islamic Academy of Education v. State of Karnataka & others, AIR 2003 SC 3724
it was observed as follows:
“Imparting education is a State function. The State, however, having regard to its financial and other constraints is not always in a position to perform its duties. The function of imparting education has been to a large extent, taken over by the citizens themselves. Some do it as pure charity. Some do it for protection of their minority rights whether based on religion or language and some do it by way of their occupation. Some such institutions are aided by the State and some are unaided.””
Marsh v. Alabama (3) 326 US 501; 19 L.ed.265
it was opined by the Hon’ble Supreme Court of the United States that where a private corporation is privately performing a public function, it is bound by the constitutional standard applicable to State actions.
Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657
the Hon’ble Supreme Court held in para. 11 as follows: