Case BriefsHigh Courts

Kerala High Court: While allowing the instant petition seeking for issuance of a writ of mandamus directing the State Government to take all necessary steps to establish a Government Lower Primary School at Elambra village in Manjeri Municipality, expeditiously; the Division Bench of S. Manikumar, CJ, and Shaji P. Chaly, J., directed the State Government to sanction the establishment of Government LP School, at Elambra within a period of three months. The Bench strictly observed that the people of Elambra have been fighting a long battle of 35 years with the might of the State Government in order to establish a lower primary school- a demand that is completely in consonance with the law and the Constitution and there is a conspicuous failure on the part of the State Government in acknowledging this demand.

The petitioner, a resident of Elambra, filed the instant PIL. As per the facts, the village is located on the outskirts of Manjeri Municipality and is a socially and educationally backward area. There are no primary schools within the radius of 3 km and during the last 30 years, the local residents have been making continuous effort to get a new Government LP School at Elambra. Several representations were submitted before the concerned authorities concerned, including the Minister of Education, all of which yielded no result. The petitioner further submitted that the concerned authorities have conducted several inspections and had submitted their reports, which were ignored by the Government. P. Venugopal representing the petitioners argued that the Government failed to discharge the duties cast upon them under Section 19 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 r/w Section 3(3) of the Kerala Education Act, 1958. The petitioner also presented Reports prepared by Manjeri Dy. District Education Officer and Malappuram District Educational Officer; Order issued by Kerala State Human Rights Commission and Kerala State Child Rights Protection Commission (hereinafter Commissions); all of which were clear on the point that Elambra is a remote area with the closest primary schools situated 5 km away and the Government is constitutionally and statutorily obligated to take concrete steps for providing basic educational infrastructure. The respondents were represented by Surin George Ipe.

The Court perused the facts; contentions; the Reports and relevant Supreme Court cases highlighting the Right to Education as a fundamental right. The Bench taking into account international conventions such as the Universal Declaration of Human Rights and Convention on the Rights of the Child observed that, Right to Education is not only a fundamental right but it is also a Human Right. The Court delved in-depth on the evolution of a child’s right to education and the obligations of the State in relation to it. Taking into consideration statutes such as the Right of Children to Free and Compulsory Education Act, 2009, Commissions for Protection of Child Rights Act, 2005, Right of Children to Free and Compulsory Education Rules, 2010 and the concerned State legislations, the Court noted that that the people of Elambra have been demanding establishment of a Government Lower Primary School, whereas the State Government, without considering the reports of local educational authorities, by erroneously applying the Rules and not following the relevant statutory provisions particularly Section 3(3) of Kerala Education Act, 1958, Section 3 of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 6 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, have denied sanction for establishment of a Government LP School in Elambra. The Court concurred with the reports presented by the local educational authorities which have clearly recorded that the area in question is educationally backward with no proper transport facility. There are Upper Primary and High schools in and around the locality within a distance of 2-5 kms. There is no Government LP school within the radius of 3 kms and people are depending upon schools, which are not within the neighbourhood of Elambra. The Court also noted that since the respondents did not challenge the Orders issued by the Commissions, therefore they cannot argue that such Orders are not binding on them. [T. Muhammed Faisi v. State of Kerala, 2020 SCC OnLine Ker 2981, decided on 29-07-2020]

Case BriefsCOVID 19High Courts

Kerala High Court: C.S. Dias, J., while referring the present petition to a Division Bench of the Court stated that,

Right to education is sacrosanct in the Constitution of India and is the mandate under the Right of Children to Free and Compulsory Education Act, 2009.

Petitioners submitted that the respondents 7th and 8th where their children are pursuing their studies have been insisting for payment of additional fees in order to facilitate virtual classrooms in view of COVID-19.

It is disheartening to learn that a student allegedly took away her life due to lack of access to the internet for attending virtual classes.

Payment of Fees

Petitioner in the context of their grievance also submitted that some State/UTs had formulated guidelines for the conduct of online classes and ordered that the students should not be denied education for want of payment of fees during the COVID-19 Pandemic.

Matter adjourned to Division Bench

In exercise of powers of this High Court, under Section 3 of the Kerala high Court Act, 1958, and in view of the substantial public interest in the petition, bench adjourned the matter to Division Bench of this Court.

Interim Order by Single Bench

In view of the outbreak of pandemic, respondents 6 and 7 have been directed not to levy any additional fee from petitioners children until further order.[Sreelekshmi v. State of Kerala, WP (C) No. 10867 of 2020, decided on 03-06-2020]

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. The order of the Court came in the plea seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.

Noticing that since the issues involved affect the State, and the nation, the Court was of the opinion that the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. It, hence, found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The Committee will consists of:

  • The Secretary, Ministry of Home Affairs (Home Secretary), Government of India. (Head of the Committee)
  • The Secretary, Department of Communications, Ministry of Communications, Government of India.
  • The Chief Secretary, Union Territory of Jammu and Kashmir.

The Committee will not only examine the contentions of, and the material placed by both the parties but also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise Centre regarding the same.

It is important to note that, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended. While on one hand, the petitioners have argued that 4G speed was essential for healthcare, education, trade and business in the union territory during this hour of crisis due to coronavirus, the officials in Jammu and Kashmir, on the other hand, contended that restoration of 4G services could give rise to anti-national activities and militancy.

Attorney General KK Venugopal appearing for the Central government had earlier, told the Court that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Taking note of all the arguments, the Court said that while it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. However, considering that the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir, the Court, however, said,

“we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration.”

The Court, hence, highlighted the observations made by it’s January order in Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, wherein it has said that for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.

Though the Court agreed to it’s observation in Anuradha Bhasin judgment that the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies, it was also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens and that it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown.

Terming the issue of restoration of 4G internet service in the valley as “a very important but a sensitive issue on national security and human rights”, the Court asked the Committee to take a balanced decision, keeping both aspects in mind.

[Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453, decided on 11.05.2020]


Also read:

Article 370| Review all orders imposing curbs in a week and put them in public domain: SC to J&K administration [Anuradha Bhasin judgment]

Hot Off The PressNews

Supreme Court: The Court has reserved its order on a batch of petitions seeking restoration of 4G internet services in Jammu and Kashmir claiming the 2G service available in the Union Territory is not sufficient for education and business purposes amid the ongoing coronavirus-induced lockdown.
A three-judge bench headed by Justice NV Ramana said that it is taking into consideration all the issues in the matter and that it does not require any additional material in the case and said,

“We will pass appropriate orders in the case,”

During the hearing, attorney general KK Venugopal appearing for the Central government said that the orders that have been passed specifically stated that restrictions of internet speed are required for national security. Venugopal said that it’s about the protection of the lives of the entirety of the population of Jammu and Kashmir and not just the COVID-19 patients.

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

The attorney general said that the petitions have to be examined against the larger public interest of national security, adding that national security is paramount and those tasked with protecting national security must be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

Lawyer Huzefa Ahmadi, appearing for one of the petitioners, told the court that the COVID-19 situation in J&K has worsened and added that problems are being faced by doctors who cannot access necessary information about coronavirus treatment due to the internet speed. 75 doctors have also made a representation flagging the same concerns.

Justice Ramana said that the government is saying the people can rely on the landline broadband connection, to which Ahmadi responded by saying
broadband connections account for less than one percent of the total internet connections in J&K.

“There are around approximately 1 lakh 32 thousand broadband landline connections in J&K, but more than one crore phone/internet connections. The total number of broadband connections in J&K account for less than 1 percent of the total internet connections,”

Justice BR Gavai said,

the numbers are not in dispute but it’s a legal question of balance and the government is raising security concerns.

Justice Ramana said that the Central government is claiming that there has been a surge in terrorist activities and they have collaborated via 4G. Ahmadi
responded by saying that the terrorist activities were more in the 1990s when there was no internet at all.

Ahmadi submitted that the Centre is arguing that the national security may be compromised, but they have not been able to show any direct nexus in the case.

“Let them open internet speeds for a week and see if there is any nexus with terrorism.”

Senior lawyer Salman Khurshid, appearing for another petitioner in the matter, said that private schools are under government directions to provide education
via video-conferencing.

“We have an obligation under the Right to Education to provide education”

Solicitor General Tushar Mehta said that the Central government had started with a complete lockdown and then brought in relaxations by allowing movement, followed by landline and then 2G internet services.

Notably, internet services were suspended in J&K in August last year after the abrogation of Article 370 and bifurcation of the erstwhile state into two Union
Territories of Ladakh and Jammu and Kashmir . While the 2G services on postpaid mobile phones and broadband have been restored, 4G services still remain suspended.

(Source: ANI)

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has taken suo-motu cognizance of a media report that Chilla Khadar village in Delhi does not have a school due to which the children have to cross the Yamuna river by boat everyday putting their lives to immense danger to attend a school. It is not easy especially for girl students, as they have to walk an hour to reach the school after riding a boat. Reportedly, if the boat is not available on a particular day, the students have to walk about 2 kms on a non-motorable road.

The Commission has issued a notice to the Chief Secretary, Government of NCT of Delhi calling for a detailed report in the matter within four weeks. The report must include details of the government schools functional in the area mentioned in the news reports.

It has observed that the contents of the news report, if true, raise serious issue of violation of human rights. It is indeed surprising that in the National Capital, everyday young students are coming across such a nightmare just to attend school for education, which is their fundamental right guaranteed under Article 21-A of the Constitution of India. The statistics projected by the government of NCT of Delhi indicate that the standard of education and infrastructure has been remarkably improved but such news reports do tell a different story.

According to the media report, to implement and respect the Right to Education Act in true sense, the primary school children should not be studying in schools more than 1 kilometre away while the distance is 3 km for students of upper primary level i.e. 6th to 8th standard. Reportedly, an officer of the Education Department of Delhi Government has said that they are not sure, if there is a school within the 3 km radius of the area. It is also mentioned in a news report that sometimes, the boat topples then it takes more time for the students to reach their school.


NHRC

[Press Release dt. 14-02-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Dr DY Chandrachud and Aniruddha Bose, JJ has held that the words “by another year” in Rule 105(1) of Delhi School Education Rules 1973 stipulate that the maximum period of probation permissible is two years.

Amending History of Rule 105 of the Delhi School Education Rules, 1973

Rule 105 of the 1973 Rules, as originally enacted, stipulated that an employee shall be appointed on initial probation for a period of one year which may be extended by the appointing authority “by another year”. No separate provision was stipulated for minority institutions. Two amendments were subsequently incorporated to the 1973 Rules. On 30 January 1985, the Delhi School Education (Amendment) Rules 1984 were notified. 12 By this amendment, Rule 110 of the 1973 Rules was substituted. The Court noticed that the amending history of the 1973 Rules shows that the words “by another year” appearing in the principal part of Rule 105 has not been omitted.

“By another year” – Meaning

The consistent meaning imparted to the word “another” is a single addition or one more. The ordinary and literal construction of the words “another” read with the words “for a period of one year” in Rule 105(1) implies that the appointing authority may extend the period of probation by one additional year.

“The contention that the words “by another year” imply that the appointing authority can extend the period of probation by one year at a time without any limit cannot be accepted as this would amount to rewriting the provision by substituting the words “by another year” with the words “by one year at a time”, which is impermissible in law.”

Hence, the Court said that had the delegate of the legislature intended that there is no limit on the permissible probationary period, the words “by another year” would have been omitted.

The limit placed on the permissible extension of the probationary period draws a balance between the opportunity that must be afforded to a probationer to modify and improve the quality of service and a mandate that the appointing authority of an educational institute hires qualified teachers. To impart a meaning to the words “by another year” that the appointing authority may extend the probationary period one year at a time without a limit will allow an appointing authority to extend the probationary period, with the prior approval of the Director, of a probationer ad nauseum.

Prior approval of Director

The prior approval of the Director, save and except for minority institutions, is mandatory and must be complied with as a condition precedent for the valid exercise of the power to extend the period of probation. The Director is required to assess the determination of the appointment authority and based on that assessment, to decide whether to approve an extension of the probationary period. The provision which mandates that the prior approval of the Director shall be sought before extending the period of probation ensures that the appointing authority may not extend the probationary period without legitimate reason.

Conclusion

  • The words “by another year” in Rule 105(1) of the 1973 Rules stipulate that the maximum period of probation permissible is two years. The limit equally applies to minority institutions covered by the first proviso to Rule 105; and
  • Rule 105(2) stipulates a condition precedent to the issuance of an order of confirmation. The continuation of the services of a probationer beyond the period of probation does not amount to a deemed confirmation of service. It is only upon the issuance of an order of confirmation by the appointing authority that a probationer is confirmed in service

[Durgabhai Deshmukh Memorial Sr. Sec. School v. JAJ Vasu Sena, 2019 SCC OnLine SC 1075, decided on 21.08.2019]

Case BriefsHigh Courts

Allahabad High Court: This petition was filed before a Bench of Ajay Bhanot, J., where the application for listing on grant-in-aid list filed by petitioner was rejected.

Petitioner had filed an application for being listed on grant-in-aid list but the same was rejected by the State Government on the ground that proper representation was not filed before the competent authority and also due to the fact that the Scheme of State was not in continuation.

Petitioner contended that the impugned order was unsustainable in law and facts. Petitioner referred a case of State of U.P. v. Pawan Kumar Divedi, 2014 (9) SCC 692 where the Supreme Court had taken note of the subsequent amendments incorporated in the Constitution for ensuring the right of education as a fundamental right up to the age of 14 years. Hearing the contention of petitioner, respondent stated that the authorities of the State shall re-visit the issue.

High Court was of the view that the writ petition should succeed and was allowed. Therefore, impugned order was set aside. Further, State was directed to examine the petitioner’s claim for being taken on a list of aid in view of the case referred above. [Dr B.R. Ambedkar Primary Bal Vikas Sansthan Avam Junior High School v. State of U.P., 2019 SCC OnLine All 102, order dated 23-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of CJ Hemant Gupta and Vijay Kumar Shukla, J. while hearing a batch of writ petitions against government’s shifting policy pertaining to appointment of guest teachers in government schools, held that the aim of Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) is to impart education to students and not to protect teachers.

The petitioner was appointed as Samvida Shala Shikshak in a government school and had been, henceforth, working as a guest teacher in the government school. The government issued a circular containing shifting policies vide which petitioner was being replaced by another guest teacher. Aggrieved by the said circular, the petitioner preferred the instant writ petition before this Court.

The petitioner’s submission was two-fold, one being that he was not being permitted to work in government school without assigning any reasons, therefore, and the second submission being that the process of selection of guest teachers in primary school was not done online.

The respondent submitted that as per RTE Act, there has to be a Primary School within a radius of one kilometer and Middle School within a radius of three kilometers, therefore, guest teachers were engaged in Primary and Middle Schools. The shifting policy circular was issued to ensure a transparent method for engagement of guest teachers on merit so that students studying in the government schools are taught by meritorious teachers. Since the government’s online portal for vacancies and application for guest teacher did not evoke many registrations online, therefore the process of collection of applications was also conducted offline.

The High Court rejected petitioner’s contentions against State policy stating that students are entitled to quality education directions that have the effect of students being taught by non-meritorious teachers could not be issued. However, it was observed that the policy of replacing guest teachers with another set of guest teachers was improper and unjustified since guest teachers are engaged to meet out emergent situations and their continuance from year to year cannot operate as a rule.

It was observed that the right of petitioners to be engaged as guest teachers was an equitable right and the same could not operate against students’ right to education. The object of right to education under RTE Act is not to protect the teachers but to grant education to students; and if a child has to study, he is entitled to the best possible teacher to teach him.

The writ petition was disposed of by issuing directives for framing a policy to fill posts of teachers in the State in a phased manner and directing that the vacancies of guest teachers be filled up on the basis of merit list. [Saurabh Singh Baghel v. State of Madhya Pradesh, WP No. 18935 of 2018 decided on 11-10-2018]

Hot Off The PressNews

The counsels appearing for various petitioners in the final hearing on the Aadhaar matter that has been going on since 17.01.2018, finally concluded their arguments on the 19th Day of the hearing and made way for the Attorney General KK Venugopal to begin his submissions on the 20th Day of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 19 of the Aadhaar Hearing:

Submissions of Senior Advocate Meenakshi Arora:

  • Privacy judgment recognises that wherever there is data collection, it can result in surveillance.
  • In the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.
  • Surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.
  • Collection, aggregation and retention of personal data under Aadhaar has has no defined purpose and thus doesn’t meet the test of proportionality and strict necessity.
  • Lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.
  • Aadhaar act contains no provisions for data protection, apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn’t lay down any data security standard or prescribe measures in case of data leak. In Aadhaar project, there are no judicial safeguards or effect remedies in case of breach.
  • Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights. Making Aadhaar sole means of identification is neither wise nor fair as primary objective of govt. schemes is to ensure that beneficiaries get the services instead of being excluded.

Submissions of Senior Advocate Sajan Poovayya:

  • A legislation may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.
  • Compelling state interests is ensuring the identity of individuals but it must be achieved using least intrusive methods. Assuming biometric technology is not bad, then least intrusive method is using a card with a chip which stores the biometrics.
  • In a democratic society, an individual must have the right to decide how much info he/she wants to submit.
  • In case of a chip being used, the chances of biometric failure is also reduced.
  • Even if we accept that biometric info is necessary, then what all biometric info must be made mandatory to be provided?
  • Aadhaar doesn’t stand on the same footing as Census data where statistical data of all the citizens is taken which also has a lot of protection. Why should Aadhaar data be given less protection then when it contains more sensitive data?
  • We don’t have a data protection legislation in India. In case of phones or Google servers which have multiple interfaces, possibility of collation of data is not there since GDPR stops them from doing so.
  • In case of Aadhaar, there’s a centralised database unlike the localisation of data as in the case of phones which causes problems.
  • Biometric per se is not bad but when used in connection with technology, it becomes bad.

Submissions of Senior Advocate Senior Advocate CU Singh:

  • India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.
  • The legislations ensure the privacy of the child. Under law, a child has no right to give consent or to enter into a contract. Child cannot be deemed to have given consent under Aadhaar that too when it involves parting with data permanently.
  • Fundamental right to education cannot be subjected to production of Aadhaar.

Submissions of Senior Advocate Senior Advocate Sanjay Hegde (appearing for a petitioner having objections based on religious theology):

  • John Abraham was a student in a Mumbai school but was denied admission to Class 12 for non-production of Aadhaar.
  • The individual conscience of the petitioner leads in good faith to the conclusion that he cannot apply for Aadhaar number. Thus, there should be an exception for him. (Sikri, J finds the argument interesting. Says the Bench will consider it)

Submissions of Counsel Jayna Kothari (appearing for an organization that represents the rights of transgenders and sexual minorities):

  • Much has been discussed about Biometrics but not demographic data collected under the Aadhaar Act. Transgenders cannot get Aadhaar because they don’t have gender identity documents required by Aadhaar. Caste, religion is left out but not gender. It’s a violation of privacy and equality.

To read the highlights from the submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsSupreme Court

Supreme Court: Stating that educational institutions are bound to reserve seats from persons suffering from disability, the bench of Dr. AK Sikri and Ashok Bhushan, JJ directed that all those institutions which are covered by the obligations provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year.

The other directions given by the Court in this regard are:

  • Insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
  • UGC should constitute a committee consisting of persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. The said committee will prepare a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc by June 2018.
  • The aforementioned committee will also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee.

It is important to note that the petition was filed only in respect of law colleges but considering the fact that these issues are of seminal importance, the Court decided to extend the coverage by encompassing all educational institutions. Stressing upon the importance of the issue, the Court said:

“a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination.”

The Court, hence, directed that the Report of the committee, as well as the Action Taken Report, shall be submitted before it in July 2018. [Disabled Rights Group v. Union of India, 2017 SCC OnLine SC 1486, decided on 15.12.2017]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ ordered the transfer of the matter pending before the Patna High Court, where the constitution of the Inspecting Team by the National Council for Teachers Education (NCTE) for inspection of the Teachers’ Educational Institutions was in question.

The Court ordered the transfer of the matter under Article 139A of the Constitution of India after Manish Kumar, appearing for the Bihar School Examination Board in a similar matter, brought to the Court’s notice that the question as to inspections of the Institutions in the State of Bihar was being heard by the Patna High Court and that it was suggesting removal of NCTE Chairman.

On 09.08.2017, Chakradhari Sharan Singh, J of Patna High Court had said that nominating Stenographer, Section Officer and Videographer, showed complete none application of mind, high handedness and arbitrariness on the part of the authorities of the NCTE and directed for inclusion of Union of India as party for deciding the question of the procedure for removal of the Chairman of the NCTE. It was said the persons, holding top position in the NCTE, were either completely insensitive towards the issues or were completely incompetent to hold the position, which they are holding. A. Santhosh Mathew is serving as the Chairman of NCTE.  While hearing the matter on 04.09.2017, the Court was informed by Shivam Singh, the counsel appearing for NCTE, that the Supreme Court has ordered for transfer of all the cases to the Supreme Court and hence, refrained from passing any order.

The Supreme Court will hear all the connected matters on 09.10.2017. [St. Paul Teacher Training College v. State of Bihar, Writ Petition(s)(Civil) No(s). 694/2017, order dated 01.09.2017]

Case BriefsSupreme Court

Supreme Court: Upholding the Allahabad High Court decision quashing the Uttar Pradesh Government’s order regularizing the Shiksha Mitras, the bench of A.K. Goel and U.U. Lalit, JJ said that the Shiksha Mitras cannot be regularized as teachers as the appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers.

Noticing that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the Right of Children to Free and Compulsory Education Act, 2009, they could not be appointed as teachers in breach of Section 23(1) of the said Act, the Court said that regularisation can only be of a mere irregularity and that the State is not competent to relax the qualifications.

However, in order to strike a balance between the claims of 1.78 Lakhs persons to be regularized in violation of law and the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers, the Court said that It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, but mandatory qualifications cannot be dispensed with.

It was held that the Shiksha Mitras should be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Stating that consideration for career of 1.78 lac Shiksha Mitras, over and above their legal right, cannot be at the cost of fundamental right of children to free quality education by duly qualified teachers in terms of legislative mandate, the bench said that even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed.

Untrained Shiksha Mitras were appointed in the State of Uttar Pradesh under the Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014. Terms of appointment for these Shiksha Mitras were relaxed and they appointed for imparting primary education without appearing for Teachers Eligibility Test. [State of U.P. v. Anand Kumar Yadav, 2017 SCC OnLine SC 792, decided on 25.07.2017]

Case BriefsHigh Courts

Rajasthan High Court: While disposing off a public interest litigation filed by Abhyutthanam Society for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009 the court said that the State Government is not competent & holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009, the Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification on March 28 this year for “child belonging to disadvantaged group”, as contemplated under section 2(d) of the Right to Free and Compulsory Education Act, 2009. Children whose parents or guardians annual income do not exceed Rs.2.50 lakhs be considered as “child belonging to weaker section”, as per section 2(e) of the Act, 2009 and both the substitution be made part of the present notifications issued by the State Government on 28 March this year.

The petitioner argued that the Parliament intended to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all by enacting the Act of 2009, which can be traced from paragraphs 4 & 5 of the Statement of Objects and Reasons of the Bill and the State Government under its impugned Notifications debars the major segment of children who are eligible to be considered for admission under the Act of 2009 and debarring members of OBC & SBC, according to the petitioner, is violative of Art.14 of the Constitution.

The division bench comprising of Ajay Rastogi C.J. and D C Somani J.  gave these two substitutions: Let the child belonging to OBC & SBC whose parents’ annual income does not exceed Rs.2.50 Lacs be also included as part of the Notification dt.28.03.2016 of the appropriate Government for “child belonging to disadvantaged group”, as contemplated u/Sec.2(d) of the Act, 2009; and The children whose parents/guardians annual income does not exceed Rs.2.50 lakhs be considered as “child belonging to weaker section”, as contemplated u/Sec.2(e) of the Act, 2009 and both the substitution be made part of the present Notifications dt.28.03.2016 issued by the State Government in exercise of powers conferred by Cl.(d) & (e) of Sec.2 of the Act, 2009. The Bench further said that with these two modifications, the writ petition stands disposed of and the respondents are directed to consider the categories which are now being included under the present order and initiate the process for inviting applications and admission to various schools without any further loss of time so that students to be admitted may not suffer their studies for the present academic session.

The Court further said “Since the applications for admission in terms of the new notifications have been received, we have the option either to quash and set aside both the notifications issued by the state government or fill the gap which according to us may be in fulfilment of provisions of Sec.2(d) & 2(e) of the Act 2009, and add the section of the ‘disadvantaged group’ and ‘weaker section’ which are missing and deprived from being considered under the two separate heads covered. [Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947, Decided on 13.05.2016]