Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J., decided in the matter of a petition which was filed challenging an order whereby the petitioner had been transferred from Government Middle School Sewara-Sewari to Government Middle School, Batyawada.

Counsel for the petitioner submitted that in the school where the petitioner was posted, the strength of enrolled students was 72 and the petitioner was the only teacher in that school and if he is transferred then there will be no teacher in the school as nobody has been brought in place of the petitioner.

The Court was surprised about the fact that on the one hand the Government is transferring its sole employee from a school having 72 enrolled students and on the other hand, neither anybody has been brought nor any alternative arrangement has been made and in this situation it is arduous to gather as to how the School would run in the absence of sole teacher and who would take care of the students of that school.

The court was of the opinion that the impugned order was issued by the authorities without applying its mind, which draws a presumption that the government authorities have no compassion with the future of the students and no concern with the educational system, however, it is manifestly required duty of the government to act in the interest of public.

The Court stayed the order and held that it would be improper to allow implementation of the impugned order in respect of the petitioner because if he is relieved then school where the petitioner is posted would become teacher-less. The counsel for the respondents-State was directed to seek instructions and apprise this Court as to whether any alternative arrangement had been made by the government authorities by posting a teacher in the school where petitioner was presently posted, or not.[Sarawati Kumar Bharti v. State of M.P., WP-18006 of 2021, decided on 09-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the petitioner: Mr Rajesh Prasad Dubey

For the respondent/State: Mr Sachin Jain

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition challenging the validity of circular No. CEO/K/Monitoring/20/14887-967 dated 21-11-2020, whereby all Teaching officials were directed not to indulge in the private practice of giving luxury education at private coaching institutions. The Bench stated,

“Teachers these days are paid hefty salary by the Government and there is no pressing necessity for them to engage in private tuitions that, too, on many occasions at the cost of their students in the government institutions.”

The impugned circular was purported to have been issued under Section 28 of the Right of Children to Free and Compulsory Education Act, 2009, which had become applicable to the Union Territory of Jammu & Kashmir in terms of the Jammu & Kashmir Reorganization Act, 2019.

Noticeably, on 11-08-2005 a circular was issued debarring the teaching officials from undertaking any activity/assignment including teaching in private tuition/coaching centres unless permission was obtained from the competent authority providing further that no such permission would be available two hours before the opening of the school and two hours after school gets closed. The said circular was declared invalid by a Division Bench of this Court in Vichar Kranti Manch International v. State of J&K, WP (PIL) No. 06 of 2011.

Pursuant to which the department of school education issued another circular No. Edu/L/J/Misc/131/2017 dated 25-09-2017, which was in supersession of all previous circulars issued on the subject. It was submitted that in terms of the circular dated 25.09.2017 issued by the Secretary to Government, School Education Department, no member of teaching faculty can engage in teaching occupation in private tuition/coaching centres without prior permission of the competent authority.

Analysis by the Court

Noticing that the Chief Education Officer had purportedly derived the power to issue such circular under Section 28 of Right of Children to Free and Compulsory Education Act, 2009 to issue the impugned circular, the Bench stated, government teachers imparting education to the higher classes other than elementary education do not fall within the purview of the Act of 2009. The teachers serving in the institutions where classes higher than the eighth class were taught did not fall within the purview of the Act of 2009. Thus, the impugned circular was valid only in respect of teachers who are employed for imparting elementary education in the schools up to the eighth standard.

However, the Bench observed that the teaching faculty of the school education department as well as higher education department like other government employees are governed by the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. Rule 10 of which makes it clear that, no government employee, which would include teaching faculty of the school and higher education department shall engage directly or indirectly in any trade or business or undertake any other employment except with previous sanction of the government. The Proviso added to Rule 10(1) exempts a government employee from seeking prior sanction in a case where he undertakes honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character except in organizations or associations with which a Government employee is strictly debarred from the association.

“Instead of concentrating on their pious job and contribute to the nation building, the God has chosen for them, for, they (teachers), moved by their insatiable greed, engage in activity of private tuition either at their residence or in private coaching centres. Many times, they skip their classes in the government schools so as to show up in the private coaching centres.”

Thus, the Chief Education Officer or the administrative department of school education was held to be within the power to debar teaching officials from engaging directly or indirectly in any trade or business without previous sanction of the Government under Rule 10. The Bench clarified that the circular dated 11-08-2005 was set aside by a Division Bench of this Court on the ground that it had granted blanket permission to all teachers to engage themselves by way of self-employment in private tuition centres two hours before opening of the schools and two hours after closing of the schools. The Court found the grant of general permission to the teaching faculty to engage in private coaching bad in the eye of law. The Bench expressed,

“It is pity that the standard of education in the government institutions has gone down drastically, though the best teaching faculty is available in the government-run institutions.”

In the light of the above the instant petition was disposed of with the following observations:

i) Imparting private tuition at residence or at some other premises including coaching/tuition centres is necessarily an engagement in the trade or business and, therefore, prohibited under Rule 10 of the Employees Conduct Rules, if undertaken without previous sanction of the government.

ii) The government employee is, however, entitled to undertake honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character even without such sanction.

iii) Neither Rule 10 of the Employees Conduct Rules nor any other provision of any Act or Rules debars the government from issuing circular, guidelines or instructions for enforcing Rule 10 of the Employees Conduct Rules. There is nothing that prevents the government from taking a policy decision in the matter of teaching faculty of the government that there shall be no sanction/grant for engagement directly or indirectly in private tuition in private coaching/tuition centres during and after the duty hours.

iv) The Zonal Education Officers at the zonal level and Chief Education Officers at the district level shall be the nodal officers, who will ensure the implementation of Rule 10.

v) The Government should do well to create and provide toll free telephone number in each District where complaint(s) against the banned activity of the teaching faculty could be made. The government may also create a web portal/grievance cell for receiving and redressal of the complaint(s).

vi) Government would adopt a proactive approach to eradicate the menace of government teaching faculty engaging in private tuitions at the cost of students studying in the government institutions.

The Bench was of the view that this would not only discipline the teaching faculty but would also help in raising the standard of education in government-run educational institutions. [Farooq Ahmed v. UT of J&K, 2021 SCC OnLine J&K 226, decided on 31-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. F.S.Butt

For the Respondents: GA Suneel Malhotra

High Courts

Delhi High Court: On 21st December, 2020, the Government of NCT of Delhi submitted in Court that elections of the School Management Committee (SMC) will be held within 2 months of school reopening. On 1st July, the Delhi Government had issued a circular by which SMCs were to be reconstituted through a draw of lots instead of elections right in the middle of the pandemic which was challenged by the petitioners as being opposed to the Right To Education Act. After the first hearing of this case, the Government issued a new circular (dated 16.07.20) adding information regarding tenure of  SMCs constituted by the draw of lots method. This information was missing from the impugned circular dated 01.07.20.  The new circular added that the SMCs constituted by the draw of lots method was only a ‘stop gap’ arrangement and elections to reconstitute SMCs would be held ‘after normalcy returns’. However, what ‘normalcy’ meant remained ambiguous.

Ms. Garima Sharma, the counsel appearing for the petitioners, pressed that the respondents commit to reconstitute the SMCs via elections within a fixed timeframe after school reopening. After seeking instructions from the Department of Education, the Government of NCT of Delhi, represented by Advocate Gautma Narayan, submitted that they will conduct elections to reconstitute SMCs within 2 months of school reopening. The same has been recorded in the order. The petitioners were satisfied with the submission made.  The bench of Navin Chawla, J. binding the respondents to the statement made disposed of the petition.

A SMC Meeting In Progress

This comes as a big relief to the petitioners who feared that the constitution of SMCs, by an opaque, exclusionary method such as draw of lots, if went unchallenged could become the norm and could take away the opportunity for parents to participate in choosing who will represent them in SMCs. SMCs are an important platform for parents to effect change inside a government school as they constitute 75% of the committee and SMCs have significant oversight and administrative roles and responsibilities.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 21-12-2020]

Click to access Note-On-The-Gaps-In-Current-SMC-Constitution-Ciricular_1-1.pdf


Nilufer Bhateja, Associate Editor has put this story together 

Also read: Delhi HC| Reconstitution of Delhi School Management Committees postponed till next hearing

COVID 19Hot Off The PressNews

Brief highlights of the SOP/Guidelines for re-opening of schools 

States/UT Governments may take a decision in respect of the reopening of schools and coaching institutions after 15-10-2020 in a graded manner in consultation with the respective schools/institutions management and based on the local situation.

Part I refers to the health and safety aspects of reopening schools. These are based on the prevailing instructions of Ministry of Home Affairs and Ministry of Health and Family Welfare with regard to health and safety protocols, and maybe implemented by adopting/adapting in accordance with the local situation in all states/UTs.

  1. Arrange and implement for thorough cleaning and disinfecting of all areas, furniture, equipment, stationery, storage places, water tanks, kitchens, canteen, washrooms, laboratories, libraries, etc. on school campus and ensure airflow in indoor space.
  2. Schools to form Task Teams such as, Emergency Care Support/Response Team, General Support Team for all stakeholders, Commodity Support Team, Hygiene Inspection Team, etc. with earmarked responsibilities will be helpful.
  3. Schools may be encouraged to make their own SOPs based on the guidelines issued by States/UTs for the following, keeping in view the safety and physical/social distancing norms, and ensuring that the notices/posters/messages/communication to parents in this regard are prominently displayed/disseminated.
  4. Physical distancing / social distancing to be ensured while planning the seating plan, functions and events to be avoided, staggering of entry and exits timings and points of schools, staggered time tables.
  5. All students and staff to arrive at school wearing a face cover/mask and continue wearing it all through, especially when in class, or doing any activity in groups, such as eating in the mess, working in the laboratories or reading in the libraries.
  6. Display Signages and markings for enforcing physical/social distancing and safety protocols at adequate places. States/UTs should take the consent t of parents/guardians before their child/ward begins attending schools. Students willing to study from home with the consent of the parents may be allowed to do so.
  7. Sensitize students, parents, teachers, community members and hostel staff on COVID-19 related challenges and their role to be conducted based upon guidelines issued by the Ministry of Education, Ministry of Home Affairs and the Ministry of Health and Family Welfare with all the stakeholders.
  8. Plan for academic calendar changes for all classes, particularly in relation to breaks and exams. Ensure all students have access to prescribed textbooks before school reopens.
  9. Ensure availability in school or at contactable distance full-time trained health care attendant/nurse/doctor and counsellor to take care of the physical and mental health of the students.  Regular health check-up of students and teachers may be organized.
  10. Adequate information should be collected from students, parents and teachers upon the health status. From local administration: About the State and district helplines and the nearest COVID Centre and other contact details for dealing with emergency.
  11. Flexible attendance and sick leave policies may be developed and implemented to encourage students and staff to stay at home when sick.
  12. Actions to be as per the Protocol defined in case of detection of a suspected case of COVID-19.
  13. Focus on the most vulnerable students (homeless/migrated students, students with disabilities, and students directly affected by Covid-19 through a family death or hospitalization) to prioritize their needs. Ensure provision of assistive devices and learning content as per the needs of the CwSN.
  14. To meet the nutritional requirements of children and safeguard their immunity during the COVID-19 outbreak, States / UTs were advised to provide hot cooked Mid-Day Meal or its equivalent Food Security Allowance to eligible children during closure of schools and summer vacations. Adequate focus on food safety, health, and hygiene along with physical/social distancing.

Part II refers to learning with physical/social distancing and the academic aspects related to the delivery of education, such as, curriculum transactions, instructional load, timetables, assessment, etc. These are advisory in nature. States &UTs may use these in the manner deemed fit to prepare their own guidelines.

  1. Making a Comprehensive Alternative Calendar of Activities for the Whole Year with focus on learning outcomes. Academic calendar may be realigned for the whole year in accordance with the emerging situation. Comprehensive academic plan can be prepared as per the guidelines received from the concerned Directorate of Education. This plan may follow guidelines of Alternative Academic Calendar prepared by the NCERT.
  2. Reintegration of students into school may be taken on priority after reopening.
  3. Teachers must polish their skills for integrating ICT in class as far as possible. Training modules may be prepared for the same.
  4. Children can also be sensitized about the pandemic by integrating various concepts into the teaching of various subject areas such as EVS, languages, science and social science, arts.
  5. Teachers must discuss with the students the clear roadmap of the curriculum, the modes of learning to be adopted (through face to face instruction/individual assignments or portfolios/group-based project work/group presentations, etc.) to be covered,  the time to be taken for the same, dates of school based assessments, breaks, etc.
  6. Focus on the most vulnerable students (homeless/migrated students, students with disabilities, and students directly affected by Covid-19 through a family death or hospitalization) to prioritize their needs.
  7. Divergent use of teaching resources shall have to be relied upon keeping physical/social distancing and other safety norms in mind. Resources could include peer teaching and learning, use of workbooks and worksheets, use of technology-based resources in class, empowering parents/grandparents/older sibling to teach, using the services of volunteers from the community, etc.
  8. PRAGYATA Guidelines on digital and online education can be used to orient teachers and students in this regard.If the State/UT has Energized Textbooks, inform students and parents how to download the e-content behind the QR on DIKSHA, codes and use the same in offline mode, thereon.
  9. Teachers, parents, and administrators need to focus on formative assessment to ensure achievement of learning goals by all learners. Guidelines of SCERT/NCERT may be used to sensitize parents to improve their understanding of and appreciation for formative assessment.
  10. Schools to ensure smooth transition of students from home-based schooling during lockdown to formal schooling. Schools can implement re-adjusted school calendar and redesigned Annual Curriculum Plan (ACP), remedial classes or conduct back to school campaign among other steps.
  11. The teachers, school counselor and school health workers should work in unison to ensure emotional safety of their students. ‘MANODARPAN’ covers a wide range of activities to provide psychosocial support to students, teachers and families for Mental Health and Emotional Wellbeing during the COVID outbreak and beyond.
  12. Based on these SOP/guidelines, State / UT Governments need to develop their own Standard Operating Procedures for reopening schools and for training different stakeholders as and when the State/Union Territory Governments declare it safe for schools to operate.
  13. Checklists for safe school environment which includes for different stakeholders, for building resilience and for academic planning and school operations may be used.
  14. The State/UT Education Departments may conduct awareness and capacity building programmes for DIET faculty members, School Heads, Teachers, and Parents before the opening of the schools.
Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Kaul, Aniruddha Bose and Krishna Murari, JJ ‘reluctantly’ dismissed an SLP arising out of a Allahabad High Court order which held that the students with certificates from ‘bogus and fictitious’ organisations cannot be allowed to continue pursuing their courses at Dr APJ Abdul Kalam Technical University (APJAKTU).

The Court said,

“We do have sympathy but this is not a case where we can really translate our sympathy to a relief in the present case, more so, in view of the fact that since this exam system is found to be fraudulent, the petitioners before us will never have a recognized plus two status and to give such students the opportunity to get a degree from the University will create a great anomaly.”

The Court also took noticed that the Jharkhand State open exam process itself appears to be a complete fraud. It also faulted the University for not carrying out an appropriate verification as also the State Government “which should have kept a watch for such fraudulent exam systems which operate out of one room”.

The Court, hence, asked the University and the State Government to take immediate corrective action and also bring the defaulters to book.

On being apprised that the continuation on the website of the recognition of the Board is not only creating a problem in Jharkhand but also in other Universities and hence immediate steps should be taken in this behalf, the Court asked all concerned to do the needful within three days.

[Sahil Sohail v. Dr. APJ Abdul Kalam Technical University, 2020 SCC OnLine SC 719, order dated 07.09.2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ., L.T.B.Dehideniya and P. Padman Surasena, JJ., dismissed an application which was filed aggrieved by the denial of admission in the school stating it to be a Fundamental Right violation guaranteed under Article 12(1) of the Constitution.

Petitioners being the parents of the minor child had made an application to admit the child to Visaka Vidyalaya, Colombo. The application was based on the category of ‘children of persons belonging to the staff in an institution directly involved in school education’. Under the circular 24/ 2018 (1R1), paragraph 7.5.2.2, if a parent had worked in a difficult school, that parent was entitled to obtain 03 marks for a full year, up to the maximum of 15 marks, in relation to which he had submitted all the relevant documents with the school. The petitioner contended that the interview board headed by the Respondent had not accepted this document as proof of the fact that, A/ Habarana Maha Vidyalaya was a difficult school. Thus, the instant application. The Petitioners, on the basis of this document, argued that, they were entitled for additional 12 marks after which they go above the cut-off mark and their minor child would have been admitted to Visaka Vidyalaya. According to the respondents the appeal board had not considered this document because they were not permitted to consider any document other than the documents that were tendered at the 1st interview.

The Court while dismissing the application stated that the said act does not amount to a violation of Fundamental Rights under Article 12(1) of the Constitution and explained that Respondent being the Principal of Visaka Vidyalaya cannot be held liable for her conduct as the Petitioners were unable to produce a document certifying A/ Habarana Maha Vidyalaya is a difficult school at the interview and there was clear negligence on the part of the Petitioners in not producing the correct documents at the time of the interview and also the document that they relied on does not provide any basis for a relief provided by law. [Iresha Dulashini Dangolla v. Sandamali Aviruppola, 2020 SCC OnLine SL SC 5, decided on 04-08-2020]


*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and K.K. Tated, J., dismissed a PIL filed seeking direction to schools not to charge more than 50% fees and related reliefs.

  • the direction be issued to the schools, not to charge more than 50% of the fees in this academic year taking into consideration the pandemic and its effects;
  • direction to waive off the school fees during pandemic lockdown to be given starting from 23rd March 2020;
  • directions to waive off the online sessions for pre-primary and primary section schools from Nursery to 4th std;
  • the schools to less make projects where sometimes unnecessary expenses are done for this academic year;

the state government be directed to take due care and see that the schools not to violate if found guilty strict actions to be taken and no schools to reopen till the innovation of vaccine for COVID-19 virus.”

It is to be noted that not a single school has been impleaded as a respondent by the PIL petitioner. Thus granting the prayers of PIL petition in absence of the schools would amount to breach of principles of natural justice.

Court in view of the above stated that Court may add schools as respondents but no explanation has been furnished why the PIL petitioner did not implead at least some of them as respondents.

Another reason for non-interference is that, if at all the statement wherein it has been stated that parents of children are in financial distress, is correct — nothing prevents such parents to approach the government in a group and seek framing of guidelines for reducing the quantum of tuition fees as well as other relief during lockdown period.

In matters relating to academic policy, Courts ought to stay at a distance.

Thus, in view of the above, petition was dismissed of. [Dr Binu Varghese v. State of Maharashtra, 2020 SCC OnLine Bom 721 , decided on 19-06-2020]

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 BriefsHigh Courts

Orissa High Court: A Full Bench of K.S. Jhaveri, CJ and A.K Rath and Biswajit Mohanty, JJ. entertained a writ petition, which involved a detailed question of law which was, “Whether the change of the name of parents of candidate who had already appeared at the High School Certificate Examination and obtained the Board Certificate incorporating the names was permissible on the basis of a correction in the school record made subsequent to that date?”

Amicus Curiae, Gautam Mishra, placed reliance on Ranjit Kumar Mallick v. Director of Secondary Education, 1996 SCC OnLine Ori 289, where the Division Bench of same High Court directed the Board to correct father’s name of the petitioner in the certificate of the HSC Examination issued by the Board in favour of the petitioner. It was submitted that after Ranjit Kumar Mallick, the Board had issued a form for correction of original pass certificate. It was highlighted that, future of a student will be bleak in the event the mistake creeps in the certificate; he cannot be compelled to institute the suit, which is not an efficacious remedy. The Board has ancillary power to correct the father’s/mother’s name in the certificate. Further he relied upon the judgment in State of M.P. v. Pradeep Kumar, (2000) 7 CC 372, where the Supreme Court noted that, where a student’s career may be affected and a minor change may not affect the property rights of any of the parties, particularly when a change is sought for pursuing academic goals, relegating a party to the common law forum may not be an alternative efficacious remedy. In appropriate cases, the claim of the student may be entertained in a writ petition in case the Board/Directorate refuses to correct a genuine mistake. But then, when such claims are for the purpose of establishing property rights, the appropriate remedy may be the common law forum. Each case has to be examined keeping in mind the background facts of that particular case.

S.S. Rao, learned counsel for the State argued that the Regulation of the Board, has been framed under Section 21 of the Orissa Secondary Education Act, 1953. There was no provision in the Board’s Regulation for correction of names of candidate’s parents, who had appeared in the HSC Exam and had been issued with the certificate. In the absence of any such provision, change of name or surname of parents in whatever circumstances, except for clerical or printing mistake was not permissible in law and as such, no direction can be given to the Board to make such changes. He further submitted that any amendment can only be allowed by the approval of State. Correction of a mistake, clerical or otherwise cannot be equated with the change of father’s name, which requires factual adjudication hence, will be out of the purview of the Board. He further placed reliance on Rai Brij Raj Krishna v. S.K. Shaw, AIR 1951 SC 115, where the Supreme Court stated that by change of father’s/mother’s name several legal complications involving property rights, adoptions, securing of some benefit by changing of caste, overcoming the rigors of election law, which restricts number of children to contest may arise. It is open to the aggrieved party to approach the common law forum.

The Court observed that the website of the Board has a form which allows for correction of father’s name. Hence, the Board cannot take a stand that in the absence of regulation governing the field no correction can be made. It further directed that, application for correction of names shall be made within three years of the passing of HSC Exam so that authorities are not put to any difficulty. The application has to be made through the concerned Headmaster of the High School. The Court rejected opinion and submissions of the respondent with regard to correction of the records of the school in respect of parents’ name and was applicable when a student continues in the school and was not sent up for filling up the forms to appear the Board examination and not thereafter, as allowing this at a later stage may encourage unnecessary complication in cases like adoption.

It was held, “In view of the discussions made in the preceding paragraphs, we are in consensus ad idem that the ratio laid down in Ranjit Kumar Mallick is the correct enunciation of law. We do not find any valid reason to look into the matter afresh. The reference is answered accordingly.”[Satyasiva Sundar Nayak v. Board of Secondary Education, 2019 SCC OnLine Ori 193, decided on 13-05-2019]