AI Structured Summary
Not yet generated for this judgment
Judgment
Sudhir Mittal, J
This judgment shall decide CWP Nos. 36086 and 32762 of 2019 as common questions of facts and law are involved.
CWP No. 36086 of 2019 has been filed by the parent of a child studying in Dashmesh Public School, Talwandi Road, Faridkot (hereinafter referred
to as 'the School'), the Director and Principal of which have been impleaded as respondents No. 8 and 9, respectively. Her basic grievance is that
from Class VI onwards, the children are being classified into sections on the basis of marks secured in the previous examination. Another parent had
raised a similar grievance by sending a representation dated 20.05.2019 to respondent No. 9. The representation was necessitated because the child of
the said parent had become extremely upset as she could not make it to the top section. She had even taken the extreme step of gulping liquid hand
wash in an attempt to end her life. No action was taken upon the said representation and, therefore, the petitioner sent a representation dated
23.05.2019 to respondent No. 9 and to various officials of the Central Government, State Government, Central Board of Secondary Education and the
National and State Commissions constituted for protection of child rights. The Punjab State Commission for Protection of Child Rights (respondent
No. 12) took cognizance and issued notice to respondent No. 9. A reply dated 19.06.2009 was filed on behalf of the said respondent wherein grouping
children into sections on the basis of their marks was not denied. Infact, the same was defended on the ground of being an age old norm for the
purpose of bringing homogeneity in the class. The allegation that the top sections are being provided better teaching facilities was, however, denied.
The complaint was labelled as 'motivated' as the child of the petitioner was not able to get the section of her choice. Respondent No. 12 - Punjab State
Commission for Protection of Child Rights (hereinafter referred to as 'the Commission') decided the issue vide order dated 07.08.2019 and directed
respondents No. 8 and 9 to discontinue the practice of forming sections on the basis of merit forthwith. The directions were also issued to reshuffle
the sections within 10 days from the date of receipt of the order. The parties were not given an opportunity to lead evidence as the allegations had
been admitted by respondent No. 9 although the said respondent had tried to justify the same. The School failed to implement the directions of the
Commission and, therefore, the petitioner got a legal notice dated 18.08.2019 sent through her lawyer. The Deputy Commissioner, Faridkot, also asked
the School to implement the order to which the School responded vide communication dated 20.08.2019 that the order shall be implemented after
conclusion of the half yearly session, the examination for which ended on 03.08.2019. Thereafter, the School and some parents of children of the top
section approached the Commission for review/modification of its order dated 07.08.2019. The Commission modified its order on 09.09.2019 without
issuing notice to the petitioner or granting her an opportunity of hearing. Modification was to the extent of permitting the School to continue with the
existing sections till the end of the academic session. Consequently, the present writ petition has been filed with the prayer of quashing order dated
09.09.2019 passed by the Commission and for direction to respondents No. 1 to 6 to get the order dated 07.08.2019 implemented. Directions have also
been sought to the said respondent to take appropriate action against respondents No. 8 and 9 for discrimination and causing mental trauma.
The School has filed CWP No. 32762 of 2019 for quashing the order dated 07.08.2019 and order dated 09.09.2019 passed by the Commission and
for permitting the School to carry on with its practice of grouping children into sections on the basis of their marks.
On behalf of the State of Punjab and its officials a detailed written statement has been filed. The order passed by the Commission has been
supported on the ground that no practice which makes a child feel inferior can be permitted.
The modern trend of education is to make the same stress free and, thus, system of grading has been introduced. The action of the School is contrary
to this thought process.
A short written statement has been filed on behalf of the Commission wherein, predictably, its orders have been supported.
The basic argument of learned counsel for the petitioner is that the practice of grouping students into sections based on their marks at the
elementary level is a discriminatory practice and it is violative of Article 14 of the Constitution of India. It is also violative of the provisions of Right of
Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as '2009 Act'). The Commission has been established pursuant to
enactment of the Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as '2005 Act') and one of its functions is to enquire into
complaints of violation of child rights. The order dated 07.08.2019 has been passed in exercise of its statutory functions and the functionaries of the
State are bound to implement the order. However, the Commission being a creature of the statute, could not have reviewed or modified the said order
as no power of review has been vested in it under the statute. Thus, order dated 09.09.2019 is without jurisdiction apart from the same being violative
of principles of natural justice as no notice was issued to the petitioner before passing the said order.
Learned counsel for respondents No. 8 and 9 submits that the Commission is only a recommendatory body and in case its enquiry reveals violation
of child rights, it can recommend appropriate action to the concerned Government or authority for initiating prosecution. It can also approach the High
Court concerned or the Supreme Court for necessary directions. It can not issue any executive directions to the violator and, thus, the order dated
07.08.2019 is without jurisdiction. For this purpose reliance has been placed upon Section 15 of 2005 Act. It has been further argued that the impugned
order has been passed by the Principal Secretary, Government of Punjab, Department of Social Security of Women and Child Development. The said
official could not have exercised the powers of the Commission. The constitution of the Commission is governed by Section 17 of the 2005 Act.
According to this provision, the Commission comprises of a Chairperson and six members. Its business is transacted through decisions taken by
majority as is evident from Section 10 of the said Act. Thus, a single person could not have constituted the Commission and on this ground also the
impugned order is illegal and without jurisdiction. Carrying this argument further, learned counsel has submitted that the complaint was against 12
separate entities but notice was issued only to his clients. No order could have been passed without hearing the other parties. On merits of the case, it
has been argued that only the top section has been constituted on the basis of marks and all other sections have students possessing different merit. A
top Section has been created in the interest of the students so that the School can get better results. Malafides have also been alleged against the writ
petitioner as her daughter had failed to make it to the top section in Class VII.
The State of Punjab has supported the writ petitioner.
Thus, the following issues arise for consideration:-
(a) Whether the action of the School of grouping students of Class VI onwards into Sections on the basis of marks is arbitrary, discriminatory and
violative of child rights?
(b) Whether order dated 7.8.2019 passed by the Commission was within its jurisdiction?
(c) Whether the Commission has the right to review/modify its order?
Article 21-A was inserted in the Constitution by way of Constitution (86th Amendment Act, 2002) w.e.f. 01.04.2010. This Article provides for
free and compulsory education to all children in the age group of 6 to 14 years. However, the manner of providing such education has been left to the
State Government. The 2009 Act has been enacted pursuant to this Constitutional amendment. The statement of objects and reasons of this Act
declares that for upholding of democratic principles, especially the constitutional goal of providing equal opportunities, it is essential to provide universal
elementary education. The aim of this enactment is not only to ensure universal elementary education but it is also to ensure good elementary
education. The 2009 Act lists various duties and responsibilities of the Government, local authorities, parents, school and teachers. It also provides a
mechanism for protection of the right guaranteed under Article 21-A of the Constitution. To ensure that children grow up in a free atmosphere
conducive to inclusive growth, Section 17 has been incorporated which prohibits physical punishment and mental harassment of children. Section 31
empowers the Commission inter alia to enquire into complaints relating to a child's right to free and compulsory education. Sub Section 3 thereof
authorizes the appropriate Government to constitute an authority in such a manner as may be prescribed to carry out the functions of the Commission
where it has not been constituted. Section 32 entitles any person to make a written complaint to a local authority having jurisdiction and the said
authority is bound to decide the complaint within a period of three months. Unamended Section 16 of this Act prescribes that no child can be held back
in any class or expelled from School till the completion of elementary education. This has, however, been substituted vide Act No. 1 of 2019. The
prohibition of expulsion has been retained but examination has been prescribed in Vth class and VIIIth class. However, whether a child who fails in
this examination is promoted or not has been left to the wisdom of the appropriate Government.
The 2005 Act provides for constitution of a National Commission and State Commissions for Protection of Child rights and Children's Courts, in
view of the country's resolve to ensure that the growth and development of children is at par with children in developed nations. The procedure for
transaction of business of the Commission is governed by Section 10 thereof and Section 13 enumerates its functions. Section 15 provides for steps to
be taken after enquiry has been conducted. Constitution of the Commission is governed by Section 17 and Section 23 makes it incumbent upon the
Commission to submit annual reports. It also has the authority to submit urgent reports, the submission of which can not be deferred till the submission
of the annual report.
The questions framed hereinabove shall now be examined with reference to the constitutional and statutory provisions referred to hereinabove.
(a) Whether the action of the School of grouping students of Class VI onwards into Sections on the basis of marks is arbitrary, discriminatory and
violative of child rights?
By virtue of Article 21-A of the Constitution of India, elementary education is a fundamental right. Thus, it is the duty of the State to provide free
and compulsory elementary education. Education is not bookish knowledge alone. It is an inclusive concept, the object being all round development of
children. It encompasses moral as well as mental development. Thus, a child is entitled to an atmosphere conducive to all round development.
Necessarily, stimuli which impair such development, have to be kept out. It is the duty of a school to ensure that children are not subjected to negative
inputs which have the effect of inducing a feeling of inferiority. It is for this specific reason that provisions of Sections 16 and 17 have been made
incorporated in the 2009 Act. Classification of children into sections on the basis of their marks has the tendency of creating a feeling of inferiority
amongst children securing less marks and, thus, the practice is a violation of fundamental right of elementary education.
The aforementioned Act also violates the right of equal opportunity enshrined in the Constitution. If an action induces a sense of inferiority in a
child, it is being denied the right to development and growth at par with a child who does not suffer from such feeling of inferiority. Under the
constitutional scheme, institutions providing elementary education are bound to create a free and open atmosphere that promotes a sense of equality.
Any action which promotes inequality cannot be permitted.
The question is, thus, answered in affirmative.
(b) Whether order dated 7.8.2019 passed by the Commission was within its jurisdiction?
Regarding the jurisdiction of the Commission, learned counsel for respondents No. 8 and 9 has argued that impugned order is without jurisdiction
as -
(a) It was passed by an improperly constituted commission and;
(b) the Commission can only make recommendations and can not issue executive directions.
The argument regarding the commission being improperly constituted deserves rejection in view of Section 31(3) of the 2009 Act. This sub-section
is reproduced below for ready reference:
“(3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the
purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such
terms and conditions, as may be prescribed.â€
This provision empowers the appropriate Government to constitute an authority to perform functions mentioned in sub-section (1), clauses (a) to
(c) of Section 31, in the absence of a lawfully constituted Commission. In exercise of this power, State Government had issued order dated 16.04.2019
constituting the Principal Secretary, Government of Punjab, Department of Social Security and Women and Child Development as the authority
entitled to discharge the said functions and, thus, the order dated 07.08.2019 can not be held to be without jurisdiction.
Learned counsel for respondents No. 8 and 9 is, however, right in contending that the Commission is only authorised to make recommendations.
However, where violation of a fundamental right is brought to the notice of the State or its functionaries, it is their duty to ensure that the violation is
removed forthwith. The order dated 07.08.2019 was also forwarded to the Deputy Commissioner, Faridkot, and he should have taken remedial action
immediately. The petitioner is, thus, entitled to claim execution of the order dated 07.08.2019 through the State functionaries.
(c) Whether the Commission has the right to review/modify its order?
The Commission has been created by virtue of the 2005 Act and this Act does not confer any power of review upon it. The 2009 Act under which
the Commission exercises the duty of monitoring a child's right to education also does not vest in it the right to review its orders. Thus, the order dated
07.08.2019 could not have been modified, especially without notice or grant of opportunity of hearing to the petitioner. Thus, order dated 09.09.2019 is
held to be illegal and without jurisdiction.
In view of the aforementioned reasons, CWP No. 36086 of 2019 is allowed and CWP No. 32762 of 2019 is dismissed. However, keeping in view
the fact that the examinations are around the corner, respondents No. 8 and 9 are directed to implement the order of the Commission w.e.f. the next
academic session.