ARANAV PRAKASH (MINOR) Vs. ST. XAVIER’S SCHOOL

JUDGEMENT

(1.) The present writ petitions are taken up today through Video conferencing. Both these writ petitions have been preferred against the action of the St. Xavier's School, Ranchi-Patna Road, D.V.C Colony, Hazaribagh, whereby the petitioners have neither been allowed to take admission in the next higher classes nor have been permitted to attend their online classes.

(2.) Mr. Ajit Kumar, learned Senior Counsel appearing on behalf of the petitioners, submits that the petitioners are the students of the respondent-school and they had successfully completed the academic year 2019-20. They had also participated in the last examination and in view of the school's guidelines, they are entitled to be promoted to the respective higher classes. However, to the utter surprise of the petitioners, they have not been allowed to take admission in the next higher classes by the respondent-school and they have also been denied to attend the online classes being conducted by the respondent-school in the wake of coronavirus (Covid-19) pandemic. It is further submitted that the petitioners represented before the principal of the respondent-school through their parents several times requesting inter alia to promote them to the next higher classes and not to force the parents to withdraw their name from the said school, however, the said request fell on the deaf ears of the principal. Thereafter, the parents of the petitioners approached the District Superintendent of Education-cum-Nodal Officer, R.T.E-cum-Secretary, District Elementary Education Committee (Private School), Hazaribagh under the provisions of the Right to Education Act, 2005 (hereinafter referred to as "the Act, 2005"). The D.S.E vide memo no. 1413 dtd. 24/6/2020 asked the principal of the respondent-school to promote all the students including the petitioners to the next higher classes. The principal, however, vide his letter dtd. 27/6/2020 replied to the D.S.E., Hazaribagh that he had already met and heard the parents of the aggrieved students and would be assessing all the matters on case to case basis and the decision would be communicated as soon as it is taken. However, no such decision was thereafter communicated to the D.S.E., Hazaribagh by the respondent-school due to which the D.S.E., Hazaribagh called upon the parents of the aggrieved students as well as the principal of the respondent-school for personal hearing on the matter. Subsequently, the D.S.E, Hazaribagh passed an order after a detailed hearing as contained in memo no. 1473 dtd. 4/7/2020 directing the respondent-school that it would not issue transfer certificate/school leaving certificate to any student by way of punishment for the academic session 2020-21 against the wish of the students or their parents and would promote all the students to the next higher classes. The learned Senior Counsel for the petitioners also submits that the Central Board of Secondary Education (CBSE), in the meantime, also issued a press release on 1/4/2020 specifying inter alia that in view of the prevailing extraordinary circumstances throughout the world in the wake of coronavirus (Covid-19) pandemic as well as the countrywide lockdown and also keeping in view the different queries made by the stakeholders regarding the academic future of the students, all the schools affiliated to the C.B.S.E. were advised/informed that all students studying between Class 1 to 8 should be promoted to the next higher classes/grade as a one-time measure. The said advisory was issued by the C.B.S.E. in consultation with the NCERT. It is further submitted that the respondent-school has adopted whimsical and arbitrary approach in the matter of admission and it has always been trying to carve out some vacant seats in different classes so as to accommodate few students of its choice. As per the prevailing practice, the respondent-school has been promoting the students who achieve the pass marks in overall assessment of both the terminal examinations, but in some cases, its approach uses to be different based on its own whims and fancies. The action of the respondent-school in compelling the petitioners to withdraw their names on disciplinary ground without issuing any show cause notice is highly arbitrary and whimsical. The respondent-school has not afforded any opportunity of hearing to the petitioners before taking decision of their expulsion from the school, which is in violation of the principles of natural justice. The petitioners have the right to take education in the respondent-school itself in view of the mandate of Article 21A of the Constitution of India as well as the provisions of the Act, 2005. Since the C.B.S.E. has issued a clear press release informing the schools throughout the country that all the students between Class 1 to 8 should be promoted in the next higher classes during the pandemic period, the action of the respondent-school in taking decision of expulsion of the petitioners from the school is also violative of such guidelines issued by the C.B.S.E.

(3.) Mr. Indrajit Sinha, the learned counsel appearing on behalf of the respondent-school, at the outset, submits that the present writ petition is not maintainable as the petitioners have speedy, statutory and efficacious remedy available with them by preferring appropriate applications before the Jharkhand Education Tribunal constituted under the Jharkhand Education Tribunal Act, 2005. It is further submitted that the Jharkhand Education Tribunal has been constituted under the said statute enacted in compliance of the judgment of the Hon'ble Supreme Court rendered in the case of "T.M.A Pai Foundation and Ors. Vs. State of Karnataka and Ors." reported in (2002) 8 SCC 481 and the direction of the Division Bench of this Court passed in W.P.(PIL) No. 2744 of 2003. The jurisdiction, power and authority of the said Tribunal has been provided under Sec. 8 of the Act, 2005 according to which apart from other powers, all the grievances of the guardians and parents of the students against the management of the educational institutions regarding teaching standards, fee structure, infrastructural facilities, development works and allied matter related thereto have been subjected to the jurisdiction of the Tribunal. Since the present dispute is between the parents/students and the management of the school relating to disciplinary action being taken against them, it comes under the purview of "allied matters" and as such, the same is required to be raised before the Tribunal. It is also submitted that the High Courts throughout the country have consistently refused to entertain the writ petitions under Article 226 of the Constitution of India on the ground of availability of alternative/statutory remedy to the petitioners barring exceptional circumstances. In the present case, the petitioners have failed to show that their grievances come under the category of exceptional cases so as to justify bypassing of the efficacious/statutory remedy available to them. The disciplinary action taken against the petitioners does not violate their fundamental rights as the respondent-school is a private minority un-aided educational institution which enjoys autonomy with respect to functioning and managing its affairs in view of the fundamental rights guaranteed under Article 26 and 30 of the Constitution of India and the same cannot be waived in any circumstance. The learned counsel for the respondent-school further submits that the fundamental right guaranteed to the citizens of India under the Constitution cannot be stretched to the extent that the management of the school cannot take required action against mischievous students. The respondent-school is otherwise within its jurisdiction to take disciplinary action against its students in order to ensure discipline and imparting quality education. It is also submitted that during the admission process, the students and their parents are required to give undertaking that the school would be entitled to take any disciplinary action towards misconduct of the students. The parents of the students also give an undertaking that they would abide by the decision of the school management in all the matters during which the students take education in the school. The management of the school having no alternative has taken a decision to take disciplinary action against 26 students who did not show any improvement in their conduct even after issuing several warnings and show cause notices. The impugned decision has been taken by the respondent-school after providing several opportunities to the parents of the said students and issuing caution and warnings. In course of interaction between the school and the guardians, they even undertook to withdraw their respective ward from the school, if they failed to show any improvement. So far as the petitioner no. 2 is concerned, he has voluntarily taken transfer certificate from the school and as such, he is barred by the principle of estoppel from challenging the decision of the school before any forum. It is further submitted that the parents of the petitioners also approached the D.S.E., Hazaribagh making false and frivolous allegations, whereupon the said authority issued order as contained in memo no. 1473 dtd. 4/7/2020 purportedly setting-aside the decision of the school in taking disciplinary action against the petitioners which is without jurisdiction and authority. The respondent-school is a minority educational institution and is not covered under the provisions of the Act, 2005 and hence, the proceeding before the D.S.E., Hazaribagh was not only without jurisdiction, but also improper. It is also submitted that the respondent-school has also filed a writ petition challenging the order passed by the D.S.E., Hazaribagh being W.P.(C) No. 2142 of 2020, which is also pending adjudication before this Court. So far as the press release issued by the C.B.S.E. is concerned, the same has been issued after the disciplinary action was already taken by the respondent-school against the petitioners. Otherwise also, the same is merely advisory in nature, non-compliance of which, cannot be a subject matter to be adjudicated by this Court under extraordinary writ jurisdiction.