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Merger of Primary School with High School violates Article 21-A: Orissa HC

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Single bench of DR. Justice B.R.Sarangi quashed the notification no. 5465/SME., dated 11.03.2020 issued by the Government of Odisha in School & Mass Education Department, pursuant to the policy framed vide notification no.10442/SME dated 14.05.2018, for
rationalization and consolidation of schools under School & Mass Education (S&ME) Department, as well as the consequential office memorandum no. 5538/SME., dated 11.03.2020 for implementation of guidelines for the policy of rationalization and
consolidation of schools

The Right of Children to Free and Compulsory Education Act Act, 2009 has been framed under Article 21-A of the Constitution of India, which inter alia provides for free and compulsory education to all children in the age group of 6 to 14 years as a fundamental right. To enforce and implement the objective of Article 21-A of the Constitution of India, Parliament has enacted Act, 2009. As per Section 2 (f) of the Act, 2009, elementary education means the education from first class to eight class. Section 3(1) of the Act, 2009 clearly provides that every child of the age of six to fourteen years, including a child referred to in clause-(d) or clause (e) of Section 2 shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. Section 6 of the Act, 2009 provides the duty of appropriate government and local authority to establish school. As per section 6 of the Act, for carrying out the provisions of the said act, the appropriate government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school where it is not so established, within a period of three years from the commencement of this Act. Section 7(1) of the Act, 2009 provides that the central government and the State governments shall have concurrent responsibility for providing funds for carrying out the provisions of the said Act. Section 8(b) of the Act, 2009 provides that the appropriate government shall ensure availability of a neighbourhood school as specified in Section 6. Section 19 of the Act, 2009 provides the norms and standards for School. Section 19(1) of the Act, 2009 provides that no school shall be established for recognized under section 18 unless it fulfills the norms and standards specified in the schedule. Section 38 of the Act, 2009 provides the power of appropriate government to make rules in various matters including the area or limits of a neighbourhood school under Section 6. The schedule appended to the Act, 2009 so far as primary schools are concerned, i.e., for classes from I-V for admitted children up to „60‟, two teachers are required and for classes VI-VIII at least one teacher each for science and mathematics, social studies and languages.

Similarly, Rule-6 of Rules, 2010 provides establishment of neighbourhood school, i.e., in respect of children in classes I-V within a walking distance of one km. of the neighbourhood. So far as children having classes VI-VIII, a school shall be established within a walking distance of 3 kms. of the neighbourhood. Rule6(3), (4), (5), (6), (7) and (8) of Rules, 2010 provides about the contingencies in which the area or limits of the neighbourhood school can be reduced.

Therefore, combined reading of Act, 2009 and Rules, 2010, no where there is any provision for merger/consolidation of primary/upper primary schools with high schools. Therefore, the notification no.5465 dated 11.03.2020 regarding consolidation of various types of schools including high schools with classes VI to X, I-X or IX-X with primary and upper primary school, is contrary to the provisions of the Act, 2009 and Rules, 2010

As the very definition of elementary education as provided under Section 2 (f) of the Act, 2009 means the education from first class to eight class. Therefore, the Government
has issued the notification no.5465 dated 11.03.2020 has been issued without taking into consideration the constitutional mandate as well as statutory provisions, namely, Act, 2009 and Rules, 2010. Thereby, the same cannot sustain in the eye of law.

distance and enrollment norms for consolidation in the notification no.5465 dated 11.03.2020 wherein secondary schools beyond class-VIII have been given contrary to the Act, 2009 and Rules, 2010. In the table, a primary school having roll strength less than 40 in respect of nonscheduled area and less than 25 in respect of scheduled area can be consolidated, is also contrary to the provisions of the Act, 2009, wherein it has been prescribed for classes having I-V admitted children up to 60, two teachers are required. Therefore, when there is no minimum roll strength has been prescribed for a primary school under the Act, 2009 and the Rules, 2010, the notification no.5465 dated 11.03.2020 fixing the minimum roll strength prescribed as per the table in respect of primary schools, i.e., less than 40 in respect of non-scheduled area and less than 25 in respect of scheduled area is contrary to the statute and, as such, the same cannot sustain in the eye of law.

In respect of the upper primary school the roll strength has been prescribed less than 50 in
respect of non-scheduled area and less than 40 in respect of scheduled area, is also contrary to the schedule appended to the Act, 2009, though while issuing the notification in the office note deals with some factual matrix with regard to natural barriers, but the same has not taken up under Rule-6 of Rules, 2010, which clearly provides that the area or limits of
neighbourhood school can be reduced.

But, when the government notification no.5465 dated 11.03.2020 itself runs contrary to Article 21-A of the Constitution and provisions of Act, 2009 and Rules, 2010, the mechanism
provided for consolidation/merger of various category of school is not acceptable. Besides that, when the very purport of the Act, 2009 and Rules, 2010 is to provide at least one school within a walking distance of one km. of the neighbourhood, in that case, the State Government cannot and could not take steps for abolition of schools which are already there and catering to the needs of the local people. Therefore, in the guise of merger/consolidation of the schools, the very purpose of the Act, 2009 and Rules, 2010 has been frustrated.
Thereby, the impugned notifications cannot sustain in the eye of law

The table relating to distance and enrollment norms for consolidation in the notification
no.5465 dated 11.03.2020 wherein secondary schools beyond class-VIII have been given contrary to the Act, 2009 and Rules, 2010. In the table, a primary school having roll strength less than 40 in respect of nonscheduled area and less than 25 in respect of scheduled
area can be consolidated, is also contrary to the provisions of the Act, 2009, wherein it has been prescribed for classes having I-V admitted children up to 60, two teachers are required. Therefore, when there is no minimum roll strength has been prescribed for a primary school under the Act, 2009 and the Rules, 2010, the notification no.5465 dated 11.03.2020 fixing the
minimum roll strength prescribed as per the table in respect of primary schools, i.e., less than 40 in respect of non-scheduled area and less than 25 in respect of scheduled area is contrary to the statute and, as such, the same cannot sustain in the eye of law.

In respect of the upper primary school the roll strength has been prescribed less than 50 in
respect of non-scheduled area and less than 40 in respect of scheduled area, is also contrary to the schedule appended to the Act, 2009, though while issuing the notification in the office note deals with some factual matrix with regard to natural barriers, but the same has not taken up under Rule-6 of Rules, 2010, which clearly provides that the area or limits of
neighbourhood school can be reduced.

But, when the government notification no.5465 dated 11.03.2020 itself runs contrary to Article 21-A of the Constitution and provisions of Act, 2009 and Rules, 2010, the mechanism
provided for consolidation/merger of various category of school is not acceptable. Besides that, when the very purport of the Act, 2009 and Rules, 2010 is to provide at least one school within a walking distance of one km. of the neighbourhood, in that case, the State Government cannot and could not take steps for abolition of schools which are already there and catering to the needs of the local people. Therefore, in the guise of merger/consolidation of the schools, the very purpose of the Act, 2009 and Rules, 2010 has been frustrated.
Thereby, the impugned notifications cannot sustain in the eye of law.

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