This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent school to admit the first petitioner B.Monisha Narayani in class 9, second petitioner K.B.Kirthi Vasan in Class 8 and the third petitioner K.B.Nandan Imayavaramban in class 5 by charging the fees as fixed by the Tamil Nadu State Government for the first respondent school for the academic year 2012-2013.
ORDER
1. The writ petition is filed by the petitioners, i.e. two minor sons and one minor daughter, represented by their mother, seeking for a direction to the first respondent to admit the first petitioner B.Monisha Narayani in class 9, the second petitioner K.B.Kirthi Vasan in class 8 and the third petitioner K.B.Nandan Imayavaramban in class 5 by charging fees as fixed by the Tamil Nadu Government in respect of the first respondent school for the academic year 2012-2013.
2. On behalf of minor petitioners, their guardian and mother appeared as party in person. When this matter came up on 27.06.2012, this court ordered notice on admission and directed Mr.P.Sanjai Gandhi, learned Additional Government Pleader to take notice for respondents 2 to 4. In respect of 5th respondent, CBSE Regional Office, Mr.G.Nagarajan, learned counsel took notice. Private notice was directed to be served on the first respondent private school. Accordingly, notice was served and Mr.V.Lakshmi Narayanan, learned counsel appeared for the first respondent. On notice from this court, a counter affidavit, dated 7.7.2012 was filed by the first respondent. The petitioner also filed a written reply to the counter affidavit, dated 13.7.2012.
3. The case of the petitioner was that she is a medical practitioner holding MBBS degree. She had also obtained a law degree from Dr.Ambedkar Law University. Her husband was working in the Indian Revenue Service at Mumbai. He was initially working under the State of Tramil Nadu. Their children were initially admitted to the school in Tamil Nadu. Thereafter, when he was posted to Mumbai, they had shifted to Mumbai and located their family there. Their children were admitted to the school at Mumbai for the academic year 2010-2011. They continued their studies in the same school for the next academic year 2011-2012. But Tamil language was not offered in that school and they were forced to study Hindi and Marathi. But, however, the petitioner and her husband were very particular that they should learn their mother tongue Tamil. Therefore, they tried to look out for a good school in and around their residence where Tamil is taught as a language. They were unable to succeed. Their children were unable to learn Marathi and Hindu as they had studied in Tamil and English alone in Tamil Nadu. Therefore, for the welfare of the children, they decided to return to Tamil Nadu and they moved Salem leaving the petitioner's husband at Mumbai.
4. The first respondent school is situated in their neighbourhood and is also running a matriculation school following Samacheer Kalvi system. The petitioner had approached the school for admission of her children. She was informed that the school was not interested in continuing the Samacheer Kalvi System. They had already closed classes 9 and 10 and that they would not admit any children for Class 8. The management had recommended her to admit her children in the CBSE school which is run by the same management and had asked her to come on 22.5.2012 to receive the applications and to complete all formalities. As she could not get admission in the State Board School, she had no other option to admit her children in the first respondent school for which she had received three applications. After receiving applications, she had submitted the same. Their children were asked to take an entrance test. The children wrote the test and she was asked to come to the school on 23.5.2012 to know the results. Instead of admitting them in the school, the Correspondent of the School had interviewed the petitioner as well as children. He had informed them that since all the three children have not done well in the written test, none of them could be admitted to the classes. The action of the Correspondent in denying admission to the children were illegal and contrary to the provisions of the Right of Children for Free and Compulsory Education Act 2009 (for short RCE Act). The admission of the children on the basis of performance was also illegal. She had also requested to admit them under the SC quota, for which also she was informed that they are not following any system of reservation and it is illegal and contrary to the affiliation bye-laws.
5. Therefore, she sent a representation dated 4.6.2012 to the District Collector informing that conducting examination is contrary to the RCE Act. She had also informed that contrary to the fee fixed by the State Government, they are charting very high fee and also denying the scheduled caste reservation. The District Collector in turn had forwarded her representation to the Chief Educational Officer. The Chief Educational Officer had directed the Inspector of Matriculation Scholls to take steps to see that her children are admitted to the State Board school which is run in the name and style of Golden Gates Matriculation School. But the Correspondent of the first respondent school had stopped her and told that no seats could be given to her children. The report of the Inspector of Schools was called before the Chief Educational Officer. The Correspondent had appeared before the Chief Educational officer along with his group and informed that their right to admit a students is a prerogative right of the school. Therefore, in the absence of any remedy, she has filed the present writ petition.
6. In the counter affidavit filed by the first respondent, it was stated that under the RCE Act, a student can claim admission by way of transfer only in a Government or State aided educational institution. That right cannot be claimed against an unaided school as they did not get any fund from the State. The writ petition was not maintainable. Even in the same locality, there were four other schools available, i.e., Mount Mary Matriculation School with Samacheer Syllabus, Government High School Kondappa Naickanpatti, Sesha International School with CBSE and Government Higher Secondary School, Kanangurichi. The petitioner had expressed her desire to admit her children under Samacheer Kalvi system, in which case she should have applied to institutions which offers Samacheer kalvi system. These schools are closure to the petitioner's residence. The first respondent school is the CBSE pattern. In their school, they have not conducted any entrance test. They had only made an assessment to find out the aptitude of students. It is not conducted for any student coming under the Tamil Nadu Samacheer syllabus or the students coming from the CBSE schools. It is conducted to students coming from the other States and non-CBSE pattern. In case of any vacancy and if the child is admitted, the school provides for special coaching in case of any necessity to be on level with the other students. If the student is not able to cope up with other students, the child will be affected mentally and psychologically. This is done to bridge the gap and that the school should be aware of the shortcomings of the prospective students. The three children have admittedly studied in a school at Mumbai, where there is Maharashtra syllabus and not under the CBSE syllabus.
7. The school had reopened for this academic year during April, 2012 and had completed admissions of students in the place of students who had applied for transfer during First week of April. Applications were issued to parents only after taking assurance from them that they will be considered subject to said contingency. The entire procedure of admission in the first respondent school was completed even before reopening of the school in April, 2012. The allotment of quota can be seen only at the time of admission. Even in the first respondent school, there are number of children are offered free education even before the RCE Act came into force. All of them are from the truly disadvantaged sections and some of them are orphans from Nesakkarangal, Lotus Home orphanage. In fact, the petitioner school is the first school to write to the local panchayat to recommend students for the seats reserved under Section 12(1)(c) of the Act. The fees fixed by the school is the same as fixed by the State Government. The school was charging Rs.32,000/- was denied.
8. In respect of reservation for SC and ST, they are governed by the Education Act and rules applicable to the State. In respect of implementing the provisions of the RCE Act, the school had already implemented the same. They have reserved 25% of seats in the LKG section which is the entrance class for entering into the school. The first respondent school is the only school where seats are lying vacant inspite of heavy demand for LKG seats by affluent sections of the society. When the department of education pressurized the school management to admit students during mid-stream even when there was no vacancy, the Parents Teachers Association's meeting was held and parents were consulted. They were all of the opinion that such admission should not be done and there should not be any coercion from the department. The first respondent went to the meeting convened by the CEO and informed about their position. The school has never collected any capitation fee. The reservation of seats under the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribe's Reservation of Seats in Private Educational Institutions Act, 2006 cannot be applied as the rule of reservation has to be made at the time of admission and not for the mid stream. A reference was also made to a judgment of this court in Ebenezer Teacher Training Institute for Women Vs. The State of Tamil Nadu reported in (2008) 2 MLJ 623, wherein the attempt to make reservation in an unaided school was disapproved and held to be unconstitutional. Since the petitioner has got preference of Samacheer Kalvi system and there are other schools available following the said syllabus nearby to the residence of the petitioner, the petitioner is at liberty to admit her children in those schools.
9. In the reply, the petitioner had stated that it is possible for all three children to cycle their way in a short route without travelling to the main road. They were given application forms and have written the test including the petitioner which is not authorized under the RCE Act. The school has been adopting discriminatory practice. The school is also not following the rule of reservation. They are also charging fee over and above the fee fixed by the State Government. Tamil Nadu Act 12/2006 will apply will apply for rule of reservation. She had not pressurized the educational authorities to admit her children. Had she been informed in advance that no seats are lying vacant, she would have moved to other schools.
10.The petitioner placed heavy reliance upon the RCE Act to admit her children to the first respondent school. The first respondent school is admittedly an unaided school covered by Section 12(1)(c) of the Act. Section 12(1)(c) can be pressed into service only either at the stage of admission to LKG or at the first standard and that certainly not in the mid stream admission as demanded by the petitioner in respect of her three children. This position of law has been clarified by this court vide its judgment in M.Abimanyou and others Vs. Government of India, rep by its Secretary, Department of Human Resources and Education, New Delhi and others reported in 2012 (5) MLJ 383. In that case, this court in paragraph 37 held as follows :
"37.In the light of the above discussion, it has to be seen whether the petitioners have made out any case for interfering with the admission procedure adopted by the contesting respondents. Admittedly, the contesting respondents are "unaided private schools" coming under the definition of Section 2(n)(iv). Their obligation to implement the admission to an extent of 25% for the weaker sections and disadvantagde group only starts from Class-I or in alternative from the pre school education. Therefore, some of the petitioners' claim for admission other than Class-1 is not maintainable. Further since the stand taken by some of the schools that their admission procedure started in the month of January and had ended well during the first week of April, they were clearly exempted from the application of the Act as the Supreme Court had applied the act prospectively from 12.04.2012. In W.P.No.13338 of 2012, the definite stand of the respondent school was that the petitioner never even made any application though application was asked to be downloaded from the website. At the time of admission, they followed the procedure of either first come first serve basis or random method. Since admissions having been completed and there being no case to interfere with the admission procedure adopted by the contesting respondents, the petitioners have not made out any case to entertain the writ petitions. Their only option is to approach the local authorities providing for free and compulsory education."
11.Merley relying upon the guidelines issued by the State Government with reference to the admission of students to school by transfer and migration, that does not give any enforceable right on the part of the petitioner. In the absence of any vacancy being found and that the court is being amenable to writ jurisdiction, such contention raised by the petitioner including that the first respondent school had failed to provide reservation is an issue which need not gone into in this case as admittedly the petitioner had wanted admission to 9th, 8th and 5th standards. In the absence of the RCE Act being made applicable to the case of the petitioner, the question of entertaining the writ petition will not arise.
12. In the light of the above, the writ petition will stand dismissed. No costs.