BARRING THE STUDENT FROM APPEARING BOARD EXAM DUE TO NON-PAYMENT OF FEES IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION
| Case No | W.P.(C) 584/2023 with CM APPLs. 2281/2023, 2282/202 |
|---|---|
| Jurisdiction | Delhi High Court |
| Case decided on | 17th January 2023 |
| Judge | Hon’ble Ms Justice MINI PUSHKARNA |
| Petitioner | Prabhanoor Singh Virdi through his father Karamjeet Singh Virdi |
| Respondent | The Indian School and The Directorate of Education |
| Legal Provisions | Article 19(1)(g), Article 21, Article 21A of the Constitution of India. Rule 35 of the DSER, 1973. |
FACTS OF THE CASE:
The present case was filed by Prabhnoor Singh Virdi (minor son) through his father Karamjeet Singh Virdi against the school(respondent no.1) in which he is studying and the Director of Education(respondent no.2) to address his grievance that his name has been strike off from the roll call although he is a 10th student.
Since the academic year 2011–2012, the petitioner Prabhnoor Singh Virdi is attending respondent no. 1 school. The petitioner paid school fees in a time-bound manner for all these years until January 2021, when COVID-19 went into effect. The petitioner’s father could not timely make the payments during the pandemic lockdown because of the financial damages he suffered from COVID-19.
On August 29th, 2022, the first respondent sent a letter regarding the Petitioner’s outstanding dues. The letter also recommended that the Petitioner’s name be removed from the student roll at the first respondent’s school. On August 30th, 2022, the first respondent’s school sent an email with the same information. Since the Petitioner’s father was unable to pay the dues, he approached the Directorate of Education (second respondent) on September 5th, 2022, to request that the first respondent’s school not remove the Petitioner’s name from the school’s roll and allow the Petitioner to attend classes.
On 07.09.2022, the first respondent’s school sent a letter to inform the petitioner that their name had been removed from the school’s rolls. In response, the petitioner’s father reached out to the second respondent, the Directorate of Education, for assistance. The second respondent then issued a letter on 12.09.2022 to the first respondent’s school, requesting that the school reinstate all students whose names had been removed due to delayed or non-payment of fees. Additionally, the school was asked to permit these students to continue their studies and take examinations at the school.
The petitioner’s father filed a complaint with the Delhi Commission for Protection of Child Rights (DCPCR). The DCPCR responded by issuing an order on September 13th, 2022, which stated that the school must allow all students to take the ongoing half-yearly exams and cannot bar them from doing so. The commission is still conducting an inquiry into the matter.
The petitioner was allowed by the respondent no.1 school to take part in the half-yearly exam, as well as attend the classes.
Respondent no.1 informed the petitioner via email on November 19th, 2022 that the school had removed the petitioner’s name from the roll call. The petitioner’s father made several requests to school authorities, asking them to allow the petitioner to attend classes, but respondent no.1 refused to permit the petitioner to attend classes. As a result, the petitioner was not able to take the board examination that was scheduled to begin the following day, January 18th, 2023, which was the practical board exam for Class 10th.
The person who filed the case requested the court to instruct the first respondent school to put the person back on their list of students and permit their child to participate in the upcoming Class 10 CBSE Board exams.
ISSUES RAISED:
1) Whether barring students from appearing on board exams is a violation of Article 21 of the constitution?
2) Whether the rule 35 of the Delhi School Education Rules(DSER), 1973 which gives power to the head of the school to remove names of the students from roll call a violation of the constitution?
3) Whether the court is need to balance the child’s rights and rights and powers of the authorities?
CONTENTIONS:
Arguments from Petitioner’s side:
The petitioner argued that the petitioner’s father had paid all the dues of the school from the academic year 2012 -2013 till 2021 on time. Due to the COVID-19 pandemic, he faced financial losses which led to the non-payment of due of his son’s school fees. And he assured me that he would pay the amount.
The individual who initiated the legal proceeding urged the court to direct the primary party, i.e., the school, to reinstate the individual’s name on the student roster and grant permission for their offspring to take part in the forthcoming Class 10 CBSE Board examinations.
Soon he filed a complaint in the Delhi Commission for the protection of child rights(DCPCR) and in favor of the order passed the petitioner was allowed to write half yearly exam.
The petitioner is studying 10th and preparing for the board exams and the academic year was on to end. If now the school doesn’t allow him to write the exam he will lose a year.
Barring the petitioner from appearing before the exam is violation of the fundamental rights guaranteed under the constitution as this may result in affecting the future of the petitioner.
Arguments from Respondent’s side:
Ms Menak Nakra, who represented the Directorate of Education as respondent no.2, stated that the DOE supported the petitioner and wrote a letter on 12.09.2022 upon the request of the petitioner’s father, directing the respondent no.1 school to allow all the students whose names have been struck off to attend classes and take examinations.
Mr Pramod Gupta, the respondent No. 1 school’s representative, contended that the petitioner has significant dues to pay, not only by the petitioner but also by his sister, who graduated in the last academic year, 2021-2022. The total amount due is Rs.3,14,000, which is a considerable sum and could fund the monthly salary of at least four teachers.
He added that the school is a private unaided school, and it would not be possible to provide education if the students are not regular in paying their fees.
He further submitted that respondent no.1 filed a suit against the order of DCPCR, and it is still pending in this court – The Indian School vs Delhi Commission for Protection of Child Rights and ors.
The respondent no.1 counsel also mentioned that the name of the student struck off was exercised under Rule 35 of the Delhi School Education Rules, 1973 (DSER), which states that the head of the school has the right to strike off the names of students on account of non-payment of fees and other dues.
He submitted that Rule 35 of the DSER, 1973 does not affect the right to education and referred to the order given by the division bench of the court in W.P.(c)No.8466/2022, stating that students can take admission in government schools if they cannot afford to pay the fees.
Furthermore, the counsel relied on the order in W.P.(c) No.3330/2022 and W.P.(C) 3858/2022 passed by the coordinate benches of the court, directing the parents of the petitioner to pay the dues either by monthly installment or by lump sum.
RATIONALE OF THE CASE:
Hon’ble Ms Justice Mini Pushkarna in the judgement held that not allowing the students to appear on board examinations is violation of fundamental rights which is guaranteed under the Article 21 of the constitution which emphasises the right to life. Not allowing the students to take the exam will waste a year for them.
By citing the supreme court case, T.M.A. Pai Foundation vs. the state of Karnataka, 2002 SCC online SC 1036 which regards education as an activity which is charitable in nature and it will come under the purview of occupation given under article 19(1)(g) of the constitution
She expressed that the basis of a child’s future and society’s future as a whole is education. Consequently, denying a student the right to take an exam, particularly board examinations, would be a violation of the child’s rights, similar to the right to life, which is guaranteed under Article 21 of the Constitution of India.
She further cited the case of the Supreme Court in Bandhua Mukti Morcha Vs. union of India and Ors., (1984)3 SCC 161 which stated that educational facilities are a minimum requirement for a person to live with human dignity.
Hon’ble Justice Mini Pushkarna stated that “a child’s future cannot be spoiled by barring him from appearing in board examinations which is very crucial for his future”.
She further added that a school Cannot be forced to continue with a child who is unable to pay fees as they are a private unaided school and they fund themselves without funding they can’t fund.
So, as mentioned in the case of Master Divyam Bhateja through father Mr Vinod Bhateja vs. Bhai paramanand Vidya mandir and anr which validates the constitutionality of rule 35 of DSER 1973, if the parents can’t afford to pay the fee they can go for government schools.
She contended that at this crucial time, we can’t force the child to waste a year so Hon’ble Justice held that respondent no.1 should allow the petitioner to appear for the board exams and allow the petitioner to take classes.
And there is a need to balance the equities, hon’ble justice directed the petitioner to pay the amount of Rs.30,000 to the school within four weeks.
DEFECTS OF LAW:
1) There is still ambiguity between the right to life of the children and the rights, powers and authorities of the private schools.
2) There was a chance to misuse the powers which is given to the private schools.
3) Changing the school of the child is not the only solution if the parents suffer any financial loss and can’t pay the fee as today’s world is unforeseeable but they can revive from the losses. They should be given time to retrieve.
4) The private schools didn’t adhere to the order given by the Directorate of Education
5) To run a school there is a definite need for financial resources but financial resources should not be the only concern of the schools.
6) Education is charitable in nature, and it not should be treated as a business.
7) The schools should give humane treatment to the students and should be concerned about their future, not the business.
INFERENCE:
The landmark Judgement recognises that Student’s welfare and future should be put first. This case recognises that barring the student from appearing exam for non-payment of fees which will disrupt the future of the child as education is fundamental in shaping a child’s future is violation of fundamental rights under the constitution.
And further, the court also contended that rule 35 is not a violation of the constitution it only gives powers to the head to remove students from roll call for non-payment of fees as the private schools are fully funded by themselves and they need financial resources to run the school and no court can rule in it.
The main objective of the case is to bring a balance between the child’s rights and the private school’s rights and authorities and it was being distinguished.
Written and submitted byMonisha S, 3rd year Ba.llb(Hons), Tamilnadu Dr Ambedkar Law University, Chennai