1. Heard learned counsel for the petitioner and Sri Rajesh Tiwari, learned Additional Chief Standing counsel appearing for the State-respondents.
2. By means of the present petition, the petitioners, two educational institutions, have prayed for the following reliefs:-
"Issue a writ, order or direction or in the nature of mandamus directing the respondents-state to forthwith calculate and declare the amount of per pupil expenditure being meted by them in their schools of category 2(n)(i) for the academic session 2017-18 onwards regularly and further direct the Respondents-State to also calculate and declare the per pupil expenditure as already incurred by them for academic session 2015-16, 2016-17, so that arrears of reimbursement amount for imparting educational instructions to the children under the RTE Act,2009 as allocated by the State Authorities in their institutions may be received by them.
Issue a writ, order or direction of or in the nature of mandamus directing the Respondents-State in any manner compelling the petitioners to admit the children as per allocations under RTE Act, 2009 as being made by the educational authorities, in case the respondents fail to comply with the Rule 8 (2) of the U.P. R.T.E Rules 2011 and fail to make a declaration of per pupil expenditure being incurred by them in their own schools during subsequent academic sessions.
Issue any other writ, order or direction as this Hon'ble Court may deem just and proper in the circumstances of the case.
Award costs in favour of the petitioner."
3. It is submitted by the petitioners that under the provisions of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "Act, 2009"), the State respondents are required to calculate and declare the amount of per child expenditure being meted by the educational institutions in the schools of category 2(n)(i). It is argued that both the petitioners institutions fall within the ambit of Section 12 (c) of the Act, 2009. In terms of Section 12 (2) of the Act, 2009, the school specified in Section 2 (n) (iv) which is providing free and compulsory elementary education as specified in sub Section (1) clause (c) shall be reimbursed expenditure so incurred by it to the extent of per-child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed.
4. So far as the prescription part is concerned, it is argued that the State Government has framed the Rules known as Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as "Rules, 2011") per which Rule 8 stipulates the admission of children and reimbursement of per child expenditure by the State Government. It is argued that as per Rule 8 (2) of Rules, 2011, the total annual recurring expenditure incurred by the State Government from its own fund and fund provided by the Central Government and by any other authority or regulatory education in respect of all schools established owned or controlled by all local authority divided by the total number of children in enrolled in all such schools as on 30th September shall be the per child expenditure incurred by the State Government which is reimbursable in terms of Section 12(2) of the Act, 2009. It is argued that in a total departure from the methodology indicated in Rule 8 (2) of the Rules, 2011, the State Government, vide Government order dated 20.06.2013, a copy of which is annexure 8 to the petition has arrived at a figure of Rs. 450/- to be reimbursed to such educational institutions. It is argued that once the specific provisions of Rule 8 (2) indicate the methodology to be adopted in arriving at per child expenditure yet the said Government order does not indicate as to whether such methodology has been adopted and as to how the said figure of Rs. 450/- has been arrived. It is also argued that various representations have been made to the respondents requiring to declare the details regarding the per child expenditure but to no avail. Consequently, by no stretch of imagination can the said figure of Rs. 450/- be considered as a valid figure of per child expenditure. It is argued that as the expenditure has not been declared by the State Government, consequently they could not have arrived at a figure of Rs. 450/- in an arbitrary and whimsical manner. Attention has also been invited of the Court to an exercise that has been done by the State of Tamil Nadu whereby the expenditure has been calculated strictly in accordance with the provisions of the Act, 2009 and as per the procedure prescribed, a copy of which has been filed as annexure 13 to the petition.
5. Thus, it is contended that once the procedure prescribed has not been followed by the State Government while issuing the said order, the said Government order dated 20.06.2013 prescribing the per child expenditure of Rs. 450/- to be reimbursed makes the said Government order run foul to the specific provisions of the Act, 2009 and the Rules, 2011. It is argued that as Government order dated 20.06.2013 has been issued without declaration of per people expenditure, as such, the State-respondents cannot be allowed to act in such in arbitrary manner as they are mandated to declare the per child expenditure incurred by the State in terms of the provisions of Section 12 (2) of the Act, 2009 read with Rule 8 (2) of the Rules, 2011. The same not having been done, a prayer for a mandamus has been made to calculate the per child/pupil expenditure and further, not to compel the petitioner to admit the children as the aforesaid declaration has not been made. No other ground(s) has been urged.
6. Per contra, Sri Rajesh Tiwari, learned Additional Chief Standing counsel while placing reliance on the averments contained in the counter affidavit has indicated that the State Government vide Government order dated 20.06.2013, a copy of which has already been filed as annexure 8 to the petition has strictly followed the provisions of Rule 8 (2) of the Rules, 2011 while declaring the amount of Rs. 450/- which is the amount which is to be reimbursed to such schools after determining the same to be the per child expenditure. It is also argued that there is no requirement under the rules regarding declaration as to how the said figure of Rs. 450/- has to be arrived at inasmuch as para 2 (kha) of the said Government order specifically indicates that the amount of Rs. 450/- has been arrived at by strictly following the provisions of rule 8 (2) of the Rules, 2011. It is also argued that in the absence of any specific challenge to the said Government order and the amount of Rs. 450/- as prescribed therein, it cannot be said that the State Government has acted in an arbitrary manner and accordingly there may not be any question of this Court issuing mandamus for the purpose of requiring the State Government to declare the per child expenditure more particularly when the Rules,2011 itself do not stipulate that the said methodology or calculation has to be disclosed while declaring the per child expenditure. So far as the methodology adopted by the State of Tamilnadu is concerned where the per child expenditure calculation details have been indicated, Sri Tiwari argues that the State of Uttar Pradesh has got its own rules namely the Rules, 2011 which do not stipulate for giving the calculation details while arriving at the amount of per-child expenditure while the rules as promulgated by the State of Tamilnadu have not been brought on record and, as such, in the absence thereto, no reply is possible. However, again it is contended that in the absence of any challenge to the said Government order, no such relief can be granted.
7. Replying to the aforesaid argument of Sri Tiwari, Sri Vaish contends that the notification issued by the State of Tamil Nadu has been issued by strictly following the provisions of the Act, 2009 and the rules have not been referred to and, as such, merely because the petitioner has not annexed the rules as applicable in the State of Tamil Nadu cannot vitiate the issuance of the said order by the State of Tamil Nadu.
8. Heard the learned counsels for the contesting parties and perused the record.
9. It is an admitted fact that the State Government has issued the Government order dated 20.06.2013, a copy of which is annexure 8 to the petition whereby it has been indicated in paragraph 2 (kha) that by following the provision of Rule 8 (2) of the Rules, 2011, the amount of per child expenditure has been arrived at which has been fixed at Rs. 450/- per student. The controversy resolves around Section 12 (2) of the Act, 2009 read with Rule 8 (2) of the Rules, 2011 so far as 'per child expenditure' is concerned. For the sake of convenience, Section 12 of the Act, 2009 is reproduced as under:-
"12 Extent of school's responsibility for free and compulsory education. --
(1) For the purposes of this Act, a school,--
(a) specified in sub-clause (i) of Clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of Clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent;
(c) specified in sub-clauses (iii) and (iv) of Clause (n) of Section 2 shall admit in class I, to the extent of at least twenty-five per cent. of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in Clause (n) of Section 2 imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of Clause (n) of Section 2 providing free and compulsory elementary education as specified in Clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed: Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of Clause (n) of Section 2: Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be."
10. Likewise, Rule 8 of the Rules, 2011 is reproduced as under:-
"8. Admission of children and reimbursement of per child expenditure by the State Government [Sections 12(l)(b) and (c) and 12(2). - (1) The process of admission of children referred to in Clauses (b) and (c) of Section 12(1) shall be totally transparent. The detail of such children applying for admission shall be maintained by the school regularly, which shall include the name, address, sex, caste, date of birth of the child and the name, address, occupation and monthly income of father/ mother/ guardian, detail of whether child belongs to weaker section or disadvantaged group. Such information shall be made public through website. Out of the total applicants, all the children who applied for admission, but not admitted for whatsoever reason, shall he informed in writing with the reason thereof. It shall also be binding for the school to follow the process of admission prescribed by the State Government from time to time.
(2) The total annual recurring expenditure incurred by the State Government, from its own funds, and funds provided by the Central Government and by any other authority on elementary education in respect of all schools established, owned or controlled by it or by the local authority, divided by the total number of children enrolled in all such schools as on 30th September, shall be the per child expenditure incurred by the State Government.
Explanation-For the purpose of determining the per child expenditure, the expenditure incurred by the State Government or local authority on schools referred to in sub-clause (ii) of Clause (n) of Section 2 and the children enrolled in such schools shall not be included. (3) Every school referred to in sub-clause (iv) of Clause (n) of Section 2 shall maintain a separate bank account in respect of the amount received by it as reimbursement under sub-section (2) of Section 12.
(4) Every school referred to in sub-rule (3) seeking reimbursement, shall provide the list of children, with their unique identity number and details of item wise expenditure incurred by the school with all requisite details along with evidence on the form, prescribed by the Director of Education (Basic) by 31st October of every year:
Provided that where such schools are already under obligation to provide free education to a specified number of children on account of it having received any land, building equipment or other facilities either free of cost or at a concessional rate, such schools shall not be entitled for reimbursement to the extent of such obligation.
(5) The Zila Shiksha Adhikari after necessary verification will transfer the amount of reimbursement due in the account referred to in sub-rule (3) and shall make the information public through website.
(6) If at any stage, the school is found having sought and received reimbursement on the basis of concealment of facts or wrong claim, it will have to deposit twice the amount so received, in the Government exchequer with action for withdrawal of recognition of the school and proceeding under the relevant sections of Indian Penal Code, and the amount shall be recoverable by the Collector as arrears of land revenue."
11. A perusal of Section 12 (2) of the Act, 2009 indicates that the school specified in Sub Clause (4) of Clause (n) of Section 2 providing free and compulsory elementary education shall be reimbursed expenditure so incurred by it to the extent of per child expenditure incurred by the State or the actual amount charged from the child, whichever is less. The methodology for calculation of per child expenditure has been indicated in Rule 8 of Rules, 2011which provides that the total annual recurring expenditure incurred by the State Government from its own funds and funds provided by the Central Government any by any other authority on elementary education in respect of all schools established, owned or controlled by it or by the local authority, divided by the total number of children enrolled in all such schools as on 30th September shall be the per child expenditure incurred by the State Government. However, the expenditure incurred by the State Government or local authority on schools referred to in sub clause (ii) of Clause (n) of Section 2 and the children enrolled in such schools shall not be included. In pursuance thereof, the State Government issued a Government order dated 20.06.2013 which indicates the per child expenditure being fixed at Rs. 450/- per student.
12. Merely because in the said Government order, a detailed calculation has not been indicated as to how the said figure of Rs. 450/- fixed as per child expenditure has been arrived at, in the opinion of the Court, would not vitiate the said Government order so far as the amount of Rs. 450/- per student has been fixed inasmuch as neither the Act, 2009 nor the Rules, 2011 stipulate that the calculation or methodology of arriving at the figure of per child expenditure has to be indicated along with the figure of per child expenditure. Further, in the absence of any challenge having been raised to the said Government order or the said figure of Rs. 450/- as fixed and the said Government order still continuing to hold field, no mandamus can be issued by the Court, as has been prayed for by the educational institutions, requiring the State Government to calculate and declare the per people expenditure more particularly when the declaration of Rs. 450/- has itself not been challenged.
13. As regards, the declaration done of per child expenditure by State of Tamil Nadu, suffice it to state that once the Court does not find any requirement of the detailed calculation to be disclosed while arriving at a specific figure either under the Rules, 2011 or Act, 2009, consequently merely because such detailed calculation has been disclosed by the State of Tamilnadu cannot be a ground to compel the State of U.P to disclose the said detailed calculation.
14. Accordingly, keeping in view the aforesaid discussion, no case for interference is made out. The writ petition is misconceived and is dismissed.
15. However, dismissal of the writ petition would not preclude the petitioners from raising a challenge to the Government order dated 20.06.2013 before the appropriate Court in appropriate proceedings, subject to legal pleas.
Order Date :- 27.2.2019 Pachhere/-