IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION NO.13884 OF 2018 (EDN - RES) BETWEEN:
SHRI SHRI RAVISHANKAR VIDYAMANDIR TRUST, 3RD FLOOR, SHRI SHRI COLLEGE OF AYURVEDIC SCIENCE & RESEARCH, 21ST K.M.KANAKAPURA ROAD, UDAYAPURA POST, BENGALURU – 560 082.
REPRESENTED BY ITS ADMINISTRATOR AND POWER OF ATTORNEY HOLDER, SRI.A.RAVI PRAKASH, AGED 55 YEARS, S/O LATE ANANTHANARAYANA SHARMA, RESIDING AT NO.54, “SHREYAS”, 20TH CROSS, 3RD BLOCK, 4TH STAGE, BASAVESHWARANAGAR, BENGALURU – 560 079.
…PETITIONER (BY SRI.NITYANANDA V NAIK, ADV.,) AND:
1. THE SECRETARY, DEPARTMENT OF SCHOOL EDUCATION OF LITERACY, SHASTRI BHAVAN, NEW DELHI – 110 001.
2. THE CHIEF SECRETARY TO THE GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
3. THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF EDUCATION, M.S.BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
4. THE COMMISSIONER, DEPARTMENT OF PUBLIC INSTRUCTIONS, NRUPATHUNGA ROAD, BENGALURU – 560 001.
5. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS AND REGISTERING AUTHORITY, DEPARTMENT OF PUBLIC INSTRUCTIONS, BENGALURU NORTH DISTRICT, BENGALURU – 560 002.
6. BLOCK EDUCATION OFFICER, DEPARTMENT OF PUBLIC INSTRUCTION, BENGALURU NORTH ZONE – 4, BENGALURU – 560 064.
...RESPONDENTS (BY SRI.S.RAJASHEKAR, ADV., FOR R1) (NOTICE NOT ORDERED IN R/O R2 – R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO READ DOWN PART OF THE PROVISO TO SEC.12(1)(c) “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” AS ULTRA VIRUS THE CONSTITUTION AND CONTRARY TO ARTICLE 21(A), 19(1)(g) OF THE CONSTITUTION AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the Government Order dated 06.03.2017 issued by respondent No.2 vide Annexure-C restricting and allotting 25% of RTE seats for LKG students, interalia seeking for reading down part of the proviso to Section 12(1)(c) as ultra-vires of the Constitution being contrary to Articles 21(A) and 19(1)(g) of the Constitution and for other consequential reliefs.
2. The petitioner is claiming to be a Trust registered under the Indian Trust Act, 1882 with an objective to promote and provide for physical, social, recreational, cultural, spiritual activities for the well being of the members. It is contended that the petitioner - Trust is presently running more than 32 schools across the County, imparting education free primary and elementary education.
3. It is the contention of the petitioner that Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009 (‘Act’ for short) is not applicable to the petitioner’s Trust, wherein free education is given. It is the grievance of the petitioner that (1) the respondents authorities are arbitrarily allotting seats under RTE Act at two entry levels without considering the students strength in Class-I and LKG. Hence, the Government Order dated 06.03.2017 issued by respondent No.2 is challenged on the ground that the same is not applicable to the petitioner’s Trust and (2) the same is contrary to Article 21(A) of the Constitution. The proviso to Section 12(1)(c) of the Act is challenged mainly on the ground that the same is contrary to Article 21(A) of the Constitution of India. The Constitution specifically considers the age of the children of 6 to 14 years, whereas, the proviso to Section 12(1)(c) provides for the age of the children below six years. It is submitted that the State Government cannot impose the restrictions on the petitioner’s right guaranteed under Article 21A of the Constitution while running classes of LKG and UKG to the children below the age of six years.
4. The learned counsel placed reliance on the judgment of the Hon’ble Apex Court in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur reported in 1989 (1) SCC 101 as well as in AIR 2008 SC 863 (Government of Karnataka and Others Vs. Gowramma and Others) decided on December 14, 2007.
5. Referring to the judgment of the Hon’ble Apex Court in the case of Society for Unaided Private Schools of Rajasthan Vs. Union of India and another reported in (2012) 6 SCC 1, it was argued that there was no occasion for the Hon’ble Apex Court to address on the issue of the Constitutional validity of the proviso to Section 12(1) (c) of the Act on the touch stone of Article 21(A) of the Constitution. That being the position, the relief sought in the writ petition requires to be considered by this Court on merits.
6. The learned counsel appearing for respondent No.1 – Union of India would submit that the issues involved in this writ petition is no more res- integra in view of the judgment of the Hon’ble Apex Court in the case of Society for Unaided Private Schools of Rajasthan (supra), as well as in Soujanya Patel Trust and Ors. Vs. State of Karnataka and Ors. in WP No.14241/2017 and allied matters decided on 17.04.2017. Reliance is also placed on the judgment of the Hon’ble Apex Court in the case of Delhi Cloth and General Mills Ltd. Vs. Shambhu Nath Mukerji and Others reported in (1997) 4 SCC 415.
7. I have carefully considered the rival contention of the parties and perused the material on record.
8. The vires of the proviso to Section 12(1)(c) of the Act has been primarily challenged on the ground that the same is contrary to Article 21(A) of the Constitution which contemplates free education to the children of 6 to 14 years. It is argued that the guidelines issued by the State Government pursuant to the said proviso to Section 12(1)(c) is vitiated being contrary to Article 21(A). It is not in dispute that the Constitutional validity of the Act, 2009 which was enacted following the insertion of Article 21(A) (86th amendment) Act, 2002 was the subject matter of Society for Unaided Private Schools of Rajasthan case (supra) wherein Section 12(1)(c) has been extensively considered by the Hon’ble Apex Court vis-a-vis Article 21(A) of the Constitution. In Part-VI conclusions, at Paragraph 311, the provision of Section 12(1)(c) is read down so far as unaided non-minority and minority educational institutions are concerned, holding that it can be given effect to only on the principles of volunteers, autonomy and consensus and not on compulsion or threat of non- recognition or non-affiliation. It is further held that no distinction or difference can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act.
9. In such circumstances, it would not be permissible to raise a new ground that proviso to Section 12(1) (c) of the Act is contrary to Article 21(A) of the Constitution. The Hon’ble Apex Court having considered the provisions of Section 12(1)(c) in its entirety has decided the vires of the Act. No new ground could be raised to reconsider the issue already decided.
10. As regards the guidelines issued by the State Government, it is not in dispute that the issue is squarely covered by the order of this Court in the case of Soujanya Patel Trust (supra).
11. In the case of Government of Karnataka and others, (supra) the Hon’ble Apex Court was dealing with the order of the Court in brushing aside the stand of the State and its functionaries, in the absence of any challenge to the conditions stipulated in the permission, referring to some judgments granted the relief by accepting the plaintiff’s stand. In such circumstances, paras 15-18 of Union of India Vs.Amritlal Manchanda and Ors., (2004) 3 SCC 75 are quoted, the same reads as under:
“15. ….. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (ACCUSED NO. at p.761) Lord MacDermott observed: (All ER p.14C-D) ‘The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge….’ 16. In Home Office v. Dorset Yacht Co. Lord Reid said (at All ER p.297g-h), ‘Lord Atkin’s speech… is not to be treated as if it were a statutory definition. It will require qualification in new circumstances’, Megarry, J. in Shepherd Homes Ltd. V. Sandham (No.2) observed: (All ER p.1274d-e) ‘One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.’ And, in Herrington v. British Railways Board Lord Morris said: (All ER p.761c) ‘There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.’ 17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
18. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR p.688, para 19) ‘19. … Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail ma alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.’ ‘Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.’”
12. In Delhi Cloth and General Mills Ltd., (supra), the Hon’ble Apex Court has held thus;
11. It is submitted by Mr.Dial tat in that decision this Court was only required to consider the objection raised on the score of Article 14 on a ground which is different from the one he would like to take before us. We are, however, unable to accept this submission. If this Court held Section 10 as intra vires and repelled the objection under Article 14 of the Constitution it would not be permissible to raise the question again by submitting that a new ground could be raised to sustain the objection. It is certainly easy to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court holding that Section 10 of the Act does not violate Article 14 of the Constitution. The ratio decidendi of Niemla Textile Finishing Mills (supra) will apply while dealing with the objection under Article 14 of the Constitution in respect of the present reference under Section 10(1)(C) of the Act.
The submission of the learned Counsel is, therefore, devoid of substance.”
13. The judgments referred to, by the learned counsel for the petitioner inasmuch as the applicability of the precedents would not be of any assistance to the petitioner, more particularly, the matter which requires consideration by this Court is on the legal principle laid down by the Hon’ble Apex Court and not on the facts which may differ from case to case. Indeed, Delhi Cloth and General Mills Ltd., (supra) is applicable to the facts of the present case.
For the aforegoing reasons, the writ petition being devoid of merit stands dismissed.
No order as to costs.
Sd/- JUDGE GH