(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) Mr.
N.J. Shah, learned Assistant Government Pleader appearing for the appellant has urged that the learned Single Judge has travelled beyond the scope of pleadings as well as prayer in the writ petition. The facts are not disputed that the respondent's Primary School is run for weaker section of the Society and the students are children of labourers, larries pullers, petty jobs labourers who are earning their livelihood on day to day basis. The students belong to socially and economically weaker section of the Society. The fundamental rights guaranteed to the children under Article 21A of the Constitution of India could not be violated by the State Government under the garb that the Government has insufficient funds. If it comes to the notice of the Court that there is flagrant violation of fundamental rights, the Court is empowered to take necessary remedial action.
2. By filing this appeal, the State Government is insisting that the aided Primary Schools where the children of economically and weaker section of the society are studying and who are the poorest class must pay fees and the State Government's financial condition is not such that it can pay 100% grant-in-aid to such private Schools.
3. Issue notice to the Chief Secretary, State of Gujarat, Principal Secretary, Education Department, Sachivalaya, Gandhinagar and Principal Secretary, Finance Department, Sachivalaya, Gandhinagar to file their personal affidavits by 7.5.2012 explaining as to what steps the State Government has taken for providing free and compulsory education to all children of State of Gujarat who are aged between 6 years to 14 years as provided under Article 21A of the Constitution of India and what law has been enacted by the State Government for complying with Article 21A shall be filed along with their affidavits. From the Letters Patent Appeal, it appears that the Government is relying on Government Resolution dated 2.9.1999 which was passed when Article 21A was not inserted in the Constitution of India. Article 21A of the Constitution of India was inserted by the Constitution (Eighty Sixth Amendment) Act, 2002 by the Parliament. Article 21A of the Constitution of India is extracted below :-
"Article 21A, as inserted by the Constitution (Eighty-six Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine."
4. The State Government shall also place on record as to what steps the State Government has taken to comply with the provisions of the Right to Children to free and compulsory Education Act, 2009 and whether the State Government has made any rule or passed any Government order or Government Resolution for enforcing the provisions of the aforesaid Act of 2009. The State Government shall also place on record that howmany children are there to whom education has to be imparted under Article 21A, howmany Government or Municipal Schools are available and their intake capacity be also mentioned. It shall also be explained why there is shortage of funds for giving free and compulsory education to children aged between 6 to 14 years and why 100% grant cannot be released to aided schools which are imparting education to students aged between 6 to 14 years and what other beneficial schemes for such children have been framed by the State Government why the fee is being enhanced by the State Government. All these details shall be placed on record in the affidavits to be filed by the aforesaid Officers.
5. In case the aforesaid affidavits as directed is not filed, then all the aforesaid Officers shall be present in the Court at 11.00 a.m. on 7.5.2012. List the appeal on 7.5.2012.
6. Office is directed to handover free copy of this order to Mr. N.J. Shah, learned Assistant Government Pleader appearing for the appellant for information and ensuring compliance of this order.
Sd/-
[V.
M. SAHAI, J.] Sd/-
[A.
J. DESAI, J.] Savariya Top