State has a duty to permit private players to open schools

THE Karnataka High Court on April 12 held that the State has a public duty to permit private players to open schools to cater for many students.

As every child up to the age of 14 years is entitled to compulsory education under Article 21A of the Constitution, the single judge bench of Justice Krishna P. Bhat said that there is a corresponding duty on the State to ensure that enough schools are set up for this purpose.

"It is therefore a fundamental right of every child born in this country to have free and compulsory education upto the age of fourteen and therefore, a corresponding duty is enjoined upon the State through the respondents to ensure the creation of large number of schools for providing universal education to children upto the age of fourteen. This is a public duty commanded by the Constitution on the State and its subordinate officials. Due to lack of sufficient resources State itself is not in a position to open sufficient number of schools for universalising primary and secondary education. It is therefore necessary that private players should be permitted to open schools to cater to large number of students through out the State."

Further, the court also stressed on the need for a regulatory mechanism to be in place – to ensure that private players do not misuse such opportunities.

"It is further necessary that regulatory mechanism is put in place to ensure that the private players do not misuse such opportunities either by lowering the standard of education or by charging unreasonably high fees. It is also necessary to ensure that minimum reasonable infrastructural facilities in terms of classrooms, lavatories and bathrooms, libraries, playgrounds, teaching staffs and other auxiliary staff with proper service conditions are afforded by the private managements."

These pertinent observations came in response to a writ petition moved by the petitioner trust, We Care Charitable Trust, which wanted to open up classes for 9^th and 10^th grade students in its existing school. The grievance was that its application was not properly considered by the state government and other authorities (respondents).

The petitioner trust contended that it paid an application fee of one lakh rupees. The application was processed by the respondents in such a manner that the report of a Three Member Committee pointing out the deficiencies in the Institution was not made known to the petitioner. The petitioner contended that it was not given an opportunity to rectify the same and instead, the respondents proceeded with processing the application finally rejecting it.

During the pendency of the plea, the petitioner apprised the court that it had moved a fresh application to this effect. The government advocate, in response, stated that the authorities would consider the applications keeping in mind the law laid down and consequently pass appropriate orders.

The court, after going through rival contentions, pointed out that a large number of petitions have been alleging failure on the part of respondents to consider applications seeking approval for upgradation of schools.

The main contentions were that such applications were not disposed of in a time-bound manner, and that such applications were disposed of without giving proper and intelligible reasons.

On this issue, the court observed that the disposal of such applications in a time-bound manner is crucial as the applications are filed for a specific academic year. If the authorities take time till the academic year is over in their decision-making process, it would render the applications irrelevant or infructuous, the court pointed out.

"It is necessary for the respondents to bear in mind the fact that the applications are filed by paying considerably high amount of fees and if the applications are not considered by them and disposed of within a reasonable time, it will entail great hardship to the petitioner. It is also necessary for the respondents to keep in mind that they are bound to give reasons for granting or refusing to grant permission. The applicants like petitioner are entitled to know the reasons as to why a particular decision has been taken on the application either granting or refusing to grant permission…"

According to the court, assigning reasons for refusal of permission would help the petitioner to fulfil the deficiencies in their application so that when they make a fresh application, they can do so in a proper manner.

"Once the application is made by the managements, the respondents are required to make an inspection as per the Rules and give opportunity to the managements to rectify any defects found during such inspection and thereafter, the application should be finalised. In the entire process of consideration of the application respondents are required to act in a reasonable, just and fair manner."

With these observations, the court asked the authorities to consider the petitioner's application afresh. Its other directions include,

• The Three Member Committee, while making its visit for the purpose of inspection, will have to point out the deficiencies noted to the petitioner during the inspection in writing.
• The respondents, while examining the case of the petitioner for upgradation of the school, will have to inform the deficiencies noted on the basis of the report of the Committee or on their own notice.
• Reasons should be given by the respondents on the decision taken by them in either granting or refusing to grant permission for the petitioner's application.

Click here to view the Karnataka High Court's order.