Orissa High Court
State Of Odisha vs School Managing Committee Of … on 29 October, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.417 of 2021
1. State of Odisha, represented through its Commissioner-cum-
Secretary, School and Mass Education Department, At: Secretariat
Building, Bhubaneswar, Dist: Khordha.
2. State Project Director, OSEPA, Odisha, Bhubaneswar, At/P.O.
Bhubaneswar, Dist.-Khordha.
3. Director, Elementary Education, Odisha, At: Heads of the
Department Building, Bhubaneswar, Dist: Khordha.
4. District Education Officer, Bolangir, At/P.O./Dist: Bolangir.
5. District Project Coordinator, Bolangir, At/P.O./Dist: Bolangir
6. Block Education Officer, Agalpur (Duduka), At/P.O.:
Agalpur, Dist: Bolangir
...Appellants
-Versus-
1. School Managing Committee of Amaramunda Government
Primary School, At: Amaramunda under Agalpur Block, in the
District of Bolangir. represented through its Chairman, Chudamani
W.A No.417 of 2021 Page 1 of 70
Pradhan, son of late Dhananjaya Pradhan, At:Amaramunda, P.O.:
Pandesara, Dist: Bolangir.
2. Managing Committee of Amaramunda Government
Primary School, Amaramunda under Agalpur Block, in the District
of Bolangir, represented through its Chairman, Chudamani Pradhan,
son of late Dhananjaya Pradhan, At: Amaramunda, P.O.:Pandesara,
Dist: Bolangir.
...Respondents
Advocates appeared in the case:
For the Appellants : Mr. Ashok Kumar Parija, Advocate
General assisted by Mr. T. K. Pattnaik,
Additional Standing Counsel for State of
Odisha
For Respondents : Mr. Amiya Kumar Mohanty (A) and Mr.
K.K. Swain, Advocates
For Intervenors : Mr. Gautam Misra, Senior Advocate and
Mr. A.K. Pandey, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
29.10.2024
Chakradhari Sharan Singh, CJ.
1. A learned Single Judge of this Court, by a common judgment
and order dated 04.05.2021 passed in W.P.(C) No.27401 of 2020
W.A No.417 of 2021 Page 2 of 70
(School Managing Committee of Amaramunda Government Primary
School, Amaramunda v. State of Odisha and others) and six other
writ applications has held the policy of rationalization and
consolidation of schools framed by the School and Mass Education
Department, Government of Odisha, dated 14.05.2018, the
consequential Notification No.5465(SME), dated 11.03.2020, and the
implementation guidelines issued vide Office Memorandum
No.5538/SME., dated 11.03.2020, concerning the said policy of
rationalization and consolidation of schools as illegal. The Learned
Single Judge has accordingly quashed the said Notification
No.5465/SME., dated 11.03.2020, the Office Memorandum
No.5538/SME., dated 11.03.2020 and a subsequent corrigendum issued
on 14.12.2020, with a direction to the State of Odisha and its officials
to restore back the position of the schools to the stage where they were,
prior to the implementation of the policy of rationalization. Learned
Single Judge has treated the case of School Managing Committee of
Amaramunda Government Primary School, Amaramunda (in short
SME Amaramunda) as the lead case; the facts asserted in the said writ
application are manifestly the basis for the conclusion arrived at by
W.A No.417 of 2021 Page 3 of 70
learned Single Judge, while addressing the statutory provisions under
the Right of Children to Free and Compulsory Education Act, 2009 (in
short RTE Act) and the Odisha Right of Children to Free and
Compulsory Education Rules, 2010 (in short ORTE Rules).
2. The said common judgment and order passed by the learned
Single Judge in W.P.(C) No.27401 of 2020 is under challenge in the
present intra-Court appeal preferred by the State of Odisha.
3. It is noted that the impugned common judgment and order of
learned Single Judge was stayed by an order dated 20.07.2021 passed
by a Co-ordinate Bench of this Court, which interim order is
continuing.
4. We have heard Mr. Ashok Kumar Parija, learned Advocate
General assisted by Mr. T. K. Pattnaik, learned Additional Standing
Counsel appearing on behalf of the appellants-State of Odisha, Mr.
Amiya Kumar Mohanty (A) and Mr. K.K. Swain, learned counsel for
the respondents and Mr. Gautam Mishra, learned Senior counsel and
Mr. A.K. Pandey, learned counsel appearing on behalf of the
intervenors.
W.A No.417 of 2021 Page 4 of 70
5. Based on the submissions advanced on behalf of the parties in
the factual backdrop of the case, following three legal questions of
seminal significance have emerged to address the challenge put to the
impugned judgment of the learned Single Judge: –
(i) Whether any provision under the policy of the State Government
of Odisha of rationalization and consolidation of schools as contained
in Notification No.5465 (SME) dated 11.03.2020 and the Office
Memorandum No.5538/SME dated 11.03.2020 can be termed as–
(a) violative of Article 21A of the Constitution of India,
(b) any provision of the Right of the Children to Free and
Compulsory Education Act, 2009 or,
(c) Odisha Right of Children to Free and Compulsory
Education Rules, 2010?
(ii) Clause 24 of the Office Memorandum containing
implementation guidelines prescribes for post-consolidation grievances
to be taken up by a Grievance Redressal Cell in the District office and
then to the State Grievance Cell and OSEPA. In that background,
W.A No.417 of 2021 Page 5 of 70
whether the maxim nemo judex in re sua, i.e., no man can be a judge inhis own cause applies, on the ground that the grievance cell is chaired
by the District Collector which is to be referred to the State Grievance
Cell and the OSEPA?
(iii) Whether the aforesaid rationalization policy can be held to be
illegal on the ground that there is no such stipulation under the RTE
Act or the ORTE Rules?
(iv) Whether the opinion recorded by the learned Single Judge that
there is no provision under the RTE Act or the rules for
merger/consolidation of primary/upper primary schools with the high
schools is legally sustainable?
6. It would be apposite to notice briefly at the threshold, the
reasons recorded by the learned Single Judge for quashing
rationalization of schools policy of the State Government issued vide
Notification No.5465 dated 11.03.2020 and the Office Memorandum
No.5538 dated 11.03.2020, unconstitutional and illegal. Reasons for
quashing which can be summarized as under: –
W.A No.417 of 2021 Page 6 of 70
(i) The RTE Act and the RTE Rules do not permit the State
Government to merge or consolidate schools;
(ii) The RTE Act and the RTE Rules do not allow merger of
schools on the roll strength of its students;
(iii) Nowhere in the RTE Act and the Rules there is a
provision for merger of primary/upper primary schools with
high schools;
(iv) The State Government’s policy of merger that
consolidates primary/upper primary schools with high
schools is contrary to the RTE Act and the Rules, since Rule
2(F) of the Act defines elementary education from Class-I to
VIII only and the RTE Act and the Rules do not make
provisions for merger of primary/upper primary schools with
high schools;
(v) The merger of schools is contrary to the schedule in the
RTE Act which mandates that the schools with Class-I to V
and with students up to roll strength of 60 must have at least
two teachers;
(vi) The Grievance Redressal Cell provided in the
implementation of guidelines is an empty formality and
violates principles of natural justice which as no one can be
judge in his own cause and the Government officials are part
of the Grievance Redressal Cell;
W.A No.417 of 2021 Page 7 of 70
(vii) The merger in W.P.(C) No.27401 of 2020 violates the
distance norms as it merged Amaramunda Government
Primary School into Laxmanpali Project UP School, based
on the information received from the Google Maps;
(viii) The merger policy of the State Government is
manifestly arbitrary, unconstitutional and de hors the
provisions of the RTE Act and the RTE Rules.
7. Mr. Ashok Kumar Parija, learned Advocate General, assailing
the impugned judgment, has submitted that neither the RTE Act nor the
Rules prohibit merger of schools. He contends that the merger of
school policy is devised at the level of Central Government by domain
experts, based on empirical analysis and it furthers the objectives of a
nation-wide reform to improve quality education. He has referred to
the draft guidelines for rationalization of small schools across the
States for better efficiency, issued by the Government of India through
letter dated 07.07.2017 addressed to all the Secretaries of School
Education, Sarva Sikshya Abhiyan of the States and Union Territories
which was a pre-cursor for finalization of the guidelines. The
Government of India has noted in paragraph 5.2.3 of the said document
that running a school with only 15 or 30 students was, in the opinion of
W.A No.417 of 2021 Page 8 of 70
the Central Government, was more challenging than running one with
60 or more students.
8. The access to school has been re-conceptualized under the RTE
Act as it has brought a wider and more functional dimension to it and
recognizes need for a more functional understanding of ―access‖ and
goes beyond ―mere physical access to schools‖. Mr. Parija has
submitted that consolidation and rationalization of schools was one of
the steps recommended by NITI Aayog to improve the quality of
education. He has argued that the draft guidelines dated 07.07.2017
acknowledge existence of ―surplus schools‖ and ―low enrolment
schools‖ adversely affecting the provisions of resources, teaching and
learning processes, retention of children in schools and learning
outcomes. Many localities or the villages have two or more
Government schools without feasible enrollment. The consolidation of
schools improves teacher-pupil ratio in larger schools and
consolidation of small schools will improve the factors, like ― to
promote access to quality education‖ and that shall be in the ―best
interest‖ of the child. Low enrolment schools also have shortage of
W.A No.417 of 2021 Page 9 of 70
teachers in classrooms and multi-grade teachers that leads to low
involvement in community. The draft guidelines further make it clear
that the process of rationalization of small schools will adhere to the
neighbourhood norms as defined in the RTE Rules of the States/ Union
Territories, he contends It was in that background that the State of
Odisha has formulated its policy for rationalization of schools taking
into account the concerns expressed in the draft guidelines dated
07.07.2017. He has also argued that the policy of the merger and
rationalization offers made by the State of Odisha was hugely
appreciated by NITI Aayog through its communication dated
19.11.2018. On 25.02.2019, the State Government notified
transport/escort facilities for children of elementary schools in exercise
of its power under Rule 6(4) of the RTE Rules to mitigate difficulties
arising out of merger of the schools. Further, for children travelling
beyond 1 km to attend primary school and beyond 3 kms to attend
upper primary school, a transport/escort allowance has been provided
by the State Government of up to Rs.6,000/- per annum. Later,
superseding the 2018 policy, the State Government notified its second
policy titled ―Rationalization and Consolidation of Schools‖ on
11.03.2020 (the 2020 Policy).
W.A No.417 of 2021 Page 10 of 70
9. Mr. Parija further argues that the 2020 Policy has stipulated a
clear policy that the Government Primary/Upper Primary/Secondary
Schools with low enrollment and having another elementary/secondary
school within reasonable distance are to be consolidated with nearby
schools with better enrollment and/or better infrastructure. Further,
during consolidation, RTE distance norms for access to Primary/ Upper
Primary schools is required to be followed. Alternatively,
transport/escort allowance as per RTE norms was to be provided.
There is provision for ―one-time facilitation allowance‖ for any child
who moves from the satellite school to the lead school. The 2020
policy contemplates exemption from merger in case of Geographical/
natural barriers, limited to rivers without bridges, mountains, forests,
national Highway without subways or over bridge, where access and
safety is a challenge. In such cases, the Government may decide to
relax the norm on a case-to-case basis.
10. Mr. Parija further contends that nothing in the 2020 policy
violates neighbourhood norms under Rule 6(1) read with 6(4) of the
RTE Rules. The State Government notified the ‗implementation
W.A No.417 of 2021 Page 11 of 70
guidelines for the policy of rationalization and consolidation of
schools’ while Memorandum No.5538 dated 11.03.2020 to set out the
modalities of consolidation process (the implementation guidelines).
The said implementation guidelines dated 11.03.2020 stipulates two
types of mergers, namely, schools having less than 20 students in Non-
Scheduled areas and Scheduled areas; and primary schools having
enrollment less than 40 in Non-Scheduled areas and less than 25 in
Scheduled areas. He has argued that under the policy, two-step
Grievance Redressal Mechanism for any grievance against
consolidation process has been put in place. First step is the Grievance
Redressal Cell in the district office and the second is the State
Grievance Cell and the Odisha School Education Programme Authority
(OSEPA). He has argued that as a matter of fact, the State Government
has been responsive to the grievances against mergers of schools, in
appropriate cases. The persons aggrieved by merger of schools have
approached the State Government on a case-to-case basis, and based on
such grievance the State Government has already de-merged 43
numbers of merged schools.
W.A No.417 of 2021 Page 12 of 70
11. Mr. Parija, learned Advocate General has submitted that in case
of Rajneesh Kumar Pandey v. Union of India; (2021) 17 SCC 1,
referring to children with special needs (CwSN), it has been observed
that possibility of merging unviable special schools with relatively
viable special schools in the neighbourhood should be explored so as to
entail in consolidation of assets and resources for better delivery to the
requirements of CwSN. While reiterating his submission that neither
the RTE Act nor the RTE Rules prohibit merger of schools as part of
rationalization, he submits that the policy of merger of schools has a
reasonable nexus with the objectives of the right to education under
Article 21A of the Constitution. The policy of merger and
rationalization is based on two criteria; viz., the distance between
schools and the roll strength of the school. Its purpose is to address the
problem of low enrollment schools across the country and improve the
quality of education. He has submitted that the finding of the learned
Single Judge that the RTE Act and the RTE Rules prohibit the State
Government from notifying merger policy which goes beyond
elementary education is baseless as the State is well within its powers
to regulate primary, upper primary and secondary schools under Article
W.A No.417 of 2021 Page 13 of 70
162 of the Constitution of India, without breaching the provisions
under the RTE Act and Rules.
12. Refuting the contentions of the writ petitioner that the merger
policy is hit by Rule 6(1) of the RTE Rules, he argues that Rule 6(1) of
the Rules should be read with Rule 6(4) thereof. Rule 6(4) of the Rules
allows relaxation to the neighbourhood principle in certain cases and
states that for children of small hamlets where no school exists within
the area of limits of neighbourhood, the Government/Local authority
shall make adequate arrangements for providing elementary education
in relaxation of the limits in Rule 6(1) of the RTE Rules. The merger
policy of the State Government has been framed upon balancing the
considerations of physical availability of school within the
neighbourhood and qualitative factors to enable better learning
outcomes such as sufficient enrollment, infrastructure, mentorship,
teacher-pupil ratio. Further, the policy stipulates adequate
arrangements for transport/escort allowance in case the school is
beyond 1 km from a village. Secondly, the yardstick of the school
merger is the school-to-school distance. Each case of merger of schools
will be required to withstand independent scrutiny against the
W.A No.417 of 2021 Page 14 of 70
neighbourhood principle. Illustratively, he submits that it may so
happen that two schools with less than 10 students which are 1.5 kms
from each other are merged. However, if both the schools are within
the same neighbourhood, the neighbourhood principle is not violated.
13. Assailing the impugned judgment of the learned Single Judge,
Mr. Parija has further submitted that the learned Single Judge has not
held that paragraph 3(A)(1)(a) of the said policy is ultra vires nor it has
been held that the neighbourhood principle has been violated. The
2020 policy of the State Government specifically stipulates that during
consolidation, the RTE distance norms for access to primary/upper
primary schools may be followed and alternatively, transport/escort
allowance as per the RTE norms to be provided. He submits that a
challenge to State policy cannot be maintained on a plea of its
erroneous application. The persons aggrieved by specific cases of
merger of schools have remedy to approach the grievance redressal
bodies. The finding of the learned Single Judge that the merger was
bad in case of Amaramunda Government Primary School with
Laxmanpali Project UP School because the distance between two
W.A No.417 of 2021 Page 15 of 70
schools was found to be 2.9 kms i.e. more than permitted distance of 1
km is wholly unsustainable for two reasons, he argues. Firstly, there is
no finding that because of the merger of two schools, the
neighbourhood requirement under the RTE Act or the Rules was
violated. The distance between two schools to be merged cannot be a
criterion to hold that such merger violates the neighbourhood principle.
Secondly, the learned Single Judge has recorded the said finding based
on Google Maps, while denying the stand taken in the counter affidavit
by the State of Odisha. The said finding is impermissible under the
Evidence Act. It was specifically pleaded in the counter affidavit that
the distance between the aforesaid two schools was 0.8 km. Further,
the finding of the learned Single Judge verges on perversity while
recording that there is reserve forest between the roads leading from
Amaramunda to Laxmanpali and wild elephants cross the road
frequently. The said finding is based on newspaper reports which have
not been verified. He submits that no such reserve forest exists between
the schools.
14. Mr. Parija has relied on the Supreme Court’s decision in case of
All India Council for Technical Education v. Surinder Kumar
W.A No.417 of 2021 Page 16 of 70
Dhawan; (2009) 11 SCC 726 to submit that an expert body’s policy
decision must be given deference by the Courts and writ Courts cannot
substitute the domain experts’ views with its own.
15. Per contra it has been argued on behalf of the respondents that
the learned Single Judge has taken a correct view holding the merger
policy to be violative of Article 21A of the Constitution and the
provisions under the RTE Act and the Rules.
16. Mr. K.K. Swain, learned counsel appearing on behalf of the
respondents has submitted that the plea taken on behalf of the
appellants/State of Odisha of providing transport facilities in case there
is no school within the limits of distance is impermissible under the
RTE Rules, 2010. He has submitted that Section 20 of the Act confers
upon the Central Government a power to amend the schedule. The
policy by the State Government is violative of Section 20 of the Act.
He has further argued that Rule 6(2) of the Rules permits upgradation
but not merger of two schools.
17. Mr. A.K. Pandey, learned counsel appearing on behalf of the
intervenors has submitted that the policy of merger of schools is by
W.A No.417 of 2021 Page 17 of 70
way of executive instructions which cannot supersede statutory
provisions. Similar submissions have been advanced on behalf of the
respondents to the effect that the executive instructions cannot override
the statutory provisions. Reliance has been placed on the decisions of
the Supreme Court in case of Punjab Water Supply & Sewerage
Board v. Ranjodh Singh; AIR 2007 SC 1082, Lok Prahari v. State of
Uttar Pradesh; (2016) 8 SCC 389, Vinod Kumar Koul v. State of
Jammu and Kashmir; (2012) 11 SCC 247 as well as this Court’s
decisions in case of Santosh Kumar Sahu v. District Judge,
Kalahandi-Nuapada; 2009 (Supp-II) OLR 757 and Lakshmikanta
Mishra v. State of Odisha; 2017 (Supp-II) OLR 1055 in support of the
contention that an executive instruction cannot supersede statutory
provisions.
18. Mr. Gautam Misra, learned Senior Counsel has appeared on
behalf of the intervenors in the present case. It is noteworthy that the
intervenors had filed a writ petition registered as W.P.(C) No.2006 of
2018 which was disposed of by an order dated 02.06.2021 in the light
of the common judgment dated 04.05.2021 passed by the learned
Single Judge, which is impugned in the present writ appeal.
W.A No.417 of 2021 Page 18 of 70
Accordingly, defending the impugned judgment, the said intervention
application has been filed. Mr. Misra has submitted that the learned
Single Judge, after delivering the lead judgment, has passed several
similar orders. However, a single writ appeal has been filed. Relying
on the Supreme Court’s decision dated 18.05.2022 passed in SLP(C)
No.28065 of 2019 (State of Odisha v. Niranjan Biswal), he has
submitted that the present writ appeal should not be entertained and on
the said ground alone, this writ appeal deserves to be dismissed.
19. In response to the said submission made on behalf of the
intervenors, it has been submitted by Mr. Parija, learned Advocate
General that separate writ appeals have been filed vide W.A. Nos.350,
360, 361, 354, 332 and 349 of 2024 arising out of W.P.(C) No.11704
of 2020, W.P.(C) No.14289 of 2021, W.P.(C) No.30808 of 2020,
W.P.(C) No.2600 of 2021, W.P.(C) No.8275 of 2021 and W.P.(C)
No.11603 of 2021 respectively.
20. Intervention applications have also been filed vide I.A. No.1858
of 2021, I.A. No.1989 of 2021 and I.A. No.1738 of 2021, who claim to
be the guardians of the students of Amaramunda Government Primary
W.A No.417 of 2021 Page 19 of 70
School and have been elected as Chairman of School Management
Committees of respective schools under the provisions of the RTE Act.
Mr. Amiya Kumar Mohanty (A), learned counsel representing
respondents No.1 and 2 has addressed this Court on behalf of the said
intervenors-applicants and has supported the impugned judgment
passed by the learned Single Judge. It has been argued inter alia that
the facts asserted in the additional affidavit filed on behalf of the
appellants should not be taken into account as they cannot be permitted
to improve their case by filing affidavit to supplement the reasons to
support the sustainability of Rationalization/Merger Policy of the
schools in question. It has been argued that before merging the schools,
the State Government had called for reports from their own agencies
based on which the policy was framed for merger of the schools,
without giving any opportunity to the members of the School
Management Committee. He has adopted the submissions advanced by
Mr. Gautam Misra, learned Senior Counsel appearing on behalf of the
Interveners in I.A. No.3863 of 2022.
21. It has been argued that Clause 8(C) of the Office Memo dated
11.03.2020 states that consolidation is not possible in case of natural
W.A No.417 of 2021 Page 20 of 70
barriers such as rivers without bridge, mountains, forests, national
highways without subways or over bridges where access and safety is
challenged. Relying on a newspaper report, it has been argued that in
case of Amaramunda Government Primary School, the merger is
impermissible in view of Clause 8(C) as the news item specifically
mentions about the forest situated under Agalpur Block. This fact has
not been denied in the counter affidavit and, therefore, merger of
Amaramunda Government Primary School and Laxmanpali Project
Upper Primary School is impermissible because of the intervening
Chheliapur forest.
22. Before proceeding further, at this juncture, while formulating the
issues involved in the present appeal, we must notice following settled
legal principles, which hardly require any elaboration: –
I. If there is a statutory provision of binding nature on a
matter, the executive must abide by the same and it cannot, in
exercise of its executive powers under Article 162 of the
Constitution, ignore or act contrary to them. The statutory Rules
cannot be modified or superseded by the administrative
instructions. However, if the Rules are silent on any particular
point, the appropriate Government can fill up the gap andW.A No.417 of 2021 Page 21 of 70
supplement the Rule and issue instructions, not inconsistent with
the Rules already framed.
II. A policy decision of the executive is subject to judicial
review, inter alia, broadly on following grounds: –
a. If such policy is unconstitutional or dehors the statutory
provisions;
b. If the delegate has acted beyond its power of delegation;
and
c. If the executive policy is contrary to a larger policy.
III. It is permissible to take the aid of Statement of Objects
and Reasons of an enactment of an Act or Rule to interpret a
statutory provision. It is also permissible to apply the mischief
rule for interpretation of a statutory provision i.e. to find out the
evil which the statute sought to remedy.
23. Keeping in mind the aforementioned settled legal positions, so as
to address the issues arising out of the challenge to the impugned
judgment of the learned Single Judge in the wake of the submissions
that have been advanced on behalf of the parties as noted above, we
following questions have emerged for consideration:-
i. Whether the Policy of Rationalization And Consolidation Of
Schools of the State Government of Odisha (School and Mass
Education Department) contained in the Notification dated 11.03.2020
W.A No.417 of 2021 Page 22 of 70
is violative of Article 21A of the Constitution or any statutoryprovision under the RTE Act or RET Rules; which contemplates
consolidation of schools and upgradation and introduction of lower
classes in schools, framed with an aim to efficient utilization of the
State resources and improvement of quality education?
ii. Whether the Policy of Rationalization/Merger of Schools in
question has rightly been held by the learned Single Judge to be
unconstitutional and illegal on the ground that the ―roll strength‖ has
been made the basis for merger/rationalization? Stated differently,
whether rationalization/merger of schools on the basis of roll strength
violates any provision under the RTE Act or the RTE Rules?
iii. Whether the opinion recorded by the learned Single Judge that
there is no provision for merger/consolidation of primary/upper
primary schools has been recorded without noticing Rule 6(2) of the
RTE Rules?
iv. Whether the grievance redressal mechanism incorporated in the
policy decision can be said to be violative of principles of natural
justice based on the doctrine i.e. No one can be judge in his own case
and an empty formality on the ground that the said grievance redressal
W.A No.417 of 2021 Page 23 of 70
cell is created by the Government and the Government officers aremembers of the said cell?
v. Whether learned Single Judge is correct in his opinion that the
grievance redressal mechanism is unsustainable because the RTE Act
and Rules do not contemplate such mechanism on a presumption that
the persons shall not get justice, since such cells have Government
officers to look into the grievances?
vi. Whether the finding of the learned Single Judge, with reference
to the case of Amaramunda Government Primary School and
Laxmanpali Project Upper Primary School based on distance between
the two schools instead of the concept of ―area or limits of
neighborhood‖ is sustainable based on legal reasoning in view of the
provisions of Rule 6 of the RTE Rules?
vii. Whether learned Single Judge has committed an error by relying
on the information derived from Google map to reach a finding as
regards the distance between Amaramunda Government Primary
School and Laxmanpali Project Upper Primary School to deny, despite
the statement made in the counter affidavit that the distance between
the two schools was 800 meters?
W.A No.417 of 2021 Page 24 of 70
viii. Whether learned Single Judge was correct in recording a finding
that there is a reserve forest between road leading from Amaramunda
Government Primary School to Laxmanpali Project Upper Primary
School and wild animals cross the road frequently, based on newspaper
reports to the effect that Amaramunda Government Primary School
was adjacent to Cheliapat reserve forest?
ix. Whether, in any event, the Notification No.5465 dated
11.03.2020 and the consequential Notification No.5538 dated
11.03.2020 and the corrigendum dated 14.12.2020 could be held to be
unsustainable being violative of the mandate of Article 21 of the
Constitution, provisions of the RET Act and the RTE Rules?
x. Whether the discussion made in the impugned judgment from
paragraphs 65 to 70 has any foundation based on the pleadings or
submissions made/advanced on behalf of the parties?
CONSIDERATION:
24. For better appreciation of the legal and factual issues involved
and points raised, we deem it apposite to briefly mention the various
parts of the impugned judgment of the learned Single Judge.
W.A No.417 of 2021 Page 25 of 70
25. The judgment of the learned Single Judge runs in 74 paragraphs.
Paragraph 1 to 4 contain the reliefs sought in the writ petition,
paragraph 5 mentions the factual matrix of W.P.(C) No.27401 of 2020.
Paragraphs 6 to 11 contain the submissions advanced on behalf of the
petitioners in different cases. Paragraph 12 is the submission advanced
on behalf of the State. In paragraph 13, the orders dated 09.03.2021,
07.04.2021 and 12.04.2021 have been quoted, that relate to directions
issued by this Court for production of the relevant file dealing with the
decision of merger of the schools. Relevant parts of the noting of the
concerned file have been quoted in paragraph 14. Paragraph 15 refers
to the appearance of the parties. In paragraph 16, the learned Single
Judge, in the said judgment, has referred to the kinds of
merger/consolidation of schools, namely, horizontal consolidation,
vertical consolidation, physical consolidation and administrative
consolidation as contained in the notification dated 11.03.2020 which
provides for mechanisms/ modalities relating to consolidation/merger
of the schools. The learned Single Judge, thereafter, has framed the
following question:
“whether the State Government can take a policy
decision for merger of schools on the basis of roll
strength or not. The note sheets, which have beenW.A No.417 of 2021 Page 26 of 70
referred to above, clearly indicate that the Government
have taken all endeavour for merger of schools purely
on the basis of roll strength and while taking such
steps the constitutional mandate read with statutory
provisions have been given a go by?”
26. Article 21-A, Article 246 and Entry-25 of Concurrent List-III
(Education) have been quoted in paragraph 17. As the controversy is
about the Education which is in Entry-25 of the Concurrent List-III, the
learned Single Judge has dealt with the definition of Education in
paragraph 18 with reference to the decisions in Barry v. Hughes,
(1973) 1 All ER 537, P.A. Inamdar v. State of Maharastra, (2005) 6
SCC 537, Lok Shikshana Trust v. I.T. Commissioner, Mysore (1976)
1 SCC 254, T.M.A. Pai Foundation v. State of Karnataka, (2002) 8
SCC 481, Avinash Mehrotra v. Union of India, (2009) 6 SCC 398.
27. After having considered the aforesaid judgments, the learned
Single Judge has opined in paragraph 19 as under:
“19. Right to education includes right to safe
education. Education is the brining up; the process of
developing and training the powers and capabilities
of human beings. In its broadest sense the word
comprehends not merely the instruction received at
school, or college but the whole course of training
moral, intellectual and physical; is not limited to the
ordinary instruction of the child in the pursuits ofW.A No.417 of 2021 Page 27 of 70
literature. It also comprehends a proper attention to
the moral and religious sentiments of the child. And it
is sometimes used as synonymous with “learning”.”
28. In paragraph 20, the Statement of Objects and Reasons of
enacting RTE Act has been quoted. Paragraphs 21 and 22 refer to
various Supreme Court’s decisions on the point that it is permissible to
take aid of the Statement of Objects and Reasons for understanding the
background, the antecedent, the state of affairs and, the evil which a
statute sought to remedy. The provisions of the RTE Act and Rules
have been quoted in paragraph 24. After having noticed various
provisions under the RTE Act and the RTE Rules, the learned Single
Judge has opined in paragraph 26 as under:
“26. xxx xxx xxx xxx
Therefore, combined reading of Act, 2009 and Rules,
2010, no where there is any provision for
merger/consolidation of primary/upper primary
schools with high schools. Therefore, the notification
no.5465 dated 11.03.2020 regarding consolidation of
various types of schools including high schools with
classes VI to X, I-X or IX-X with primary and upper
primary school, is contrary to the provisions of the
Act, 2009 and Rules, 2010, as the very definition of
elementary education as provided under Section 2 (f)
of the Act, 2009 means the education from first class
to eight class. Therefore, the Government has issued
the notification no.5465 dated 11.03.2020 without
taking into consideration the constitutional mandateW.A No.417 of 2021 Page 28 of 70
as well as statutory provisions, namely, Act, 2009 and
Rules, 2010. Thereby, the same cannot sustain in the
eye of law.”
29. The learned Single Judge has further held in paragraphs 27 and
28 as under:
“27. The table relating to distance and enrollment
norms for consolidation in the notification no.5465
dated 11.03.2020 wherein secondary schools beyond
class-VIII have been given contrary to the Act, 2009
and Rules, 2010. In the table, a primary school
having roll strength less than 40 in respect of
nonscheduled area and less than 25 in respect of
scheduled area can be consolidated, is also contrary
to the provisions of the Act, 2009, wherein it has
been prescribed for classes having I-V admitted
children up to 60, two teachers are required.
Therefore, when there is no minimum roll strength
prescribing for a primary school under the Act, 2009
and the Rules, 2010, the notification no.5465 dated
11.03.2020 fixing the minimum roll strength
prescribed as per the table in respect of primary
schools, i.e., less than 40 in respect of non-scheduled
area and less than 25 in respect of scheduled area is
contrary to the statute and, as such, the same cannot
sustain in the eye of law.
28. In respect of the upper primary school the roll
strength has been prescribed less than 50 in respect
of non-scheduled area and less than 40 in respect of
scheduled area, is also contrary to the schedule
appended to the Act, 2009, though while issuing the
notification in the office note deals with some factual
matrix with regard to natural barriers, but the same
has not taken up under Rule-6 of Rules, 2010, whichW.A No.417 of 2021 Page 29 of 70
clearly provides that the area or limits of
neighbourhood school can be reduced.”
30. Overruling the submission advanced on behalf of the State that
the policy of rationalization and consolidation of schools was
introduced with certain objectives, the learned Single Judge has held in
paragraph 29 as under:
“29. xxx xxx xxx xxx
But, when the government notification no.5465 dated
11.03.2020 itself runs contrary to Article 21-A of the
Constitution and provisions of Act, 2009 and Rules,
2010, the mechanism provided for
consolidation/merger of various category of school is
not acceptable. Besides that, when the very purport of
the Act, 2009 and Rules, 2010 is to provide at least
one school within a walking distance of one km. of the
neighbourhood, in that case, the State Government
cannot and could not take steps for abolition of
schools which are already there and catering to the
needs of the local people. Therefore, in the guise of
merger/consolidation of the schools, the very purpose
of the Act, 2009 and Rules, 2010 has been frustrated.
Thereby, the impugned notifications cannot sustain in
the eye of law.”
31. On the point of availability of Grievance Redressal Cell in case
any party had any grievance consequent upon consolidation or merger
of schools, the learned Single Judge has held in paragraphs 30 and 31
and under: –
W.A No.417 of 2021 Page 30 of 70
“30. By virtue of the notification no.5465 dated
11.03.2020, an alternative Grievance Redressal Cell
has been created, which can examine the specific
grievance of any party during post consolidation
period, is of no use as once consolidation/merger is
made any sort of grievance redressal by the
alternative forum may lead to an empty formality as
the Grievance Redressal Cell is created by the
Government itself and the government officers are the
members of the said cell. Besides that, such Grievance
Redressal Cell in the district office or anywhere is
being contrary to the Act, 2009 and Rules, 2010.
Thereby, the same is of no use.
31. Law is well settled by catena of decisions of the
apex Court as well as this Court that no man should
be a Judge of his own cause, which is violative of
principles of natural justice. Meaning thereby, having
a Grievance Redressal Cell with some government
officers, the petitioners will not get justice. Thereby, it
is only an empty formality and an eye wash for
implementation of the notifications, as referred to
above order, and as such, the same is contrary to the
provisions of law. Thereby, the impugned notifications
issued by the government cannot sustain in the eye of
law.”
32. Dealing with the case of the petitioner in W.P.(C) No.27401 of
2020, the learned Single Judge has recorded his finding in paragraph 32
as under: –
“32. Coming to the petitioner‟s school in W.P.(C)
No.27401 of 2020, no doubt the student strength of the
petitioner‟s school was 33 for the academic session
2019-20, as the petitioner‟s school was not givenW.A No.417 of 2021 Page 31 of 70
permission for admission of students in respect of
ClassI during the session 2020-21. Had the permission
been given to the petitioner‟s school to admit students
in Class-I, then the students strength of the school
would have been beyond 40, as nine guardians of the
village were interested to admit their wards in class-I
of the said school. With regard to distance between
Amaramunda Government Primary school and
Laxmanpali Project Upper Primary school, the same is
more than 1 km., i.e., 2.9 kms, which is evident from
google map. But in the counter affidavit, the distance
between the Amaramunda Government Primary school
to Laxmanpali Project Upper Primary school has been
shown as 800 meters. The same is beyond the actual
fact and record available. The joint inquiry report,
which has been placed under AnnexureB/1 to the
counter affidavit, cannot be relied upon as the distance
between two schools is 2.9 kms. The further contention
made in the counter affidavit that there is no natural
barriers like ponds, rivers, deep forest and traffic
congestion between the lead school and the satellite
school is also not correct, as there is reserve forest
between the road leading from Amaramunda to
Laxmanpali and wild elephants are crossing the road
frequently which has come out in various newspapers
stating that village Amaramunda is adjacent to
Cheliapat reserve forest. Therefore, at the caprice and
whims of the authority, merger of schools have been
made, which is a disadvantage to the local people and
also contrary to the constitutional mandate as well as
the provisions of the Act, 2009 and Rules, 2010.
Thereby, the impugned notification no.5465 dated
11.03.2020 and consequential notification no.5538
dated 11.03.2020, i.e., guidelines for implementation
of policy for rationalization and consolidation of
schools, and also corrigendum issued on 14.12.2020,
cannot sustain in the eye of law.”
W.A No.417 of 2021 Page 32 of 70
33. Paragraphs 34 to 40 referred to various Supreme Court’s
decisions on the scope of judicial review of Government policy. In
paragraph 42, the learned Single Judge has held, based on the
appreciation of the note-sheet of the original file that the provisions
under the Act and the Rules were not taken note of and, therefore, the
Court had the jurisdiction to interfere with the decision-making process.
Paragraph 42 of the judgment is important for adjudication of the
present matter and is being reproduced herein below:
“42. On perusal of the relevant note-sheets, referred
to above, it reveals that while taking a decision, the
authorities have not taken note of the provisions
contained in Act, 2009 and Rules, 2010, as discussed
above. Therefore, this Court has jurisdiction to
interfere with the decision making process, as has
been held by the apex Court in catena of decisions. If
in the decision making process there is non-
compliance of the statutory provisions, then ultimate
decision suffers from illegality and irregularity, with
which the Court can interfere. In view of such power,
this Court examined the government notification and
consequential office memorandum dated 11.03.2020
and found that both are violative of statutory
provisions governing the field.”
34. In paragraph 43, the learned Single Judge has referred to the
Supreme Court’s decision in case of Delhi Development Authority v.
Joint Action Committee, (2008) 2 SCC 672, which inter alia lays down
W.A No.417 of 2021 Page 33 of 70
the grounds for judicial review of a policy decision which includes, ―if
the executive policy is contrary to the statutory or a larger policy‖.
Paragraphs 44 to 54 are the quotes from various decisions of the
Supreme Court on the point that executive instructions cannot amend or
supersede the statutory rules. In paragraph 55, a decision rendered by
the Rajasthan High Court has been referred to whereas paragraph 56
refers to an interim order passed by a division Bench of Uttarakhand
High Court.
35. Paragraphs 58 to 72 contain the discussions, which read as under:
“58. Applying the said principles, children in
elementary schools should be our first concern. The
rise in the literacy rates in various States over the
years is primarily due to better inputs in (formal)
primary education.
59. When then base is weak, everything remains weak
in later years. In half-hearted primary education, all
efforts to reform secondary or higher education will
prove to be futile exercise.
60. Unfortunately the authorities of the system do not
seem to realize this natural phenomenon, because,
they themselves have no stakes in this system; they
follow for their wards the “other” system of public
and model schools which often has a sound basis.
However, for the general run of the people, the only
resort is the prevalent system run by different
authorities, who swim or sink in it.
W.A No.417 of 2021 Page 34 of 70
61. Elementary education obviously requires
maximum attention in respect of academic,
administrative and financial inputs. Many academic
and administrative measures are equally important-
as the purpose is not only to have funds but also to
spend them most honestly and gainfully. This calls for
wholesale decentralization of powers and active
involvement of local communities and panchayats.
62. With the avowed objectives of giving education to
the children of the locality, lands had been donated by
the then generous people for establishment of the
schools and, as such, the schools were named after
them and many of the schools have been established
more than 10 years above and many students have
come out from said institutions having elementary
education. In such circumstances, directing merger of
schools and consequential closure of institutions
having all infrastructure, cannot be considered to be
a sound approach by the authority in issuing the
notification no.5465 dated 11.03.2020 and
consequential guidelines issued vide office
memorandum no.5538 dated 11.03.2020 and
corrigendum issued on 14.12.2020.
63. As the number of primary schools is very large,
formal and regular inspections are not possible.
There are hundreds, if not thousands, of primary
schools, which were never inspected by the
department officers. And quite often, inspections
comprise only a fleeting glance.
64. Instead of finding the reasons for decreasing roll
strength merger of school will not serve the purpose.
It is just like without finding the cause of disease
treatment has been started. There are enumerable
reasons for decreasing of roll strength, instead of
eradicating the ground difficulties merger is takenW.A No.417 of 2021 Page 35 of 70
place due to decision is taken place at higher level
without realizing the ground level reality.
65. As it appears, in the State of Odisha, many
categories of teachers exist – confirmed teachers,
unconfirmed teachers, ad hoc teachers, tenure
teachers, teachers on contractual basis, volunteer
teachers, and so on. No other kind of employees or
workers has such divisions. This clearly indicates the
extent of regard the planners and policy- makers have
for education. So the teaching profession is to be
taken as a full-time job.
66. Earlier, ET and CT training teachers with less
qualification were being appointed and they had got
their institutional commitment. But, now appointments
are being made to different categories of teachers
with multifarious activities and utilizing them with a
paltry sum of money. With a half fed belly, they are
directed to discharge their duties. Consequentially,
the objectives are not being achieved. This may be
one of the reasons for reduction of roll strength of a
particular school. But this can be eradicated in
effective manner, if the authorities, who are in the
helm of affairs, are little vigilant.
67. Now, the authorities are shedding crocodile tears
to have a primary education in mother tongue, but
they are granting permission in free hands for
establishment and recognition of institutions in other
medium, which may be a reason for reduction of
students‟ strength in the existing schools. As it
appears, Govt. of Delhi has taken drastic steps for
upliftment of government primary schools in Delhi
Union Territory and that is the best example for other
States to follow, so as to keep elementary education
accessible to each child having the minimum
infrastructure available in the locality.
W.A No.417 of 2021 Page 36 of 70
68. Students in neglected rural far-flung region need
special dispensation, additional dose of teaching and
other activities. If Government accommodation for
teaching is provided and a rational transfer policy is
formulated and strictly adhered to, many problems of
teachers posted in difficult rural regions will be
resolved to a great extent.
69. Kendriya Vidyalayas and other institutions
affiliated to the Central Board of Secondary
Education (CBSE), primary school teachers are
invariably trained graduates. It is difficult for matric
or Plus-Two pass educators to teach modern, updated
syllabi and texts at the primary stage – particularly
the CBSE syllabi, NCERT books designed with
trained graduates as elementary teachers in view.
70. But educational administration at all levels, as
suggested by numerous commissions and committees
on education, should be the exclusive prerogative and
domain of experts, educationists and educators. Also,
education at the elementary school level should be
accorded a top-priority, acute and persistent financial
crunch notwithstanding.
71. Article 21-A of the Constitution of India and its
consequent legislation, the Right to Children to Free
and Compulsory Education (RTE) Act, 2009 became
operative in the country in 2010. The RTE Act confers
the right to elementary education on all children, in
the age group 6-14 years, on the basis of equality of
opportunity in a formal school which satisfies certain
essential norms and standards. All States and UTs
have notified their State RTE Rules. The centrally
sponsored scheme of Sarva Shiksha Abhiyan (SSA)
supports States and UTs in their efforts to implement
the RTE Act. Its interventions include, inter alia,
opening of new schools, construction of schools andW.A No.417 of 2021 Page 37 of 70
additional classrooms, constructing toilets and
drinking water facilities, provisioning for teachers, in-
service training for teachers and academic resource
support, free textbooks and uniforms, support for
improving learning achievement levels, research,
evaluation and monitoring.
72. Universalisation of primary education under the
RTE Act paved the way for making education
accessible to all. The status of access to education in
Odisha can be assessed through different indicators
such as enrolment ratio, pupil teacher ratio, drop-out
rate, transition rate, buildings and infrastructure, in
both primary and upper primary (together termed as
„elementary‟) and secondary schools.”
36. What we are considering in the present batch of cases is the
sustainability of a policy framed by the State of Odisha for
rationalization and consolidation of schools which according to the
State is in consonance with the constitutional mandate under Article
21A of the Constitution of India and different provisions of the RTE
Act and the ORTE Rules. It is trite that the questions of policy are
essentially for the State to frame. ―The Court cannot be compelled into
unchartered ocean of Government policy‖, the Supreme Court
remarked in case of Bennett Coleman & Co. v. Union of India; (1972)
2 SCC 788.
W.A No.417 of 2021 Page 38 of 70
37. So long as there is no violation of any fundamental rights and if
the principles of natural justice are not offended, it is not for the High
Court to lay down the policy that should be adopted by the educational
authorities. [See 1971 (2) SCC 410] It has been laid down in State of
Maharashtra v. Lok Shikshan Sanstha, (1971) 2 SCC 410 as follows:
“9. Before we deal with the above contentions
advanced before us on behalf of both sides, it is
necessary to state that the High Court in the judgment
under attack has made certain observations regarding
what according to it should be the policy adopted by
the educational authorities in the matter of permitting
the starting of a new school or of an additional school
in a particular locality or area. It is enough to state
that the High Court has thoroughly misunderstood the
nature of the jurisdiction that was exercised by it when
dealing with the claims of the two writ petitioners that
their applications had not been wrongly rejected by the
educational authorities. So long as there is no violation
of any fundamental rights and if the principles of
natural justice are not offended, it was not for the High
Court to lay down the policy that should be adopted by
the educational authorities in the matter of granting
permission for starting schools. The question of policy
is essentially for the State and such policy will depend
upon an overall assessment and summary of the
requirements of residents of a particular locality and
other categories of persons for whom it is essential to
provide facilities for education. If the overall
assessment is arrived at after a proper classification
on a reasonable basis, it is not for the courts to
interfere with the policy leading up to such
assessment.”
W.A No.417 of 2021 Page 39 of 70
38. In case of Maharashtra State Board of Secondary and Higher
Education v. Paritosh Bhupesh Kumar Sheth; (1984) 4 SCC 27, it
has been ruled by the Supreme Court that that Court exercising power
of judicial review cannot sit in judgment over the wisdom of the policy
evolved by the legislature and the subordinate regulation-making body.
Such policy may be wise policy which will fully effectuate the purpose
of the enactment or it may be lacking in effectiveness and hence calling
for revision and improvement. But any drawbacks in the policy
incorporated in a rule or regulation will not render it ultra vires and
―the Court cannot strike it down on the ground that in its opinion, it is
not a wise or prudent policy, but is even a foolish one and that it will
not really serve to effectuate the purposes of the Act‖.
39. Re-emphasizing the view, the Supreme Court observed that the
legislature and its delegate are the sole repositories of the power to
decide what policy should be pursued in relation to matters covered by
the Act and there is no scope for interference by the Court unless the
particular provision impugned before it can be said to suffer from any
legal infirmity, in the sense of its being wholly beyond the scope of the
regulation-making power or it being inconsistent with any of the
W.A No.417 of 2021 Page 40 of 70
provisions of the parent enactment or in any violation of limitations
imposed by the Constitution.
40. In Narmada Bachao Andolan v. Union of India; (2000) 10
SCC 664, the Supreme Court has reiterated that the Courts, in the
exercise of their jurisdiction, should not transgress into the field of
policy decision though they have a duty to see that in the undertaking
of a decision, no law is violated and the people’s fundamental rights
are not transgressed upon except to the extent permissible under the
Constitution.
41. In Delhi Development Authority v. Joint Action Committee;
(2008) 2 SCC 672, the Supreme Court broadly laid down the grounds
on which a policy decision of State can be subject to judicial review: –
(i) if it is unconstitutional;
(ii) if it is de hors the provisions of the Act and the Regulations;
(iii) if the delegate has acted beyond its power of delegation;
(iv) if the executive policy is contrary to the statutory or a larger
policy.
W.A No.417 of 2021 Page 41 of 70
42. The Court made it clear that whereas the superior Courts may
not interfere with the nitty-gritties of the policy, or substitute one by
the other but it will not be correct to contend that it shall like its
judicial hands off, when a plea is raised that the impugned decision is a
policy decision, while laying down the limited grounds for judicial
review.
43. We need not encumber this judgment with series of decisions
laying down the principle that in respect of policy matters, the Courts
do not and cannot act as the appellate authorities. The scope of judicial
review, while considering a challenge to policy of the State
Government is to find out whether it violates any fundamental right or
is opposed to any other provision of the Constitution or statutory
provision or it is manifestly arbitrary.
44. The Courts cannot interfere with the policy either on the ground
that is erroneous or that a better, fairer or wiser alternative is available.
The legality of the policy and not the wisdom or soundness thereof is
the subject to judicial review (see Directorate of Film Festivals v.
Gaurav Ashwin Jain; (2007) 4 SCC 737).
W.A No.417 of 2021 Page 42 of 70
45. Keeping these salutary legal principles in mind laying down the
limitations of judicial review of a policy decision of State, we now
proceed to answer the questions framed hereinabove. For the said
purpose, we need to notice the relevant provisions, viz., Article 21A of
the Constitution, the provisions of the RTE Act with particular
reference to Sections 6, 8 and 38 and the relevant provisions of the
ORTE Rules.
46. Article 21A of the Constitution of India reads as under:-
“21A. Right to education.–The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law,
determine.”
47. Article 21A of the Constitution of India mandates free and
compulsory education to all children of the age of 6 to 14 years ―in
such manner as the State may, by law, determine‖. The mandate of
Article 21A is clear which is to provide free and compulsory education
to the children of the said age group. The RTE Act has been enacted to
give effect to the constitutional mandate under Article 21A of the
Constitution. Apparently, the manner in which the constitutional
mandate of Article 21A is to be carried out has been determined by
W.A No.417 of 2021 Page 43 of 70
enactment of the RTE Act, 2009 and it can thus be easily deduced on
conjoint reading of Article 21A and the Statement of Objects and
Reasons of the RTE Act that any breach of the provisions of the RTE
Act shall amount to infringement of the right under Article 21A of the
Constitution of India.
48. Section 8 of the RTE Act, requires the appropriate Government
to provide free and compulsory elementary education to every child
and for that purpose, the obligation has been cast on the appropriate
Government to establish a school, within such area or limits of
neighborhood, as may be prescribed, where it is not so established.
Section 8 of the RTE Act delineates the duties of appropriate
Government. The explanation under Section 8(a) defines the term
―compulsory education‖ to mean obligation of the appropriate
Government to–
i. provide free elementary education to every child of the age of
six to fourteen years; and
ii. ensure compulsory admission, attendance and completion of
elementary education by every child of the age of six to fourteen
years;
W.A No.417 of 2021 Page 44 of 70
49. Section 8(b) of the RTE Act is crucial for the present
adjudication in the wake of the reasoning assigned by the learned
Single Judge for quashing the notification and the memorandum, which
cast one of the dues upon the appropriate Government to ―ensure
availability of a neighbourhood school as specified in Section 6 of the
RTE Act.‖ Section 6 of the RTE Act reads as under:-
6. Duty of appropriate Government and local authority to
establish school.–For carrying out the provisions of this
Act, the appropriate Government and the local authority
shall establish, within such area or limits of
neighbourhood, as may be prescribed, a school, where it is
not so established, within a period of three years from the
commencement of this Act.
50. The State Government, in exercise of power conferred under
Section 38 of the RTE Act, has framed a rule, namely, Odisha RTE
Rules, Rule 2(h) of which defines ―school mapping‖ and reads as
under:-
“(h) “School mapping” means planning school location for
the purpose of section-6 of the Act to overcome social
barriers and geographical distance.”
W.A No.417 of 2021 Page 45 of 70
51. Manifestly, Rule 2(h) refers to planning the school location to
satisfy the requirement of Section 6 of the RTE Act. Rule 6 of the
Odisha RTE Rules reads as under:-
“PART IV
DUTIES & RESPONSIBILITIES OF GOVERNMENT,
LOCAL AUTHORITY
6. Areas or limits of neighborhood:― (1) The areas or
limits of neighborhood within which a school would be
established by the Government or Local Authority shall be
as under –
(a) In respect of children in classes I – V, a school
shall be established within a walking distance of one k.m. of
the neighborhood.
(b) In respect of children in classes VI – VIII, a school
shall be established within a walking distance of 3 k.m. of
the neighborhood.
(2) Wherever required, the Government shall upgrade
existing schools with classes I-V to include classes VI –
VIII. In respect of schools which start from class VI
onwards, the Government shall endeavor to add classes I –
V, if necessary.
(3) In places with difficult terrain, risk of landslides,
floods, lack of roads and in general, danger for young
children in the approach from their homes to the school, the
State Government/Local Authority shall locate the school in
such a manner as to avoid such dangers, by reducing the
limits specified under sub-rule (1).
(4) For children from small hamlets, children in urban
areas as identified by the Government/Local Authority,
where no school exists within the area or limits of
neighborhood specified under sub-rule (1), the
Government/Local Authority shall make arrangements,
such as free transportation, escort facilities and residential
W.A No.417 of 2021 Page 46 of 70
facilities, for providing Elementary Education in a school,
in relaxation of the area or limits specified in the said rule.
(5) In places with high population density, the
Government/Local Authority may consider establishment of
more than one neighborhood school, having regard to the
number of children in the age group of 6-14 years in such
areas.
(6) The Local Authority shall identify the neighborhood
school(s) where children can be admitted and make such
information to public for each habitation in the Gram
Panchayat office notice board within its jurisdiction.
(7) In respect of children with disabilities which prevent
them from accessing the school the Government/Local
Authority will endeavor to make appropriate and safe
arrangements for them to attend school through Committee
and complete elementary education.
(8) The Government/Local Authority shall ensure that
access of children to the school is not hindered on account
of social, legal and cultural factors.”
52. Our attention has been drawn to a communication dated
07.07.2017 issued by the Department of School and Mass Education &
Literacy, Ministry of Human Resources Development, Government of
India (F. No.12-4/2016-EE.11) addressed to the Secretary (School
Education), Sarva Shiksha Abhiyan (SSA) of all States and Union
Territories (UTs) pertaining to finalization of guidelines for
Rationalization of Small Schools across States for better efficiency. The
said communication discloses that it was issued after examining the
W.A No.417 of 2021 Page 47 of 70
practice of rationalization of schools as underway in some of the States
and based on existing models of rationalizing of schools, based on
which draft guidelines were prepared seeking comments and feed back
so that the guidelines might be finalized. The said communication takes
note of the fact that Section 6 of the RTE Act provides children’s
access to elementary schools within the defined area or limits of
neighborhood. Further, the Act lays down the norms and standards,
which are required to be ensured in every school including availability
of teachers as per number of students and infrastructural facilities. A
relook at the expansion of schooling facilities made in previous years
called for a nation-wide consolidation of schools for various reasons,
including existence of surplus schools, schools with zero enrolment,
schools with very less enrolment, existence of more than one school in
the same building or vicinity, were the reasons in the background of
which the said communication was issued. It noticed the fact that the
States were increasingly realizing that surplus schools, in excess of
neighbourhood requirement, had been established which were
adversely affecting the provisioning of resources, teaching, learning
process, monitoring and supervision.
W.A No.417 of 2021 Page 48 of 70
53. Analysis done by State revealed that if child and resources
spread into 2 or more small schools were combined together within the
habitation, it would not only provide better teacher learning
environment, but also make schools RTE compliant. It was clearly
mentioned in the said communication that the process of rationalization
of small schools will adhere to the neighborhood norms as defined in
the RTE Rules of the States. It reiterated that the objectives of the
rationalization of some schools include ensuring access to all children
to fully functional neighbourhood schools and to consolidate the
sources for the best interest of the child. The primary aim of the process
of rationalization was to ensure access to every child to fully functional
school in terms of availability of teachers, infrastructure and other
resources has mandated under the RTE Act. The objectives of the
rationalization of small schools and the guiding principle for
rationalization of small schools find place in paragraphs 9 and 10 of the
said communication which read thus:
“9. Objectives of Rationalization of Small Schools
1. To ensure access of all children to fully functional
neighbourhood schools.
W.A No.417 of 2021 Page 49 of 70
2. To expedite the resourcing of schools, to improve the
quality of education, and to ensure the retention of
children in schools.
3. To make all schools RTE Act 2009 compliant, i.e.
confirm to the norms and standards as laid down in the
Schedule of the RTE Act 2009.
4. To shift and reallocate the staff and other resources
where they are in excess of the requirement to the
schools where they are needed.
5. To consolidate the resources for the best interest of
the child and
6. To minimize underutilization and wastage of
resources.
10. Guiding Principles for Rationalisation of Small
Schools
1. To exercise of rationalization of small schools will
not, in any case, violate any of the provisions of RTE
Act 2009.
2. Rationalization of small schools is to be done with
the interest of the child as the central concern.
3. Rationalization of small schools does not mean
closing of schools. It is actually reorganization and
consolidation of existing schools and other resources of
a neighbourhood.
4. The process for rationalization of small of schools
will not, in any case whatsoever, deprive even a single
child‟s access to school.
5. At no point of the rationalization exercise, the
interest and convenience of the child would be placed
second in the order of priority.
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6. The process of rationalization of small schools will
adhere to the Neighbourhood norms of the State/UTs.
7. The process of rationalization of schools will not
necessarily lead to merging or closing of schools. On
the contrary it may also establish the need of opening of
new school as well.
8. It rationalization process indicates for merging of
schools, it will be ensured that schools are merged only
within neighbourhood norms defined in State‟s RTE
Rules and no school is merged if access to
neighbourhood school of any child is affected.
9. Consultation with Children, Teachers, Local
Authorities, Parents and Community is the key to
ensure effective and useful rationalization of schools.
Their support will be required not only during the
entire process of rationalization for smooth and
uninterrupted completion of rationalization exercise but
also after the exercise is over so that the result of the
exercise is useful and relevant which brings positive
change for the community and children.
10. Due respect shall be accorded to the local cultural
and belief system. Every step will be taken to ensure
that local sensitivities are not ignored even if it means
continuation with an unsubstantiated demand of a
school.
11. No situation is permanent. Schools having low
enrolment may turn into schools with high enrolment
over a period of time. Similarly, the habitations which
do not require school at one point of time may require
school at another point of time and vise versa.
12. Avoid one-size-fits-all approach. The best solution
for one habitations or cluster or district may not be the
best solution for another even though the two entitiesW.A No.417 of 2021 Page 51 of 70
(habitations or cluster) may appear similar in terms of
geography, socio-economic status etc. There are always
significant variations in every habitation which are
crucial and should not be ignored. The size of the
community, interpersonal relationships between
different groups of the community, socio – cultural
beliefs, Age of schools building, the density of the
surrounding area, and the capacity of the nearby
school all play an important role in rationalization of
schools and will eventually be responsible for the
exercise to be more or less productive.”
54. The State of Odisha in its School and Mass Education
Department came out with a policy of the rationalization of schools
through notification dated 14.05.2018 published in the Official
Gazette. The said policy postulates the following major initiatives
namely, (a) merger of schools which includes horizontal merger with
same range of classes to be merged to form a single school, and (b) up-
gradation of schools.
55. It stipulates two kinds of merger, i.e., horizontal merger and
vertical merger. Merger of two or more primary schools, merger of two
or more Upper Primary School of any range and merger of two
secondary schools of any range is to be treated as horizontal merger
under the scheme. The schools with different range of classes i.e. one
W.A No.417 of 2021 Page 52 of 70
with lower class range and the other with higher class range, could be
merged.
56. Following mergers, under the rationalization policy of the
State Government are treated as vertical mergers:
Merger of one or more Primary School (s) with a 3 class (VI-
VIII) or 8 class (I-VIII) Upper Primary School.
Merger of one or more Primary School(s) with a 5 class (VI-
X)/7 class (IV-X) Secondary School.
Merger of one or more 3 class Upper Primary Schools (VI-
VIII)/8 class Upper Primary Schools (I-VIII) with a 2 class
(IX-X)/5 class (VI-X)/7 Class (IV-X) Secondary School.
Merger of one or more Primary Schools with a 2 class (IX-X)
Secondary School, provided that the linking classes are
opened by Govt. in appropriate time to facilitate continuity of
study of the students passing out of the top class of the
primary school.”
57. Further, the above horizontal and vertical merger could either
be physical or administrative. In physical merger two or more schools
shall be merged resulting in complete closure of one or more schools.
In such case, the students will physically shift out to another school
from the closed school and the school records and all movable assets of
W.A No.417 of 2021 Page 53 of 70
the close school shall be shifted to the Nodal school with which the
merger is made.
58. In administrative merger, two or more schools could be
merged for the purpose of optimum utilization of available resources
under unified command and one administrative supervision. In such
case, if the level of classes are different, the school shall run with two
different wings and all the employees would work under the control of
one head of the institution but their cadre would not change and their
service matters would be dealt with by different authorities as before.
Merger of elementary schools with secondary schools, the policy
provides the following criteria for selection of schools for merger [see
paragraph 2(b)] of the notification dated 14.05.2018:
“(a) All schools being merged need to be located in the
same district.
(b) The Schools must be Govt. managed schools.
(c) Madrasa, Sanskrit Toll, Special Schools shall not
be selected for merger.
(d) The schools should be located in same campus or
within 100 metre radius. In case of Low Roll Strength
Schools, the 100 meter distance restriction shall not
apply.
W.A No.417 of 2021 Page 54 of 70
(e) Schools separated by State High Way, National
High Way and Railway line shall not be taken for
merger.
(f) Schools separated by rivers, forests, hills or any
other natural barrier shall not be merged.
(g) An aided school shall not be considered for merger
with a Govt. school.
(h) In case of physical merger of schools not located
in the campus, the availability of class rooms in the
school to which students of closed schools(s) shall be
shifted must be verified properly.
(i) In case of non-availability of required number of
class rooms to accommodate the students after
physical merger, administrative merger may be taken
up for the time being till construction of the additional
class rooms.”
59. Paragraphs 4 and 5 of the said rationalization policy are
significant for considering the challenge to the impugned order passed
by the learned Single Judge, which read thus:-
“4. Applicability of Provisions of RTE Act:
The distance norm for access for children from
catchment villages/habitations as prescribed in RTE
Act shall not be deviated in any case of physical
merger of elementary schools.
5. Applicability of Odisha Elementary Cadre Rules:
The provisions of Odisha Elementary Cadre Rules in
so far as service conditions of the teachers ofW.A No.417 of 2021 Page 55 of 70
elementary schools are concerned, shall not be
deviated in any manner after the merger.”
60. For carrying out the provisions of the RTE Act, in exercise of
power under Section 38 thereof, the State Government has framed
RTE Rules. From the reading of the pleadings on record and the
impugned judgment of the learned Single Judge, it can be easily culled
out that there are two grounds recorded by the learned Single Judge for
interfering with the policy of rationalization of the State Government.
Firstly, it violated the requirement under Rule 6 of the ORTE Rules
that the area or limit of neighborhood within which a school would be
established by the Government or local authority shall be in respect of
children in Classes I to V of a school, within a walking distance of one
kilometer of the ‗neighbourhood’ and in respect of children in Classes
VI to VIII, a school shall be established within a walking distance of
three kilometers of the neighbourhood. Secondly, as has been noted
hereinabove, learned Single Judge has opined that there is no provision
for merger/consolidation of primary/upper primary schools with the
High Schools. The third reasoning, which has been assigned by the
learned Single Judge to interfere with the impugned policy is that the
W.A No.417 of 2021 Page 56 of 70
RTE Act or the Rules do not stipulate the roll strength as criteria for
merger of the schools.
61. To consider this aspect, let’s begin from Rule 2(h) of ORTE
Rules, which defines ―school mapping‖, which means ―planning school
location for the purpose of Section-6 of the Act to overcome social
barriers and geographical distance‖. Sub-Rule 2 of Rule 6 permits the
Government to upgrade existing schools with classes I -V to include
classes VI – VIII. In respect of the schools which start from class VI
onwards, the Government is supposed to make endeavour to add
classes I – V, if necessary.
62. We are of the considered view that that Sub-Rule (2) of Rule 6
escaped the attention of the learned Single Judge while deciding the
issue which permits the State Government to add Classes I to V to such
schools which start from Class VI onwards. The reasoning recorded by
the learned Single Judge that there is no provision of
merger/consolidation of primary/upper primary schools with High
Schools is not permissible under law and, therefore, the Rationalization
and Consolidation of Schools Policy is unsustainable on the ground
W.A No.417 of 2021 Page 57 of 70
that the RTE Act and the Rules deal with elementary education which
means education from Classes I to VIII within the meaning of Section
2(f) of the RTE Act cannot be accepted if the entire rationalization
scheme is taken into account.
63. The objective of rationalization is to make the schools
aspirational with a larger peer group and adequate teachers per grade;
Improvement of Pupil-Teacher Ratio (PTR) and Teacher per Grade
ratio; Better infrastructure facilities in consolidated schools; Better
academic environment with additional TLM facilities, e-Learning and
co-curricular facilities; Vibrant parent community as enrolment
increases and PTMs stabilise; Improve Learning Outcomes; Improve
quality of monitoring; Efficient utilization of public resources; Better
transition rate and school management and Enabling school ecosystems
to create future thinkers/leaders/entrepreneurs and employers.
64. The principles of consolidation of schools as disclosed in
paragraph 1 of the Notification dated 11.03.2020 states that the
exercise shall be conducted in a manner so as to ensure optimum
number of schools with optimum enrolment and create as many as
integrated secondary schools as possible and convert all other schools
W.A No.417 of 2021 Page 58 of 70
having reasonable enrolment to any of the four categories mentioned in
the objectives viz.,:-
i) To reduce the number of educationally and economically
sub-optimal schools;
ii) To rationalize and consolidate existing schools to reduce
the category of schools and fix the range category to only
four, i.e. I-V, I-VIII, I-X &VI-X;
iii) To create as many as integrated secondary schools as
possible and hence provide education up to high school level
in one single campus, improving transition; and
iv) To consolidate standalone Upper Primary and Secondary
Schools.
65. The objective of creating integrated secondary school, in our
opinion, cannot be termed as violative of the RTE Act or the Rules
framed thereunder on the ground that RTE Act and Rules deal with
elementary education only and such education cannot be imparted in a
secondary school. Stating it differently, it cannot be said that it is
impermissible for addition of one elementary school with a secondary
school on the ground of roll strength. This can be understood by way of
an example. Let us suppose there is an elementary school nearby a
W.A No.417 of 2021 Page 59 of 70
secondary school. The roll strength in the said elementary school is
too low that running of the school with all the infrastructure is not
viable. In such circumstance, if the education/teaching is shifted to the
secondary school without breaching any statutory requirement under
the Act and the Rules, it cannot be said that such policy is contrary to
the statutory provision. The policy of making schools aspirational with
a larger peer group and adequate teachers per grade, in the Court’s
opinion, cannot be treated to be irrational. We are of the opinion that
transitions of the students studying in the schools imparting education
up to classes I to V to a school imparting education from classes VI to
X will adversely affect their education.
66. In our considered opinion, the constitutional requirement of
Article 21A of the Constitution is that the State has a duty to provide
free and compulsory education of all children of the age of six to
fourteen years. Till a case is made out that the State has failed to
provide free and compulsory education to such group of children, no
violation of Article 21A of the Constitution can be made out unless it is
shown that the same is not being provided by the State in accordance
with law. At the cost of repetition, we record that ―such a manner as
W.A No.417 of 2021 Page 60 of 70
the State may, by law, determine‖ means RTE Act and ORTE Rules
framed thereunder.
67. We have already noticed that Section 8 of the RTE Act lays
down the duties of the appropriate Government and the compulsory
education ―stands defined by explanation under Section 8(a) of the
Act.‖ Section 8(b) mandates the Government to ensure availability of a
neighborhood school as specified in Section 6. Section 6 requires the
State Government and Local Authority to establish within such ‗area’
or limits of ‗neighbourhood’ as may be prescribed. The aforesaid is the
background in which the areas or limits of neighborhood as stipulated
under Rule 6 of the ORTE Rules has to be understood, which has
already been quoted hereinabove. The statutory provisions under the
Act or the Rules do not prohibit having one school campus from
Classes I to X. The ORTE Rules permit upgradation of schools which
can also happen with the merger of two schools. Sub-Rule 3 of Rule 6
of the ORTE Rules takes into account the situation of places with
difficult terrain, risk of landslides, floods, lack of roads and in general,
danger for young children in the approach from their homes to the
schools and requires the State Government/Local Authority to locate
W.A No.417 of 2021 Page 61 of 70
the school in such a manner as to avoid such dangers, by reducing the
limits specified under Sub-Rule (1). Sub-Rule (4) of Rule 6 stipulates
that for children from small hamlets, children in urban areas as
identified by the Government/Local Authority, where no school exists
within the area or limits of neighborhood specified under Sub-Rule (1)
the Government/Local Authority ―shall make adequate arrangements,
such as free transportation, escort facilities and residential facilities for
providing elementary education in a school, in relaxation of area of
limits specified in the said rule‖. It is evident on close reading of Sub-
Rule 4 of Rule 6 that the provisions in Sub-Rule 1 can be relaxed by
making arrangements of free transportation, escort facilities and
residential facilities for providing elementary education in a school.
Sub-Rule 1 of Rule 6 can thus be relaxed if the arrangements are made
under Sub-Rule 4 thereof if the circumstance exists. In the
implementation of guidelines for the Policy of Rationalization and
Consolidation of Schools, it has been clearly provided in paragraph 7
that if the lead school distance is beyond 1km., escort/transport
allowance as per RTE norms shall be provided to the students.
W.A No.417 of 2021 Page 62 of 70
68. In our considered view, the Policy of Rationalization and
Consolidation cannot be considered to be violative of any statutory
provision. We do not agree with the reason assigned by the learned
Single Judge that the policy decision is bad because roll strength of a
school is criteria for consolidation/integration/ upgradation of schools.
The law requires a child’s right of elementary education in accordance
with the provisions under the Act and the Rules.
69. Learned Single Judge has treated the facts of Amaramunda
Government Primary School as lead case by way of illustration and has
concluded that the merger of Amaramunda Government Primary
School by referring to the distance between the said school and
Laxmanpali Project Upper Primary School with which Amaramunda
Government Primary School has been merged. It was the case of the
State that the distance between the two schools was 800 metres
whereas learned Single Judge disbelieving the said stand based on a
joint inquiry report relying on the information received from the
Google map has concluded that the distance between the two schools
was 2.9 Kilometres. The said approach, in our opinion, is not in
consonance with the requirements of the Act and the Rules. The area or
W.A No.417 of 2021 Page 63 of 70
limits of neighborhood under the RTE Act and ORTE Rules is with
reference to the habitation of the children and that has no connection
with the distance between the two schools to be consolidated. Unless a
case is made out that such consolidation had the effect of depriving any
child of his access to elementary education because of non-availability
of schools in the neighborhood as stipulated under Rule 6 of the ORTE
Rules, his right under Article 21A of the Constitution or the RTE Act
cannot be said to have been infringed.
70. We also respectfully disagree with the view taken by the learned
Single Judge based on the information gathered from Google map and
thereby denying the specific stand taken by the State in its counter
affidavit based on a joint report as regards the distance between the two
schools. The said evidence being in the nature of electronic evidence
was required to be established in a Court of law in accordance with the
provisions under the Evidence Act.
71. Having stated thus, we do not find any flaw in the policy of the
State of Odisha contained in the Notification No.5465(SME), dated
11.03.2020 and the implementation of guidelines issued by Office
Memorandum No.5538/SME., dated 11.03.2020.
W.A No.417 of 2021 Page 64 of 70
72. After having said so, we cannot ignore the circumstances of
incorrect implementation of the policy leading to breach of the
statutory requirements under the RTE Act or the Rules. To address the
situation, the implementation policy lays down Post-Consolidation
Grievance in paragraph 24, which reads thus:-
“Post-Consolidation Grievance
24.While the Policy and the SOP has taken all
necessary steps to ensure smooth implementation of the
consolidation and the intent if for the betterment of
Learning Outcomes and environment for students.
However, if there are specific grievances by any party
post the consolidation in April 2020, the same shall be
referred to the Grievance Redressal Cell in the District
Office and then to the State Grievance Cell and OSEPA.
The Grievance Redressal Cell in the District Office will
be chaired by the District Collector and constitute a
team for in-person reverification of each case. The re-
verification and stakeholder consultation for each
grievance shall be conducted by a person different from
the original verification. A detailed copy of the
investigation must also be submitted to the State
Grievance Cell &OSEPA. State Grievance Cell may
further investigate any cases it deems necessary and
issue relevant instructions to the district.”
73. We do not agree with the opinion expressed in paragraph 31 of
the impugned judgment of the learned Single Judge that the Grievance
Redressal mechanism is an empty formality since the affected persons
will not get justice from the Government officials. This is for the
W.A No.417 of 2021 Page 65 of 70
reason that from the language of paragraph 24 of the implementation
policy, it is evident that Post-Consolidation Grievance is not for the
purpose of exercise of any judicial or quasi-judicial function. It is
apparently an internal arrangement for the functionaries of the State to
monitor proper implementation of the policy of rationalization. A bias
cannot be attached with all the Government functionaries if any
grievance is raised in relation to incorrect implementation of the policy
or if because of the policy, certain rights under Article 21A of the
Constitution, provisions of the RTE Act or ORTE Rules are violated.
The redressal mechanism in paragraph 24 of the policy has been
provided to take corrective measures in case of any flaw or deficiency
in implementation of the policy or in course of implementation of
rationalization policy, any statutory provision under the RTE Act or
ORTE Rules stands breached.
74. In our considered view, paragraph 24 of the implementation
policy is a safeguard for the stakeholders to raise a grievance where
any provision of the RTE Act or Rules is violated while implementing
the rationalization policy.
W.A No.417 of 2021 Page 66 of 70
75. It should also not be forgotten that the rationalization policy is in
tune with the communication dated 07.07.2017 issued by the Ministry
of Human Resource Development, Department of School Education
and Literacy in relation to rationalization of small schools across the
State for better efficiency.
76. In our considered view, consolidation of schools in the manner it
has been decided to be undertaken by the State Government under its
policy if carried out judiciously cannot be said to be violating any
provision under the Act or Rules until it is demonstrated on case-to-
case basis that its implementation has impacted on access to education.
77. The opinion expressed by the learned Single Judge in paragraphs
60 to 70 are based on perception. We refrain ourselves from recording
any opinion as regards the said comments in the present judgment.
78. We record our conclusions thus:-
I. No provision under Notification No.5465 dated 11.03.2020 and
Office Memorandum No.5538/SME dated 11.03.2020 has been
W.A No.417 of 2021 Page 67 of 70
demonstrated to be violative of any provision under Article 21A of theConstitution or any provision under the RTE Act or ORTE Rules.
II. Clause 24 of the Office Memorandum containing
implementation guidelines is not hit by the maxim nemo judex in re
sua.
III. The Rationalization Policy cannot be held to be illegal merely on
the ground that there is no such prescription under the RTE Act or
ORTE Rules. The validity of such policy could be successfully
challenged only when they were shown to be defeating the provisions
of RTE Act or ORTE Rules and thereby Article 21A of the
Constitution.
IV. With reference to the question No.4, we are of the view that the
opinion recorded by the learned Single Judge is not in consonance with
Rule 6(2) of the ORTE Rules.
79. For the reasons noted above, the impugned judgment dated
04.05.2021 passed by the learned Single Judge deserves interference.
The judgment is accordingly set aside.
80. The appeal is allowed. The interim order is made absolute.
W.A No.417 of 2021 Page 68 of 70
81. We make it however clear that any stakeholder shall be at liberty
to invoke Clause 24 of the Implementation Policy on the allegation of
violation of any provision under the RTE Act, ORTE Rules or the
Policy contained in the Notification No.5465/SME dated 11.03.2020
and the Resolution for implementation of the policy No.5538/SME
dated 11.03.2020 before the Competent Authority.
82. It is peculiar to note that school management committees of
different schools have approached this Court in the present proceeding
challenging the Policy of Rationalization of the Schools. No
substantive claim has been made by any petitioner indicating violation
of fundamental right of any citizen under Article 21A of the
Constitution or any provision under the RTE Act or ORTE Rules. They
have raised grievance against closure of the schools without making
out a substantive case of violation of right of a person to access to
education because of the framing of such policy.
83. However, in the facts and circumstances of the case, we direct
the concerned Grievance Redressal Cells of the concerned districts to
W.A No.417 of 2021 Page 69 of 70
consider the grievances of these petitioners as raised by pleadings in
the present writ application and do the needful in accordance with law.
84. It goes without saying that though we have upheld the
Rationalization and Consolidation of School Policy, any decision taken
by the authority on a grievance raised under Clause 24 of the Policy
shall be subject to challenge before appropriate forum including by
filing writ application before this Court under Article 226 of the
Constitution of India in case of violation of the provisions of the Act,
Rules, Article 21 of the Constitution of India or any other ground
including the ground of arbitrariness or irrationality.
85. All interlocutory applications stand disposed of.
(Chakradhari Sharan Singh)
Chief Justice
M.S. Raman, J. I agree.
(M.S. Raman)
Judge
M. Panda/S. K. Jena, Secy. Signature Not Verified
/ S. Behera, Sr. Steno Digitally Signed
Signed by: MRUTYUNJAYA PANDA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 29-Oct-2024 17:57:24
W.A No.417 of 2021 Page 70 of 70