RTE Act Applicable Even To Residential Schools: Karnataka High Court Upholds Penalty Imposed On School For Not Complying With Provisions

The Karnataka High Court has held that provisions of the Right of Children to Free and Compulsory Education Act, 2009 are applicable even to Residential schools.

A single judge bench of Justice Suraj Govindaraj dismissed the petition filed by Jnana Sarovar Educational Trust, which runs a residential school without any grant-in-aid offering the Indian School Certificate Examination (ISCE) syllabus, from 21.08.2009, challenging an order dated 23.11.2021 by which the authorities imposed a penalty of Rs 1,61,50,000, for non-compliance with the provisions of registration under the Act.

The court said, “Reading of Section 18 of the RTE Act with Rule 11 of the Karnataka RTE Rules, it is mandatory for a School other than a school established, owned and controlled by the appropriate Government or the local authority to apply for in terms of Form-I of the Karnataka RTE Rules, 2012 for recognition under the RTE Act, there being no exceptions.”

Respondents D.Balakrishna Krishnappa and William Yesudas had filed an appeal alleging that the school had not obtained recognition under the RTE Act and sought for action to be initiated.

The petitioner, having been issued with a notice on 09.12.2016, appeared before the authorities on 19.12.2016. A show cause notice came to be issued on 12.01.2017, which was replied to by the petitioner contending that the petitioner being a residential school, RTE Act cannot be made applicable to the petitioner.

Respondent No.5 had issued one more notice on 01.02.2017 stating that the management is responsible for not uploading the details of the students under the RTE Act followed with the communication from respondent No.4- Deputy Director of Public Instructions (DDPI) recommending action against the petitioner. The matter was taken up by respondent No.6 – Chief Executive Officer of Zilla Panchayath who directed the respondent No.4 – DDPI to hold an enquiry into the aspect and take action in terms of sub-Section (5) of Section 18 of RTE Act.

A further show cause notice came to be issued calling upon the petitioner to show cause as to why action should not be initiated under sub-Section (5) of Section 18 of RTE Act as also for levy of fine thereon. The authorised representative of the petitioner appeared before the DDPI. Respondent No.4 following which it imposed a penalty of Rs.1,60,50,000.

The petitioners challenged it before the high court which remitted the matter back and on consideration a penalty was imposed of Rs 1,61,50,000.

It was argued by the petitioner that the impugned order is violative of principles of natural justice. It only refers to the fact that the explanation offered by the petitioner is not satisfactory and that no supporting documents are provided. The said finding is without any reasoning and as such, it is not sustainable.

Further, it was said that the impugned order is contrary to Rule 23 of the Karnataka RTE Rules, 2012. Rule 23 provides for the procedure to be undertaken while passing an order under sub-Section (5) of Section 18 of the RTE Act.

The government opposed the plea saying it is a bounden duty on the part of any educational institution to seek registration. Any violation thereof would entail a penalty in terms of subsection (5) of Section 18 of the RTE Act.

It was stated that there is an admission on the part of the petitioner itself that recognition had not been sought and that itself would be sufficient for the CEO and for this Court to hold that there is a violation of Section 18 of the RTE Act requiring the application of sub-Section (5) of Section 18 of RTE Act and what has been done by the CEO is proper and correct.

It was stated that while the CEO submitted that the only explanation offered by the petitioner was that the RTE Act would not be applicable to the petitioner and there was no reason as to why there was a delay and the CEO has found the petitioner to be in violation of the RTE Act levied the penalty as indicated under subsection (5) of Section 18 of RTE Act, which contemplates a fine of Rs.1,00,000 and in case of continuing contraventions, a fine of Rs.10,000/- for each day during which such contravention continues.

Findings:

The bench referred to Sub-Section (1) of Section 18 of the RTE Act and Rule 11 of the Karnataka RTE Rules, more particularly, sub-rule (2) and said “In terms of sub-rule (2) of Rule 11 of the Karnataka RTE Rules, there is an obligation imposed on the school to make a self-declaration in Form-I within six months of the commencement of the Rules, which Rules came to be published in the official gazette on 28.04.2012, requiring the Governing Council of the School to make the declaration in Form-I by 27.10.2012.”

It added, “This obligation being a statutory obligation on the Governing Council, it was but required for the Governing Council to discharge the obligation.”

Following this it held “There is a requirement for a school to obtain a Certificate of Registration under Section 18 of the RTE Act.”

It also held that “In the present case, the petitioner has not filed such Form-I but has only contended that the RTE Act is not applicable to the petitioner. Therefore, it is clear that there is a violation of sub-rule (2) of Rule 11 of the Karnataka RTE Rules and therefore, Section 18 of the RTE Act by the petitioner.”

Rejecting the contention of the petitioner that after the high court remanded the matter back for fresh consideration the BEO on receipt of the complaint has not issued a notice and thereafter it is not brought to the notice of the DDPI, the Court said that the DDPI has not instituted an enquiry and submitted a report to the CEO and therefore, CEO could not take any action.

The court said “These very contentions had been taken up by the petitioner in W.P.No.21192/2017 and this Court vide its order dated 19.09.2019 in the said matter had remitted the matter to the Chief Executive Officer to proceed with the matter. The said order passed by Coordinate Bench of this Court having attained finality and not having been challenged, the petitioner having appeared before the CEO and submitted its preliminary objections, addressed its arguments, it cannot now lie for the petitioner to contend that the matter needs to be referred to BEO for the BEO to issue a show cause notice.”

Upholding the order passed by the CEO as correct the bench dismissed the contention of the petitioner that firstly there has to be a finding that there is a violation, then, an imposition of fine of Rs.1,00,000/- and only thereafter if the order passed is not obeyed for continuing contravention, Rs.10,000/- for each day could be imposed.

It said “In the present case, no such Form-I having been filed by 27.10.2012, the petitioner's school in contravention of Section 18 of the RTE Act requiring imposition of fine penalty as contained in sub-Section (5) of Section 18 of the RTE Act, Form-I not having been filed by 27.10.2012 would call for imposition of penalty of Rs.1,00,000/-. The period of six months having expired on 27.10.2012 and no application in Form-I having been filed subsequent, to my considered opinion would require imposition of a fine of Rs.10,000/- for each day subsequent to 27.10.2012.”

Finally it held “The petitioner being fully aware of the requirements under the Act not having offered any explanation for the delay, except to state that the Act is not applicable, the Act not having been challenged in these proceedings or the applicability of the Act not having been challenged in these proceedings, I am of the considered opinion that the fine which has been levied by the respondent No.6 – CEO, Zilla Panchayath is in terms of subsection (5) of Section 18 of RTE Act and there is no infirmity in the same.”

Accordingly, it dismissed the petition.

Appearance:

Advocate M.P.Srikanth, for the petitioner.

HCGP Sarita Kulkarni, for R.1 to 5.

Advocate B.J.Somayaji, for R6.

Advocate Sharath Kumar Shetty, for R7.

Citation No: 2024 LiveLaw (Kar) 240

Case Title: Jnana Sarovar Educational Trust AND State of Karnataka & Others

Case No: WRIT PETITION NO. 24579 OF 2021

Click Here To Read/Download Order