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The Orissa High Court on Tuesday quashed a notification of the School and Mass Education department to shut down nearly 8,000 elementary and primary schools having poor student strength and merge them with some nearby schools having bigger strength and good infrastructure.

The single bench of Justice Dr B R Sarangi after adjudicating over nearly 170 writ petitions having similar prayer observed that,

“it is emerged that in all these writ petitions the petitioners essentially seek to quash the notification no. 5465/SME., dated 11.03.2020 issued by the Government of Odisha in School & Mass Education Department, pursuant to the policy framed vide notification no.10442/SME dated 14.05.2018, for rationalization and consolidation of schools under School & Mass Education (S&ME) Department, as well as the consequential office memorandum no. 5538/SME., dated 11.03.2020 for implementation of guidelines for the policy of rationalization and consolidation of schools.”

The bench further quashed the March 11, 2020 notification and subsequent office memorandum and corrigendum of the department and directed the state government to restore back the position of the merged schools as before and provide necessary infrastructure for the smooth running of the said schools.

According to the factual matrix of the present case the education department had started merger of at least 7,772 schools of whom 1,724 schools had less than 25 students and 6,048 schools had less than 20 students. The opposition political parties, however, had alleged that the state government has a plan to close over 14,000 schools on the plea of poor enrolment and merge some of these closed schools with that of some nearby schools.

“Although since 1954, the said school is catering education to the need of local children of that area, basing upon the Government order dated 27.08.2020, the Block Education Officer, Agalpur, vide office order no.1048 dated 16.09.2020 directed for merger/ consolidation of Amaramunda Government Primary School with Laxmanpali Project U.P. School, even though the roll strength of the school was 33. Such direction was issued basing on the notification No. 5465/SME., dated 11.03.2020 with regard to rationalization and consolidation of schools under School and Mass Education (S&ME) Department and subsequent office memorandum no. 5538 dated 11.03.2020 with regard to implementation of guidelines for the policy of rationalization and consolidation of schools.”- stated the petition.

K.K. Swain, the learned counsel for the petitioner in W.P.(C) No.27401 of 2020 contended that the Government Notification No.5465/SME dated 11.03.2020 for rationalization and consolidation of schools under School and Mass Education Department and consequential office memorandum no.5538/SME dated 11.03.2020 with regard to implementation of rationalization of policy decision cannot sustain in the eye of law and observed that,

“the same is violative of the provisions contained in Right of Children to Free and Compulsory Education Act, 2009 (for short the “Act, 2009”) read with Odisha Right of Children to Free and Compulsory Education Rules, 2010 (for short the “Rules, 2010”).”

He further contended that, “under the Act, 2009, there is no provision for limiting roll strength of the students in a school. In the name of rationalization and consolidation of schools, as a policy decision of the Government, the roll strength of a school cannot and should not be limited to a particular strength.”

Thereby after relying on the judgments such as Laxman Dundappa Dhamanekar v. Management of Vishwa Bharata Seva Samiti, (2001) 8 SCC 378; Punjab Water Supply & Sewerage Board v. Ranjodh Singh, AIR 2007 SC 1082 he urged to the court for quashing of the said notification and consequential office memorandum and directions issued by the individual authorities to individual institutions mentioned in the different writ petitions.

S. Parida, learned Senior Standing Counsel appearing for School and Mass Education Department, referring to counter affidavit filed by opposite party no.1, contended that, the objective of the notification is to,

“ (1) to reduce the number of educationally and economically sub-optimal schools;

(2) to rationalize and consolidate existing schools to reduce the category of schools thus fix the range category to only four, i.e. I-V, I-VIII, I-X & VI-X;

(3) to create as many integrated secondary schools as possible hence provide education up to high school level in one single campus, improving transition; and

 (4) to consolidate standalone Upper Primary and Secondary Schools.”

The bench after hearing all the parties concluded that the question which arises is whether the State Government can take a policy decision for merger of schools on the basis of roll strength or not. The discussions 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.

The bench referred to Article 21A and Article 246 of the constitution of india and observed that,

“In view of the aforesaid provision under Article 246(2) notwithstanding anything in clauses (2) and (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List-III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

Entry-25 of Concurrent List-III is as follows: ―

25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

 A perusal of the above Entry-25 makes it clear that “education” is a subject, for which both Parliament and Legislature of any State have got power to make laws.”

The court relied upon the SC judgments in the, P.A. Inamdar v. State of Maharastra, (2005) and T.M.A. Pai Foundation v. State of Karnataka, (2002) and noted that,

“expression “education” occurring in various Articles of the Constitution of India means and includes education at all levels, from the primary school level up to the postgraduate level and professional education.”

It must be noted that the 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 of 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”.

The Court in present case observed that,

“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 has been issued without taking into consideration the constitutional mandate as well as statutory provisions, namely, Act, 2009 and Rules, 2010. Thereby, the same cannot sustain in the eye of law.”

The bench further noted that,

“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”

Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Meaning thereby, judicial review is concerned, not with the decision, but with the decision-making process.

The writ petitons were allowed by the bench observing,

“in exercise of power under judicial review, is of the considered view that the notification no.5465 dated 11.03.2020 under Annexure-3 to W.P.(C) No.27401 of 2020 and subsequent office memorandum no.5538 dated 11.03.2020 for implementation of guidelines for policy of rationalization and consolidation of schools, and also the corrigendum issued on 14.12.2020 under Annexure-A/1 series to above mentioned writ petition, cannot sustain in the eye of law and the same are liable to be quashed and are hereby quashed. The opposite parties are directed to restore back the position of the schools in question, as before, and provide necessary infrastructure for smooth running of the same.”

Case title- School Managing Committee of Amaramunda Govt. Primary School, Amaramunda v. State of Odisha & Others

Law point- Art 21A of Constitution