July 17, 2018
Case name: Master Vatsal Khakhariya vs State Of Chhattisgarh
In a recent case, the High Court of Chhatisgarh has held that there is a statutory prohibition of failing a child upto elementary education in view of Section 16 of the RTE Act.
In the case, the Petitioner was not promoted to Class-IX leading to filing of writ petition stating inter alia that right to education up to the age of 14 years is a fundamental right guaranteed under Article 21A of the Constitution of India and by virtue of the provisions contained in Section 16 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.
The Respondent argued that the Petitioner was a chronic absentee and for his exams he did not appear for two papers due to which he was not promoted to class IX.
The High Court of Chattisgarh made the following observations in the case:
- That the Parliament has amended the Constitution of India by inserting Article 21 A on the basis of the law declared by the Supreme Court in P. Unnikrishnan v. State of Andhra Pradesh, wherein it was held that the right to education up to the age of 14 is a fundamental right to every citizen under Article 21 of the Constitution of India pursuant to which the children up to the age of 14 are guaranteed to get free and compulsory education.
- That in order to give effect to the provisions contained in Article 21A of the Constitution of India, the Right of Children to Free and Compulsory Education Act, 2009 was enacted as an Act to provide for free and compulsory education to all children of the age of six to fourteen years.
- That Section 8 of the RTE Act (duties of appropriate Government) casts an obligation upon the State Government not only to provide free and compulsory education to every child, but also to ensure his attendance and completion of elementary education.
- Thus, the attendance of a child in the school is also an obligation of the State. Court also made reference to Section 16 of the RTE Act prohibits holding back and expulsion of child from school till the completion of elementary education.”
- The High Court opined that the perusal of Section 16 of the Act mandates and prohibits school to hold back any child in any class or expel from school till the completion of elementary education, as such, there is a statutory prohibition for failing a student or retaining him in the same standard for any reason, including the reason that the student has scored very low marks in the examinations conducted, either in the class examinations or in Term examinations including final examinations and as such, promotion to higher class is automatic.
- With reference to the facts of the present case, the Court noted that it is true that if the petitioner has not attended the classes, it is likely to have the adverse effect on the learning of the petitioner but Section 16 of the Act does not allow holding back of children in any class till the completion of elementary education for any reason whatsoever it may.
In view of the aforesaid, the High Court allowed the Petitioner’s prayer and held the act of the Respondent school as arbitrary and illegal.
The entire case can be accessed here.