Srinagar: A batch of private schools have filed a writ petition in JK and Ladakh High Court seeking directions upon JK administration to accord registration/recognition to petitioner schools as was being done before the rules were amended.
The petitioners have further sought that SO 177 be declared ultra vires to the Constitution.
The matter came up before the vacation bench headed by Justice Moksha Khajuria Kazmi on 23rd May and the court ordered the maintenance of the status quo till the next date of hearing.
In April this year amendments were made to JK School Education Rules, 2010, vide SO 177 mandating private schools, applying for registration, to keep along No Objection Certificates issued by revenue authorities, regarding the land use.
The amendments also empowered the administration to take over the management of schools and barred staff/teachers from claiming regularization if the management is taken over by the government.
Consequent to these amendments many notifications were issued by the government requiring schools to comply with the newly imposed conditions.
Private Schools operating on State, Kachari and land falling under some other categories could not get the NOCs from Revenue Authorities and hence came under the teeth of an amendment giving rise to the present court dispute.
The petitioners have challenged the amendment imposing fresh condition for registration of schools on counts ranging from interference with fundamental rights of the Educational Authority; to defeating the aims of the JK Education Act; to bypassing the existing statutes such as the Land Revenue Act that are already in place to deal with State, Kahcharai and Common land and provide for the procedure for eviction of the trespasser.
Petitioners contend the real effect of the amendment will be closing down the schools. Empowering the administration to take over management of schools will result in deprivation of the assets to the school management that they have created over the years of hard work and it is in contravention with their fundamental rights, petitioners claim.
The petitioners further claim that the schools are operating on lands falling into different categories, including state land and Kachari.
There is no law that provides for the use of state land. Petitioners say, ordinarily the state land can be used by the administration however the Admin wants, but so long as the purpose of the land is not defined, it can be used for public purposes also and the schools on these lands are for the benefit of public and have been hailed by the administration from time to time for augmenting to educational needs.
It is further contended that the schools are operating on such pieces of land for decades and the administration has all along been registering and recognizing the schools besides issuing electricity and water connections, in view of this, petitioners contend, the Admin cannot impose fresh conditions and it cannot be said to be unaware about the functioning of school on state land.
In these circumstances both express and implied consent/permission of the government is present, petitioners contend.
Moreover, it is contended that some of the schools are continuing with the permission/consent of local inhabitants and of local bodies like Panchayat.
People are preferring private schools over government due to quality education.
It is argued the rule-making authority has intentionally ignored the existence of schools on these pieces of land just to drive out the management of schools and alter the decades-old position having a direct effect of closing down the schools.
The non-issuance of NOCs by revenue authorities handicaps school authorities from fulfilling the conditions imposed by SO 177 thereby violating the fundamental rights of petitioners, putting the career of students at stake, and defeats the purpose of augmenting the educational programme of the state, petitioners state.
The attention of the court is further invited towards the provisions of statutes such as the Land Revenue Act, Common Lands Act etc that deal with the state, Kacharie, and Shamilat Deh lands and provide the mechanism for eviction of trespassers.
It is contended that the amendment, which is in disregard of all these statutes paves way for the administration to take over the assets of schools without compensation and therefore aims to enrich JK administration at the cost of the Educational Agency.
Petitioners take a resort to JK School Education, Act, 2002 contending, that the provisions of the Act do not, per se, provide for the requirement of NOC and the rules framed in 2010 vide SRO 123 again do not require NOCs for registration. Petitioners maintain that the conditions imposed through the impugned amendment are unreasonable, arbitrary, and unfair and aim to drive away from the management of schools.
No law or condition that takes away the petitioners’ right to set up schools can be imposed, as these rights have the protection from Articles 19 and 21 of the constitution.
The power of rule-making authority to carry out amendments is also questioned in the petition. Petitioners contend that the parent act does not delegate powers to the administration to make rules as per its whims and caprices.
Petitioners further refer to the history of land laws and argue that eviction of schools cannot be sought on the grounds of being set up on non-proprietary land.
It is argued the Kachari and other categories of land are for the common use of villagers and schools occupy small portions of land, not for personal use but in discharging of public duty.