- (1.) S. H. A. Raza, J. Mr. H. S. Jain, the learned Counsel for the petitioner, espousing the cause of millions of students, studying in Primary as well as Secondary Schools, all over the State, sub mitted that right of students to receive education who will determine the future of this country, cannot be spoiled by those teachers who went on strike which was declared illegal by the State of U. P.
(2.) RIGHT of education in J. P. Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 642, has been held a fun damental right by Hon'ble Supreme Court of India as that right is embedded under Article 21 of the Constitution of India. The petitioner who is a practicing lawyer of this Court, by way of public interest litigation, has raised several grievances against the teachers who went on strike recently and prayed for grant of several relief's which are mentioned here in under: (1) Issue a writ, order, direction or decla ration to the effect that strike in schools and colleges being run under the Basic Shiksha Act, 1972, as well as the educational institutions recognised by the Director of Education U. P. and the Board of High School and Intermediate Education U. P. and the Government Secondary Institutions, is illegal being violative of students' fundamental right to education; (2) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to ensure the opening of schools and colleges being run order the U. P. Basic Shiksha Act, 1972 and the educational institutions recog nised by the Director of Education U. P. and the Board of High School and Intermediate Educa tion U. P. as also the Government Secondary Institutions, (3) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to take all measures for imparting educa tion and smooth running of classes in the institu tions being run by the opposite parties; (4) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to pay any salary to the teachers of the institutions, for the period they did not or do not perform their duties, applying the principle 'no work no pay'; (5) Issue a writ, order or direction to the effect that strike period shall be taken as 'break' in the services of striking teachers in the institu tions ; (6) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to take suitable action against the strik ing teachers dispensing with their services and make fresh appointments in their place; (7) Issue appropriate writ, order or direc tions in the nature of mandamus commanding the opposite parties, not to charge any fees from the students in the institutions for the period the classes were not running and institutions were closed due to strike; (8) Issue an appropriate writ, order or direction in the nature of mandamus command ing the opposite parties not to re-instate those teachers whose services have been dismissed, terminated/dispensed with by them due to strike; (9) Issue any other appropriate writ, order or direction as the Hon'ble Court may deem fit under the circumstances of the case and in the interest of justice. A child can develop to be a respon sible and productive member of the society only when he is imparted educa tion. If a child or student is deprived of his education, nation is also deprived of the potential human resources for social progress. The Constitution of India has bestowed the importance of the role of the child in its best for development. Article 39 (f) enjoins that the state shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in condi tions of freedom and dignity and the childhood and youth are protected against exploitation and against moral and material abandonment. Article 45 man dates that the State shall endeavor to provide free compulsory education to all children until they complete the age of 14 years. The period of ten years as provided in Article 45 has lost its relevance inas much as millions of children are denied compulsory primary education. The convention on the rights of the child which was ratified by the Government of India though belatedly on Novem ber 20, 1989 recognise the rights of the child for full and harmonious develop ment of his or her personality. Article z. 2 of the convention on the rights of the child reads as under: " (1 ). State Parties recognise the right of the child to education and with a view to educa tion and with a view to achieving this right progressively and on the basis of equal oppor tunity they shall in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of dif ferent forms of secondary education, including general and vocational education, make them available and a accessible to every child and take appropriate measures such as the introduction of free education and offering financial assis tance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational in formation and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop out rates.
(3.) IT is really unfortunate that al though India is a signatory to Internation al Convention on the right of the Child, mandate of the Constitution as contained in Article 39 (f) has not been followed. India has assured the world community that by the end of this century the children will be provided free and compulsory education. If the State fails to fulfil this obligation under the Constitution the courts will have to issue directions to the State Government as well as the Union Government to fulfil its obligations under Article 39 (f) of the Constitution of India and the International Convention on the right of the child to which this country is a signatory. As far as the courts are concerned, Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Education v. K. S. Gandhi, (1991) 2 SCC 716, has held that right to education at the secondary stage was fundamental right. In J. P. Unnikrishnan v. State of Andhrd Pradesh, (supra), the Constitutional Bench held the education up to the age of 14 years to be a fundamental right. A child is entitled to such a fundamental right and it will be incumbent upon the State to provide facilities and opportunities as enjoined under Article 39 (e) and (f) of the Constitution and to prevent exploitation of their childhood due to indigence and vagary. In Bandhua Mukti Morcha v. Union of India, 1997 (4) Supreme 609; 1997 (2) LBESR 544 (SC), Hon'ble Supreme Court held that basic education and employment oriented vocational educa tion should be imparted so as to empower the children with the segments of the society to retrieve them from poverty an thus develop basic abilities, skills and capabilities to live meaningful life for economic and social empowerment. Com pulsory education, therefore, to these children is one of the principle means and primary duty of the State for stability of the democracy, social integration and to eliminate social tensions.;