A. Muhamed Mustaque JUDGMENT
A. Muhamed Mustaque, J.
1. Petitioner is the grandmother of a child, by name, Acquin Victor, a student of 6th standard in St.Joseph Public School, Pattanakkad, Cherthala, the 3rd respondent herein.
2. The issue in this writ petition is about the denial of promotion to the child from 6th to 7th standard by the 3rd respondent school during the academic year 2015-16. Petitioner's claim is based on Section 16 of the Right to Education Act (hereinafter referred to as the "RTE" Act, for short). Petitioner approached the various authorities, including the Government. Though the Government appeared to have issued certain directions, those directions have not been complied with by the school authorities, stating that, the school is an unaided recognized minority institution. It is also seen that an order has been passed by the Kerala State Commission for Protection of Child Rights, Thiruvananthapuram, recommending the school authority to promote the child from 6th to 7th standard, forthwith. The order was passed on 13.10.2015. However, all attempts of the petitioner ended in vain, on account of non-compliance. Accordingly, the petitioner approached this Court.
3. In the counter filed by the school authority, a certificate issued by the Government of India has been produced, conferring minority status to the school. Therefore, it is contended that, in the light of the judgment of the Hon'ble Supreme Court in Pramati Educational and Cultural Trust v. Union of India (MANU/SC/0419/2014 : 2014 (2) KLT 547), the petitioner, cannot claim any right based on Section 16 of the RTE Act.
4. The question in this writ petition is, "does a child have a right to promotion in a minority institution upto elementary school level?".
5. The question, as above, would depend upon the maintainability of the writ as against a private unaided school. Therefore, before considering the issue of the right claimed by the petitioner, it is appropriate to refer to the nature of function being discharged by the school authority.
6. The nature of the function has to be considered to determine whether a particular body is amenable to writ jurisdiction. If the school discharges the State function or public function, necessarily, the functional duty carried out by the school, to that extent would be amenable under Article 226 of the Constitution.
7. This Court in Karthikeya Varma v. Union of India [MANU/KE/1162/2015 : 2015 (3) KLT 424] had adverted to the approaches to be made to determine the public function, which is structural approach and functional approach.
8. The structural approach is about an entity, though a private body, but whose control, financially or functionally or administratively, is vested with the State. The functional approach is essentially about the function discharged by that body.
9. In this case the issue cannot be approached as though the school is a State or other authority, considering the nature of composition of the entity, within the meaning of Article 12 of the Constitution. However, it can be treated as one, coming under the functional activities of the State, in imparting education.
10. The Hon'ble Supreme Court in the case of Dr. Janet Jeyapaul v. SRM University & Anr. in [MANU/SC/1438/2015 : AIR 2016 SC 73], held that, imparting higher education is a public function. In this case, the school is affiliated to the Council for the Indian School Certificate Examination, New Delhi. The recogni........