‘It was the duty of the respondent School to ensure the attendance of the student(s).’
The Chhattisgarh High Court in Master Vatsal Khakhariya vs. State of Chhattisgarh has observed that a student cannot be failed up to Class VIII for ‘any reason whatsoever it may.’
Master Vatsal Khakhariya, a student of Class-VIII in Delhi Public School, Durg, for the academic year 2017-18, was initially not allowed to appear in the examination on the ground that he appeared in class only for 11 days out of 207 school days. Later, after the District Education Officer’s order, he was allowed to appear in the examination. He only appeared in four papers and he remained absent in two. The school refused to promote him to Class IX.
Challenging this, he approached the high court contending 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, no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.
Referring to Section 8 of the Act, Justice Sanjay K Agrawal observed that an obligation upon the state government is not only to provide free and compulsory education to every child but also to ensure his attendance and completion of elementary education. ‘Attendance of a child in the school is also an obligation of the State,’ the court said.
It further added: “A focused perusal of Section 16 of the Act of 2009 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.”
The court also referred to the decision of Madras High Court in Ka Kalaikottuthayam v. The State of Tamil Nadu and that of Calcutta High Court in Master Arkaprava Basu and another v. Patha Bhavan. It observed that after permitting him to appear in the examination and allowing the order of the District Education Officer to go unchallenged, no such ground can be allowed to be permitted not to promote the petitioner to Class-IX, as he has completed elementary education now.
“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/child who has not attended the school, but Section 16 of the Act of 2009 does not allow holding back of children in any class till the completion of elementary education for any reason whatsoever it may,” the bench said directing the school to award a certificate certifying that he has completed his elementary education.