WP(C) 787/2011 BEFORE HON’BLE MR. JUSTICE P.K.MUSAHARY Heard Mr. S.K.Talukdar, learned Counsel for the petitioner , Mrs. M.Gogoi, learn ed Standing Counsel, Education Department and Md. Giasuddin , learned Counsel f or the respondent Nos. 3 and 4. 2. This petition under Article 226 of the Constitution of India is directed against the inaction of the Director of Secondary Education, Assam respondent N o. 2 in taking action in accordance with law against the illegal action of the r espondent school authorities refusing admission on religious grounds to the peti tioners, represented by their guardians. The petitioner No. 1 Shri Sayal Akhtar sought admission in the respondents’school in Class VIII while the petitioners N o. 2 Rubel Akhtar and 3 Sazid Uddin Uddibn in Class II in the academic session commencing from January,2011. It may be noted that the petitioners were earlier in the said school and in 2005 they were compelled to leave the school and t ake admission in the other schools . They again came and sought admission in the respondent- school as because there is no other English Medium School in and around the said locality. The admission has been refused .The petitioners rep orted the same to the respondent-Director of Secondary Education, Assam by fili ng a representation dated 8.1.2011 (Annexure-3) but no action was taken from hi s end and having no other alternative , the petitioners have filed this writ application. 3. Mrs. Gogoi, learned Standing Counsel, Education Department raised a prel iminary objection to the maintainability of the writ petition on the ground tha t the school concerned is a purely private school/ institution against which no right would lie. She means to say that the school concerned is not amenable to writ jurisdiction. In support of her submission , she has placed an order of a D ivision Bench of this court passed on 28.7.2008 in Writ Appeal No. 227 of 2010/ and in the light of the said order, the present writ petition is liable o be d ismissed . 4. Mr. Giasuddin Ahmed, learned counsel for the respondent Nos. 3 and 4, su bmits that the guardians of the present petitioners sometime created nuisance in the school campus disturbing the academic atmosphere of the school and if the p resent petitioners are admitted their guardians would get the chance of repe ating the nuisance . Moreover, it is the discretion of the institution to allow or refuse admission. He further submits that an FIR was lodged against Nozrul Islam and Faizul Hoque vide Annexure A,B and C to the affidavit-in-opposition b ut they have not been registered although the same were received by the local po lice. 5. From the pleadings of the parties, it is found as an admitted position t hat the petitioners sought admission in the said school in the Month of January, 2011. It is also found indisputable that the respondent-school is a minority school and it obtained necessary approval from the State Govt. for running the s chool and on the basis of such approval , the school is running as a private i nstitution . As regards the decision of the learned Division Bench of this court as referred to above relating to bar on exercising writ jurisdiction, it can be pointed out that the said decision was rendered in a case of re-instatement of an employee who was acquitted in a criminal case. In my consideration, the right to re-instatement is a legal right, which can be refused or allowed by th e authority concerned or the court particularly, when the employee belongs to a private institution and in the aforesaid case it was found that the school in wh ich the petitioners are studying, is a private school for which the Division Be nch of this court refused to exercise power under writ jurisdiction. Here is a c ase where the present petitioners have come against the refusal to admit them in the school. In the present case, the petitioners are raising a question of e njoyment of fundamental rights guaranteed under Article 21 A of the Constitution of India which provides that the State shall provide free and compulsory educa tion to all children of the age of 6 to 14 years. The petitioners are admittedly below the age of 16 years and they are entitled to right guaranteed under Artic le 21 A of the Constitution of India. 6. There is no denial to the claim of the petitioners that they are childre n below the age of 16 years and they applied for admission in the respondent sch ool. From the pleadings of the respondent school it is discernible that it has o bjection to admission of the petitioners due to alleged controversial activities of their parents against whom the school authority lodged complaint before the police but the school authority could not substantiate the allegation of crimina l activities by furnishing any documentary evidence of initiating criminal proc eedings against them, not to speak of submission of charge sheet or framing of charges against them. The respondent school could not even show any document tha t the FIR lodged by them was registered. 7. At this stage, Mr. Talukdar, learned counsel for the petitioners submits that the guardians of the petitioners (students) are ready to furnish any unde rtaking in writing to the effect that they would not enter into campus/ premis es of the respondent school and abide by any other conditions that may be impo sed by the school authority for providing admission of their wards. 8. The petitioners have clearly stated that there is no other English Scho ol in and around the said area except the respondent school and therefore, the p etitioners have to take admission school. Besides it is to be noted that for an y alleged misconduct or alleged criminal activities, their children should not b e made to suffer by way of refusing admission in the school . The action of t he respondent authority in refusing admission to the petitioners cannot be appro ved at all inasmuch as it is not only violative of fundamental rights guarantee d under Article 21 A of the Constitution of India but also violative of legal an d human rights. other legal rights. 9. In view of the above, I allow this writ petition providing that the re spondent school shall allow admission to the petitioners forthwith within 3 days from the date of furnishing a certified copy of his order and on furnishing s atisfactory undertakings in writing by the guardians of the petitioners to the effect that they will not enter into the campus/premises of the respondent schoo l during the period their children would prosecute studies in the school. 10. This petition stands allowed.