Mumbai: The Bombay High Court on Friday quashed a government notification of February 9 wherein private unaided schools – with a government-run school within 1km radius – were exempted from admitting children under the Right to Education (RTE) Act quota admissions.
While quashing the notification, the high court said it was “ultra vires the RTE Act 2009 and Article 21-A of the Constitution of India and, accordingly, the impugned proviso is declared to be void”. Article 21-A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years.
“The notification is held to be null and void,” a division bench of Chief Justice D K Upadhyaya and Justice Amit Borkar said. However, the bench noted that before the GR was stayed in May, several private unaided schools had granted admissions to private students on the seats which were meant to be reserved for the RTE quota.
The bench has clarified that “the admissions of such students shall not be disturbed”, but the schools shall ensure that the 25% quota of seats under the RTE shall be filled as per the Section 12(1)(c) of the RTE Act. If required, the total seats would be increased by such schools by submitting necessary information and details to the concerned authority of the education department. “... where it is necessary, the total seats may be increased by such schools by submitting necessary information and details to the concerned authority of the Education Department of the State Government,” the judges emphasised.
The section 12 (1) (c) of the RTE Act, 2009 fixes the responsibility of private unaided schools to provide free and compulsory education to children from weaker and disadvantaged sections by admitting at least one- fourth of the total strength of Class 1 or pre-school education.
The HC was hearing a batch of petitions challenging the notification contending that the change in rules violates the constitutional right to education for children aged six to 14. They also contend the state’s decision is contrary to the RTE Act’s objective of providing an inclusive education, while diluting the private schools’ responsibility of educating marginalised students.
The court held that Section 12(1)(c) makes it “mandatory” for all unaided private schools to admit students under the 25% RTE quota, however, the February notification made the same “conditional”.
Referring to a Supreme Court judgement, the HC said that Section 12(1)(c) provides for “a level playing field in the matter of right of education to children who are prevented from accessing education for want of means to pay for their fees”.
“Its operation is rather ‘unconditional’ and hence, in our opinion, it is ‘mandatory’ for all private unaided schools in the neighbourhood to follow the mandate of Section 12(1)(c) of the RTE Act,” the bench underlined.
The court also did agree with the arguments of Government pleader Jyoti Chavan that it has established a sufficient number of schools and has been spending sufficient expenditure on the same.
“It is also not tenable as the financial constraint cannot come in the way of statutory mandates keeping in view the purpose for which the RTE Act has been enacted,” the judges said. The court underscored that the “mandate to the State to provide free and compulsory education under Article 21-A is almost absolute”.
