The Delhi High Court recently comprising of a bench of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta while rejecting a plea challenging certain provisions of the Delhi School Education Rules, 1973 has observed the provisions of the Right To Education (RTE) Act cannot be unconditionally enforced on a private unaided school. (Master Divyam Bhateja through Father Mr. Vinod Bhateja v. Bhai Parmanand Vidya Mandir and Ors.)
Facts of the case
Divyam Bhateja, a Class VI student in Bhai Parmanand Vidya Mandir here, was on February 11, 2022, told by the school that her name had been struck off the rolls over non-payment of fees since June 2021.
The Minor's plea challenged the validity of Rules 35(striking off the name from the rolls) and 167(name of the student to be struck off for non-payment of fees and contributions) of Delhi School Education Rules, 1973 as being ultra vires to Article 19(1)(a), 21 and 21A read with provisions of Right of Children to free and compulsory Education Act, 2009 and contrary to the provisions of section 75 of Juvenile Justice Care and Protection Act, 2015.
The plea further challenged an impugned communication which had struck down the name of the minor (the petitioner) from the role of the private school as being in deliberate disobedience of direction issued by Delhi High Court based on fee bill generated, contrary to the provisions of Rule 165 of Delhi School Education Rules 1973.
Courts Observation and Judgment
The bench at the very outset observed that the challenge of the petitioner is premised on the submission that the aforesaid Rules impinge upon the operation of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as, RTE Act).
The bench further noted, "At the outset, we may notice that the Delhi School Education Act, 1973 was enacted for better organisation and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto. The very object and purpose of this enactment is to improve the standard and management of school education. The rule making power in the said Act is contained in Section 28 (2). The rule making power extends to a wide gamut of areas, all concerned with meeting the prescribed standards of education and to ensure good governance practices in schools on Delhi."
The bench observed that The RTE Act was enacted in 2009 to give effect to the fundamental right inserted via Article 21A of the Constitution of India. The main purpose was of the RTE Act is to provide for free and compulsory education to all children of the age of 6-14 years. To achieve the same, various provisions have been inserted in the said enactment. Section 12 of the said Act delineates the extent of responsibilities of the school for free and compulsory education qua government schools, aided schools and un-aided schools.
The bench taking note of the above remarked, "Given the independent and distinct framework of Delhi School Education Act and the Rules framed thereunder, and the RTE Act and the rules framed thereunder, there can be no question of Rules 35 and 167 of Delhi School Education Rules impinging upon the operation of the RTE Act. The RTE Act guarantees the right to education. However, it nowhere provides that the said right can be unconditionally enforced against a private unaided school. The petitioner is free to take admission in a government school if he cannot afford to pay the fee of the private unaided school. If he is entitled to admission in the EWS category, he may apply under that category to seek waiver of the school fee. If the claim of the petitioner were to be allowed, if would mean that even a private unaided school would notbe able to charge any fee even though they have to meet all their expenses from their own resources and accretions. This is completely untenable."
The Court also observed that there is no repugnancy whatsoever between sec. 75 of Juvenile Justice Act, 2015 and the impugned Rules 35 and 167 of the Delhi School Education Rules, 1973.
The court accordingly, rejecting challenge to the said Rules, directed the Single Judge before whom the matter was pending, to examine other prayers on their own merit raised in the plea.
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