Bombay High Court
Unaided School Forum And Anr vs The State Of Maharashtra And Anr on 14 August, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4457 OF 2015
1. Dr. Vikhe Patil Foundation's
Vikhe Patil Memorial School Pune,
Through its Trustee and Secretary
Dr. Manoj Narwade,
Off Senapati Bapat Road,
Pune: 411 016.
2. Dr. Vikhe Patil Foundation's
Vikhe Patil Memorial School, Lohegaon,
Through its Trustee and Secretary
Dr. Manoj Narwade,
Survey No. 44/6,
Vikhe Patil Nagar,
Lohegaon,
Pune: 411 047.
3. Vidyashilp Public School,
Through its CEO
Shri. P.D. Kulkarni,
Vidyavardhani Education &
Research Foundation,
S. No. 9/2,
Yevalewadi,
Kondhawa (Bk.),
Pune: 411 048.
4. Symbiosis International School,
Through Authorized Signatory
Shri. Jagannath Raghunath Pathare,
Symbiosis Campus,
Viman Nagar,
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Pune: 411 0114.
5. Symbiosis School,
Through Authorized Signatory
Shri. Jagannath Raghunath Pathare,
N. Shravan 53, CIDCO,
Ashvin Nagar,
Nashik.
6. City International School, Aundh,
Through Chairman,
Between Rajiv Gandhi Bridge &
Bremen Chowk, Aundh,
Pune: 411 007.
7.
City International School, Wanowrie,
Through Chairman,
Ganga Savera Complex,
Fatima Nagar Road,
Opp. Shivalkar Garden,
Wanowrie,
Pune: 411 040.
8. City International School, Satara Road,
Through Chairman,
Maharshi Nagar, Behind Dena Bank,
Pune-Satara Road,
Pune: 411 037.
9. Indian Model School (State Board),
Near Water Tank,
Old Solapur-4.
10. Indian Model School (CBSC Board),
Near Water Tank,
Old Solapur-4.
11. Model Public School,
Through Authority Signatory,
Shri. Amol Joshi
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Subhash Shah Nagar,
Old Solapur-4.
12. The Principal
Smt. Sangita Rautji,
Tree House High School
Karve Nagar,
Pune: 411 052. ...PETITIONERS
VERSUS
1. Union of India,
[Summons to be served on the Learned
Government Pleader appearing for
Union of India under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2. State of Maharashtra
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
3. The Secretary,
School Education and Sports Department,
Government of Maharashtra,
Hutatma Rajguru Chowk,
Madam Kama Road,
Mantralay,
Mumbai 400 032.
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908]
4. The Director of Education, Central Building
Pune 411 001
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[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908]
5. The Education Officer
The Municipal School Board,
Pune Municipal Corporation,
Shivajinagar,
Pune 411 005.
6. The Education Officer
Municipal School Board,
Pimpri-Chinchwad Municipal Corporation,
Pimpri,
Pune 411 038.
7. The Education Officer Zilha Parishad
Zilha Parishad,
Pune.
Having its office at Pune 411 001.
8. The Education Officer
Municipal School Board,
Nashik.
Having its office at Nashik.
9. The Education Officer
Zilha Parishad
Solapur Zilha Parishad,
Solapur. ....RESPONDENTS.
ALONG WITH
ORIGINAL SIDE WRIT PETITION NO. 1582 OF 2015
Unaided School Forum & Anr. ....Petitioners.
Vs.
The State of Maharashtra & Anr. ....Respondents.
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A. S. WRIT PETITION NO. 4654 OF 2015
Shikshan Prasarak Mandali ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A. S. WRIT PETITION NO. 4655 OF 2015
Bharatiya Vidya Bhavan, Pune Kendra ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
ig WITH
A.S. WRIT PETITION NO. 4656 OF 2015
Pune Sevasadan Society ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A.S. WRIT PETITION NO. 4657 OF 2015
Jog Educational Trust ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A. S. WRIT PETITION NO. 4658 OF 2015
Zeal Education Society ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A. S. WRIT PETITION NO. 4659 OF 2015
Shri Swami Samartha Dnynapeeth ....Petitioner.
Vs.
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State of Maharashtra & Ors. ....Respondents.
WITH
A. S. WRIT PETITION NO. 4660 OF 2015
Progressive Education Society ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A. S. WRIT PETITION NO. 4661 OF 2015
Pragatipath Educational Foundation ....Petitioner.
Vs.
State of Maharashtra & Ors.
ig ....Respondents.
WITH
A. S. WRIT PETITION NO. 4662 OF 2015
Maharshi Karve Stree Shikshan Sanstha, Pune ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
WITH
A. S. PUBLIC INTEREST LITIGATION (STAMP) NO. 16769 OF 2015
Kagad Kach Patra Kashtakari Panchayat & Ors. ....Petitioners.
Vs.
State of Maharashtra & Ors. ....Respondents.
ALONG WITH
ORIGINAL SIDE PIL (L) NO. 64 OF 2015
Savari Muthu Micheal Selvan ...Petitioner
Vs.
The State of Maharashtra & Ors. ...Respondents
WITH
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O.S. WRIT PETITION (LODGING) NO. 1831 OF 2015
Desh Seva Samiti & Anr. ....Petitioners.
Vs.
Union of India & Ors. ....Respondents.
WITH
O. S. WRIT PETITION (STAMP) NO. 1858 OF 2015
Akhil Bhartiya Samajwadi Adhyapak Sabha ....Petitioner.
Vs.
State of Maharashtra & Ors. ....Respondents.
Mr. A.V. Anturkar, Senior Advocate a/w Mr. S.B. Deshmukh and Mr.
Prathamesh Bhargude for the Petitioners in WP No. 4457 of 2015.
Mr. K.S. Bapat, I/by M. Nilesh S. Patil for the Petitioners in WP Nos.
4654 of 2015 to 4662 of 2015.
Mr. Mihir Desai, Senior Advocate a/w Mr. Chetan Mali for the
Petitioners in PIL (Stamp) No. 16769 of 2015.
Mr. R.A. Rodrigues a/w Mr. N.V. Masurkar and Mr. S.G. Thakur for
Respondent No. 1 in WP No. 4457 of 2015.
Mr. D.R. More with Mr. Prashant Kamble for Respondent No. 6 in WP
No. 4457 of 2015 and for Respondent No.3 in PIL (Stamp) No. 16769
of 2015.
Mr. Vishwanath Patil for Respondent No.5-PMC.
Mr. Nitin Deshpande, AGP a/w Ms. S.S. Bhende, AGP for the
Respondent-State in Appellate Side matters.
Dr. Birendra Saraf with Mr. Piyush Raheja, Mr. Vishesh Malviya and
Ms. Nikita Mishra I/by Federal and Rashmikant for the Petitioners in
OS WP No. 1582 of 2015.
Ms. Anjali Helekar, AGP for Respondent No.1 in OS WP No. 1582 of
2015.
Mr. Y. S. Bhate with Mr. Dushyant Kumar for Respondent No. 2 WP
No. 1582 of 2015.
Ms. Avisha Kulkarni for the Petitioner/s in WPL Nos. 1831 of 2015
and 1858 of 2015.
Ms. Neeta Masurkar for Respondent No.1 in WPL/1831/2015.
Mr. H. S. Venegaonkar, AGP for Respondents 2, 3, 4 and 5 in O.S.
WPL/1831/2015.
Mr. Anurag Gokhale, AGP for Respondent Nos. 1 and 2 in O. S.
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WPL/1858/15.
Mr. Rahul Deodhar for the Petitioner in O. S. PIL(L) 64/2015.
Mr. J. S. Saluja, AGP for respondent Nos. 1 to 3 in O.S. PIL(L)
No.64/2015.
Mrs. Surekha Sonawane for respondent Nos. 4 and 5 in O.S.PIL
(L)/64/2015.
Mr. Rajdeep Suresh Khadapkar for respondent No.4 in O.S.
WPL/1858/15.
CORAM: ANOOP V. MOHTA AND
V. L. ACHLIYA, JJ.
CLOSED FOR JUDGMENT ON : August 06, 2015
PRONOUNCED ON : August 14, 2015
JUDGMENT (Per Anoop V. Mohta, J.):-
Rule, returnable forthwith. Heard finally by consent. The
issues are common and interconnected and, therefore, this common
judgment/order.
2 The Petitioners are imparting "pre-primary and elementary
education" in their respective unaided "schools". Some are unaided
minority schools also. The Respondents/State of Maharashtra (The
State) and its officers are in-charge to control the schools and take
effective steps to provide and or to make arrangement for primary and
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elementary school education till its completion in the State, as
contemplated under the The Right of Children to Free and
Compulsory Education Act, 2009 (for short, RTE Act) and The Right
of Children to Free and Compulsory Education Rules, 2010 (the RTE
Central Rules), The Maharashtra Right of Children to Free and
Compulsory Education Rules, 2011" (for short, RTE State Rules of
2011) and Maharashtra Right of Children to Free and Compulsory
Education (Manner of admission of Minimum 25% children in Class I
or Pre-school at the entry level for the children belonging to
disadvantaged group and weaker section) Rules, 2013 (RTE State
Rules, 2013).
3 The relevant prayers in Writ Petition No. 4457/2015 dated
15 April 2015 as illustrated, are as under :
"A) That this Honourable Court be pleased to issue a writ
mandamus or writ in the nature of mandamus or any other
appropriate writ direction and order under Article 226 of the
Constitution of India, 1950, directing the Respondents herein to
recommend the names under the Provision of the Right of
Children to the Free and Compulsory Education Act, 2009 to the
Petitioners schools under the Provision of Section 12 [1] [c] of
the Act. Only of those students who comply with all the three
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conditions mentioned in section 12 [1] [c] viz.
[a] That the child must belong to the weaker section within
the meaning of section 2 [c] of the Act, And
[b] That the child must belong to the disadvantaged group
within the meaning of section 2[d] of the Act, and
[c] The child must be from the neighborhood.
AA) ............... quashing and setting aside the Government
Revolution, dated 23rd July 2015, and the Government
Resolution dated 21st January 2015 as illegal, bad in law, and
violative of Article 14 of the Constitution of India, being vague
and without application of mind and also contrary to the
provisions of Right of Children to the Free and Compulsory
Education Act of 2009. (added subsequently)
(B) ................quashing and setting aside the Government
Resolution dated 21st January 2015 bearing No. RTE-
2014/PTA.KRA.174/S.D-1 issued by the Government of
Maharashtra viz. Respondent No.2 and 3 and the circular issued
by the Education Officer [Primary Zillha Parishad , Pune dated
13th April 2015, directing that there will be two entry points viz.
the first entry points and the nursery level of the Pre-school
Education and the second entry point at the first standard level
as illegal and bad in law.
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(c ) ..................quashing and setting aside the Circular dated 13 th
April 2015 issued by the Education Officer Primary Zillha
Parishad, Pune [and similar circulars issued by the Education
Officer [Primary] Zillha Parishad, Solapur and Nashik] directing
that the backlog of the year 2012-2013 against the 25% RTE
quota for the Nursery school or KG should be came forward and
satisfied by making the Provision at a second entry point, viz.: at
the I standard for the current Academic Year 2015-2016.
(D) ................to direct the Respondent to constitute the State
Advisory Council under section 34 of the Act of 2009 and
implement the Provision of the Act, only in accordance with
section 34 [2] of the Act, and not by issuing any Government
Resolution under Article 162 ignoring the Provision of Section
34 of the Act of 2009."
4 The similar challenge appeare except certain more raised
in other Writ Petitions also. Both the Public Interest Litigations are
based only for supporting the State action. The relevant provisions of
The RTE Act are as under :
"2 (a) "appropriate Government" means -
(i) in relation to a school established, owned
or controlled by the Central Government, or the
administrator of the Union territory, having no
legislature, the Central Government;
(ii) in relation to a school, other than the
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school referred to in sub-clause (I), established within
the territory of -
(A) a State, the State Government's
(B) a Union territory having legislature, the
Government of that Union territory;
2(d) "child belonging to disadvantaged group" means
a child with disability or a child belonging to the
Scheduled Caste, the Scheduled Tribe, the socially and
educationally backward class or such other group
having disadvantage owing to social, cultural,
economical, geographical, linguistic, gender or such
other factor, as may be specified by the appropriate
Government, by notification;
2(e) "child belonging to weaker section" means a
child belonging to such parent or guardian whose
annual income is lower than the minimum limit
specified by the appropriate Government, by
notification;
2 (f) "elementary education" means the education
from first class to eighth class;
2(h) "local authority" means a Municipal Corporation
or Municipal Council or Zillhahaha Parishad or Nagar
Panchayat or Panchayat, by whatever name called, and
includes such other authority or body having
administrative control over the school or empowered
by or under any law for the time being in force to
function as a local authority in any city, town or
village;
2(n) "school" means any recognised school imparting
elementary education and includes -
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
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(ii) an aided school receiving aid or grants to meet
whole or part of its expenses from the appropriate
Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid
or grants to meet its expenses from the appropriate
Government or the local authority."
5 The RTE Act provides for children of age of 6 to 14 years
the right to free and compulsory education in a neighbouring school
till the completion of elementary education. Chapter III deals with the
"Duties of Appropriate Government, Local Authority and Parents" - to
establish school, sharing of finance and other responsibility. Section 8
describes "Duties of appropriate Government and local authorities,
including to ensure that the children belonging to "weaker section"
and "the children belonging to disadvantaged group" are not
discriminated against and prevented from pursuing and completing
"elementary education" on any grounds.
6 Section 11 of the RTE Act reads as under :-
"11 Appropriate Government to provide for pre-
school education. - With a view to prepare children
above the age of three years for elementary education
and to provide early childhood care and education for
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all children until they complete the age of six years, the
appropriate Government may make necessary
arrangement for providing free pre-school education
for such children."
7 Chapter IV of the RTE Act deals with "Responsibilities of
Schools and Teachers". Section 12 reads as under :
"12 Extent of school's responsibility for free and
compulsory education. - (1) For the purposes of this
Act, a school -
(a) specified in sub-clause (i) of clause (n) of section
2 shall provide free and compulsory elementary
education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section
2 shall provide free and compulsory elementary
education to such proportion of children admitted
therein as its annual recurring aid or grants so received
bears to its annual recurring expenses subject to a
minimum of twenty-five per cent;
(c ) specified in sub-clauses (iii) and (iv) of clause (n)
of section 2 shall admit in class I, to the extent of at
least twenty-five per cent of the strength of that class,
children belonging to weaker section and
disadvantaged group in the neighbourhood and
provide free and compulsory elementary education till
its completion :
Provided further that whee a school specified in
clause (n) of section 2 imparts pre-school education,
the provisions of clauses (a) to (c ) shall apply for
admission to such pre-school education.
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(2) The school specified in sub-clause (iv) of clause
(n) of section 2 providing free and compulsory
elementary education as specified in clause (c ) of sub-
section (1) shall be reimbursed expenditure so incurred
by it to the extent of per-child-expenditure incurred by
the State, or the actual amount charged from the child,
whichever is less, in such manner as may be
prescribed:
Provided that such reimbursement shall not
exceed per-child-expenditure incurred by a school
specified in sub-clause (I) of clause (n) of section 2:
Provided further that where such school is
already under obligation to provide free education to a
specified number of children on account of it having
received any land, building, equipment or other
facilities, either free of cost or at a concessional rate,
such school shall not be entitled for reimbursement to
the extent of such obligation.
(3) Every school shall provide such information as
may be required by the appropriate Government or the
local authority, as the case may be."
8 The RTE Central Rules 2010 are framed by Central
Government in view of Section 38 of the RTE Act. Chapter V of these
RTE Rules describe "Responsibilities of Schools and Teachers" with
regard to the admission of children belonging to "weaker section" and
"disadvantaged group[". Rule 11(3) reads as under :
"11 Admission of children belonging to weaker
section and disadvantaged group. - (1) ...........
(2) ..............
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(3) The area or limits of neighbourhood specified in
sub-rule (1) of rule 6 shall apply to admissions made in
accordance with clause (c ) of sub-section (1) of
section 12:
Provided that the school may, for the purposes of
filling up the requisite percentage of seats for children
referred to in clause (c ) of sub-section (1) of section
12, extend these areas or limits with the prior approval
of the appropriate Government."
It is necessary for any school and/or for every school to make self-
declaration in Form I to the concerned District Education Officer.
Form II provides the condition, as relevant, is as under:
"3 The school shall admit in class 1 (or in pre-school
class, as the case may be), to the extent of % of the
strength of that class, children belonging to weaker
section and disadvantaged group in the neighbourhood
and provide free and compulsory elementary education
till its completion."
9 Relevant part of the notification of dated 15 March 2013,
of RTE State Rules, 2013 reads thus:-
"2 Definitions.-
(a) ...
(b) "child belonging to disadvantaged group"
means , a child belonging to,-
(i) the Scheduled Caste, the Scheduled
Tribe; and
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(ii) Child with disability; defined in
section 3 and 4 of Amended
Act, 2012.
(c) "child belonging to weaker section" means a
child including a child belonging to the
Vimukta Jatis and Nomadic Tribes (VJNT),
Other Backward Classes (OBC) and Special
Backward Classes (SBC) and the religious
Minorities specified by the State Government,
annual income of whose parent or guardian
is below one lakh rupees;
(d) ...
(e)
"Elementary Education" means the education
form first class to eight classes. (1 st to 5th
lower primary and 6th to 8th upper primary);
(f) Admission Committee (for giving effect to at
least 25% admission) headed by the
principal of the concerned school consisting
of : one representative of parents from the
School Management Committee; one
nominee of the management of the school;
and one nominee of the Education Officer;
(g) ...."
"3. Procedure to be followed by school:-
3.1 Every school shall publish a notice (Form-I)
accessible to the public, well before the start of
the admission process of the concerned academic
session for giving effect to above mentioned at
least 25% admission at the entry level. This shall
include:-
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(i) Total number of seats available in class I or
pre-school at the entry level in the school;
(ii) Seats available out of (i) above for
disadvantaged group and weaker section (at
least 25%);
(iii) to (viii) ..............."
"FORM-I (Rule 3.1)
i. Total Number of seats at entry level
i.e. class I/pre school. Total Seats: _________
ii.
Seats available out of (I) above for children
belonging to disadvantaged and weaker
section (at least 25%) Total Seats: ________"
This clear valid provisions mandate the schools to admit the children
of the specified class/group/section at the fixed minimum percentage
of both the entry levels- pre-primary and first standard level.
10 The parties have relied upon the following judgments:-
Petitioners counsel/advocates:-
1 State of Bihar and ors v. Project Uchcha Vidya, Sikshak Sangh
and ors1.
1 (2006) 2 SCC 545
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2 Association of International Schools and Principals Foundation v.
The State of Maharashtra and anr.2
The Respondent-State:-
1 State of Karnataka and anr v. Associated Management of
(Government Recognised Unaided English Medium) Primary and
Secondary School and ors., with other companion matters3
2 Birla Vidya Niketan School & anr v. Govt. of NCT of Delhi4
Respondents-
1 Social Jurist v. Govt of NCT of Delhi5
2 The Daly College, Indore v. State of M.P. And ors6.
They also relied upon clarificatory notes of the RTE Act.
12 The background of these litigations and the various orders
passed by this Court including earlier circulars and the case of State
2 2010 Vol. 112 (9) Bom. L.R. 4139
3 AIR 2014 SC 2094
4 MANU/DE/2642/2013
5 Judgment dated 24 May 2012 in CM Appl.6833/2012 of High Court
Delhi
6 Order dated 18.12.2014 in Writ Petition No.10546/2013 by Madhya
Pradesh
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are to be noted. It is relevant to note the case of the State
Government as expressed in earlier notifications, which are not the
subject matter of any challenge. The relevant paragraphs of State
affidavit in Writ Petition No. 4457 of 2015, dated 13.06.2015 are as
under:-
2) I say that the provisions of Right to Education Act,
2009 were made applicable w.e.f. 01/04/2010. As
per the provisions of Section 12(1)(c) of the Act, the
schools covered by the Act are under a legal
obligation to admit 25% of the child from
disadvantaged group and weaker section. Such
admissions are to be made at the pre-primary and 1 st
standard level. The State Government issued
notification in this regard on 25/05/2012. Hereto
annexed and marked as Exhibit-1 is a copy of the
said notification. This notification laid down the
procedure for admitting children from disadvantaged
group and weaker section.
3) I say that thereafter by notification dated
15/03/2013, the State Government made applicable
the procedure for admitting 25% of the children from
the stated group. This notification was made
applicable to non-aided and specified schools as well.
Hereto annexed and marked as Exhibit-2 is a copy of
the said notification dated 15/03/2013. Then by a
further notification dated 15/05/2014, on-line
procedure was introduced for giving admission to the
children of the stated groups.
4) Thus, during the academic years 2012-13 and 2013-
14 the schools were given liberty to admit children of
the stated groups by off-line method. In the State of
Maharashtra, in the year 2014-15 on-line
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admissions were given in Pune Municipal
Corporation, Pimpri-Chinchwad Municipal
Corporation, schools in Haveli Taluka of Pune
District, Municipal Corporation of Greater Mumbai
and Panvel Taluka of Raigad District. In rest of the
places admissions were given by off-line method.
5) I say that the admissions for the academic year 2015-
16 for 25% quota of the RTE Act began as per the
Government Resolution dated 21/01/2015. Under
this Resolution, the State Government directed that
(i) if the number of seats for pre-primary school is
more than seats in the 1st standard in a single
school then the school shall reserve 25% of the
seats available in the 1st standard in pre-
primary school.
(ii) in converse situation, the school shall admit
25% of the total number of seats available in
pre-primary schools for the states categories and
the difference number of seats shall be made
available in the 1st standard.
(iii) if after completion of admission process, if any
seats are vacant, then the said seats shall be
filled in at the 1st standard level.
The clarificatory resolution dated 21 January 2015 is to make
effective implementation of purpose and object of free and
compulsory education policy, specifically for these schools, which are
imparting education at two levels in question.
12 The State of Maharashtra in their affidavit dated
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16.06.2015, again elaborated the relevant provisions of RTE Act in
the following words:
"8 ...... It is submitted that while it is no doubt true
that under Section 12 (1)(c ) of the 2009 Act, the entry
point laid down is Class I. However, under the proviso
to Section 12 (1) of the Act, where a school to which
Section 12 (1)(c ) applies imparts pre-school education
then, the provisions of Section 12 (1) (c ) applies for
admission to such pre-school education. Thus, in case
where a school has a facility of pre-school education
then, the entry at the pre-school level is the entry point
and such a school is under a legal obligation to set
apart 25% of the total strength for the students
belonging to weaker section and the disadvantaged
group. Needless to say that in case of school not
having pre-school education facility, the entry point
would be Class I. The Act itself contemplates two
different entry points in this manner. The hue and cry
raised by the Petitioner with regard to two entry points
is without any substance."
13 To clarify the above provisions and the issue with regard to
two entries i.e. pre-primary level and Standard I level in case of
substantial unequal number, explained, through Resolution dated
21.01.2015 which is in question. The formula so arrived at is
explained in affidavit dated ........... as under:
"12 I state that thereafter, it was brought to the
notice of the State Government that the strength of
students at pre-primary level and at 1st standard level
is unequal in substantial umber of cases in the State of
Maharashtra. Therefore, the State Government
arrived at a formula to get over this problem. The
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State Government passed a resolution on 21.1.2015.
As per the formula so arrived at
(A) If the strength of a school at pre-primary level is
more, then, the one at 1st standard level, the schools
shall set apart 25% of the seats of the strength at the
1st standard level and admits the students of the stated
category accordingly.
(B) If the strength of a school at pre-primary level is
less than theone at the 1st standard level then, such a
school shall admit 25% of the strength at pre-primary
level and the difference between the 25% of the 1 st
standard level and 25% of the strength and the pre-
primary level shall be admitted at the 1st standard
level. In other words, if the school has a strength of 50
students at the pre-primary level, then, the school shall
reserve 12.5% (13%) of the students at the pre-
primary level and if, the strength of such school is 100
at the 1st standard level then, the school shall also
reserve 12.5% students at the 1 st standard level. Thus,
the promoted 12.5% from pre-primary level to the 1 st
standard and 12.5% reserved at the 1st standard makes
25%.
(c ) If after completion of the admission process the
number of seats earmarked for the weaker and
disadvantaged group remained vacant then, such
vacancies are to be filled in at the 1st standard level.
Thus, in case of school having strength of 100 students
at the pre-primary level, 12 seats remain vacant after
filling 13 seats strength, then, such a school is under
an obligation to fill 12 seats at the 1st standard level.
13 It is therefore, emphatically submitted that from
the provisions of R.T.E. Act, 2009 and the rules of
2012 and 2013, it is more than clear that the schools
were aware of their obligation to set apart 25% of
their strength of students at the corresponding entry
level in the manner laid down under the two set of
dgm 24 wp-4457-15 with group.sxw
rules referred to above. The State Government had
introduced online system of admission in the year
2014."
We find nothing wrong in issuing such clarification
circulars/communications, to avoid prevailing confusion and the
doubts in the minds of person concerned and so also the people at
large.
This High Court ( Anoop V. Mohta & K. R. Shriram,JJ.) in
the matter of Uran Education Society & Ors. Vs. The State of
Maharashtra & Ors.7 dated 28.04.2015, after hearing all the parties
including the learned Advocate General and Additional Solicitor
General, after noting RTE Act and its rules, has observed as under,
.......
36 It is settled that the Act/Statute and related rules
need to be read as a whole, by referring to the
intended object and purpose of the Act and the policy.
In our view, above provisions are clear and also
interpreted by the Hon'ble Supreme Court. There are
materials on record to show that the State Government
themselves though their agents insisted various such
schools to admit students of disadvantaged groups in
pre-nursery schools also. The State Government as
stated, insisting by giving option to the schools to opt
for such admissions of disadvantaged students either at
7 2015(4) Mh.L.J. 920
dgm 25 wp-4457-15 with group.sxw
pre-school level and/or primary school level. The
option itself shows that the State Government is fully
aware that such restriction/insistence of admission to
disadvantaged children cannot be applicable at pre-
nursery level and/or at primary level. Therefore, the
State Government's interpretation and/or submission
now when it goes to reimbursement as prayed, in our
view is not acceptable. The stand itself is self
contradictory and self destructive. the impugned
circulars and/or rules so interpreted by the State
Government, the same is also changing from time to
time. It is, therefore, necessary to settle the issue so far
as the reimbursement is concerned. There is no
question of denying the same to such schools. We are
not dealing with which stage. The option is to be
provided or school should admit such children. Neither
we are concerned in this matter, the issue with regard
to the rule of the State Government permitted the
schools to deal with the vacant seats after the last
round. The State Government to take decision and
issue appropriate orders/circulars within the frame
work recorded and the law. the impugned circulars
therefore, even if any, by overlooking above provisions
and decisions, need to be modified in accordance with
law. There is no question to deny such reimbursement
through rules and/or new circular dated 25th March
2015 contrary to the provisions and their own earlier
stand/circular. The issue is not of other expenses. The
guardian/parents of such weaker section and or
disadvantaged group can not be compelled and/or
directed to reimburse the amount to the school who
have granted admission to children into pre-primary
school, as the State now denying to reimburse the
amount.
37 Therefore, taking overall view of the matter and
considering the object and scheme of the Act and so
also the constitutional provisions, unless appropriate
Government may not in a position to take decision by
following due process of law to amend the provision
dgm 26 wp-4457-15 with group.sxw
and declare authoritatively in advance to the people at
large that they are not bound under the provisions to
admit the children of 25% and/or at what level. This
cannot be against the provision of the Act specially by
the State circular or resolutions. Upon plain reading of
the sections and consider the total scheme of the Act
but subject to verification from the record of the school
and/or of the record of the institution and/or by
following the due process of law, the State Government
require to reimburse to the school/institution the
amount so contemplated under the Acts and rules
made thereunder once they impart care and education
to the children aged 3 to 6 years (pre-school) level of
the disadvantaged/weaker class. The petitioners have
made representations with detail, requesting the State
Government to reimburse the amounts, but in vain.
Therefore, we are inclined to allow this petition to the
extent of prayer clauses (a) and (c) and order
accordingly.
15 The State on 30 April 2015 issued another circular,
restricting such admission only to class I level. The Petitioners,
therefore sought time and prayed for amendments in these Petitions.
On 5 May 2015, this Court passed the following common order:-
"1 Leave is granted to the petitioners to add a
Circular dated 30th April 2015 which is issued after
filing of this petition and the petition was filed on 15th
April 2015, related challenge, if any, and the requisite
prayer thereto. Amendment to be carried out by 6th
May 2015.
2 Issue notice to other respondents, returnable on
7th May 2015 in view of the urgency expressed and
the Circular dated 30th April 2015 is under challenge,
we are inclined to grant time till 7th May 2015 as we
dgm 27 wp-4457-15 with group.sxw
have to grant interim order, as insisted today itself, if
the case is made out by the petitioner referring and/or
dealing with the Circular dated 30th April 2015. No
adjournment will be granted to the State on any
ground whatsoever.
3 ..............................."
16 On 7 May 2015, we have restrained the State from
implementing the 30th April 2015 circular by observing as under in
detail:-
"1
The petitioners are educational institutions who
run school where elementary education (7 to 14 years)
and pre-primary education (3 to 6 years) is imparted.
Such school are covered under the provisions of the
Right to Children to Free and Compulsory Education
Act, 2009 (hereinafter referred to as "the Act") and
rules made thereunder by the Union of India as well as
State of Maharashtra and the circulars issued from time
to time by Maharashtra Government including circulars
dated 15.03.2015, 15.05.2014 and 21.01.2015. All
institutions/schools, parents, and the local bodies
(corporation) have acted upon these circulars and
children have got admissions in respective schools in
their respective classes since 2012-2013.
2 By the impugned circular dated 30.04.2015
which cancelled only the resolution dated 21.01.2015,
the State of Maharashtra based upon the material
available with them, decided to change the policy
referring to the admission under 25% reservation
contemplated under Section 12 of the Act.
The government resolution in question (English
translation) as provided by the petitioners counsel in
Writ Petition No.4457 of 2015 for ease of reference is
reproduced below:
dgm 28 wp-4457-15 with group.sxw
"To fix the norms for first entry level point for 25%
reserved admissions as per the Right to Education Act.
GOVERNMENT OF MAHARASHTRA
SCHOOL EDUCATION AND SPORTS DEPARTMENT
GOVERNMENT RESOLUTION NO: RTE-2014/C. NO:
174/S. D-1
MADAM CAMA ROAD, HUTATMA RAJGURU
CHOWK, MANTRALAYA, MUMBAI
Date: 30.04.2015
READ:
1) Government of Maharashtra Gazette No: PRE-
2012/C. No: 112/PE-1 dated 15.03.2013.
2) Government of Maharashtra Gazette No: RTE-
2014/C. no: 45/S. D-1 dated 15.05.2014
3) Government Resolution No: RTE-2014/C. No:
174/S. D-1 dated 21.01.2015
PREAMBLE:
The Right of Children to Free and Compulsory
Education Act is also applicable to the school affiliated
with CBSE, IB, ICSE and IGCSE Board along with the
schools affiliated with State Education Board of the
State and while giving admissions under 25%
reservation it is observed that admission capacity in
some of the schools in 1st Standard and Pre-primary
Classes is different. Similarly, as per the Government
Resolution dated 21.01.2015 at 02 Entry Points have
been kept and similarly the option has been kept to fill
up the back log in the process of computerized
admission, difficulties are being raised while
implementing the procedure of 25% admission at the
entry level. Taking above difficulties into consideration
the issue fixing norms at the entry level was under
consideration of the Government.
GOVERNMENT RESOLUTION:
The Government has taken the following decision on
this issue after cancelling the resolution dated
21.01.2015, Government is passing the Resolution as
dgm 29 wp-4457-15 with group.sxw
under:
2) During the implementation of Right of Children
to Free and Compulsory Education Act, 2009 and while
considering the difficulties which arise in the admission
process of 25% reserved seats, the following steps to be
taken for co-ordination.
3) The Admissions have been given in the most of
the schools during the Academic Year 2015-16 as
per25% reservation for 1st Standard and similarly for
Junior KG and Nursery. In all these schools admissions
be given to the children in 1 st Standard. Children of
nursery or Junior KG will not have right to take
admission. However, when the children to whom
admissions have been denied in such a manner will
reach the 1st standard (3 years after Nursery or 2 years
after Junior KG ) at that time they will be given
admission in that school in1st Standard.
4) However, when admissions will be given as
above, it will be presumed that those schools have
observed25% reservation during that year. Similarly, if
the admission capacity of pre-primary class is
equivalent to the admission capacity of 1st Standard,
then it is not necessary to give separate admission in1st
Standard. However, if the admission capacity of 1st
Standard is more than pre-primary admission capacity,
the institution has to give remaining admissions under
25% reservation.
5) As per the Right of Children to Free and
Compulsory Education Act, 2009, educational
institutions should take care that 25% admissions will
be given every year in 1st standard.
6) As per Right of Children to Free and Compulsory
Education Act, 2009, in case of the children to whom
admissions have been given under 25% reservations,
reimbursement of Educational Fee will be made as per
dgm 30 wp-4457-15 with group.sxw
the rules decided by the Central Government.
7) While implementing the admission process under
25% reservations during every year, admission process
be started from 15th December and 3rd round of
admission should be completed till end of 10th March.
After the end of 3rd round within 8 days the concerned
Education Officer only after verifying that not a single
admission under 25% reservations are left then only
the permission should be granted to the said Institution
for giving remaining admission of 25% admissions
from the students of General Category.
This Government Resolution has been made available
on the website of Government of Maharashtra at
www.maharashtra.gov.in and it's Code No:
201504301051293221. This order is being issued by
certifying the same as per digital signature.
In the name and by the order of Governor of
Maharashtra
Sd/-
B. R. Mali
Under Secretary, Government of Maharashtra"
Therefore, except the resolution dated 21.01.2015, all
earlier circulars are intact.
3 It is indisputable that all concerned must have
acted and given admission to the children in pre-
primary school and primary schools based on the
circular dated 21.01.2015. Statement is also made that,
as on the date of and much before the impugned
circular dated 30.04.2015, practically all petitioner
institutions' and schools' admissions were over.
Statement is also made that Government of
Maharashtra by taking such policy decision, cannot
dgm 31 wp-4457-15 with group.sxw
state that children of nursery or Junior KG who have
taken admission, cannot be disturbed by this impugned
circular and therefore the impugned circular cannot be
given effect. The issuance of other earlier circulars and
the action taken based thereupon by all concerned,
therefore needs to be protected and/or tested after
considering the reason behind issuance of this
impugned circular dated 30.04.2015.
For that reason, respondent no.1 was directed to
file reply as early as possible so that this confusion can
be set right and/or sorted out and thereby the
disturbance being caused to the education of children
is also resolved.
Further, in future also, taking note of the
Act/Rules and the earlier circulars issued by the
Government, another issue that required to be
answered is how will be this circular implemented.
5 This Court, therefore, has clearly opined that care
and education of every child of age 3 years to 6 years is
important and respective appropriate Government, in
this case State Government, need to make appropriate
arrangement for the same. We have also noted that the
State Government has also rightly made arrangement
by directing such institutions and basically non-aided
institutions to admit students of this RTE
quota/reservation. Having once done that, the
submission that this policy they want to implement
only for the year 2015-2016 again need to be tested.
The State Government themselves have recognized the
importance of pre-primary education, as by the last
circular, option is also given to the institutions/schools
to opt for entry level and/or second level, based on
which, the respective institutions/schools have
exercised that option and admitted the students.
6 Shri Anturkar, learned senior counsel appearing
dgm 32 wp-4457-15 with group.sxw
for the petitioners stated that the concerned arm of the
State Government has already started prosecution
proceedings against his clients/its office bearers, for
non-compliance of this impugned circular dated
30.04.2015 and to that extent even FIR's have been
lodged.
7 Therefore, taking overall view of matter and in
view of the submissions made by the respective learned
counsel appearing for the parties, we are inclined to
observe that it is desirable that the State Government
not to act further on the basis of this impugned circular
dated 30.04.2015 till they file reply and the matter is
heard further.
The learned AGP, on instructions from officers of
the Government of Maharashtra who were present in
Court, stated that they will not take further action so
far as the prosecutions are concerned. Though we
accept this statement, we are of the view that unless
the situation is clarified and unless we accept the State
Government's submissions as stated to be supported by
sufficient material, and, as admissions are over, it is
directed that no further coercive steps be taken by the
Government of Maharashtra based upon this impugned
circular dated 30.04.2015, including the stated
prosecution. It is also made clear that wherever, the
prosecution/FIR's are lodged, it will not be acted upon
by the Government officials including the Police. To
avoid further complications and/or confusions and to
amplify our view, the State Government is directed to
maintain status-quo as of today so far as the
implementation of the impugned circular dated
30.04.2015 is concerned. The order of status-quo as of
today means not to implement or take action based
upon the impugned circular dated 30.04.2015.
9 It is made clear and further clarified that the
earlier action and/or steps taken by the respective
institutions are not halted. All respective
dgm 33 wp-4457-15 with group.sxw
institutions/schools, local bodies (corporation) and
parents to go ahead and proceed as if all the earlier
circulars/directions are in force and effect. It is also
made clear that the effect of this order passed by this
Court is that the right and/or entitlement of children
belonging to the 25% under Section 12 of the Act and
their admissions to the respective institutions/schools
based upon the earlier circulars are in no way affected.
In other words, the effect of this order is that the
position/status that prevailed on 29.04.2015 shall
prevail and the Government may also continue to
act/take actions based on the circulars/policy that was
in force and effect on 29.04.2015.There is no question
to cancel the admission so made already based upon
circulars issued earlier. There is no question to deny the
admission based upon the situation that prevailed prior
to issuance of the impugned circular dated 30.04.2015.
This order is subject to further orders in these petitions.
These are prima-facie observations and will be re-
considered after reply of the State. Liberty is granted to
the parties including State of Maharashtra to apply for
appropriate further orders/directions. We normally do
not interfere with the State policy but if case is made,
then in the interest of justice, the Court needs to
interfere with such impugned policy also.
10 ................... ."
17 On 15 June 2015, this Court has recorded in order :
"3. It is clarified that, the issue involved in the
present matter is pertaining to the pre-primary
education. As per the Right of Children to Free and
Compulsory Education Act, 2009 (the Act), the
Government's endeavour is always to see that the aims
and objects of the said Act are implemented in full
spirit and they are taking steps even to collect the
relevant and material data, so that appropriate order
and/or circular/clarification can be issued in the
dgm 34 wp-4457-15 with group.sxw
interest of public at large. Therefore, there is no
question that any institute / management of school
education and/or parents would not cooperate
whenever and wherever Government department
wants assistance and requisite data. There is no
question of not providing data and/or information so
sought by the Department, merely because the petition
is pending in the Court.
4. It is necessary for the State Government to
deal with specifically judgment dt. 28 Th April, 2015
delivered in Writ Petition No. 2800 of 2015 (Uran
Education Society and ors. vs. The State of
Maharashtra and ors.) and other connected matters,
dealing with the aspect of pre-school education as
contemplated under the Constitution and under the
Act."
18 On 8 July 2015 this Court further recorded that :
"The learned AGP, on instructions, makes
statement that based upon earlier communication
dated 15.05.2015 the State Government has also
issued another communication dated 7.7.2015, which
is taken on record and marked "X" for identification
purposes, whereby it is expressed that all concerned
need to follow the order passed by this Court and deal
with the admissions referring to 25% RTE quota class,
based upon the circular / practice prior to 30.04.2015.
It is informed that such intimation is also directed to
be circulated to all the concerned so that orders of this
Court dated 7 May 2015 in Writ petition Nos.4457/15,
along with companion matters mentioned in the cause
title, except PILST/16769/15, are followed.
2 We are inclined to observe that the State
Government should have some mechanism and/or
method/modality whereby such individual grievances
of parents and/or institutions/management can be
dgm 35 wp-4457-15 with group.sxw
considered and/or noted so that the respective officers
of the area/district may take necessary action and/or
follow up with an intent to complete the admission
process in question, as early as possible, as academic
session has already started.
3 Therefore, taking overall view of the
matter, at this stage, we are inclined to fix this matter
in the next week for final disposal. The necessary
affidavit and/or documents to be placed on record on
the next date."
19 On 22 July 2015 this Court recorded, after conclusion of
Petitioner's arguments as under:
" The learned counsel appearing for the
Petitioner/s in respective Petitions have completed
their arguments. The argument on behalf of the State-
Government is going on.
2 Stand over to 23 July 2015, at 3.00 p.m."
20 The State decided not to press Government Resolution
dated 30.04.2015 and further decided to revive 21.01.2015
Resolution of explaining two entry levels.
21 On 23 July 2015 this Court passed the following order :
" Learned AGP, on instructions of Mr. B. R. Mali,
Under Secretary to the Government of Maharashtra,
makes a statement that the Government has decided
to withdraw G.R. Dated 25/1/2015 (Entry level point)
will be revived. Accordingly, fresh G.R will be placed
dgm 36 wp-4457-15 with group.sxw
on record by tomorrow."
22 On 24 July 2015, this Court recorded as under :
"Mr. Deshpande, learned AGP, has placed on record
Government Circular No. RTE-2014/P.K.174/S.D.-1
dated 23.07.2015, referring to 25% reservation of
seats at entry level point, which is taken on record
and marked "X" for identification purposes, whereby
the Government has withdrawn Circular No.RTE-
2014/P.K.174/S.D. 1 dated 30.04.2015 and revived
Circular No. RTE-2014/P.K.174/S.D. 1 dated
21.01.2015. The statement is also made that the
State of Maharashtra is following orders passed by this
Court and acting as per circular dated 21.01.2015.
The instructions have already been issued accordingly.
2 The learned counsel appearing for the
Petitioners sought time to consider the position and,
therefore, we are inclined to keep all these matters on
27.07.2015 at 3 pm for disposal."
23 The Petitioners challenge to the Government Resolution
dated 30.04.2015, therefore, did not survive. However, the
contentions revolving around Government Resolution dated
21.01.2015 and the communication dated 13.04.2015 revived. The
Petitioners, therefore, sought time to take instructions to raise
appropriate challenge. We have granted the time for the same.
24 On 28 July 2015 we have passed the following order :
dgm 37 wp-4457-15 with group.sxw
"In continuation of earlier orders -
Leave is granted to the respective Petitioner/s to
amend their respective Petition, by keeping all defence
and plea available to the other side. Amendment to be
carried out within 3 days from today. Additional
affidavit, if any, to be filed by the Respondents within a
week from today.
2 Stand over to 6 August 2015, for the final
disposal."
25 The State of Maharashtra, after the withdrawal of
Circular dated 30.04.2015 and in view of the amendment carried out
by the Petitioners to reiterate their challenges, to the Resolution dated
21 January 2015, by affidavit dated 3.7.2015, resisted the Petitioner's
prayers and stated as under :
"2 I say that the circumstances under which the
State Government issued a resolution dated 21.1.2015
has been explained in paragraph No.12 of my affidavit
in reply dated 26.6.2015. The circumstances under
which this resolution was issued has been set out in
the introductory portion of the said Government
Resolution. It was found that in some of the schools
the No. of seats available for pre-primary and First
standard is different therefore the said resolution
raised down policy as to how admissions are to be
given if the admission capacity of both the standards
namely Pre-primary and First standard is different.
3 The clause No. (b) of the resolution is clear and
there is no confusion in it. It deals with a situation
where the capacity (seats) of pre-primary school is less
than first standard then such school should allot 25%
of the seats of the pre-primary school to the weaker
dgm 38 wp-4457-15 with group.sxw
and disadvantage group and reminder of the seats be
given at the time of 1st standard. In that context the
word "Reminder" (Urvarit) has been used. It is well
established that words are to be interpreted in the
context in which it is used. The Government
Resolution deals with a situation where the seats
available in the pre-primary and those available at the
primary level in the same school is different. Clause
(b) deals with a situation where the seats of the pre-
primary is less than the seats in primary. This
Government Resolution has to be read in the light of
Section 12 (1)(c ) of the RTE Act. ...................
4 I say from the above provision it is clear that in
case of the schools covered by clause (c ), the school
must admit 25% of the strength of pre-primary as well
as 1st standard students belonging to weaker section
and disadvantage group. It means the obligation to
keep 25% of the strength of the total seats applies to
both the pre-primary and the 1 st standard. In that
context the resolution of 21.1.2015 lays down that if
the strength of the pre-primary schools is 100 than
such a school (if covered by clauses (3)( and (4) of
section 2(n) of the RTE Act) must admit 25 students
belonging to the stated category. At the same time, if
the strength of the 1st standard is 200 then those 25
students will automatically admitted in the 1st
standard. Since the school is under obligation to admit
50 student of the stated category for class I the
reminder (i.e. those remaining of the 25% of the quota
after admitting students promoted from pre-primary
class) 25 students shall be freshly admitted against the
said quota. In that context the word "Reminder"
(Urvarit) has been used. It is therefore submitted that
there is no confusion created by the word Urvarit.
In any case as per RTE those, schools which have
pre-school education and are making fresh admission
in pre-primary and class-I will have to conform to 25%
reservation at all levels wherever fresh admission are
dgm 39 wp-4457-15 with group.sxw
there."
26 The Petitioners have raised various challenges. Some of
the prayers are reproduced above. A challenge is raised to the
Government Resolution dated 21.01.2015 and Circular issued by
Education Officer (Primary, Zilla Parishad, Pune) dated 13 April
2015 referring to the two entry points - The first entry point, as
stated, is Nursery level of pre-school education and the second entry
point at the First standard level. The challenge is also raised referring
to Circular dated 13 April 2015 thereby directing the backlog of 2012-
2013 against 25% RTE quota for the Nursery school and/or KG by
making the provision of second entry point at First standard for the
Academic Year 2015-16 also.
27 Pending the present Writ Petition No.4457/15 along with
other similar petitions, the State-Government issued an another
Government Resolution dated 30 April 2015, after the judgment dated
28.04.2015, (Uran supra) directing them to reimburse the amount to
the unaided schools who admitted 25% quota children in their
respective classes.
dgm 40 wp-4457-15 with group.sxw
28 Interim relief was also sought of the said circular, whereby
directions were issued to cancel the admission already given against
25% RTE quota in the pre-primary classes (Nursery/Jr. KG) before the
Government Resolution dated 30 April 2015. The interim prayers
were also made to protect the admission of the students made prior to
30.04.2015 in the First standard. Submission was also made to
restrain the Respondents from taking any coercive action.
This Court by reasoned order dated 7 May 2015 (supra)
has granted the protection as recorded earlier. As the amendment
was granted, the Respondents/State Government by its reply affidavits
dated 13.06.2015, 26.06.2015, 03.07.2015 and 15.07.2015 resisted
it in all respects.
30 All these matters were listed on board from time to time
for various directions and orders as quoted above. This Court
ultimately, in view of urgency expressed, heard the matters finally on
15 June 2015. Again on 8 July 2015, by taking on record the
Government communications dated 15 May 2015 and 7 July 2015
whereby directions were issued to all concerned that orders of this
dgm 41 wp-4457-15 with group.sxw
Court dated 7 May 2015 in Writ Petition No.4457/2015 along with
other connected matters be complied with and followed. We have
also observed to have some mechanism and modality, whereby
individual grievances of parents and/or institution/management could
be considered and/or noted so that respective officers of the
area/District would be able to take action and/or follow up with an
intent to complete the admission process as early as possible as and
within the period so prescribed for the academic session.
31 The Respondents, in pursuance of the same, have placed
on record affidavit along with the mechanism which they have
proposed, in view of the order dated 8 July 2015. The affidavit is
taken on record along with the proposals. The statement is made
that it is under process for finalisation.
32 The matters were ultimately heard finally on 22 July 2015.
The learned senior counsel appearing for the Petitioners completed
their arguments referring to their challenge so raised and specifically
of Resolution dated 30.04.2015 and 23.07.2015.
dgm 42 wp-4457-15 with group.sxw
33 The learned AGP, on instructions of Mr. B. R. Mali, Under
Secretary to the Government of Maharashtra, made a statement on
23.07.2015, that the State has decided to withdraw Government
Resolution dated 30.04.2015 and G. R. 21.01.2015 would be revived.
The matters were accordingly placed for hearing on next date.
34 On 24 July 2015, this Court noted that the Government
Circular dated 23.07.2015 whereby the State withdraw Circular dated
30.04.2015 and has re-enforced/revived Circular dated 21.01.2015.
We permitted to do so, as there was no reason to prevent the State
from changing the policy or revive the earlier circular, in the interest
of justice. The State is always at liberty to bring in or take out policy
or such circular/resolution, in the interest of people at large.
35 The Petitioners, therefore, sought time to challenge the
same. Leave granted to the respective Petitioner/s to amend their
respective Petitions on 28.07.2015. The Respondents have filed reply
affidavit to the amended Petitions also, as the respective amendments
were carried out. In reply, the State Government has expressed the
reasons for withdrawal of Resolution dated 30.04.2015 and the reason
dgm 43 wp-4457-15 with group.sxw
for revival of Circular dated 21.01.2015 as recorded above.
36 Therefore, the basic challenge mainly restricted to
Resolution dated 21.01.2015 and a communication dated 13.04.2015
of Education Officer and Resolution of 23 July 2015, whereby
Resolution dated 30 April 2015 was withdrawn by reviving Circular
dated 21.01.2015.
The Petitioners have submitted that :
(1) That the provision of Section 12 (1)(c ) (proviso)
of the Right of Children to Free and Compulsory
Education Act, 2009, is absolutely clear.
As per that proviso, where the school specified in
Section 2(b) [ viz. Non-aided Private School] imparts
pre-school education [viz. Nursery, Junior KG or by
whatever name called ], then the provision of clause
(a) to (c ) shall apply to admission in such pre-school
education.
dgm 44 wp-4457-15 with group.sxw
(2) This would mean, that in case of such school,
which imparts pre-school education, the entry point
will be either at Junior KG or at Nursery as the case
may be.
In that case the entry point will not be at the First
Standard.
It is only if the school viz., school mentioned in
Section 2(n) is not imparting pre-school education,
then only the entry point, will be in the First Standard.
(3) In other words, although there are two entry
points, which are permitted by law, viz.,: entry point at
Nursery level and entry point at the First Standard,
both this entry points are disjunctive of each other
viz.: either the entry point will be at Nursery Level or
the entry point will be at the First Standard. There
cannot be entry point at Nursery and the First Standard
level, simultaneously.
(4) Further while considering, 25% what is required
to be taken into consideration is "25% of the strength
dgm 45 wp-4457-15 with group.sxw
of that class". The expression "that class" used in
Section 12(1)(c ) would mean either the First
Standard, where the school is not running the
Preschool classes or 25% of strength of Nursery
Classes, where the school is running nursery class, by
virtue of the provision of the proviso to Section 12 (1)
(c ).
The Apex Court in Society For Unaided Private Schools
of Rajasthan v. Union of India and anr.8 has upheld the validity of
the RTE Act except the stated applicability to the unaided minority
educational institution. The following are the conclusions as referred
in paragraph 169.
"169 Learned Attorney General for India has favoured
the setting up of an Adjudicatory/Regulatory Authority
to determine the question of whether compliance with
Section 12 (1)(b) and Section 12(1)(c ) will have an
adverse impact on the financial viability of the school,
and if so, to suggest remedies and to deal with issues
like expulsion etc. Learned Attorney General indicated
the necessity of a statutory amendment if the
Regulatory/adjudicatory body has to be set up under
the Act. Proper adjudication mechanism may also pave
the way for a successful and effective public-private
partnership for setting up educational institutions of
8 AIR 2012 SC 3445
dgm 46 wp-4457-15 with group.sxw
best quality so that our children will get quality
education. I am sure that the Government will give
serious attention to the above aspect of the matter
which are of prime importance since we are dealing
with the future of the children of this country.
PART VI
CONCLUSION :
(1) Article 21A casts an obligation on the State to
provide free and compulsory education to children of
the age of 6 to 14 years and not on unaided non-
minority and minority educational institutions.
(2) Rights of children to free and compulsory
education guaranteed under Article 21A and RTE Act
can be enforced against the schools defined under
Section 2 (n) of the Act, except unaided minority and
non-minority schools not receiving any kind of aid or
grants to meet their expenses from the appropriate
governments or local authorities.
(3) Section 12 (1)(c) is read down so far as unaided
non-minority and minority educational institutions are
concerned, holding that it can be given effect to only
on the principles of voluntariness, autonomy and
consenses and not on compulsion or threat of non-
recognition or non-affiliation.
(4) No distinction or difference can be drawn
between unaided minority and non-minority schools
with regard to appropriation of quota by the State or
its reservation policy under Section 12 (1)(c) of the
Act. Such an appropriation of seats can also not be
held to be a regulatory measure in the interest of the
minority within the meaning of Article 30(1) or a
reasonable restriction within the meaning of Article
19(6) of the Constitution.
dgm 47 wp-4457-15 with group.sxw
(5) The Appropriate Government and local authority
have to establish neighbourhood schools as provided in
Section 6 read with Sections 8 and 9, within the time
limit prescribed in the Statute.
(6) Duty imposed on parents or guardians under
Section 10 is directory in nature and it is open to them
to admit their children in the schools of their choice,
not invariably in the neighbourhood schools, subject to
availability of seats and meeting their own expenses.
(7) Sections 4, 10, 14, 15 and 16 are held to be
directory in their content and application. The
concerned authorities shall exercise such powers in
consonance with the directions/guidelines laid down
by the Central Government in that behalf.
(8) The provisions of Section 21 of the Act, as
provided would not be applicable to the schools
covered under sub-section (iv) of clause (n) of Section
2.
They shall also not be applicable to minority
institutions, whether aided or unaided.
(9) In exercise of the powers conferred upon the
appropriate Government under Section 38 of the RTE
Act, the Government shall frame rules for carrying out
the purposes of this Act and in particular, the matters
stated under sub-section (2) of Section 38 of the RTE
Act.
(10) The directions, guidelines and rules shall be
framed by the Central Government, appropriate
Government and/or such other competent authority
under the provisions of the RTE Act, as expeditiously as
possible and, in any case, not later than six months
from the date of pronouncement of this judgment.
(11) All the State Governments which have not
constituted the State Advisory Council in terms of
dgm 48 wp-4457-15 with group.sxw
Section 34 of the RTE Act shall so constitute the
Council within three months from today. The Council
so constituted shall undertake its requisite functions in
accordance with the provisions of Section 34 of the Act
and advise the Government in terms of clauses (6), (7)
and (8) of this order immediately thereafter.
(12) Central Government and State Governments
may set up a proper Regulatory Authority for
supervision and effective functioning of the Act and its
implementation.
(13) Madrasas, Vedic Pathshalas etc which
predominantly provide religious instructions and do
not provide for secular education stand outside the
purview of the Act."
39 The Apex Court in State of Karnataka (supra) dealt with
aspect that all schools whether established or aided by Government or
unaided though have a right to establish, but still require recognition
from the authority and also deal with facets of Article 21-A read with
Articles 29, 30, 226, 350-A, apart from 19(1)(g) of the Constitution of
India.
40 "Right to free and compulsory education" is a concept,
apart from the constitutional provision, is the foundation of the RTE
Act. This is an important right in favour of the children and
specifically of children belonging to "dis-advantage class" and "weaker
dgm 49 wp-4457-15 with group.sxw
section" (Special class). To achieve this object, specific provision is
made, whereby its is compulsory/obligatory for all private aided
and/or unaided, including local body schools and/or specified
category schools to admit and provide free compulsory education in
class I to students belonging to the special class to the extent at least
25% (quoted percentage) as provided in Section 12 (1)(a), (b) and ©.
This is also reflected in the statement of objects and reasons (clause
4) which reads as under :
"4 The proposed legislation is anchored in the
belief that the values of equality, social justice and
democracy and the creation of a just and humane
society can be achieved only through provision of
inclusive elementary education to all. Provision of
free and compulsory education of satisfactory quality
to children from disadvantaged and weaker sections
is, therefore, not merely the responsibility of schools
run or supported by the appropriate Governments, but
also of schools which are not dependent on
Government funds."
41 This Court has in Uran (Supra) dealt with importance of
provisions of RTE Act referring to these provisions and entitlement of
reimbursement by the schools which have admitted the stated 25% of
the strength of the total seats in view of the scheme, so referred
above, are entitled for the reimbursement.
dgm 50 wp-4457-15 with group.sxw
42 There is no issue even raised by the counsel appearing for
the Petitioners with regard to the school's obligation as provided
above. However, submission is that there cannot be two entry level
for calculating 25% each class of entry level.
43 The concept "entry level" is not specifically defined. A
plain reading of Section 12(1)(c ) made it compulsory for the schools
to admit in class I, to the extent of at least 25% of the strength of that
class, children belonging to "weaker section" and "dis-advantage
group" in the neighbourhood and provides free and compulsory
elementary education till its completion. The words "The strength of
that class" refer to class I of the school. The entry level, in view of the
above, is class I. The school, therefore, required to take into account
the strength of class I students to arrive at the calculations fixed
quota/percentage. For example, as illustrated by the State government
in the affidavit, if the strength of the pre-primary school is 100, then
such school, requires to admit 25 children belonging to the stated
class/group/section.
44 The plain reading of proviso further provides that where a
dgm 51 wp-4457-15 with group.sxw
school as specified in clause (ii) (of Section 2, imparts pre-school
education covering, the provision of clauses (a) to (c ) of Section 12
shall apply for admission to such pre-school education also. It is clear
that such schools are also under obligation to admit 25% students of
the strength of the pre-primary school/class. The provisions which are
applicable to class I as referred in Section 12, are also applicable to
the pre-school. All these admission of students, based upon the
strength of that class is subject to the reimbursement and all other
obligation under the RTE Act. [ Uran (supra) ].
45 The State Government and its officers so also the local
authorities/bodies and/or appropriate authority as provided under
Section 11 of the RTE Act are under obligation to take care of children
and make arrangement for the children who are in the age group of 3
to 6 years. We have already observed in Uran (supra) as under :
"14 The learned Advocate General appearing for the
State of Maharashtra submitted that the proviso to
Section 12(1) of the Act provides for compulsory pre-
school education whereas sub-section (2) of Section 12
provides for reimbursement only for elementary
education and elementary education is defined to mean
education from Ist standard to 8th standard and
therefore there is lacuna in the Act. Having considered
the entire provisions of the Act, in our view, there is no
lacuna at all. Chapters II and III deal with providing
dgm 52 wp-4457-15 with group.sxw
free and compulsory education to every child of the age
of 6 to 14 years. In Chapter III of the Act, Section 11
provides for preparing children above age of 3 years for
elementary education. It also states that the
appropriate Government may make necessary
arrangements for providing free pre-school education
and early childhood care for all children until they
complete the age of 6 years.
15 Section 12 which is in Chapter IV of the Act deals
with the responsibilities of the school for free and
compulsory education. As the petitioners are private
unaided school which fall under sub-clause (4) of
clause (n) of Section 2, we are restricting our
comments to only Section 12(1)(c). Under Section
12(1)(c), a school, which is an unaided school not
receiving any kind of aid or grant to meet its expenses
from the appropriate Government or the local
authorities, shall admit in class I to the extent of at
least 25% of the strength of that class children
belonging to weaker section and disadvantaged group
in the neighbourhood and provide free and compulsory
elementary education till its completion. The Proviso to
sub-section 12(1), provides further that where a school
specified in clause (n) of Section (2) imparts pre-school
education, the provisions of clauses (a) to (c) shall
apply for admission to such pre-school education.
Therefore, it is quite clear that whether schools impart
only pre-school but not elementary education like for
e.g., a Montessori, then such schools do not have the
responsibilities as required under Section 12 of the
Chapter IV of the said Act.
Sub-section (2) of Section 12 deals with
reimbursement of the expenditure incurred by an
unaided school not receiving any kind of aid or grants
to meet the expenses. It provides that such a school,
i.e., an unaided school not receiving any kind of aid or
grant to meet its expenses from the appropriate
Government or the local authorities which imparts
dgm 53 wp-4457-15 with group.sxw
elementary education shall be reimbursed expenditure
so incurred by it and the quantum of reimbursement.
Sub-section (2) cannot be read to mean that
reimbursement will be only for providing free and
compulsory elementary education. The expression
"...................................specified in sub-clause (iv) of
clause (n) of Section (2) providing free and compulsory
education as specified in clause (c) of Sub-section 1
................" shall identifies the school and not the
education for which reimbursement will be given.
When one reads Section 11, it is quite clear that
the responsibility is thrust upon the appropriate
Government which in the present case will be the
Government of Maharashtra, for providing free pre-
school education for children between age group of 3
to 6 years to prepare them for elementary education
and to provide early childhood care. The moment, the
appropriate Government, i.e., the State of Maharashtra
makes arrangements for free pre-school education for
such children and directs the schools including schools
specified in sub-clause (iv) of clause (n) of Section 2, it
is the responsibility and obligation of the State
Government to reimburse such schools. In this case, the
State Government has issued a directive to all schools
imparting elementary education and pre-school
education to admit in pre-school to the extent of at
least 25% of the strength of that class, children
belonging to weaker section and the disadvantaged
group in the neighbourhood and provide free and
compulsory education. Therefore, the State
Government is bound and liable to reimburse such
schools to the extent of the amount mentioned in sub-
section (2) of Section 12 of the Act.
20 In Society for Unaided Private Schools of
Rajasthan Vs. Union of India & Anr. 9, the Apex Court
has already interpreted Section 12(1)(c) and (b) read
with Section 2(n)(i) to (iv) read with Section 18(3)
9 (2012) 6 SCC
dgm 54 wp-4457-15 with group.sxw
along with constitutional provision as under covering
the pre-school education by the school as under :
"14 Chapter IV of the 2009 Act deals with
responsibilities of schools and teachers. Section 12(1)(c)
Sections (2(n)(iii) mandates that every recognised school
imparting elementary education, even if it is an unaided
school, not receiving any kind of aid or grant to meet its
expenses from the appropriate Government or the local
authority, is obligated to admit in Class I, to the extent at
least 25% of the strength of that class, children belonging
to weaker section and disadvantaged group in the
neighbourhood and provide free and compulsory
elementary education till its completion. As per the
proviso to Section 12(1)(c), if the school is imparting
pre-school education, the same regime would apply.
15 By virtue of Section 12(2) the unaided school
which has not received any land, building, equipment or
other facilities, either free of cost or at concessional rate,
would be entitled for reimbursement of the expenditure
incurred by it to the extent of per child expenditure
incurred by the State, or the Actual amount charged from
the child, whichever is less, in such manner as may be
prescribed. Such reimbursement shall not exceed per child
expenditure incurred by a school established, owned or
controlled by the appropriate Government or a local
authority."
22 In view of the above clear provisions, there is no
issue that these Acts and rules made thereunder made
mandatory for the appropriate Government, local
authorities to make elementary education compulsory
and provide all facilities. Section 12 as referred above
and the respective rules made thereunder, deals with
the aspect of reimbursement whenever there is a
question and/or direction issued to admit the students
to the extent of at least 25% of the strength of the
class, children belonging to weaker section and
dgm 55 wp-4457-15 with group.sxw
disadvantaged group and provide free and compulsory
education. The free and compulsory education
therefore needs to be within the ambit of provisions of
this Act. All concerned are bound by the same
including the guardian/parent. Apart from the
constitutional articles so referred above, this Act, itself
has taken care of the important duties of appropriate
Government , local authorities and parents about the
child who is of age 3 to 6 years. From six years
onwards, as recorded above, the elementary education
commenced and there is no provision made of child
care aspect of children below three years. It is
necessary to note that the Central and the State
Government have already announced from time to time
various child care and education policies/schemes
whereby the respective Governments provided and
even made various arrangements to take care of
child/children of every age. We are concerned with the
concept of free pre-school education for children
between 3 to 6 years.
27 The issue of reimbursement for providing
education to such children from age 3 to 6 years also
cannot be read in isolation by distinguishing it from
Section 11. Section 12 itself contemplates and provides
so far as the elementary education is concerned to
admit students at least to the extent of 25% as
recorded above. The said provisions along with the
rules definitely contemplates the entitlement of
reimbursement of such schools/institutions which
provide such education by admitting such 25%
children. In our view, the moment such
school/institution admits such students of aged 3 to 6
years, their entitlement of reimbursement should
follow. The appropriate Government is even otherwise
providing only a limited reimbursement amount as per
the policy so declared. The schools/institutions have
been left to bear balance amount so spent for imparting
such free education of all levels. At this stage, we are
not dealing with the fact as to what extent the
dgm 56 wp-4457-15 with group.sxw
reimbursement should be granted and/or amount is
less or more. However, we are inclined to observe that
the Supreme Court's decision in Pramati Educational
and Cultural Trust (supra) so referred above, while
dealing with the aspect of constitutional validity of the
Act has confirmed the issue of reimbursement.
30 All the schools which are admitting the children
for pre-school education in view of provision to sub-
section (1)(c) of Section 12 of the Act, it is difficult to
accept the contention that the provisions of
reimbursement is not be applicable to such schools
and/or institutions. To interpret otherwise means we
are creating two classes : the institutions/schools which
admit the students of 25% for providing elementary
eduction, they are entitled for the reimbursement, but
the institution and/or schools which are also admitting
the children for pre-primary education, they are
disentitled for such reimbursement. The appropriate
Government itself permitted them to select the entry
level. The whole submission and circulars of the State
Government are, therefore, inconsistent and self
destructive. Such two classes, in our view, cannot be
created when the provisions are so clear and are read
together with the constitutional provisions. Once 25%
children belong to the weaker section- disadvantaged
class admitted in elementary and/or in pre-school
education, such schools/institutions are entitled for the
reimbursement as per the law."
46 We are concerned with the situation where the schools,
like the Petitioners, who are imparting "pre-school education" as well
as "elementary education" in their respective schools/institutions. The
submission, therefore, is made by referring to provisions including the
RTE State Rules and by submitting their interpretation to Section
dgm 57 wp-4457-15 with group.sxw
12 (c ) and proviso that the State Government's circular of creating
two entry level, pre-school level, as well as, class I level is contrary to
law. According to their submission, the State Government cannot
compel them by Resolution and specifically of 21.01.2015 and/or
13.04.2015 to admit the students in pre-primary and class I level to
the extent of 25% of strength of both the classes. The two entry
points, therefore, according to the Petitioners, who have such schools
of two levels, primary and elementary, contrary to the scheme of the
RTE Act and so also to Section 12 read with other provisions.
According to them this would also infringe their rights as
contemplated under Article 19(1)(g) of the Constitution.
The clarificatory circular dated 21 January 2015 has taken note
of situation where quota seats remained vacant, in either of the
classes.
47 The purpose and object and specifically of Section 12 (1)
(c ) with proviso is crystal clear, positive affirmation for the "school"
to admit children of 25% of the schools strength of every class of entry
level. Therefore, the "schools" in question and/or which runs both
classes of pre-primary school and elementary school, they are under
dgm 58 wp-4457-15 with group.sxw
obligation to have reservations of 25%, based upon the strength of the
respective first entry classes. There is no specific intention expressed
and/or no such choice and/or option is provided to such schools to
select one out of these two entry classes, for providing admission and
reservation in question. The mandate is to provide reservation
irrespective of the classes i.e. pre-primary, at both levels.
48 The expression "25% of the strength of that class" [Section
12 (1)(c)] means and includes pre-primary school ( 3 to 6 year), first
entry level and also of first standard of elementary (primary school),
both the entry level classes to select one out of two levels is
impermissible. At every entry level, it is obligation of the school to
admit the fixed percentage of children, belonging to the described
class. The schools, therefore, who are imparting the education at two
levels pre-primary and primary, at both the entry level, they have to
admit prescribed percentage of children/students to achieve the
purpose and object of the RTE Act.
49 The plain reading of Section 12 (1) (c) including proviso
of RTE Act and RTE Rules made thereunder, made it mandatory to
dgm 59 wp-4457-15 with group.sxw
admit the reserved children at both the entry levels. Such reservation,
at both entry levels, is within the framework of law. There is no
specific provision of any option either of these two. There is no bar
and/or prohibition for the school, not to admit such children in the
respective entry level classes. Both the entries are available for the
respective schools, irrespective of nature of the schools. There is no
exemption and/or concession contemplated and/or provided.
Therefore, the circular dated 21 January 2015 and related
communications providing two levels and clarification of certain area
cannot be stated to be contrary to the RTE Act and/or any other
provisions. It is legal and valid.
50 The RTE Rules so referred and appears to be made to
address the situation where the schools run either pre-school and/or
elementary school, then one level entry would be sufficient. But the
situation like the present one, in our view, as the provisions are clear,
therefore, the State Government Circulars including 21.01.2015 and
such other communications and earlier action to insist upon 25%
quota at both levels is correct reading of Sections in the background of
purpose and object of providing free education and related
dgm 60 wp-4457-15 with group.sxw
benefits/facilities to children of "disadvantage group" and/or "weaker
section". The submission and the propositions so made by the
counsel appearing for the Petitioners are unacceptable as are contrary
to the provisions of law and, therefore, the same are rejected.
51 The State Government is under obligation to frame Rules,
Regulations and issue necessary circulars and to take policy decision
with an object to achieve the purpose and object of RTE Act. Apart
from the provisions of the RTE Act, Article 162 of the Constitution of
India, if necessary need to be invoked to implement and/or enforce
the scheme and purpose of the RTE Act to fill in the gap, if any. This
also may be with a view to achieve central education policy, as well
as, of the State. The Circulars and the communications, therefore so
issued are well within the State power and jurisdiction. The validity
of individual circular needs to be tested from the point of view of the
provisions of the RTE Act and the policy. Circular dated 30.04.2015 as
withdrawn, the challenge related to it is, therefore, rendered
infructuous.
52 The schools have been following such practice since 2012-
dgm 61 wp-4457-15 with group.sxw
13 upto 2015-16. Earlier, the practice and circulars and
communications and admissions of such schools to the children in
question, both in primary school and elementary school need no
disturbance. The mandate of 30 April 2015, as withdrawn by the
State, the children's admissions based upon the earlier circulars and
the orders passed by this Court irrespective of the admissions either in
pre-primary and/or primary schools, in the circumstances, and in the
interest of justice need not be disturbed. All have acted bonafidely, in
accordance with the then existing provisions of law, apart from the
instructions so issued by the Respondents.
53 The appropriate government, local authority or concerned
officials are under obligation to follow the mandate of the RTE Act
and to implement it to its fullest extent without further delay and are
under obligation to take steps to make it effective and fruitful.
54 Having noted, the respective obligations by all the
concerned admission to quota children, merely because some schools
are imparting both the level education, that itself cannot be the reason
to interpret the provisions of Section 12(1)(c), contrary to the
dgm 62 wp-4457-15 with group.sxw
intention and the object of the RTE Act. The purpose and object is
clear, so also the provisions. There is no vagueness/ambiguity. The
clarificatory circulars/communications, including 21 January 2015
cannot be stated to be contrary and/or illegal. The interpretation and
the submission that the entry point should be either at junior K.G.
and/or at nursery and the same is for first entry level for pre-school
and entry point for class one student, should also be the entry for
elementary education is unacceptable. It is unacceptable that these
two entries are disjunctive of each other. All the interpretations and
the submissions are rejected as main provisions are clear. It is settled
that the question of interpretation comes only when the provisions are
unclear or vague.
55 Some students/children might have been admitted in
respective classes in the mid of the session and/or the classes,
therefore, in view of Section 4 and the RTE Rules made thereunder
and/or otherwise, noway be read to obstruct the scheme of Section
12(1)(c) so recorded above. Both are independent provisions. The
factual situation needs to be handled by the State, Local Bodies and
concerned authorities. The subsequent class like 2nd, 3rd to 8th
dgm 63 wp-4457-15 with group.sxw
Standard cannot be read to mean entry level for each classes as
contemplated under Section 12(1)(c) as rightly contended by the
Petitioner's counsel. At the time of recognition and immediately after
receipt of the forms by the School, the Respondents required to assess
and decide the basic entry level for extending quota reservation and
proceed accordingly while allotting the students, based upon the
availability of students in their respective first entry level by noting
the strength of the class to arrive in the particular year.
56 The State and all its officials to initiate and take action to
implement the provisions, if necessary by issuing the related circulars
and guidelines, apart from the RTE Rules as contemplated under
Section 38. The State is also empowered, as noted to invoke Article
162 of the Constitution of India to fill in the gap to avoid practical
confusion and to remove the doubts, if any.
57 So far as the communication dated 13 April 2015 is
concerned, the State Government and/or its officials, in view of the
reasons so provided in the present Judgment, need to take necessary
steps and resolved the issue by all possible way in implementing the
dgm 64 wp-4457-15 with group.sxw
provisions of the RTE Act. The RTE Act is of the year 2009. The State
RTE Rules have been framed in the year 2010/2013. The circulars are
issued in restrictive manners from time to time, to resolve the
confusion and doubts. Therefore, taking overall view of the matter, it
is for the Government to take decision for proper implementation of
the RTE Act, also by giving the protection and/or concession to the
concerned schools for non compliance of the scheme in strict sense.
This is also because of various circulars issued by the State
Government, including circular dated 30 April 2015, though now
withdrawn.
58 There are various authorities and commission/council are
required to be constituted to facilitate effective implementation of RTE
Act and Rules framed thereunder. The statements are made that they
have initiated process to appoint such council and the authorities.
59 In view of the order passed by this Court, the State
Government has placed on record the Government Resolution dated
30.04.2015 providing mechanism/redressal authorities to consider
and settle, resolve the disputes with regard to such admissions and
dgm 65 wp-4457-15 with group.sxw
various complaints of parents and/or schools in this regard. The
affidavit dated 15/07/2015 to that effect has been placed on record.
It must be given due publicity.
60 Rule 3.3 of the Rule 2013, prohibit the diversion of
reserved quota seats to general quota. The mandate of reservation at
both levels, needs to be followed by all, so also the continuity to be
made till completion of elementary education. The earlier education
background, therefore, may not affect the purpose and object of the
RTE Act. The State needs to consider and to tackle the situation of
reserved vacant seats taking note of interest of all the children of open
category and also the reserved quota and the schools, and also taking
note of the right of educations of general category students, covering
lower and upper middle class and above, the children of open
category other than quota class.
61 The State has withdrawn Circular dated 30.04.2015 and
brought back prior position, including 21.01.2015 circular of
recognising two levels entry of admission and related issues. This
Court on 7 May 2015 has directed, by staying Circular dated
dgm 66 wp-4457-15 with group.sxw
30.04.2015, to proceed with the earlier practice and policy of
admission. From time to time statements have been made that the
State is following earlier circulars and admission practice. Such
statements and communication and directions so issued by the State
to officers/officials to implement the earlier circulars, therefore,
remained and maintained, as stated by the State also. Therefore,
there is no question not to follow the earlier policy including Circular
dated 21.01.2015. The State must have been following the same.
The non-compliance, if any, it would be by the State to take action in
accordance with law, but at the same time, the confusion so created by
brining 30.04.2015, circular cannot be overlooked. The State is free
to frame/bring in policy but it is desirable to note the basic principles
and the effect of such new circulars and/or policy, on existing
situation. Everything must be in a phase-wise manner. The abrupt
change in policy, unless circumstances compel or very essential, needs
to be avoided, as it causes confusion and disturbs the running policy
and practical part of all the concerned.
62 Having once decided the issue of reimbursement by this
Court in Uran (Supra), which is part and parcel of Sections 11 and 12
dgm 67 wp-4457-15 with group.sxw
and other provisions and rules made thereunder, the State
Government needs to follow the same. Even if Special Leave Petition
filed by the State against the Judgment in Uran (Supra), no way
sufficient to overlook in view of above reasons to uphold the action of
the State and its authorities covering the aspect of two entry level
admission to the quoted class/group/section.
63 Resultantly, the following order:-
ig ORDER
a) We hold and declare that the compulsory admission of
minimum 25% in class I and/or pre-school at both
entry level for the children belonging to specific
class/group/section is within the framework of the
RTE Act/Rules. The simultaneous two or both entry
levels is also permissible.
b) Circulars dated 23 July 2015 and 21 January 2015
and other related communications in view of above
reasons, are valid and within the framework of law.
c) In view of above, circular dated 13 April 2015 and
related communications be implemented as per the
dgm 68 wp-4457-15 with group.sxw
provisions of RTE Act and the Rules.
d) Due publicity be given at all level, at the earliest, to the
duly approved mechanism/provisions, to resolve the
grievances/disputes as referred in GR dated 30 April
2015.
e) The State to constitute advisory council and/or appoint
and/or form the other authorities as contemplated
under the RTE Act, at the earliest, if not already
appointed and/or constituted.
f) The State Government to consider and decide the issue
of providing reimbursement for the vacant reserved
seats and issue appropriate Govt. Resolution/circular
accordingly.
g) All Writ Petitions are accordingly disposed of, except
Original Side PILST No. 64 of 2015 and Appellate Side
PILST No. 16769 of 2015. All the other contentions
are kept open.
h) Original Side PILST No. 64 of 2015 and Appellate Side
PILST No. 16769 of 2015 be placed on board on 28
August 2015, for further hearing.
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i) There shall be no order as to costs.
64 The learned counsel appearing for the Petitioners makes
oral application to stay the effect and operation of this Judgment.
Considering the reasons so already recorded, we see no case is made
out to stay the effect and operation of this Judgment, which is
pronounced in the open Court. The oral prayer is accordingly
rejected.
(V. L. ACHLIYA, J.) (ANOOP V. MOHTA, J.)
