Bombay High Court
Izak English Medium School, Bhalvani ... vs The State Of Maharashtra Through ... on 14 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17902-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3085 OF 2020
Izak English Medium School, Bhalvani
Ta. Parner, Dist. Ahmednagar,
Established and run by Alfa Social and
Education Foundation, Dhanwantary
Campus, Datrange Mala, Nalegaon,
Ahmednagar, through it's Secretary,
Mr. Rehan Shafi Ahmed Kazi ... PETITIONER
VERSUS
1. State of Maharashtra
(through it's Secretary, the Department
of School Education & Sports), Mantralaya,
Bombay - 32
2. Director of Education (Primary),
Maharashtra State,
Office of Directorate of Primary Education
Dr. Ani Bezant Marg, Central Govt. Building,
Pune - 1.
3. Regional Deputy Director of Education,
Pune Region, 17, Dr. Ambedkar Marg,
Opp. Lal Deual, Pune 411001
Maharashtra State, Pune -1
4. The Education Officer (Primary),
Zilla Parishad, Ahmednagar
Dist. Ahmednagar
5. Block Education Officers
Panchyat Samiti Parner,
Tal. Parner, Dist. Ahmednagar ... RESPONDENTS
...
Advocate for petitioner : Mr. A.B. Gatne
Addl.G.P. for respondent Nos.1 to 3 : Mr. A.R. Kale
Advocate for Respondent Nos.4 and 5 : Mr. A.D. Aghav
...
1/9
943.WP.3085.2020+.odt
WITH
WRIT PETITION NO.3115 OF 2020
Anand Medical and Education Foundation
Parner, Tq. Parner, Dist. Ahmednagar,
through its Secretary,
Sadik S/o Bal Raje ... PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary,
School Education and Sports Department
Mantralaya, Mumbai - 32
2. The Commissioner (Education),
Maharashtra State Pune
3. The Director of Education,
Maharashtra State, Pune
4. Deputy Director of Education
Pune
5. Education Officer,
Primary Zilla Parishad,
Ahmednagar
6. The Block Education Officer,
Parner, Tq. Parner,
Dist. Ahmednagar ... RESPONDENTS
...
Advocate for petitioner : Mr. G.R. Syed
Addl.G.P. for respondent Nos.1 to 4 : Mr. A.R. Kale
Advocate for Respondent No.6 : Mr. A.D. Aghav
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Reserved on : 06.08.2024
Pronounced on : 14.08.2024
ORDER (MANGESH S. PATIL, J.) :
Though these are separate writ petitions, as the relief being
claimed by the petitioners is identical, we are disposing of these writ
petitions by this common order.
943.WP.3085.2020+.odt
2. Heard.
3. Rule in both these petitions. It is made returnable forthwith.
Learned AGP waives service for respondents who are the State
functionaries and Mr. Aghav waives service for the respondents -
Education Officer (Primary) Zilla Parishad and Block Education Officer
Panchayat Samiti, Parner. At the joint request of the parties, the matters
are heard at the stage of admission finally.
4. The petitioners are minority institutes running English
Primary Schools on self finance basis. It is their stand that till the
academic year 2019-2020 they were allowed to admit students from the
weaker and disadvantaged class of the society to the extent of 25% as per
the provisions of the Right of Children to Free and Compulsory Education
Act, 2009 (RTE Act). The respondent - Block Education Officer issued the
impugned letter dated 13.02.2020 informing these petitioners that names
of their schools were being removed from the RTE portal provided for
admission to the school under the 25% quota by virtue of the
Government Resolution dated 15.03.2013.
5. It is the petitioners' stand that being minority institutes they
cannot be compelled to admit 25% of the category students under the
RTE Act, however, if they are voluntarily coming forward to admit the
students, it would be unconstitutional not to allow them to do so. Hence,
both the petitioners challenge the impugned communication of the Block
Education Officer. In Writ Petition No.3115/2020 the petitioner has
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challenged Clause 1.1(a) of the Notification dated 15.03.2013. In writ
petition No.3085/2020 the petitioner has been challenging even Rule
12(b) of the Rules 2011 framed under the RTE Act, as violative of Articles
14, 19(1) and 30 and even Section 1 (n)(iv) of the RTE Act. Both the
petitioners have also sought a writ of mandamus directing the
respondents to take appropriate steps for admitting the students in their
English Primary Schools under the provisions of RTE Act.
6. In Writ Petition No.3085/2020 the petitioner has also
claimed that since it was already allowed to admit 25% weaker section
students under the RTE Act for the previous years, 75% of its dues for the
academic year 2017-18 and 100% dues for the academic year 2018-2019
and 2019-2020 shall be reimbursed.
7. The learned advocates for the respective petitioners would
take us through the provisions of law and in consonance with the stand
being taken in the petitions submitted that even if being minority
institutes they cannot be compelled to admit 25% students from the
weaker sections as contemplated under the provisions of the RTE Act, if
they are voluntarily coming forward to admit such students, which is in
the interest of the society at large and particularly the children from
weaker sections, the object and purpose of the Act would be served
better. If the whole purpose of the enactment is to provide free and
compulsory education to the children from downtrodden class of the
society, such institute like the petitioners should be allowed to admit the
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students under the RTE Act.
8. Mr. Gatne the learned advocate for the petitioner from Writ
Petition No.3085/2020 would also refer to the constitutional bench
judgment in the matter of Pramati Educational and Cultural Trust
(Registered) and Ors. Vs. Union of India and Ors.; (2014) 8 Supreme
Court Cases 1. He would advert our attention to paragraph No.50 and
would submit that the observations would be demonstrative of the fact
that the institutes like petitioners which are voluntarily coming forward
to admit the students in 25% category under RTE Act, it would be in
consonance with the freedom under Article 19(1) of the Constitution.
Consequently, Clause 1.1(a) of the Government Resolution dated
15.03.2013 and Rule 12.1(c) would be violative of Articles 14, 19(1) and
30 and even the Rule 12 of the Rule 2011.
9. Per contra, the learned AGP and the learned advocate for the
Education Officer (Primary) and the Block Education Officer, by referring
to the affidavits-in-reply would submit that by virtue of Section 12(1)(c)
of the RTE Act, it is only the schools specified in Sub-clauses (iii) and (iv)
of Clause (n) of Section 2 are mandated to admit students to the extent
of 25% of the strength of the class, of weaker section and disadvantaged
group. Rule 1.1 of the Rules 2013 it has been provided that the schools
which are required to admit the students under Section 12 (1)(c) of the
RTE Act expressly excludes aided or unaided minority schools, Madrasas,
Vedic Pathshalas and Educational Institutions primarily imparting
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religious instruction. Since the petitioners are running minority schools
with permission granted on self finance basis they cannot as of right
claim to admit students under Section 12. Rules 12 or 1.1 which is under
challenged cannot be said to be either violative of Section 12 of the
provision of the RTE or violative of Article 14, 19(1) and 30 of the
Constitution.
10. We have considered the rival submissions and perused the
papers. At the first blush, the stand being taken by the petitioners seem to
be innocuous, rather would be demonstrative of the fact that even the
minority institutes like the petitioners seek to come forward in educating
children from weaker section and disadvantaged class. Even the
submission made by the learned advocates for the petitioners is
attractive.
11. The issue is not as simple as it looks. Section 1(5) of the RTE
Act expressly excludes minority institutes from applicability of the RTE
Act. Rule 1.1 and Rule 12 which seek to exclude minority institutes or
the institutes imparting religious instructions is clearly in consonance
with Section 1(5). Apparently, the petitioners are seeking to subject
themselves to the provisions of the RTE Act by coming forward
voluntarily to admit the students under 25% quota which claim itself
would be inconsistent with Section 1(5).
12. Besides, by virtue of decision in Pramati Educational and
Cultural Trust (supra) the RTE Act itself has been declared to be ultra
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vires, the Article 30(1) of the Constitution of India to the extent of
minority schools, aided or unaided, covered under that Article. If the
petitioners being minority institutions are allowed to subject themselves
to the provisions of the RTE Act, it would be in stark violation of Section
1(5) as also Pramati Education and Cultural Trust's decision (supra).
Once the constitutional bench of the Supreme Court has held the RTE Act
itself being ultra vires Article 30(1) of the Constitution, this Court in
exercise of the powers under Article 226 of the Constitution cannot
permit the minority institutes like the petitioners to subject themselves to
the provisions of the RTE Act. Even if they are ready and willing.
Allowing them to do so could be only by making the provisions of the
RTE Act applicable to them which in itself is prohibited by virtue of the
declaration in Pramati Educational and Cultural Trust (supra).
13. The submission of Mr. Gatne merely seeking to refer to para
No.50 in Pramati Educational and Cultural Trust (supra) would be a
misplaced argument in the light of the conclusion and the declaration
contained in paragraph No.56. It would be apposite to reproduce these
paragraphs. Paragraph Nos.50 and 56 read as under :
"50. While discussing the validity of clause (5) of Article 15 of the
Constitution, we have already noticed that in paragraphs 53
and 68 of the judgment in T.M.A. Pai Foundation Vs. State of
Karnataka; (2002) 8 SCC 481, this Court has held that
admission of a small percentage of students belonging to
weaker sections of the society by granting them freeships or
scholarships, if not granted by the Government and the
admission to some of the seats to take care of poorer and
backward sections of the society may be permissible and
943.WP.3085.2020+.odt
would not be inconsistent with the rights under Articles 19(1)
(g) of the Constitution. In P.A. Inamdar Vs. State of
Maharashtra; (2005) 6 SCC 537, however, this Court
explained that there was nothing in this Court's judgment in
T.M.A. Pai Foundation (supra) to say that such admission of
students from amongst weaker, backward and poorer sections
of the society in private unaided institutions can be done by
the State because the power vested on the State in clause (6)
of Article 19 of the Constitution is to make only regulatory
provisions and this power could not be used by the State to
force admissions from amongst weaker, backward and poorer
sections of the society on private unaided educational
institutions. While discussing the validity of clause (5) of
Article 15, we have also held that there is an element of
voluntariness of all the freedoms under Article 19(1) of the
Constitution, but the voluntariness in these freedoms can be
subjected to law made under the powers available to the
State under clause (2) to (6) of Article 19 of the Constitution.
56. In the result, we hold that the Constitution (Ninety-third
Amendment) Act, 2005 inserting clause (5) of Article 15 of
the Constitution and the Constitution (Eighty-Sixth
Amendment) Act, 2002 inserting Article 21A of the
Constitution do not alter the basic structure or framework of
the Constitution and are constitutionally valid. We also hold
that the 2009 Act is not ultra vires Article 19(1)(g) of the
Constitution. We, however, hold that the 2009 Act insofar as
it applies to minority schools, aided or unaided, covered
under clause (1) of Article 30 of the Constitution is ultra vires
the Constitution. Accordingly, Writ Petition (C) No.1081 of
2013 filed on behalf of Muslim Minority Schools Managers'
Association is allowed and Writ Petition (C) Nos.416 of 2012,
152 of 2013, 60, 95, 106, 128, 144-45, 160 and 136 of 2014
filed on behalf of non-minority private unaided educational
institutions are dismissed. All IAs stand disposed of. The
parties, however, shall bear their own costs."
14. In view of such state of law, neither the petitioners can be
allowed to put up a challenge to the validity of the provisions of the RTE
Act or the Rules framed thereunder.
15. However, there is no dispute about the fact that the
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petitioner institutes were earlier allowed to admit the students under
25% quota of RTE Act. The stand of the petitioner in Writ Petition
No.3085/2020 is also about having not been reimbursed for the students
admitted in the academic year 2017-18 till academic year 2019-2020.
The fact has not been controverted. Admittedly, till the impugned
communication these institutes were allowed to admit the students and
would be entitled to be reimbursed when it is not their fault as the
students were sent to their schools under the assumption that the
provision of the RTE Act are applicable to them.
16. Consequently, the petitioner in writ petition No.3085/2020
would be entitled to have the reimbursement.
17. The Writ petitions are dismissed and the Rule is discharged.
18. However, the respondents shall undertake scrutiny of the
claim of petitioner from writ petition No.3085/2020 regarding
reimbursement in respect of the students sent to it either voluntarily or
by virtue of ad-interim orders of this Court. The exercise shall be
concluded within six weeks and the petitioner be reimbursed to the
extent it is found entitled to, within six weeks thereafter.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
