Bombay High Court
Aswini Jitendra Kable vs State Of Maharashtra Through The ... on 6 May, 2024
5, 16 & 17-PILL-14887-2024
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO. 14887 OF 2024
Aswini Jitendra Kamble & Anr. .. Petitioners
Versus
State of Maharashtra & Ors. .. Respondents
WITH
APPELLATE SIDE
PUBLIC INTEREST LITIGATION NO. 61 OF 2024
Akhil Bharatiya Samajwadi
Adhyapak Sabha & Ors. .. Petitioners
Versus
State of Maharashtra & Ors. .. Respondents
WITH
ORIGINAL SIDE
WRIT PETITION (L) NO. 14334 OF 2024
Shabbir Gulamgaus Deshmukh & Ors. .. Petitioners
Versus
Union of India & Anr. .. Respondents
Ms. Jayana Kothari, Senior Advocate a/w Ms. Payal Gaikwad,
Mr. Raj Kamble i/by Vasudha for petitioners in
PILL/14887/2024.
Ms. Gayatri Singh, Senior Advocate a/w Ms. Shreya
Mohapatra a/w Sanjot Shirsath for petitioners in
WPL/14334/20204.
Mr. Mihir Desai, Senior Advocate i/by Devyani Kulkarni for
petitioners in PIL/61/2024.
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5, 16 & 17-PILL-14887-2024
Smt. Jyoti Chavan, Additional Government Pleader a/w Smt.
Rita Joshi, AGP for State in PILL/14887/2024.
Smt. Rita Joshi, AGP for State in WPL/14334/2024.
Mr. P. P. Kakade, Government Pleader with Mr. O. A.
Chandurkar, Addl. Govt. Pleader and Mrs. G. R. Raghuwanshi,
AGP for respondent nos.1 and 2 - State in PIL/61/2024.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 6th MAY, 2024
P.C.:
PILL NO. 14887 OF 2024:
1. Issue notice to the respondents.
2. Learned Additional Government Pleader has put in
appearance on behalf of the State-respondents and waives
service of notice.
3. Let affidavit-in-reply be filed by the respondents within
four weeks. Petitioners to file rejoinder-affidavit, if any, by
the next date of listing.
4. Stand over to 12th June, 2024.
5. Learned counsel for the petitioners has urged that
having regard to the urgency in the matter, which has arisen
because impending admissions to be made in Class-I are to
commence from 10th May, 2024, the prayer for interim relief
may be considered.
6. Challenge in this Public Interest Litigation petition has
been made to the Maharashtra Right of Children to Free and
Compulsory Education (Amendment) Rules, 2024, whereby a
proviso has been appended to Rule 4 of the Maharashtra Right
5, 16 & 17-PILL-14887-2024
of Children to Free and Compulsory Education Rules, 2011
(hereinafter referred to as "the Principal Rules") by
notification dated 9th February, 2024. The newly inserted
proviso to Rule 4 is extracted herein-below: -
" Provided that, the Local Authority shall not identify
the private un-aided school, for the purposes of 25 per
cent. admission of disadvantaged group and weaker
section under the 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, where
Government Schools and aided schools are situated
within radius of one kilometer of that school."
7. Challenge is also made to the proviso added to Rule
8(2), which reads as under: -
" Provided that, no private un-aided school which is
identified under the proviso to sub-rule (5) of rule 4 shall
be eligible for reimbursement under sub-section (2) of
section 12."
8. Submission of the learned counsel for the petitioners,
while impeaching the amendments incorporated by way of
issuing the notification dated 9th February, 2024, is that the
said amendments in the Rules are not only unconstitutional,
being violative of Articles 14, 21 and 21-A of the Constitution
of India, but are ultra vires the provisions of the Principal Act,
namely, the Right of Children to Free and Compulsory
Education Act, 2009. Various judgments have been brought to
our notice where similar amendments made in the Rules have
been struck down by other High Courts. The said judgments
are, (i) Ajay Kumar Patel vs. State of U.P. & Ors.,
reported in 2016 SCC OnLine ALL 3434 and (ii) Smt.
Namita Maniktala vs. State of H.P. & Ors., reported in
5, 16 & 17-PILL-14887-2024
2017 SCC OnLine HP 3285.
9. It has been argued on behalf of the petitioners that
Section 12(1)(c) of the Principal Act clearly mandates that
every school, as defined in sub-clauses (iii) and (iv) of Section
2(n) of the Principal Act, shall admit to the extent of at least
25% of the strength of Class-I, children belonging to weaker
section and disadvantaged group in the neighbourhood and
provide free and compulsory elementary education till its
completion.
10. The submission, thus, is that the newly added proviso to
Rule 4 excludes the private un-aided schools from such
mandate in view of the definition of the word "school"
occurring in Section 2(n)(iv) of the Principal Act, according to
which school also means any recognized school imparting
elementary education which is un-aided and does not receive
any kind of aid or grants to meet its expenses from the State
Government or a Local Authority. Submission, therefore, is
that such exclusion of un-aided and privately managed
schools from operation of Section 12(1)(c) of the Principal Act
is not permissible.
11. On the other hand, learned Additional Government
Pleader representing the State-respondents, has submitted
that the exclusion in terms of the amended proviso appended
to Rule 4 is not absolute, rather the exclusion applies only to
un-aided private schools situated in an area where
government schools or aided schools are situated within a
radius of one kilometer from the said school. She has also
argued that Section 6 of the Principal Act provides that every
appropriate Government and the Local Authority shall
5, 16 & 17-PILL-14887-2024
establish a school within such area or limits of neighbourbood,
as may be prescribed, where a school is not so established
and since in the State of Maharashtra, the Government or the
Local Authorities have already established schools within the
prescribed area as such exclusion of privately managed un-
aided institutions from operation of Section 12(1)(c) of the
Principal Act has been provided for by the proviso for the
reason that burden has, ultimately, to be borne by the State
even if the students are admitted in un-aided privately
managed schools.
12. Having considered the submissions made by the parties,
we are of the prima facie opinion that the impugned provisos
as appended to Rule 4 as also appended to Rule 8 are ultra
vires the provisions contained in the Principal Act. Section 12
(1)(c) clearly provides for and mandates that the schools
defined in Section 2(n)(iii) and (iv) shall provide at least 25%
of reservation in admission in Class-I to children belonging to
weaker sections and disadvantaged groups. Said provision
does not provide that such a mandate will operate only in
case of the absence of school in the neighbourhood and
accordingly the submission made by the learned Addl.
Government Pleader does not appear to be prima facie
tenable.
13. It is well settled legal principle that any piece of
subordinate legislation cannot be made in contravention of the
Principal Legislation itself. Even otherwise, by appending the
impugned provisos to Rule 4 and Rule 8 as above, the right of
children to get free elementary education is being hampered
which is otherwise guaranteed under Article 21-A of the
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Constitution of India.
14. Thus, having regard to the overwhelming public interest
in the matter, we provide that till further orders, the
amendment incorporated in the Maharashtra Right of Children
to Free and Compulsory Education Rules, 2011 vide
notification dated 9th February, 2024, shall remain stayed.
15. This order shall be communicated by the learned
Additional Government Pleader to all concerned forthwith.
APPELLATE SIDE PIL NO. 61 OF 2024 AND
ORIGINAL SIDE WPL NO. 14334 OF 2024:
16. To be tagged along with OS PIL(L) No. 14887 of 2024.
PRAVIN PRAVIN
DASHARATH PANDIT
PANDIT Date: 2024.05.06
18:08:18 +0530
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
