[Cites 15, Cited by 0]
Bombay High Court
Ashish Chaman Fulzele And Others vs State Of Maharashtra, Thr. Prin. ... on 11 March, 2026
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
(1) 42PIL17.26
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
PUBLIC INTEREST LITIGATION NO. 17/2026
Ashish Chaman Fulzele and Ors. .VS. State of Maharashtra and Ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Ms Jayna Kothari, Senior Advocate assisted by Ms Payal Gaikwad and
Mr. Dipankar Kamble, Advocates for petitioners.
Mr. Shishir M. Uike, Additional Government Pleader for respondents.
CORAM : ANIL L. PANSARE AND NIVEDITA P. MEHTA, JJ.
DATE : MARCH 11, 2026.
Heard.
2. The petitioners are seeking to quash and set aside
clauses (3), 5.2, 5.3, 5.4 and 5.5 of the Government Resolution
dated 12.02.2026, insofar as they impose a rigid one kilometer
territorial ceiling in the implementation of Section 12(1) (c) of
the Right Of Children To Free and Compulsory Education Act,
2009 ("RTE Act"), being ultra vires the parent statute and
violative of Articles 14, 15 (4), 21A and 46 of the Constitution
of India.
3. Article 21A of the Constitution provides for free,
compulsory education of all children in the age group of 6 to 14
years as a fundamental right in such manner as the State may
by law determine. Consequently, the RTE Act was enacted.
Section 3 of the RTE Act provides that every child of the age of
6 to 14 years including child belonging to disadvantaged group
or weaker section shall have the right to free and compulsory
education in neighbourhood school till completion of his/her
elementary education. Section 6 of the RTE Act provides that
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for carrying out provisions of this Act, the appropriate
Government and the local authority shall establish, within such
area or limits of neighbourhood, as may be prescribed, the
school where it is not so established, within a period of three
years from the commencement of this Act.
4. Chapter IV of the RTE Act provides for responsibility
of school and teachers. Section 12(1)(c), which is relevant for
the present, provides that a school specified in sub clauses (iii)
and (iv) of clause (n) of Section 2 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. Clauses (iii) and (iv) of Section
2(n) include a school belonging to specified category and
unaided school.
5. Thus, the object of the RTE Act is to provide free and
compulsory education to the children in the age group of 6 to
14 years and for that purpose, appropriate Government and the
local authority is under obligation to establish a school within
the area or limits of the neighbourhood, as may be prescribed.
This exercise was to be done within a period of three years from
the commencement of the RTE Act.
6. Section 38 of the RTE Act extends powers to the
appropriate Government to make rules and accordingly the
Maharashtra Right of Children to Free and Compulsory
Education Rules, 2011 ("Rules") were brought into force with
effect from 11.10.2011. Rule 2(m) of the Rules provides
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definition of "Neighbourhood school" to mean a school in
respect of children in Classes I to V, to be a school established as
far as possible within a distance of 1 Km. of the neighbourhood
and in classes VI to VIII within a distance of 3 Km. of the
neighbourhood.
7. Rule 4(5) of the Rules provides that the local
authority shall designate a neighbourhood school for every
settlement or area. A proviso was added to Rule 4(5) of the
Rules stating that the local authority shall not identify private
unaided schools under Section 2(n) (iii) (iv) of the RTE Act for
25% admissions of children from disadvantaged groups/weaker
sections, if the Government or aided school exist within 1 Km.
radius.
8. This proviso and the corresponding proviso to Rule
8(2) was challenged before this Court at Principal Seat in the
case of Akhil Bharatiya Samajwadi Adhyapak Sabha & Ors. Vs. State
of Maharashtra and Ors; (Public Interest Litigation No.61/2024 with
connected matters). The Division Bench considered the relevant
provisions of the RTE Act so also Rules made thereunder vis-a-vis the
provisions of the Constitution of India, particularly Article 21A, to
hold that the provisos to Rule 4(5) and Rule 8(2) are ultra vires the
RTE Act and Article 21A of the Constitution of India. While doing so,
the Court held that the obligation under Section 12(1)(c) of the RTE
Act to reserve 25% of the seats in class I or pre-school in private
unaided school for children from disadvantaged groups and weaker
sections, is absolute and unconditional and that it applies to all
specified categories and private unaided schools without any
qualifying criteria such as proximity or availability of Government or
aided schools within 1 Km. radius. The Court further held that the
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proviso to Rules 4(5) and 8(2) directly contradict unconditional
mandate of Section 12(1)(c) and cannot limit or dilute its scope
through subordinate legislation. The Court further held that by
introducing a distinction based exclusion from private unaided
schools, the amendment undermines the inclusive framework of the
RTE Act designed to ensure neighbourhood education through a
combination of Government, aided and private unaided schools,
thereby defeating the rights, objects and purpose. Most importantly,
the Court held that though Section 6 imposes a primary duty on the
State to establish neighbourhood school within 1 Km. for classes I to
V and 3 Km. for classes VI to VIII, this does not render State's
obligation under Section 12(1)(c) contingent or supplemental. The
Court opined that Section 12(1)(c) operates independently as
mandatory measure to achieve universal access to education and the
existence of Government or aided schools does not absolve private
unaided schools of their reservation duty.
9. Accordingly, the Court held that introduction of 1 Km.
proximity condition is arbitrary, lacks a rational nexus to the RTE Act,
objectives and frustrates the scheme of inclusive education by
segregating children based on school type rather than prioritizing
neighbourhood access.
10. Thus, in terms of Section 12(1)(c), it is the responsibility
of the schools, including the schools belonging to specific category
and/or an unaided school not receiving any kind of aids or grants
from the State Government to admit in Class-I at least 25% of the
strength of that class, children belonging to weaker sections and
disadvantaged group in neighbourhood school and provide free and
compulsory elementary education. Thus, in a case where the private
unaided school is not located within the limit of 1 Km. from the
registered residence of a child and though the State has established
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neighborhood school in terms of Section 6, the child belonging to
disadvantaged group or weaker section cannot be deprived or his
right to take education in terms of provisions of RTE Act. It is, in this
context, we had opined in our order dated 09.03.2026 that the
restrictions imposed through impugned Government Resolution are
contrary to the judgment in the case of Akhil Bharatiya Samajwadi
Adhyapak Sabha & Ors. supra as also are violative of provisions of
RTE Act read with Articles 14, 21 and 21A amongst other.
11. At this stage, Ms Jayna Kothari, learned Senior Counsel
appearing for the petitioner, has invited our attention to Annexure-G
to point out that a child named, Shivans Sachin Pote made an
attempt to submit form for admission to I standard under the
provisions of the RTE Act but could not succeed because no school is
available within 1 Km. The residence of the child is located at Khapri
Subhedar locality, Borkhedi Nagpur (Gramin). Another such student
named, Prathyusha Paras Gajbhiye, r/o Kukdey Layout, Kausallya
Nagar, Nagpur. In her case also, no school is available within limit of
1 Km. Learned Senior Counsel submits that there can be many such
cases where no school is available within area of 1 Km. and there can
be many cases where no private unaided school is available within
1 Km. though other schools may be available.
12. Put all together, the restrictions as imposed, appear to us
to be contrary to the judgment in the case of Akhil Bharatiya
Samajwadi Adhyapak Sabha & Ors. supra as also violative of
provisions of the RTE Act read with provisions of the Constitution of
India.
13. Learned A.G.P., however, has placed reliance upon
judgment in the case of Amol Vasantrao Patil and Ors. Vs. Bhartiya
Vidya Bhavan's Lloyds Vidya Niketan and Ors.; [Writ Petition
(6) 42PIL17.26
No.2303/2017 decided on 13.07.2017], to contend that the
restriction of 1 Km. or 3 Km., as the case may be, is well recognized.
14. We have gone through the said judgment to find that the
facts are altogether different. The petitioners therein were guardians
of the children who were seeking admission of their wards in
pre-primary school of respondent No.1 - School, which was unaided
school. The school refused admission on the count that the children
did not reside in the neighborhood of the school. Emphasis of
petitioner was on Rule 9A of the Rules, which allows allocation
beyond 3 Km., if needed. The Division Bench, while interpreting
provision of the RTE Act and particularly Sections 3 and 12(1)(c)
read with Rule 9A of the Rules, emphasized the concept of
neighbourhood school and held that the process must prioritize the
schools within defined proximity and parental preferences cannot
override this statutory mandate as it would frustrate the Act's object
of providing accessible education near home. Accordingly, the Court
held that the allocations ignoring nearer available options were
invalid and the schools are not obliged to admit children from beyond
the neighbourhood schools. The Court held that the priority should
be given to nearer schools and the extent, limit/distance can only be
invoked after verifying exhaustion of nearer seats.
15. We are of the view that the above finding will be of no
help to the respondents inasmuch as the Division Bench was
examining the scope of Government Resolution dated 10.01.2017
that enables the school to admit children whose residences were
beyond the permissible distance, if the parents were to bear travel
expenses. The Court had no occasion to examine the right of children
to have education in private unaided school in terms of Section
12(1)(c) of the RTE Act.
(7) 42PIL17.26
16. We may note here that to prioritize the selection of schools
at the nearest possible location from the residence of a child is one
thing and his right to have education in the school including private
unaided school is another. There may be or may not be private
unaided schools within 1 Km. from the residence of child though
aided schools or schools established by the Government under
Section 6 are available within such distance. In such an eventuality,
the child has option to travel beyond 1 Km. to get admission in
private unaided school. The restriction imposed by the impugned
Government Resolution may infringe their right to have education in
the school contemplated under the provisions of the RTE Act and will
thus frustrate the very object and purpose of the Act. Further, the
petitioner has pointed out certain examples where there are no
schools at all within the distance of 1 Km. from the residence of the
child.
17. We, accordingly, call upon the respondents to take
corrective steps by deleting the clause imposing such a restriction.
18. Learned A.G.P. shall apprise us of the development by
tomorrow i.e. 12.03.2026.
19. List at 02:30 p.m. on 12.03.2026 for further consideration.
20. All concerned shall act on uploaded copy of the order.
(JUDGE) (JUDGE)
Kahale
