[Cites 16, Cited by 0]
Bombay High Court
Ashish Chaman Fulzele And Others vs State Of Maharashtra, Thr. Prin. ... on 12 March, 2026
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
43-PIL-17-2026 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
PUBLIC INTEREST LITIGATION NO. 17 OF 2026
[Mr Ashish Chaman Fulzele and ors. vs. State of Maharashtra through its Principal
Secretary, School Education and Sports Department and ors.]
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Ms. Jayna Kothari, Senior Advocate assisted by Mr. Dipankar
Kamble, Advocate (and Ms. Payal Gaikwad, Advocate through
video conferencing) for petitioners
Mr. S. M. Ukey, Additional Government Pleader for
respondents
Ms. Devyani Kulkarni, Advocate for intervenor
CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
DATE : 12-03-2026.
Yesterday, following order was passed.
"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 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
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 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 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 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.
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."
In response, learned Additional Government
Pleader submits that respondent - State has taken
decision to the extend the criteria of 1 Km. to 3 Kms. The
date for filing application is extended up to 18-3-2026.
In our view, if purpose of provision under
Section 12(1)(c) of the Right of Children to Free and
Compulsory Education Act, 2009 (for short 'RTE Act') is
to be achieved, the respondents should ensure that the
distance of the school from the residence of the child
should be such, as to accommodate at least one private
unaided school and if the number of applications for
admission in private unaided school is more than 25% of
the strength of that Class in a particular school, the
distance should be suitably extended to accommodate
another private unaided school.
Since this arrangement is practically
impossible, the respondents should not put a limit of
distance for admission in private unaided school. The
respondents shall accordingly modify this criteria to
enable the children to seek admission in terms of Section
12(1)(c), amongst other provisions of the RTE Act. The
respondents shall also examine and submit before us the
data about establishment of schools in terms of Section 6
of the RTE Act, which the State Government was under
obligation to establish within three years of coming into
force the RTE Act.
As we have noted in our order dated
11-3-2026 that at some places, there is no school
available within the distance of 1 Km., which in a way,
suggest failure of respondent - State to establish school in
terms of Section 6 of the RTE Act and, therefore, the
criteria of 1 Km. ought not to have been imposed. Similar
could be situation for 3 Kms. The State Government shall
accordingly examine the situation and suitably modify the
distance criteria with a rider that such restrictions should
not be imposed for admission to private unaided school.
Necessary steps shall be taken within two days from today
and compliance report shall be filed on 16-3-2026.
At this stage, learned Additional
Government Pleader has invited our attention to the
documents furnished by the petitioners yesterday wherein
we all were made to believe that the students seeking
admission in 1st Standard are unable to get benefits of the
provisions of RTE Act because at some places, there is no
school available within the distance of 1 Km. The first
such example, as quoted by us in our order dated
11-3-2026, is of Ms. Prathyusha Paras Gajbhiye. Learned
Additional Government Pleader submits that the said
child was seeking admission to Junior KG. Her age is 4
years.
Thus, it appears that petitioners have filed
the documents to point out lapses at the hands of the
respondents, knowing fully well that the documents could
not have been relied upon. Such conduct is not
acceptable.
We have condemned the respondents' action
on this count. Its a different matter that the action still
requires deprecation in as much as another document
supports the contention of the petitioners. Nonetheless,
the attempt made by the petitioners to mislead the
Court is deprecated. The petitioners shall pay costs of
Rs. 25,000/-, which the petitioners shall deposit in Public
Welfare Account maintained with Union Bank of India,
High Court Branch, Napgur bearing Account No.
129712010001014 and IFSC Code UBIN0812978 within
one week from today.
List for compliance on 16-3-2026 at 2.30
p.m.
(JUDGE) (JUDGE)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 12/03/2026 20:58:10
