HC stays govt order exempting pvt schools from 25% RTE quota

MUMBAI: The Bombay high court on Monday stayed a recent amendment to the Maharashtra Right of Children to Free and Compulsory Education (RTE) Rules, 2011, exempting private unaided schools located within 1-km radius of a government or aided schools from requiring to admit 25% students from economically weaker and disadvantaged sections.

The division bench of chief justice DK Upadhyaya and justice Arif Doctor found the February 9, 2024, notification, amending the RTE Rules, 2011, to be prima facie ultra-vires provisions in the RTE Act, 2009.

The bench said that Section 12 (1)(c) of the RTE Act clearly mandates that private unaided schools should provide 25% reservation at entry point 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,” said the bench. “It is well settled that any piece of subordinate legislation cannot be made in contravention of the Principal Legislation itself,” the bench said, adding that even otherwise the amendment hampered the right of children to get free elementary education, guaranteed under Article 21-A of the Constitution of India. The court was hearing a bunch of petitions challenging the February 9 notification, which added two provisos to the RTE Rules, 2011, exempting the unaided private schools in 1-km radius of the government and aided schools, and that such private unaided schools would not be eligible for reimbursement of fees made by the government for RTE quota students.

Senior advocates Jayana Kothari and Gayatri Singh, who appeared for the petitioners along with advocates Payal

Gaikwad, Adv Raj Kamble and Adv Vasudha Chandwani, submitted that the amendments were not only unconstitutional, being violative of Articles 14 (equality), 21 (right to life) and 21-A (providing free and compulsory elementary education) of the Constitution of India, but are ultra vires the provisions of the RTE Act.

They also pointed out that the RTE Act clearly mandates that every private unaided school should admit at least 25% of the strength of Class-i children belonging to weaker sections and disadvantaged groups in the neighbourhood. Exclusion of such schools from the mandate was not permissible. Additional government pleader Jyoti Chavan contended that the exclusion was not absolute and was limited only to the private unaided schools situated within 1-km radius of the government or aided schools.

She added that Section 6 of the RTE Act mandated the government to set up schools wherever unavailable and where such schools are provided by the government, privately managed un-aided schools were excluded from the quota mandate, as ultimately the government bears the fees.

The argument, however, failed to impress the bench. The court accepted the argument of the petitioners, and stayed the amendment till further orders, as admissions to schools are set to start from May 10.

GOVT CONTENDED THAT THE EXEMPTION WAS LIMITED ONLY TO THE PRIVATE UNAIDED SCHOOLS SITUATED WITHIN 1-KM RADIUS OF THE GOVERNMENT OR AIDED SCHOOLS