Bombay High Court Strikes Down Maharashtra Government's RTE Exemption For Private Schools Near Government Institutions

A division bench of Chief Justice D K Upadhyaya and Justice Amit Borkar said the notification dated February 9 was "ultra vires" to Article 21 of the Constitution of India and provisions of the Right of Children to Free and Compulsory Education Act, 2009, also known as the RTE.

"The notification is held to be null and void," the Court said.

The court, in its judgment, said the mandate of the law casts a duty not only on the government but also on private unaided schools to provide education to children in the age group of six to 14 years from the disadvantaged section of society.

The mandate of the state to provide free and compulsory education under Article 21-A is almost absolute, it held. Provisions of the RTE Act mandate that private unaided schools shall also be part of such mandatory duty, the court said.

The bench noted that if the purpose of the RTE Act is not achieved fully, it would result in denial of the fundamental right enshrined under Article 21-A of the Constitution of India.

The RTE Act does not provide for any condition, and it is mandatory for all private unaided schools in the neighbourhood to follow its provisions, it said.

The bench refused to accept the government's contention that it has established a sufficient number of schools and has been spending a lot of public money to meet the expenditure on schools. It said this does not impede in any manner the right of a child to free and compulsory education.

The court, however, noted that before it had stayed the implementation of the notification in May, the admissions were already done for students in a few private unaided schools. These admissions shall not be disturbed, but the schools must ensure the 25 per cent quota of seats under the RTE were filled, it said.

In May, the high court granted a stay on the notification. A bunch of petitions challenged the notification, claiming it contravened provisions of the RTE Act. The notification exempted private unaided schools within a one-kilometre radius of a government-run or aided school from reserving 25 per cent of seats for economically weaker and disadvantaged children. Before the notification, all unaided and private schools had to reserve 25 per cent of seats for such children.

The pleas said the notification violated the constitutional right to education.

According to the petitioners, the notification was unconstitutional and contrary to the RTE Act, which entitles children from the weaker and disadvantaged sections to free education.

Additional government pleader Jyoti Chavan argued that the notification applied only to unaided private schools in areas that have government or aided schools.

Under the RTE Act, 25 per cent seats at the entry point, 'Class 1 or pre-primary section ', in private unaided schools should be reserved for children from economically weaker and disadvantaged sections.

These students receive education free of cost, while the government reimburses their tuition fees to schools.

Cause Title: Akhil Bharatiya Samajwadi Adhyapak Sabha & Ors. v. State of Maharashtra & Ors., [2024:BHC-AS:28386-DB]