The Bombay High Court on Friday has invalidated a Maharashtra government notification that exempted private schools within a one-kilometre radius of government or aided schools from Right to Education Act quota admissions.
A division bench of Chief Justice D.K. Upadhyaya and Justice Amit Borkar ruled that the notification dated February 9 was “ultra vires” to Article 21 of the Constitution and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). “The notification is held to be null and void,” the court declared.
The court emphasized that the law mandates both the government and private unaided schools to provide education to children aged six to 14 from disadvantaged sections of society. It held that the state’s duty to provide free and compulsory education under Article 21-A is almost absolute, and private unaided schools are also obligated under the RTE Act to fulfill this mandate.
The bench noted that failing to achieve the RTE Act’s purpose would result in denying the fundamental right to education under Article 21-A. The RTE Act mandates that all private unaided schools in the neighborhood must adhere to its provisions, without exception.
The court dismissed the government’s argument that it had established enough schools and spent substantial public funds on education. The bench stated that this does not negate a child’s right to free and compulsory education.
However, the court acknowledged that admissions had already been completed for some students in private unaided schools before it stayed the notification in May. These admissions will not be disturbed, but the schools must ensure the 25 percent quota under the RTE Act is filled.
The notification, issued in February, exempted private unaided schools within a one-kilometre radius of government or aided schools from reserving 25 percent of seats for economically weaker and disadvantaged children. Prior to this, all unaided and private schools were required to reserve 25 percent of their seats for such children.
Petitioners challenged the notification, claiming it violated the RTE Act and the constitutional right to education. They argued that the notification was unconstitutional and contrary to the RTE Act, which guarantees free education to children from weaker and disadvantaged sections.
Additional government pleader Jyoti Chavan contended that the notification applied only to unaided private schools in areas with government or aided schools. Under the RTE Act, 25 percent of seats at the entry level (Class 1 or pre-primary) in private unaided schools must be reserved for children from economically weaker and disadvantaged sections.
These students receive free education, with the government reimbursing their tuition fees to the schools.
