Bombay HC Stays Notification Exempting Private Unaided Schools From Admitting Children Under 25% RTE Quota

Bombay HC Stays Notification Exempting Private Unaided Schools From Admitting Children Under 25% RTE Quota

HC said, notification is stayed in “overwhelming public interest”

Urvi MahajaniUpdated: Monday, May 06, 2024, 03:07 PM IST
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Bombay HC Stays State Govt's Decision To Exclude Private Schools From RTE Seats | Representative Photo

Mumbai: In “overwhelming public interest”, the Bombay High Court on Monday stayed the government notification of February 9 wherein private unaided schools — having a government-run school within 1 km area — were exempted from admitting children under Right to Education (RTE) quota.

The notification Exempted private unaided schools in the vicinity of government-supported schools from having to reserve their 25% seats for economically weaker and disadvantaged children. Prior to the said amendment, it was mandatory for unaided and private schools to have a 25% quota for students from socio-economically backward sections. 

Court's observations

The court noted that such a move by the government was in contravention to the main RTE Act and hampers the free elementary education being provided to children which is otherwise guaranteed by the Constitution of India. “Any subordinate legislation cannot be made in contravention of the principal Act; even otherwise by appending impugned proviso to the RTE Act,” a bench of Chief Justice DK Upadhyaya and Justice Arif Doctor said. “Right of children to get free elementary education is being hampered, otherwise guaranteed by the Constitution,” the bench added while staying the notification terming it as “prima facie” ultra vires. 

The HC was hearing a batch of petitions, including a public interest litigation (PIL) petition challenging the notification contending that the change in rules violates the constitutional right to education for children aged six to 14. They also contend the state’s decision is contrary to the RTE Act’s objective of providing an inclusive education, while diluting the private schools’ responsibility of educating marginalised students. 

Counsels for the petitioners argued that the amendment was unconstitutional and contrary to the Act which entitles children from weaker section and disadvantaged section to free education. However, government advocate Jyoti Chavan argued that the said “exclusion is not absolute” and applied only to those unaided private schools situated in areas where government  and aided schools are within 1 km radius of these schools. 

Authorities to take necessary steps

Chavan further argued that as per the RTE Act, appropriate government authorities shall establish schools in areas where schools are not established. In Maharashtra, government and local authorities have established schools. Also, the burden ultimately had to be borne by the state even if students are admitted in aided privately managed schools.   The bench, however, said that “prima facie”, the notification was ultra vires to the provisions of the RTE Act. The principal Act does not provide that the 25% RTE quota will operate “only in absence of government schools”. 

Considering the urgency in the matter and that the admissions to schools would commence from May 10 , the petitioners urged the court to stay the operation of the notification till final hearing. The HC has kept the matter for hearing on Tuesday. Under the RTE Act, 25% of the 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 get education free of cost, while the government reimburses their tuition fees to schools. Schools run by religious and linguistic minorities are exempted from this requirement.

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