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2015 Supreme(Bom) 681
HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA & K.R. SHRIRAM, JJ.
Uran Education Society a Registered Public Charitable Trust & Another – Petitioner
Versus
The State of Maharashtra, Through the Secretary, for School Education and Sports Department & Others – Respondent
Writ Petition No. 2800 of 2015
Decided On : 28-04-2015
For the Petitioners:Dr. Birendra Saraf a/w. Piyush Raheja, Vishesh Malviya, Nikita Mishra i/b M/s. Federal & Rashmikant, Advocates.
For the Respondents:R1, Sunil Manohar, Advocate General a/w. S.S. Bhende, AGP, R4, Anil Singh, A.S.G. a/.w R.A. Rodrigues, Rajiv Chavan, D.A. Dube, Ajay Patil, D.P. Singh, N.R. Prajapati, Advocates.
Headnote:Right of Children to Free and Compulsory Education Act, 2009 - Sections 11 and 12(2) Maharashtra Right of Children to Free and Compulsory Education Rules, 2013, Rule 12(b) Rules 2011, Rule 11(4), Form Z, Clauses 3 and 4 Constitution of India, Articles 14, 19(1)(g), 21, 21-A and 226 Expenses of unaided school. Expenses of unaided school in respect of children admitted under RTE quota in pre-school section, liable to be reimbursed by State of Maharashtra. Section 12 which is in Chapter IV of the Act deals with the responsibilities of the school for free and compulsory education. As the petitioners are private unaided school which fall under sub-clause (4) of clause (n) of Section 2, Court is restricting its comments to only Section 12(1)(c). Under Section 12(1)(c), a school, which is an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authorities, 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.
The Proviso to sub-section 12(1), provides further that where a school specified in clause (n) of Section (2) imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education. Therefore, it is quite clear that whether schools impart only pre-school but not elementary education like for e.g., a Montessori, then such schools do not have the responsibilities as required under Section 12 of the Chapter IV of the said Act.
Sub-section (2) of Section 12 deals with reimbursement of the expenditure incurred by an unaided school not receiving any kind of aid or grants to meet the expenses. It provides that such a school, i.e., an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authorities which imparts elementary education shall be reimbursed expenditure so incurred by it and the quantum of reimbursement. Sub-section (2) cannot be read to mean that reimbursement will be only for providing free and compulsory elementary education.
When one reads Section 11, it is quite clear that the responsibility is thrust upon the appropriate Government which in the present case will be the Government of Maharashtra, for providing free pre-sehool education for children between age group of 3 to 6 years to prepare them for elementary education and to provide early childhood care. The moment, the appropriate Government, i.e., the State of Maharashtra makes arrangements for free pre-school education for such children and directs the schools including schools specified in sub-clause (iv) of clause (n) of Section 2, it is the responsibility and obligation of the State Government to reimburse such school. In this case, the State Government has issued a directive to all schools imparting elementary education and pre-school education to admit in pre-school to the extent of at least 25% of the strength of that class, children belonging to weaker section and the disadvantaged group in the neighbourhood and provide free and compulsory education. Therefore, the State Government is bound and liable to reimburse such schools to the extent of the amount mentioned in sub-section (2) of Section 12 of the Act.
Annop V. Mohta, J.
1. Rule. Rule is made returnable forthwith. Heard finally by consent of parties in view of the urgency expressed and the issues raised.
2. The petitioners, an unaided private school, imparting education in pre-school and elementary school, have filed this writ petition referring to the provisions of Articles 14, 19(1)(g), 21, 21A and 226 of the Constitution of India and Section 11, 12 of the Right to Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “the Act”) and Rule 12(b) of the Maharashtra Right of Children to Free and Compulsory Education (Manner of admission of Minimum 25% children in Class I or Pre-school at the entry level for the children belonging to disadvantaged group and weaker section) Rules 2013 (The Rules 2013).
Rule 12 of the Rules 2013 read as under:
12. Procedure for reimbursement.—
(a) Schools shall provide free education to all children admitted under these rules till the completion of their elementary education;
(b) Such schools as provide admission as per these Rules shall only be eligible for reimbursement of their expenses as per Section 12(2) of the Act. No other reimbursement shall be eligible including admission in any pre-school classes;
(c) Schools shall submit their claims for reimbursement (Form-V) to the concerned Education Officer in two installments :—
(i) 1st installment.— After the start of the academic year (once the admission procedure is over) but latest by September 30th. Claim for 1st installment must be accompanied with a declaration by the school that (a) full, proper , and transparent procedure (as per the Act and Rules) was followed in the presence of the members of the Admission Committee including nominee of the Education Officer, and (b) these children would have not got admission but for the provisions of the Act ;
(ii) 2nd installment: After the completion of the academic year say by 30th May. Claim for the 2nd installment must be accompanied with a declaration from the school that all children admitted under these Rules have completed the academic year successfully and have been promoted and given admission to the next higher class in the same school.
(d) Education Officer on his satisfaction about the correctness of the information submitted by the school and the fulfillment of the conditions of the Act and Rules there under shall submit the claim of eligible amount for the eligible period as per the Act etc. within one month of the receipt of the respective claims to the Director of Education (Primary) for further action.
(e) Schools not following due procedure laid down in these rules will not be eligible for reimbursement besides other actions as per the Act.
(f) If the claim for reimbursement is found to be fraudulent, incorrect, or improper etc. police case will be registered against the school.
3. The Act was brought into force with effect from 1st April 2010 vide order dated 16th February 2010 issued by the Government of India. The Rules 2012 are notified on 15th March 2013. Rule 12(b) of these Rules is also impugned. The Circular No.Ra/Zipa/Education/Sashia/3227/2013 dated 30th March 2013 issued by the Raigad Zilla Parishad, Alibag under the 'Sarva Shiksha Abhiyan' is also impugned in this Petition.
4. Basic prayers clauses (a) and (c) read as under:
“(a) That this Hon'ble Court be pleased to declare under the provisions of the Right of Children to Free and Compulsory Education Act, 2009 the respondents are bound to reimburse the expenses of an unaided school in respect of children admitted under the RTE Quota in pre-school section under the proviso to section 12(1) of the Act.
(c) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or discretion to respondent nos.1 to 4 to forthwith release the amounts due to the petitioner no.1's school for granting admission to children admitted under the RTE Quota under said Act as per the Petitioner No
