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2015 Supreme(Bom) 1267
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA AND V. L. ACHLIYA, JJ.
Vikhe Patil Foundation’s Vikhe Patil Memorial School Pune & Ors. – Petitioners
Versus
Union of India & Ors. – Respondents
Writ Petition No. 4457 of 2015 & Original Side Writ Petition No. 1582 of 2015 and A. S. Writ Petition No. 4654, 4655, 4656, 4657, 4658, 4659, 4660, 4661 & 4662 of 2015 and A. S. Public Interest Litigation (Stamp) No. 16769 of 2015 Along With Original Side Pil (L) NO. 64 OF 2015 O.S. Writ Petition (Lodging) NO. 1831 & 1858 OF 2015
Decided On : 14-08-2015
Advocate Appeared:
Mr. A.V. Anturkar, Senior Advocate a/w Mr. S.B. Deshmukh and Mr. Prathamesh Bhargude for the Petitioners in WP No. 4457 of 2015
Mr. K.S. Bapat, I/by M. Nilesh S. Patil for the Petitioners in WP Nos. 4654 of 2015 to 4662 of 2015
Mr. Mihir Desai, Senior Advocate a/w Mr. Chetan Mali for the Petitioners in PIL (Stamp) No. 16769 of 2015
Mr. R.A. Rodrigues a/w Mr. N.V. Masurkar and Mr. S.G. Thakur for Respondent No. 1 in WP No. 4457 of 2015
Mr. D.R. More with Mr. Prashant Kamble for Respondent No. 6 in WP No. 4457 of 2015 and for Respondent No.3 in PIL (Stamp) No. 16769 of 2015
Mr. Vishwanath Patil for Respondent No.5-PMC
Mr. Nitin Deshpande, AGP a/w Ms. S.S. Bhende, AGP for the Respondent-State in Appellate Side matters
Dr. Birendra Saraf with Mr. Piyush Raheja, Mr. Vishesh Malviya and Ms. Nikita Mishra I/by Federal and Rashmikant for the Petitioners in OS WP No. 1582 of 2015
Ms. Anjali Helekar, AGP for Respondent No.1 in OS WP No. 1582 of 2015
Mr. Y. S. Bhate with Mr. Dushyant Kumar for Respondent No. 2 WP No. 1582 of 2015
Ms. Avisha Kulkarni for the Petitioner/s in WPL Nos. 1831 of 2015 and 1858 of 2015
Ms. Neeta Masurkar for Respondent No.1 in WPL/1831/2015
Mr. H. S. Venegaonkar, AGP for Respondents 2, 3, 4 and 5 in O.S. WPL/1831/2015
Mr. Anurag Gokhale, AGP for Respondent Nos. 1 and 2 in O. S. 7/69 WPL/1858/15
Mr. Rahul Deodhar for the Petitioner in O. S. PIL (L) 64/2015
Mr. J. S. Saluja, AGP for respondent Nos. 1 to 3 in O.S. PIL (L) No.64/2015
Mrs. Surekha Sonawane for respondent Nos. 4 and 5 in O.S.PIL (L)/64/2015
Mr. Rajdeep Suresh Khadapkar for respondent No.4 in O.S. WPL/1858/15
Headnote:
The Court held that the compulsory admission of minimum 25% in class I and/or preschool at both entry level for the children belonging to specific class/group/section is within the framework of the RTE Act/Rules. The simultaneous two or both entry levels is also permissible. Circulars dated 23 July 2015 and 21 January 2015 and other related communications in view of above reasons, are valid and within the framework of law.
Fact of the Case:
The Petitioners are imparting “preprimary and elementary education” in their respective unaided “schools”. Some are unaided minority schools also. The Respondents/State of Maharashtra (The State) and its officers are incharge to control the schools and take effective steps to provide and or to make arrangement for primary and elementary school education till its completion in the State, as contemplated under the The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) and The Right of Children to Free and Compulsory Education Rules, 2010 (the RTE Central Rules), The Maharashtra Right of Children to Free and Compulsory Education Rules, 2011” (for short, RTE State Rules of 2011) and Maharashtra Right of Children to Free and Compulsory Education (Manner of admission of Minimum 25% children in Class I or Preschool at the entry level for the children belonging to disadvantaged group and weaker section) Rules, 2013 (RTE State Rules, 2013).
Finding of the Court:
The Court held that the compulsory admission of minimum 25% in class I and/or preschool at both entry level for the children belonging to specific class/group/section is within the framework of the RTE Act/Rules. The simultaneous two or both entry levels is also permissible. Circulars dated 23 July 2015 and 21 January 2015 and other related communications in view of above reasons, are valid and within the framework of law.
Issues: Whether the compulsory admission of minimum 25% in class I and/or preschool at both entry level for the children belonging to specific class/group/section is within the framework of the RTE Act/Rules. Whether the simultaneous two or both entry levels is also permissible.
Ratio Decidendi: The Court held that the compulsory admission of minimum 25% in class I and/or preschool at both entry level for the children belonging to specific class/group/section is within the framework of the RTE Act/Rules. The simultaneous two or both entry levels is also permissible. Circulars dated 23 July 2015 and 21 January 2015 and other related communications in view of above reasons, are valid and within the framework of law. The Court observed that the purpose and object and specifically of Section 12 (1) (c) with proviso is crystal clear, positive affirmation for the “school” to admit children of 25% of the schools strength of every class of entry level. Therefore, the “schools” in question and/or which runs both classes of preprimary school and elementary school, they are under obligation to have reservations of 25%, based upon the strength of the respective first entry classes. There is no specific intention expressed and/or no such choice and/or option is provided to such schools to select one out of these two entry classes, for providing admission and reservation in question. The mandate is to provide reservation irrespective of the classes i.e. preprimary, at both levels.
Final Decision: The Court held that the compulsory admission of minimum 25% in class I and/or preschool at both entry level for the children belonging to specific class/group/section is within the framework of the RTE Act/Rules. The simultaneous two or both entry levels is also permissible. Circulars dated 23 July 2015 and 21 January 2015 and other related communications in view of above reasons, are valid and within the framework of law.
Anoop V. Mohta, J.
Rule, returnable forthwith. Heard finally by consent. The issues are common and interconnected and, therefore, this common judgment/order.
2. The Petitioners are imparting “preprimary and elementary education” in their respective unaided “schools”. Some are unaided minority schools also. The Respondents/State of Maharashtra (The State) and its officers are incharge to control the schools and take effective steps to provide and or to make arrangement for primary and elementary school education till its completion in the State, as contemplated under the The Right of Children to Free and Compulsory Education Act, 2009 (for short, RTE Act) and The Right of Children to Free and Compulsory Education Rules, 2010 (the RTE Central Rules), The Maharashtra Right of Children to Free and Compulsory Education Rules, 2011” (for short, RTE State Rules of 2011) and Maharashtra Right of Children to Free and Compulsory Education (Manner of admission of Minimum 25% children in Class I or Preschool at the entry level for the children belonging to disadvantaged group and weaker section) Rules, 2013 (RTE State Rules, 2013).
3 The relevant prayers in Writ Petition No. 4457/2015 dated 15 April 2015 as illustrated, are as under :
“A) That this Honourable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, directing the Respondents herein to recommend the names under the Provision of the Right of Children to the Free and Compulsory Education Act, 2009 to the Petitioners schools under the Provision of Section 12 [1] [c] of the Act. Only of those students who comply with all the three conditions mentioned in section 12 [1] [c] viz.
[a] That the child must belong to the weaker section within the meaning of section 2 [c] of the Act, And
[b] That the child must belong to the disadvantaged group within the meaning of section 2[d] of the Act, and
[c] The child must be from the neighborhood.
AA) …............ quashing and setting aside the Government Revolution, dated 23rd July 2015, and the Government Resolution dated 21st January 2015 as illegal, bad in law, and violative of Article 14 of the Constitution of India, being vague and without application of mind and also contrary to the provisions of Right of Children to the Free and Compulsory Education Act of 2009. (added subsequently)
(B) ….............quashing and setting aside the Government Resolution dated 21st January 2015 bearing No. RTE2014/ PTA.KRA.174/S.D1 issued by the Government of Maharashtra viz. Respondent No.2 and 3 and the circular issued by the Education Officer [Primary Zillha Parishad , Pune dated 13th April 2015, directing that there will be two entry points viz. the first entry points and the nursery level of the Preschool Education and the second entry point at the first standard level as illegal and bad in law.
(c) …...............quashing and setting aside the Circular dated 13th April 2015 issued by the Education Officer Primary Zillha Parishad, Pune [and similar circulars issued by the Education Officer [Primary] Zillha Parishad, Solapur and Nashik] directing that the backlog of the year 2012-2013 against the 25% RTE quota for the Nursery school or KG should be came forward and satisfied by making the Provision at a second entry point, viz.: at the I standard for the current Academic Year 2015-2016.
(D) ….............to direct the Respondent to constitute the State Advisory Council under section 34 of the Act of 2009 and implement the Provision of the Act, only in accordance with section 34 [2] of the Act, and not by issuing any Government Resolution under Article 162 ignoring the Provision of Section 34 of the Act of 2009.”
4. The similar challenge appeare except certain more raised in other Writ Petitions also. Both the Public Interest
