ORDER

Sunil K. Kotwal, J. - The petitioner No. 1 Bhimashankar Shikshan Prasarak Mandal, a registered Trust and Society as well as petitioner No. 2 Bhimashankar School have filed this petition under Article 226 of the Constitution of India for issuance of a writ of mandamus for directions to respondents No. 1 to 3 to close down 5th Standard classes started by respondent No. 4 Zilla Parishad Primary School, Taka as well as to quash the resolution dated 5.7.2012, passed by the respondent No. 2 Zilla Parishad, Latur to start 5th to 7th Standard classes at respondent No. 4 Zilla Parishad Primary School, Taka.

2. Contention of the petitioners is that, by issuing Government Resolution dated 10.8.1977, the Government had resolved that the secondary schools will be permitted to have 5th to 7th Standards from 1977-78 onwards and wherever such schools are permitted to have these Standards, the Zilla Parishad or the Nagar Parishad will close down these divisions from their primary schools with exception where the strength of the students is quite large. Contention of the petitioners is that, at village Taka, Taluka Ausa, since beginning, there is Zilla Parishad Primary School from 1st to 7th Standards. From the year 1977, the Government also granted permission to the petitioners to run 5th to 7th Standard Primary School in the same village. Thereafter, the respondent No. 4 closed down 5th to 7th Standard classes from the year 1998 in their school. In the year 1992, Government granted permission to run Savitribai Phule Kanya Shala in the same village having 5th to 10th Standard classes. The population of this village is about 3500. However, on 5.7.2012, the Zilla Parishad passed resolution and decided to reopen 5th Standard classes in that school. Accordingly, in July 2012, respondent No. 4 started 5th Standard classes. According to petitioners, this act of respondent No. 4 has created unhealthy competition in between the petitioners and respondent No. 4 school and the strength of students of 5th Standard classes in the petitioners school has come down. According to petitioners, in view of above referred Government Resolution, the decision of the Zilla Parishad to start 5th Standard classes in Zilla Parishad school is illegal and, therefore, the petitioners are constrained to file this petition for issuance of a writ of mandamus for directions to close down 5th Standard classes started by respondent No. 4 school.

3. Miss Salunke, learned counsel for the petitioners has drawn our attention towards above referred Government Resolution of the year 1977 as well as ratio of Ranojirao Shikshan Sanstha, Mhasave v. State of Maharashtra & others, reported in [2005(4) Bom.C.R. 475] , wherein this Court directed the Zilla Parishad to close down the 5th Standard classes in view of Government Resolution dated 10.8.1977.

4. Learned A.G.P. for the State placed reliance on Government Resolution dated 10.8.1977. However, he submitted to the orders of the Court.

5. Mr. Bachate, learned counsel who is appointed as amicus-curiae by this Court, has drawn our attention towards amended Article 21-A of the Constitution of India as well as towards sections 3 and 6 of the Right of Children to Free and Compulsory Education Act, 2009 and submitted that, in view of this changed legal position of law, the above referred Government Resolution dated 10.8.1977 is contrary to the fundamental right and right given under the Statute to citizens and, therefore, it cannot be used. He has also drawn our attention to the case of State of Tamil Nadu & ors. v. K. Shyam Sunder & ors. reported in [(2011) 8 SCC 737] , wherein the Apex Court ruled that, right of a child should not be restricted only to free and compulsory education, but should be extended to quality education without any discrimination on the ground of child''s economic, social and cultural background.

6. We have gone through the Government Resolution dated 10.8.1977, where, in clause (3), it has been laid down that t