The Amendment Rules exempting private unaided schools from admitting 25% disadvantaged children based on proximity to government schools violate the RTE Act and Article 21-A, as they impose conditions not present in the Act.

JUDGMENT :

Devendra Kumar Upadhyaya, CJ.

(A) CHALLENGE:

1. By instituting these petitions under Article 226 of the Constitution of India, some of which are PIL petitions, challenge has been made to the Maharashtra Right of Children to Free and Compulsory Education (Amendment) Rules, 2024 (hereinafter referred to as the Amendment Rules) whereby after Rule 4(5) of the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as the Principal Rules), a proviso has been added which provides that the Local Authority shall not identify the private unaided schools where Government schools and aided schools are situated within a radius of 1 km of that school, for the purpose of providing 25 per cent admission to the children belonging to disadvantaged groups and weaker sections under 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 groups and weaker section) Rules 2013.

2. By the said Amendment Rules notified on 9th February 2024, in addition to appending the impugned proviso to Rule 4(5) to the Principal Rules, a proviso has also been added to Rule 8(2), according to which, no private unaided school which is identified under the proviso to Rule 4(5) of the Principal Rules shall be eligible for reimbursement under Section 12(2) of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the RTE Act).

3. In PIL Petition (L) No.15520 of 2024, apart from challenging the Amendment Rules, the communication, dated 6th March 2024 and the Circular issued on 3rd April 2024 issued by the Director of Education (Primary), State of Maharashtra have also been challenged. The said communication and the circular are issued for the purpose of giving effect to the impugned Amendment Rules.

(B) Evolution of law regulating Right of Children to Free and Compulsory Education in its historical perspective:

4. Prior to introduction of Eighty Sixth Constitution Amendment Act 2002 w.e.f. 1st April 2010, Article 45 in Part-IV of the Constitution existed as follows:

"Article 45. Provision for free and compulsory education for children. - The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years."

5. Article 45 which now exists in the Constitution on enactment of Eighty Sixth Constitution Amendment Act w.e.f. 1st April 2010, is as follows:

"Article 45. Provision for early childhood care and education to children below the age of six years. -The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. the age of 14 years.

6. By introducing Eighty Sixth Constitution Amendment, sub clause (k) was added to Article 51A which falls in Part-IVA of the Constitution of India. Article 51A(k) of the Constitution of India reads as follows:

"51A Fundamental duties:- It shall be the duty of every citizen of India -

a...

b......

(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years."

7. Hon'ble Supreme Court in Unni Krishnan J.P. & Ors. Vs. State of Andhra Pradesh & Ors., 1993(1) SCC 645 observed that the children up-to the age of 14 years have a fundamental right of free education. Thereafter, the Parliament, on realization that one of the directive principles of State Policy contained in Article 45 for providing free and compulsory education to all the children upto the age of 14 years, within ten years from the promulgation of the Constitution, could not be achieved, accordingly enacted the Eighty Sixth Constitution Amendment Act 2002 inserting Article 21-A, substituting Article 45 and introducing Article 51A(k) in the Constitution. The Eighty Sixth Constit