JUDGMENT :

SANJEEV PRAKASH SHARMA, A.C.J.

1. Application seeking leave to file appeal, filed in D.B. Special Appeal (Writ) No.103/2024, is allowed.

2. For the reasons mentioned in the applications filed under Section 5 of the Limitation Act in DB SAW Nos.103/2024, 390/2024, 391/2024, 392/2024, 393/2024, 394/2024, 396/2024, 402/2024, 403/2024 and 414/2024, the same are allowed. Delay in filing the said appeals is hereby, condoned.

3. The present bunch of cases have a common link, hence, were heard together.

4. While D.B. Civil Writ Petition (PIL) Nos.7361/2020 and 9887/2020 have been filed by the Societies, espousing the cause of implementation of The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as 'RTE Act') and associated with the education of downtrodden class of children, and also challenges the authority of the State Government to set out guidelines beyond what the parent Act has authorized and prays to declare the act of the State Government in issuing such guidelines unconstitutional.

5. The other set of special appeals filed by the State Government and various Schools, challenges the judgment dated 18.07.2023 passed by the learned Single Judge whereby, he partly allowed the writ petitions, holding the State Government entitled to admit students to the institution at two levels, namely, Nursery/PP3+ at Pre School Education as well as Class-I for Elementary Education and further holding that for the institutions which are providing education at both levels, namely, Pre School Education and Elementary Education, there should be two entry levels.

6. It would be appropriate to first take up the matter relating to the PIL.

7. As per the case set up by the petitioner in the PIL petition No.7361/2020, the petitioner is a Society working for implementation of Article 21A of the Constitution of India and the RTE Act. It has been the concern of the Society to see that the RTE Act is implemented in its true form.

8. It is stated that the RTE Act rephrases the provisions of Article 21A of the Constitution which is a fundamental right. It was urged by the petitioner that the State Government had issued guidelines for the Academic Session 2020-21 which restricted the application of Section 12(1)(c) of the RTE Act to Class I only and had altogether forbidden the admission at Pre Primary Levels resulting in a situation where the unaided non-minority schools had been allowed to admit children at the Pre School Education Level upon payment of fees while the children belonging to the weaker sections and disadvantageous groups would be denied admission at the Pre School Admission Level.

9. Written arguments have been submitted on behalf of the petitioner in PIL Petition No.7361/2020 and it is stated that the State Government has no legal competence to make Rules on the subject of 'Entry Level' under Section 12(1)(c) of the RTE Act. In pursuance of the Clause (c) of Sub-section (1) of Section 12 of the RTE Act, read with Article 21-A of the Constitution of India, the children belonging to weaker sections and disadvantaged groups are accorded with the right to free and compulsory education in unaided non-minority private schools. The appropriate Government, i.e., the State Government in the present case, has been given limited powers to issue guidelines for the implementation of the RTE Act, which it has been issuing every year since 2014. The State Government has no authority to set out guidelines beyond what the parent Act (RTE Act in the present case) has authorized.

10. It is further submitted that a plain reading of Section 12(1)(c) of the RTE Act indicates that no rule-making power has been conferred upon the State Government by the Parliament. Consequently, any rule framed by the State Government on the subject would be ultra vires and invalid in law for want of authority under the parent statute. Furthermore, the RTE Act expressly provides rule-making powers only under Section 38, which enumerates an exhaust