The main legal point established in the judgment is that the provisions of Section 12 (1) (c) of the 2009 Act impose a mandatory obligation on schools to admit children belonging to weaker sections and disadvantaged groups and provide free and compulsory education, independent of any conditions like receipt of grant-in-aid or declaration as neighbourhood schools.

Tarlok Singh Chauhan, J.

This petition has been instituted as pro-bono-publico raising seminal issue in regard to the implementation and enforcement of the provisions of Section 12 (i) of Right of Children to Free and Compulsory Education Act, 2009 (for short ‘2009 Act’) more particularly with respect to providing 25% free seats to students of weaker section and disadvantaged group in all privately managed aided schools and privately managed non minority unaided schools. It is further prayed that the respondents be directed to ensure that the provisions of the Act are implemented within the State of Himachal Pradesh in all categories of schools ensuring free and compulsory elementary education to the children and lastly, a prayer is made that the State be directed to constitute State Commission for the Protection of Child Rights under the provision of Commission for Protection of Child Rights Act, 2005.

2. The State Government had initially promulgated the Rules known as “Right of Children to Free and Compulsory Education, Himachal Pradesh Rules, 2011”, however, after filing of the writ petition, the same were amended vide notification No. EDN-C-F(10)-8/2009-L dated 16th March, 2013 whereby Rule 5 was amended by inserting Rules 5-A and 5-B.

3. The other impact which the instant petition had was that the State Government vide letter dated 20.4.2013 issued guidelines for admission of children belonging to weaker section and disadvantaged group as per provisions contained in Section 12 of the Act.

4. During the pendency of the writ petition, the petitioner filed an application bearing CMP No. 18401 of 2014 for placing additional particulars on record. It was averred that after filing of the writ petition, the respondents had though notified the Right of Children to Free and Compulsory Education Himachal Pradesh Rules, 2013 (First Amendment) vide notification dated 16.3.2013, however, the guidelines dated 20.3.2014 which were framed for regulating the admission of different sections of students as per the Act were still pending consideration before the Government and the same had not been finalized.

5. It was after intervention by this Court that the State Government vide notification No. EDN-C-A(3)-3/2013-Vol.I-L dated 06.06.2015 notified the guidelines for 25% admission of children belonging to weaker section and disadvantaged group in private unaided schools in Himachal Pradesh purported to be in accordance with the provisions contained under Section 12 of the Act and the Rules framed thereunder.

6. Now, the only grievance of the petitioner is that though the guidelines have been notified on 06.06.2015, however, these do not implement the mandate of the Act in its entirety as the same contain no provision with respect to aided schools, who mandatorily are required to provide free and compulsory elementary education to the children proportionate to the grant received subject to minimum of 25%. In addition to this, the guidelines are contrary to the provisions as contained in Section 12 (c) of the Act. As per these guidelines, unaided private schools are to initiate admission process only when neighbourhood government school has enrolled more than 25 children, which is contrary to the mandate of the 2009 Act as the same does not contain any such inhibition and the guidelines, therefore, have virtually restricted the scope of the Act.

7. The respondents have contested this petition and in the reply affidavit have submitted that the guidelines dated 06.06.2015 duly comply with the provisions of the Act, more particularly, Section 12 thereof. It is further clarified that the State Government in exercise of the power conferred under Section 38 of the Act, had notified the Rules called “The Right of Children to Free and Compulsory Education, Himachal Pradesh Rules, 2011” on 5.3.2011 and the same were amended from time to time.