High Court
Facts
spk.943.WP.3085.2020+.odtCorrected copy : corrections have been carried out in view of the speaking to the minutes of the order dated 19.08.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3085 OF 2020Izak English Medium School, BhalvaniTa. Parner, Dist. Ahmednagar,Established and run by Alfa Social andEducation Foundation, Dhanwantary Campus, Datrange Mala, Nalegaon,Ahmednagar, through it’s Secretary, Mr. Rehan Shafi Ahmed Kazi … PETITIONER VERSUS 1.State of Maharashtra(through it’s Secretary, the Departmentof School Education & Sports), Mantralaya, Bombay – 322.Director of Education (Primary),Maharashtra State,Office of Directorate of Primary EducationDr. Ani Bezant Marg, Central Govt. Building,Pune – 1.3.Regional Deputy Director of Education,Pune Region, 17, Dr. Ambedkar Marg,Opp. Lal Deual, Pune 411001Maharashtra State, Pune -1 4.The Education Officer (Primary),Zilla Parishad, AhmednagarDist. Ahmednagar5.Block Education OfficersPanchyat Samiti Parner,Tal. Parner, Dist. Ahmednagar… RESPONDENTS ...Advocate for petitioner : Mr. A.B. GatneAddl.G.P. for respondent Nos.1 to 3 : Mr. A.R. KaleAdvocate for Respondent Nos.4 and 5 : Mr. A.D. Aghav…1/9
Legal Reasoning
spk.943.WP.3085.2020+.odtvires, the Article 30(1) of the Constitution of India to the extent ofminority schools, aided or unaided, covered under that Article. If thepetitioners being minority institutions are allowed to subject themselvesto the provisions of the RTE Act, it would be in stark violation of Section1(5) as also Pramati Education and Cultural Trust’s decision (supra).Once the constitutional bench of the Supreme Court has held the RTE Actitself being ultra vires Article 30(1) of the Constitution, this Court inexercise of the powers under Article 226 of the Constitution cannotpermit the minority institutes like the petitioners to subject themselves tothe provisions of the RTE Act. Even if they are ready and willing.Allowing them to do so could be only by making the provisions of theRTE Act applicable to them which in itself is prohibited by virtue of thedeclaration in Pramati Educational and Cultural Trust (supra).13.The submission of Mr. Gatne merely seeking to refer to paraNo.50 in Pramati Educational and Cultural Trust (supra) would be amisplaced argument in the light of the conclusion and the declarationcontained in paragraph No.56. It would be apposite to reproduce theseparagraphs. Paragraph Nos.50 and 56 read as under :“50.While discussing the validity of clause (5) of Article 15 of theConstitution, we have already noticed that in paragraphs 53and 68 of the judgment in T.M.A. Pai Foundation Vs. State ofKarnataka; (2002) 8 SCC 481, this Court has held thatadmission of a small percentage of students belonging toweaker sections of the society by granting them freeships orscholarships, if not granted by the Government and theadmission to some of the seats to take care of poorer andbackward sections of the society may be permissible and7/9
Arguments
spk.943.WP.3085.2020+.odtWITHWRIT PETITION NO.3115 OF 2020Anand Medical and Education Foundation Parner, Tq. Parner, Dist. Ahmednagar,through its Secretary,Sadik S/o Bal Raje … PETITIONER VERSUS 1.The State of Maharashtrathrough its Secretary, School Education and Sports DepartmentMantralaya, Mumbai – 322.The Commissioner (Education),Maharashtra State Pune3.The Director of Education,Maharashtra State, Pune4.Deputy Director of EducationPune5.Education Officer,Primary Zilla Parishad,Ahmednagar6.The Block Education Officer,Parner, Tq. Parner,Dist. Ahmednagar… RESPONDENTS ...Advocate for petitioner : Mr. G.R. SyedAddl.G.P. for respondent Nos.1 to 4 : Mr. A.R. KaleAdvocate for Respondent No.6 : Mr. A.D. Aghav… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved on : 06.08.2024Pronounced on : 14.08.2024ORDER (MANGESH S. PATIL, J.) :Though these are separate writ petitions, as the relief beingclaimed by the petitioners is identical, we are disposing of these writpetitions by this common order.2/9 spk.943.WP.3085.2020+.odt2.Heard.3.Rule in both these petitions. It is made returnable forthwith.Learned AGP waives service for respondents who are the Statefunctionaries and Mr. Aghav waives service for the respondents -Education Officer (Primary) Zilla Parishad and Block Education OfficerPanchayat Samiti, Parner. At the joint request of the parties, the mattersare heard at the stage of admission finally.4.The petitioners are minority institutes running EnglishPrimary Schools on self finance basis. It is their stand that till theacademic year 2019-2020 they were allowed to admit students from theweaker and disadvantaged class of the society to the extent of 25% as perthe provisions of the Right of Children to Free and Compulsory EducationAct, 2009 (RTE Act). The respondent – Block Education Officer issued theimpugned letter dated 13.02.2020 informing these petitioners that namesof their schools were being removed from the RTE portal provided foradmission to the school under the 25% quota by virtue of theGovernment Resolution dated 15.03.2013.5.It is the petitioners’ stand that being minority institutes theycannot be compelled to admit 25% of the category students under theRTE Act, however, if they are voluntarily coming forward to admit thestudents, it would be unconstitutional not to allow them to do so. Hence,both the petitioners challenge the impugned communication of the BlockEducation Officer. In Writ Petition No.3115/2020 the petitioner has3/9 spk.943.WP.3085.2020+.odtchallenged Clause 1.1(a) of the Notification dated 15.03.2013. In writpetition No.3085/2020 the petitioner has been challenging even Rule12(b) of the Rules 2011 framed under the RTE Act, as violative of Articles14, 19(1) and 30 and even Section 1 (n)(iv) of the RTE Act. Both thepetitioners have also sought a writ of mandamus directing therespondents to take appropriate steps for admitting the students in theirEnglish Primary Schools under the provisions of RTE Act.6.In Writ Petition No.3085/2020 the petitioner has alsoclaimed that since it was already allowed to admit 25% weaker sectionstudents under the RTE Act for the previous years, 75% of its dues for theacademic year 2017-18 and 100% dues for the academic year 2018-2019and 2019-2020 shall be reimbursed. 7.The learned advocates for the respective petitioners wouldtake us through the provisions of law and in consonance with the standbeing taken in the petitions submitted that even if being minorityinstitutes they cannot be compelled to admit 25% students from theweaker sections as contemplated under the provisions of the RTE Act, ifthey are voluntarily coming forward to admit such students, which is inthe interest of the society at large and particularly the children fromweaker sections, the object and purpose of the Act would be servedbetter. If the whole purpose of the enactment is to provide free andcompulsory education to the children from downtrodden class of thesociety, such institute like the petitioners should be allowed to admit the4/9 spk.943.WP.3085.2020+.odtstudents under the RTE Act.8.Mr. Gatne the learned advocate for the petitioner from WritPetition No.3085/2020 would also refer to the constitutional benchjudgment in the matter of Pramati Educational and Cultural Trust(Registered) and Ors. Vs. Union of India and Ors.; (2014) 8 SupremeCourt Cases 1. He would advert our attention to paragraph No.50 andwould submit that the observations would be demonstrative of the factthat the institutes like petitioners which are voluntarily coming forwardto admit the students in 25% category under RTE Act, it would be inconsonance with the freedom under Article 19(1) of the Constitution.Consequently, Clause 1.1(a) of the Government Resolution dated15.03.2013 and Rule 12.1(c) would be violative of Articles 14, 19(1) and30 and even the Rule 12 of the Rule 2011. 9.Per contra, the learned AGP and the learned advocate for theEducation Officer (Primary) and the Block Education Officer, by referringto the affidavits-in-reply would submit that by virtue of Section 12(1)(c)of the RTE Act, it is only the schools specified in Sub-clauses (iii) and (iv)of Clause (n) of Section 2 are mandated to admit students to the extentof 25% of the strength of the class, of weaker section and disadvantagedgroup. Rule 1.1 of the Rules 2013 it has been provided that the schoolswhich are required to admit the students under Section 12 (1)(c) of theRTE Act expressly excludes aided or unaided minority schools, Madrasas,Vedic Pathshalas and Educational Institutions primarily imparting5/9 spk.943.WP.3085.2020+.odtreligious instruction. Since the petitioners are running minority schoolswith permission granted on self finance basis they cannot as of rightclaim to admit students under Section 12. Rules 12 or 1.1 which is underchallenged cannot be said to be either violative of Section 12 of theprovision of the RTE or violative of Article 14, 19(1) and 30 of theConstitution.10.We have considered the rival submissions and perused thepapers. At the first blush, the stand being taken by the petitioners seem tobe innocuous, rather would be demonstrative of the fact that even theminority institutes like the petitioners seek to come forward in educatingchildren from weaker section and disadvantaged class. Even thesubmission made by the learned advocates for the petitioners isattractive.11.The issue is not as simple as it looks. Section 1(5) of the RTEAct expressly excludes minority institutes from applicability of the RTEAct. Rule 1.1 and Rule 12 which seek to exclude minority institutes orthe institutes imparting religious instructions is clearly in consonancewith Section 1(5). Apparently, the petitioners are seeking to subjectthemselves to the provisions of the RTE Act by coming forwardvoluntarily to admit the students under 25% quota which claim itselfwould be inconsistent with Section 1(5).12.Besides, by virtue of decision in Pramati Educational andCultural Trust (supra) the RTE Act itself has been declared to be ultra6/9
Decision
spk.943.WP.3085.2020+.odtwould not be inconsistent with the rights under Articles 19(1)(g) of the Constitution. In P.A. Inamdar Vs. State ofMaharashtra; (2005) 6 SCC 537, however, this Courtexplained that there was nothing in this Court’s judgment inT.M.A. Pai Foundation (supra) to say that such admission ofstudents from amongst weaker, backward and poorer sectionsof the society in private unaided institutions can be done bythe State because the power vested on the State in clause (6)of Article 19 of the Constitution is to make only regulatoryprovisions and this power could not be used by the State toforce admissions from amongst weaker, backward and poorersections of the society on private unaided educationalinstitutions. While discussing the validity of clause (5) ofArticle 15, we have also held that there is an element ofvoluntariness of all the freedoms under Article 19(1) of theConstitution, but the voluntariness in these freedoms can besubjected to law made under the powers available to theState under clause (2) to (6) of Article 19 of the Constitution.56. In the result, we hold that the Constitution (Ninety-thirdAmendment) Act, 2005 inserting clause (5) of Article 15 ofthe Constitution and the Constitution (Eighty-SixthAmendment) Act, 2002 inserting Article 21A of theConstitution do not alter the basic structure or framework ofthe Constitution and are constitutionally valid. We also holdthat the 2009 Act is not ultra vires Article 19(1)(g) of theConstitution. We, however, hold that the 2009 Act insofar asit applies to minority schools, aided or unaided, coveredunder clause (1) of Article 30 of the Constitution is ultra viresthe Constitution. Accordingly, Writ Petition (C) No.1081 of2013 filed on behalf of Muslim Minority Schools Managers’Association is allowed and Writ Petition (C) Nos.416 of 2012,152 of 2013, 60, 95, 106, 128, 144-45, 160 and 136 of 2014filed on behalf of non-minority private unaided educationalinstitutions are dismissed. All IAs stand disposed of. Theparties, however, shall bear their own costs.”14.In view of such state of law, neither the petitioners can beallowed to put up a challenge to the validity of the provisions of the RTEAct or the Rules framed thereunder.15.However, there is no dispute about the fact that the8/9 spk.943.WP.3085.2020+.odtpetitioner institutes were earlier allowed to admit the students under25% quota of RTE Act. The stand of the petitioner in Writ PetitionNo.3085/2020 is also about having not been reimbursed for the studentsadmitted in the academic year 2017-18 till academic year 2019-2020.The fact has not been controverted. Admittedly, till the impugnedcommunication these institutes were allowed to admit the students andwould be entitled to be reimbursed when it is not their fault as thestudents were sent to their schools under the assumption that theprovision of the RTE Act are applicable to them.16.Consequently, the petitioners in writ petition No.3085/2020and Writ Petition No.3115/2020 would be entitled to have thereimbursement.17.The Writ petitions are dismissed and the Rule is discharged.18.However, the respondents shall undertake scrutiny of theclaim of petitioners from writ petition No.3085/2020 and Writ PetitionNo.3115/2020 regarding reimbursement in respect of the students sentto them either voluntarily or by virtue of ad-interim orders of this Court.The exercise shall be concluded within six weeks and the petitioners bereimbursed to the extent they are found entitled to, within six weeksthereafter. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb9/9