High Court Stays Maharashtra Govt's Amendment Exempting Private Schools From 25% RTE Quota If Govt-Run School Exists Nearby

The Bombay High Court today stayed till further orders the exemption to private unaided schools from providing 25% quota in Class I or Pre-school for children of disadvantaged sections if there is a government-run or aided school within 1 km radius of that private school.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor prima facie found that the 2024 amendment to the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 is ultra vires the RTE Act, 2009.

“By the impugned provisos, the right of children to get free elementary education is being hampered which is otherwise guaranteed under Article 21A. Thus, having regard to the overwhelming public interest, we provide that till further orders the amendment incorporated in the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 shall remain stayed”, the court added.

The court issued notice on a PIL filed by one Aswini Kable challenging the amendment. By the amendment, provisos were inserted to Rule 4 and Rule 8 of the aforementioned rules, excluding private unaided schools from the obligation to provide RTE quota if a government school is in the neighbourhood.

The petitioners argued that these amendments are unconstitutional, violating Articles 14, 21, and 21A of the Constitution, and were ultra vires of the Right of Children to Free and Compulsory Education, 2009. They cited cases from other High Courts including Allahabad HC and Madhya Pradesh HC where similar amendments were struck down.

They emphasized Section 12(1)(c) of the Act, which mandates that schools, as defined in sub-clauses (iii) and (iv) of Section 2(n), must reserve 25% of seats in Class I for children from weaker sections and disadvantaged groups. The petitioners sought an interim stay on the amendment citing urgency due to upcoming school admissions starting May 10, 2024.

Sub-clause (iii) includes schools of specified category such as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School etc. and sub-clause (iv) includes schools not receiving any aid from government or local authority.

Additional Government Pleader Jyoti Chavan for the state contended that the exclusion of private unaided schools from the quota was not absolute but applied only to those situated within a one-kilometer radius of government and aided schools. She contended that under section 6 of the RTE Act the government and local authorities are obligated to establish schools, and in Maharashtra, school shave been established in the prescribed areas. Thus the inclusion of private unaided schools was not necessary, she said.

After considering the arguments, the court opined that the impugned provisos were prima facie ultra vires of the RTE Act, 2009. It emphasized that Section 12(1)(c) clearly mandates the reservation of 25 percent of seats for children from weaker sections, without subjecting it to any conditions.

“The said provision does not provide that such reservation will be operate only in absence of government schools in the neighbourhood”, the court observed.

The court found the submissions of the AGP not prima facie tenable and highlighted that subordinate legislation cannot contravene the principal Act.

Therefore, the court granted a stay on the amendment until further orders. It directed the respondents to file a reply-affidavit within two weeks, and posted the matter for further consideration on June 12, 2024.

Case no. – PIL(L)/14887/2024 [Original]

Case title – Aswini Jitendra Kable v. State of Maharashtra