Entire RTE Act Applicable To Private Unaided Schools, Affiliating Board's Guidelines Can't Be Given Precedence: Allahabad High Court

The Allahabad High Court has held that all provisions of the Right of Children to Free and Compulsory Education Act, 2009 are applicable to private unaided schools and the guidelines of affiliating Board including those pertaining to attendance, are not above the Act.

Referring to the judgment of the Supreme Court in Society for Unaided Private Schools of Rajasthan vs. Union of India and another (2012), Justice Pankaj Bhatia held:

“Paragraph 64 of the judgment of the Hon'ble Supreme Court in the case of Society for Unaided Private Schools of Rajasthan (supra) is clear that the Act in whole, is applicable to all the schools as defined under section 2(n) of the RTE Act. The distinction as sought to be interpreted by the counsel for the respondents that the private unaided school, are only to follow the mandate of Section 12 and not the other provisions, merits rejection solely on the ground of interpretation of the Act and its applicability to the private aided schools by virtue of the judgment of the Supreme Court in the case of Society for Unaided Private Schools of Rajasthan (supra).”

Petitioners, 2 students of Class V and Class IX, approached the High Court against their detention from examination in 2024-25 session, despite outstanding sportsmanship and a good academic record. Counsel for petitioner pleaded that the petitioners were being punished for pursuing their hobby of playing cricket.

It was argued that the detention was against the RTE Act and if any improvement was needed in their academic performance, they ought to have been given the opportunity of re-examination.

Counsel for the respondent school argued that both the students were not having the requisite attendance and also did not qualify the examination and not detaining students similar to the petitioners affects the academic schedule and reputation of the school in question.

It was also argued only Section 12 (Extent of school's responsibility for free and compulsory education) RTE Act was applicable on the private unaided school and not the entire Act.

Further, it was argued that ICSE had mandated 75% attendance and if the students are not detained for failing the attendance criteria, teachers would stop paying attention towards students.

It was argued that for academic session 2023-2024, petitioner 1's attendance was 55.24% which is less than 75% attendance, made compulsory by the ICSE Rules, to which the school is affiliated. Similarly for petitioner no.2, it was stated that his performance was below par and the attendance was also less. It was stated that in terms of the 'Discipline Rules' of school, minimum attendance is required 90%, failing which, the child is not permitted to undergo the examination.

Noting the mandate of the Act, the Court observed that Section 16 provides for regular examination in class V and class VIII and holding back of students in certain cases. Section 16(2) provides for re-examination if a child fails the examination within 2 months of declaration of the result.

Section 16(3) empowers State Governments to prescribe guidelines for detaining students failing re-examination in classes V and VIII, however no student can be detained till elementary school.

Relying on Society for Unaided Private Schools of Rajasthan vs. Union of India and another, the Court held that the entire RTE Act was applicable on the respondent school and there was clear violation of Section 16(2).

The Court further held that since there was no prescription by the State Government in UP as per Section 16(3), petitioners were covered under Section 16(2) and ought to have been detained.

“It is also essential to notice that the action against the two students is founded on the internal discipline guidelines of the school as well as guidelines of minimum attendance issued by the affiliating board that is ICSE, however as the appropriate Government ,in the present case the State of UP, has not issued any prescriptions under Section 16 of the RTE Act the said internal guidelines and guidelines of the affiliating Board will have to yield to the mandate of the Act and cannot be given precedence over the Act,” held the Court.

Allowing the writ petition, the Court directed that petitioner no.1 be admitted in Class VI after giving him an opportunity of re-examination within a period of two months.

For Petitioner No. 2, the court said that he shall also be readmitted to Class IX as the requisite records of students passing Class IX have already been uploaded on the website of ICSE and it may not be possible for petitioner no.2 to take examination in Class X for this academic year. 

Case Title: Huzaifa Khan Thru. Their Father Quayum Khan And Another Versus State Of U.P. And Others

[WRIT - C No. - 8327 of 2025]

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