Bombay High Court quashes Maharashtra notification exempting private schools from RTE quota

The Bombay High Court on Friday set aside a Maharashtra government notification declaring that private schools in a one-kilometre radius of a government-run school would not be obligated to reserve 25 per cent seats for children from backward classes under the Right to Education Act (RTE Act) [Aswini Kamble v. State of Maharashtra & Anr]..A Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar found that the notification was ultra vires of the RTE Act and Article 21 of the Constitution of India.The Court also clarified that admissions granted against reserved seats to students not belonging to the reserved category prior to the staying of the notification will not be cancelled. "However in any circumstance 25% of total strength of class 1 of private unaided shall be filled in as per RTE Act and where it is necessary, total seats be increased by such schools by submitting necessary information and details to the concerned authority of education department," it added. .The Court passed the order on a petition by one Aswini Kamble, who challenged the Maharashtra government's February 9 notification.This notification amended the State's rules under the RTE Act and declared that private schools within a one-kilometre radius of a government school would not be obligated to admit children under the RTE quota.Kamble had also urged the High Court to stay the amendment since school admissions were slated to start this month..The Court had on May 6 stayed the notification and directed the State government lawyer to file an affidavit responding to the grounds raised in the petition.It had observed that the State's amendment was hampering the right of children to get free elementary education."We are of the prima facie opinion that provisos are ultra vires the provisions of RTE Act. Even otherwise, by appending the provisos to the Maharashtra Right of Children to Free and Compulsory Education Rules, the right of children to get free elementary education is being hampered which is otherwise guaranteed under Article 21A of the Constitution. Having regard to the overwhelming public interest we provide that till further orders, the amendment notified on February 9 shall remain stayed," the Court had said..Prior to the amendment, the RTE Act required all unaided and private schools to reserve 25 per cent of their entry level seats for children from socio-economically backward sections. This was to promote the goal of ensuring that all children between ages of 6 and 14 years get free and compulsory education, regardless of their economic or social background. The government was to reimburse private schools with the fees for admitting students under the RTE quota.On February 9, a proviso was added to the State RTE Rules by a gazette notification which stated:“Provided that the local authority shall not identify the private unaided school, for the purposes of 25% admission of disadvantaged group and weaker section under 2013 Rules where government schools and aided schools are situated within one-kilometre radius of that school."This notification also clarified that if no aided or government school was located nearby, private schools would not be exempted from having to admit students under the RTE quota (for which they would receive reimbursement from the State)..[Read Judgment]