Partly allowed

Progressive School Association v. State of Rajasthan

Rajasthan HC18 Jul 2023CW/10298/2023

Case brief

AI extract

What is this about?

Private unaided schools challenged RTE admission guidelines and denial of pre-school reimbursement. The court upheld the State's guideline-making competence but limited admission entry points to Nursery/PP3+ and Class I, rejecting separate entry at PP4+ and PP5+. It held the institutions entitled to State reimbursement and partly allowed the petitions.

What did the court decide?

Admission entry points limited to Nursery/PP3+ and Class I; institutions held entitled to State reimbursement for pre-school students.

Progressive School Association Vs State of… — Education and Admissions | Rajasthan HC (2023)

¶1

( 2023:RJ-JP:14982 )

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Writ Petition No. 8567/2023

¶4

Neerja Modi School, Sez Road, Kalwara, Jaipur, Through Authorized Person-Mr. Lalit Mohan Sharma.

¶5

----Petitioner

¶6

Versus

¶7

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶8

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶9

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶10

----Respondents

¶11

Connected With

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S.B. Civil Writ Petition No. 7327/2023

¶13

Maharaja Sawai Man Singh Vidyalaya, Sawai Ram Singh Road, Jaipur Through Mr. Vikramaditya, Chairperson Of The Managing Committee.

¶14

----Petitioner

¶15

Versus

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State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶17

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶18

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶19

----Respondents

¶20

S.B. Civil Writ Petition No. 8058/2023

¶21

Cambridge Court High School, Aravali Marg, Sector-8, Mansarovar, Jaipur, Through Its Secretary Mr. Aayush Rawat.

¶22

----Petitioner

¶23

Versus

¶24

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶25

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶26

Director, Secondary Education, Government Of Rajasthan, Bikaner.

----Respondents

(2 of 56)

[CW-8567/2023]

S.B. Civil Writ Petition No. 8158/2023

¶31

All Saints Senior Secondary School, Near Railway Hospital, Beawar Road Ajmer, Through Its President- Mrs. Veena Arora.

¶32

----Petitioner

¶33

Versus

¶34

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶35

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶36

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶37

----Respondents

¶38

S.B. Civil Writ Petition No. 8846/2023

¶39

Bharatiya Vidya Bhavan Vidyashram, K.m. Munshi Marg, Opp. Ots, Jaipur (Raj.) Through Mr. R.c. Jain, Honorary Director, Bharatiya Vidya Bhavan, Jaipur Kendra.

¶40

----Petitioner

¶41

Versus

¶42

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶43

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶44

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶45

----Respondents

¶46

S.B. Civil Writ Petition No. 8859/2023

¶47

Sanskar School, Sirsi Road, Jaipur, Through Its President, Mrs. Rhea Thryamal

¶48

----Petitioner

¶49

Versus

¶50

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶51

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶52

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶53

----Respondents

¶54

S.B. Civil Writ Petition No. 8868/2023

¶55

Maharaja Sawai Bhawani Singh School, Mahal Yojana, Jagatpura, Jaipur Through Authorized Member Of The Managing Committee Smt. Rama Datt.

----Petitioner

Versus

(3 of 56)

[CW-8567/2023]

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶61

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶62

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶63

----Respondents

¶64

S.B. Civil Writ Petition No. 9006/2023

¶65

The Palace School, City Palace, Jalebi Chowk, Jaipur Through Authorized Member Of The Managing Committee Smt. Rama Datt.

¶66

----Petitioner

¶67

Versus

¶68

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶69

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶70

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶71

----Respondents

¶72

S.B. Civil Writ Petition No. 9030/2023

¶73

St. Edmunds Convent School, A-Block, Malviya Nagar, Jaipur 302017, Through Its President, Managing Committee Mr. Anoop Singh.

¶74

----Petitioner

¶75

Versus

¶76

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶77

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶78

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶79

----Respondents

¶80

S.B. Civil Writ Petition No. 9390/2023

¶81

Jaipur School, Sector-6, Vidyadhar Nagar, Jaipur (Raj.) Through Its Secretary Major Nand Kumar Sharma

¶82

----Petitioner

¶83

Versus

¶84

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶85

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶86

Director, Secondary Education, Government Of Rajasthan, Bikaner.

(4 of 56)

[CW-8567/2023]

----Respondents

S.B. Civil Writ Petition No. 9684/2023

¶91

Rukmani Birla Modern High School, Shanti Nagar, Gopalpura Bye- Pass, Jaipur 302018 Through Secretary Of The Managing Committee, Rukmani Birla Modern High School, Jaipur.

¶92

----Petitioner

¶93

Versus

¶94

State Of Rajasthan, Through Principal Secretary, To The Government, Department Of School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶95

Director, Elementary Education, Lalgarh Palace, Bikaner.

¶96

----Respondents

¶97

S.B. Civil Writ Petition No. 10146/2023

¶98

Modern School, Baran, College Road, Malkheri Bye Pass, Baran325205, Through Its Authorized Signatory Mr. Hanuman Singh S/o Late Shri Kalyan Singh

¶99

----Petitioner

¶100

Versus

¶101

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶102

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶103

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶104

----Respondents

¶105

S.B. Civil Writ Petition No. 10147/2023

¶106

Modern School, New Rajeev Gandhi Nagar, Sector-A, Talwandi, Kota-324005 (Raj.), Through Its Authorized Signatory Mr. Hanuman Singh S/o Late Shri Kalyan Singh

¶107

----Petitioner

¶108

Versus

¶109

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶110

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶111

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶112

----Respondents

¶113

S.B. Civil Writ Petition No. 10165/2023

¶114

Modern School, Jaipur, Shipra Path, Mansarovar, Jaipur, Through Its Authorized Signatory Mr. Hanuman Singh S/o Late Shri Kalyan Singh

----Petitioner

Versus

(5 of 56)

[CW-8567/2023]

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur

¶120

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶121

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶122

----Respondents

¶123

S.B. Civil Writ Petition No. 10166/2023

¶124

Neerja Modi School, Shipra Path, Mansarovar, Jaipur, Through Its Chairman, Mr. Saurabh Modi

¶125

----Petitioner

¶126

Versus

¶127

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶128

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶129

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶130

----Respondents

¶131

S.B. Civil Writ Petition No. 10167/2023

¶132

Modern School, Bharatpur, Gram Varso, Near Truck Lay Bye, Nh1, Agra Road, Bharatpur-321001 Through Its Authorized Signatory Mr. Hanuman Singh S/o Late Shri Kalyan Singh

¶133

----Petitioner

¶134

Versus

¶135

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶136

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶137

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶138

----Respondents

¶139

S.B. Civil Writ Petition No. 10168/2023

¶140

Modern School, Naya Nohra, Baran Road, Kota-234001, Through Its Authorized Signatory Mr. Hanuman Singh S/o Late Shri Kalyan Singh

¶141

----Petitioner

¶142

Versus

¶143

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶144

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶145

Director, Secondary Education, Government Of Rajasthan, Bikaner.

(6 of 56)

[CW-8567/2023]

----Respondents

S.B. Civil Writ Petition No. 10188/2023

¶150

Cambridge Court World School, Varun Path, Mansarovar, Jaipur, Through Its Secretary Mrs. Lata Rawat.

¶151

----Petitioner

¶152

Versus

¶153

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶154

Director, Elementary Education, Government Of Rajasthan, Bikaner.

¶155

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶156

----Respondents

¶157

S.B. Civil Writ Petition No. 10298/2023

¶158

Progressive School Association, Society Registered Under The Rajasthan Societies Registration Act, 1958 Having Its Registered Office At 4/157, Jawahar Nagar, Bye-Pass, Jawahar Nagar, Jaipur, Rajasthan Through Its Secretary Treena Chakravertty W/o Alok Kumar Chakravertty Aged 53 Years At 4/157, Jawahar Nagar, Bye-Pass, Jawahar Nagar, Jaipur, Rajasthan.

¶159

----Petitioner

¶160

Versus

¶161

State Of Rajasthan, Through Principal Secretary, School Education Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

¶162

Director, Elementary And Secondary Education, Government Of Rajasthan, Bikaner.

¶163

----Respondents

¶164

S.B. Civil Writ Petition No. 10481/2023

¶165

Shri Maheshwari Senior Secondary School, Vijay Path, Gurunanakpura, Tilak Nagar, Jaipur, Through Its Honorary Secretary-Shri Kamal Kishore Saboo.

¶166

----Petitioner

¶167

Versus

¶168

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶169

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶170

Director, Secondary Education, Government Of Rajasthan, Bikaner.

[CW-8567/2023]

(7 of 56)

----Respondents

S.B. Civil Writ Petition No. 9976/2023

¶175

Mayoor School (Run By Mayo College General Council Society, Ajmer), Through Its Vice Principal Miss Sindhu Chaturvedi, D/o Late Sh. Ravindra Kumar Chaturvedi Aged About 54 Years, Presently Working As Vice Principal Mayoor School, Ajmer, R/o Staff Quarters, Mayoor School, Alwar Gate Ajmer

¶176

----Petitioner

¶177

Versus

¶178

State Of Rajasthan, Through Chief Secretary, Government Of Rajasthan, Government Secretariat, Janpath, Jaipur.

¶179

Department Of Elementary Education, Through Secretary, Government Secretariat, Jaipur.

¶180

Director, Elementary And Secondary Education, Bikaner (Raj.).

¶181

District Elementary Education Officer, (Headquarters), Office Of District Elementary Education Officer (Headquarters) Secondary Education, Vinay Nagar, Topdara, Ajmer, Rajasthan 305001

¶182

Department Of School Education And Literacy, Ministry Of Education, Through Under Secretary At Shashtri Bhawan, C-Wing, New Delhi 110001

¶183

----Respondents

¶184

S.B. Civil Writ Petition No. 6502/2023

¶185

School Kranti Sangh, Having Its Registered Office At P.n. 37, Mahaveer Nagar-X, Near Riico Railway Overbridge, Near Sanganer Road, Jaipur - 302029, Through Its President Ms. Hemlata Sharma, R/o 128/6, Pandit Ji Ka Farm, Oxford I.p. School Ke Paas, Asshind Nagar, Sanganer, Sanganer Bazaar, Jaipur, Rajasthan - 302029.

¶186

----Petitioner

¶187

Versus

¶188

State Of Rajasthan, Through Principal Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan-302005.

¶189

Director, Elementary And Secondary Education, Near Lalgarh Palace, Samta Nagar, Bikaner, Rajasthan.

¶190

----Respondents

¶191

S.B. Civil Writ Petition No. 10482/2023

¶192

Maheshwari Public School, Spl, 224, Industrial Area, Phase-2, Riico, Bagru, Sanganer, Jaipur, Through Its Honorary Secretary-

¶193

[CW-8567/2023]

¶194

(8 of 56)

¶195

Shri Shyam Sunder Totla.

¶196

----Petitioner

¶197

Versus

¶198

State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur

¶199

Director Elementary Education, Government Of Rajasthan, Bikaner.

¶200

Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶201

----Respondents

¶202

S.B. Civil Writ Petition No. 10483/2023

¶203

Maheshwari Public School, Shreedhar City-I, Near Sushant City, Nari Ka Bas, Kalwar Road, Jaipur Through Its Honorary Secretary- Shri Ashok Kumar Malu.

¶204

----Petitioner

¶205

Versus

¶206

1. State Of Rajasthan, Through Secretary, School Education, Government Of Rajasthan, Secretariat, Jaipur.

¶207

1. Director Elementary Education, Government Of Rajasthan, Bikaner.

¶208

1. Director, Secondary Education, Government Of Rajasthan, Bikaner.

¶209

----Respondents

¶210

S.B. Civil Writ Petition No. 10484/2023

¶211

The Nest Childrens Senior Secondary School, Barwara House Compound, Ajmer Road, Jaipur- 302006 (Raj.) Through Its Joint Secretary, As Authorized Signatory Mrs. Deepali Singh W/o Mr. Prithvi Raj Singh.

¶212

----Petitioner

¶213

1.	State Of Education, Jaipur.	Versus Rajasthan, Through Government Of Raja	Secretary, School sthan, Secretariat,
2.	Director Rajasthan,	Elementary Education, Bikaner.	Government Of
3.	Director, Rajasthan,	Secondary Education, Bikaner.	Government Of ----Respondents

¶214

For Petitioner(s) : Mr. Rajendra Prasad, Senior Counsel,

¶215

[CW-8567/2023]

¶216

(9 of 56)

¶217

Mr. Anuroop Singhi Adv. Mr. Prateek Kasliwal Adv. Dr. Abhinav Sharma Adv. Mr. M.S. Rajpurohit Adv. Ms. Alankrita Sharma Adv. Mr. Vikash Kumawat Adv. Mr. Devansh Sharma Adv. Mr. Roshan Sharma Adv. Mr. Tarun Sharma Adv. Ms. Gauri Jasana Adv. For Respondent(s) : Mr. M.S. Singhvi, Advocate General assisted by Mr. Darsh Pareek Adv. & Mr. Pranav Bhansali Adv.

¶218

HON'BLE MR. JUSTICE INDERJEET SINGH REPORTABLE

¶219

Order

¶220

18/07/2023

¶221

Since the questions raised in all these writ petitions are common, therefore with consent of learned counsels for the parties, these writ petitions have been heard together and are being decided by the present common order.

¶222

As prayed, the facts have been noticed from S.B. Civil Writ

¶223

Petition No.8567/2023 and the prayer made therein reads as under :-

¶224

“It is, therefore, most humbly prayed that the writ petition may kindly be allowed and by an appropriate writ, order or direction :-

¶225

i) the impugned guidelines for the academic session 2023-24 be quashed in entirety;

¶226

ii) without prejudice to payer-(i) and in the alternative, the impugned guidelines be quashed to the extent it directs for making admission in more than one entry class under RTE and it should be directed that the admission under RTE should be made only in entry Class of Pre-Primary Level-I (PP3+) and not in every pre-primary classor in ClassI, as the case may be, from the academic session 2023-24.

¶227

iii) without prejudice to prayer -(i) and in the alternative, the impugned guidelines for the academic session 2023-24 be quashed to the extent it provides for no reimbursement to the petitioner with respect to

¶228

(10 of 56)

¶229

[CW-8567/2023]

¶230

imparting Pre School Education to students admitted under RTE as provided in Clause-10 of Chapter-2Admission Process;

¶231

iv) without prejudice to prayer-(i) and in the alternative, admission process under the impugned guidelines for the Academic Session 2023-24 be quashed and during the pendency of the writ petition, any admission so allotted by the respondents on the basis of lottery conducted by them in pursuance to the impugned guidelines be quashed and set aside and be held to be invalid and void ab-initio ;

¶232

v) any other order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case, in favour of the petitioners.”

¶233

Reply on behalf of the respondents has been filed in CWP8567/2023 (Neerja Modi School Vs. State of Raj. & Ors.) and the learned Advocate General prayed that the reply filed by them in the aforesaid writ petition be considered to be reply in all these writ petitions.

¶234

Learned Senior Counsel as well as other counsels appearing for the petitioners have no objection to the submission made by the learned Advocate General.

¶235

In that view of the matter, the oral request made by the learned Advocate General is allowed and the reply filed by the respondents in CWP-8567/2023 (Neerja Modi School Vs. State of Raj. & Ors.) is treated to be reply in all these writ petitions.

¶236

In all these writ petitions the petitioners-institutions have challenged the policy/guidelines issued by the State-respondents for admission in the academic session 2023-24 in private unaided schools under the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter to be referred as the “Act of 2009” ).

¶237

[CW-8567/2023]

¶238

(11 of 56)

¶239

Grievance of the petitioners-institutions in all these writ petitions is that the State Government is not competent to issue guidelines contrary to the provisions of the Act of 2009. The petitioners have further mentioned in all these writ petitions that the clause-1 incorporated in the impugned guidelines with regard to multiple entry levels of students is not permissible under the law. Further challenge in these matters is with regard to the clause-10 of the policy/guidelines by which the State Government has directed not to reimburse the expenses incurred by these institutions for admitting the students in pre-primary schools. Further grievance of the petitioners is with regard to not allotting the students in the neighbourhood areas.

¶240

The clause-1 & 10 of the policy/guidelines are reproduced as under :-

¶241

01- ,UVªh ysoy d{kk esa izos’k & fu%’kqYd ,oa vfuok;Z cky f’k{kk dk vf/kdkj vf/kfu;e] 2009 ,oa jkT; fu;eksa ds izko/kkuks dh ikyuk esa izR;sd futh fo|ky; dks vius fo|ky; esa lapkfyr leLr iwoZ izFkfed d{kkvksa rFkk d{kk&1 esa ml d{kk esa izfo"V dqy fo|kfFkZ;ksa dh la[;k ds 25 izfr’kr dh lhek rd ^^ nqcZy oxZ ** ,oa ^^ vlqfo/kkxzLr lewg ** ds fo|kfFkZ;ksa dks fu%’kqYd iwoZ izkFkfed f’k{kk ¼PP3+,PP4+,PP5+½ ,oa izkjfEHkd f’k{kk d{kk&1 gsrq izos’k nsuk gksxkA blds fy, mUgsa fu/kkZfjr VkbZe Qzse ds vuqlkj dk;Z iw.kZ djuk gksxkA ,aVªh d{kk ds lEcU/k esa ekuuh; mPp U;k;ky; t;iqj cSap esa Mh-ch-lh- ;kfpdk la[;k 9887@2020 esa ikfjr varfje vkns’k fnukad 23-05-2022 dh ikyuk esa o"kZ 2023&24 esa xSj ljdkjh fo| ky;ksa dh iwoZ izkFkfed d{kkvksa esa vkjVhbZ ds rgr fu%’kqYd lhVl ij vLFkkbZ izos’k fn, tkus gSA fu%’kqYd lhVl ij gksus okys mDr vLFkkbZ izos’k ekuuh; [kaMihB }kjk mDr fo"k;d ;kfpdkvksa esa ikfjr fd, tkus okys vafre fu.kZ; ds v?;k/khu gksxsA vr% fu%’kqYd lhVl ij gksus okys mDr vLFkkbZ izso’k dks LFkkbZ@fujLr fd, tkus dk fu.kZ; 'kklu Lrj ls fy;k tk ldsxkA xSj ljdkjh fo|ky; }kjk iw.kZ izkFkfed d{kkvksa esa vkjVhbZ ds rgr fu%’kqYd izos’k 'kklu ds i=kad ia-8¼5½ f’k{kk&5@vkjVhbZ fn’kk&funsZ’k 2022&23@2022 t;iqj fnukad 16-02-2023 dh vuqikyuk esa fy;k tkuk vfuok;Z gksxkA l= 2023&24 esa PP3+,PP4+,PP5+ esa v/;;ujr fo|kfFkZ;ksa dks dzeksUur djus ds i’pkr vkjVhbZ fu;ekuqlkj ;fn vxyh d{kk esa fu%’kqYd izos’k gsrq lhVl miyC/k gks rks gh mlesa bl l= gsrq vkosnu djus okys ckydksa dh ykSVjh vuqlkj ofj;rk ds dze esa fu;ekuqlkj izos’k fn;k tk,xkA fu%’kqYd ,oa l %’kqYd lhVl ij v/;;ujr ckyd&ckfydkvksa esa ls tks ckyd&ckfydkvksa fo|ky; NksM+ pqds gSa ;k Vh-lh- ys tk pqds gS muds ukeksa dks iksVZy ls gVk;k tkuk vfuok;Z gSA fu%’kqYd lhVl ij izos’k ds le; ;g /;ku j[kk tk,xk fd PP4+,PP5+ rFkk d{kk&1 esa dzeksUur ,oa uohu izosf’kr ckyd&ckfydkvksa esa ls fu%’kqYd lhVl ij

¶242

(12 of 56)

¶243

[CW-8567/2023]

¶244

v/;;ujr ckyd&ckfydkvksa dh la[;k 25 izfr’kr ls vf/kd ugh gks] ijUrq fdlh Hkh fLFkfr esa dzeksUur fu%’kqYd v/;;ujr ckyd dks fu"dkflr ugh fd;k tk ldsxkA fu%’kqYd o l’kqYd ckydksa dk vuqikr fuEukuqlkj jgsxk&

¶245

d{kk	Lk%’kqYd ckydkas dh la[;k	fu%’kqYd ckydksa dh	la[;k
PP3+	leLr uoizosf’kr l’kqYd ckyd	uoizosf’kr l%’kqYd	ckydksa ds 25 izfr’kr
PP4+	PP3+ls dzeksUur+uoizosf’kr ckyd	¼PP3+ls dzeksUur PP3+ls dzeksUur 25 izfr’kr	+uoizosf’kr ckyd- fu%’kqYd ckyd½ dk
PP5+	PP4+ls dzeksUur+uoizosf’kr ckyd	¼PP4+ls dzeksUur PP4+ls dzeksUur 25 izfr’kr	+uoizosf’kr ckyd- fu%’kqYd ckyd½ dk
First	PP5+ls dzeksUur+uoizosf’kr ckyd	¼PP5+ls dzeksUur PP5+ls dzeksUur 25 izfr’kr	+uoizosf’kr ckyd- fu%’kqYd ckyd½ dk

¶246

10- xSj ljdkjh fo|ky;ksa }kjk iwoZ izkFkfed d{kkvksa esa fy;s x;s fu%’kqYd izosf’kr ckydksa ds d{kk&1 esa dzeksUur gksus ds i’pkr jkT; ljdkj }kjk budk iquHkZj.k izkjEHk fd;k tk;sxkA lHkh iwoZ izkFkfed d{kkvksa esa xSj ljdkjh fo|ky; }kjk mDr fu%’kqYd izosf’kr ckydksa dks fu%’kqYd f’k{kk iznku djuk ck/;dkjh gSA

¶247

At the very outset, learned Advocate General assisted by Mr. Darsh Pareek raised a preliminary objection with regard to maintainability of the writ petitions filed by the association as the writ petitions have been preferred by the individual institutions also.

¶248

In response thereto, learned Senior Counsel as well as other counsels appearing for the respective petitioners-institutions submitted that some of the petitioners-institutions herein are members of the Association and the Association has also filed writ petitions challenging the same therefore the writ petitions are maintainable either by the Association or by the individual institutions.

¶249

[CW-8567/2023]

¶250

(13 of 56)

¶251

After hearing the respective counsels for the parties, these writ petitions are held maintainable either by the Association or by private institutions.

¶252

Learned Senior Counsel as well as other counsels appearing for the respective petitioners-institutions submitted that the State Government has no power to issue guidelines to regulate the admissions under the Act of 2009 more particularly for the academic session 2023-24 and the same is in violation of Article 21-A and 45 of the Constitution of India. They further submitted that according to Section 11 of the Act of 2009 it is the duty of the State Government to provide pre-school education to the children in the State of Rajasthan. They further submitted that as per Section 12(1)(c) of the Act of 2009 the children belonging to weaker section shall be admitted in Class-I for providing them free and compulsory education. They further submitted that according to the proviso to Section 12(1)(c) of the Act of 2009, where the schools are providing pre-school education, the entry level should be at that point of time only and not in Class-I. They further submitted that as per Section 12(2) of the Act of 2009 the petitioners-institutions are entitled to reimbursement for providing education to the students who have been admitted in their schools, therefore the action of the State-respondents in denying reimbursement for the students admitted in the pre-school is in contravention of the provisions of Section 12 (2) of the Act of 2009. They further submitted that in view of section 35 read with section 21 of the Act of 2009 the State Government has no power to issue directions or to frame policy or guidelines. They further

¶253

[CW-8567/2023]

¶254

(14 of 56)

¶255

submitted that the State Government can frame rules as per the provisions of section 38 of the Act of 2009 and no further policy or guidelines can be issued by the State Government. They further submitted that the petitioners-institutions are entitled for reimbursement in view of section 12(2) of the Act of 2009 from the State Government for which the Union of India is not a necessary party to the writ petitions. They further submitted that as per the provisions of Section 12 of the Act of 2009 there shall be only one entry level/point for admitting the students either in Class-I or where the schools are providing education at preschool level then the entry level is Nursery/PP3+. They further submitted that the guidelines cannot be issued contrary to the provisions of the Act of 2009 followed with the Rules of 2011. They further submitted that till last year the State Government was providing reimbursement even for the students admitted in pre-school Education.

¶256

In support of the contentions, they relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Pramati

¶257

Educational and Cultural Trust & Ors. Vs. Union of India

¶258

(UOI) & Ors. reported in (2014) 1 SCC where in paras No.40 to 44, it has been held as under:-

¶259

“40. Article 21A of the Constitution, as we have noticed, states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. The word 'State' in Article 21A can only mean the 'State' which can make the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their submission that the constitutional obligation Under

¶260

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¶261

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¶262

Article 21A of the Constitution is on the State to provide free and compulsory education to all children of the age of 6 to 14 years and not on private unaided educational institutions. Article 21A, however, states that the State shall by law determine the "manner" in which it will discharge its constitutional obligation Under Article 21A. Thus, a new power was vested in the State to enable the State to discharge this constitutional obligation by making a law. However, Article 21A has to be harmoniously construed with Article 19(1)(g) and Article 30(1) of the Constitution. As has been held by this Court in Venkataramana Devaru v. State of Mysore: AIR 1958 SC 255.

¶263

The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. We do not find anything in Article 21A which conflicts with either the right of private unaided schools Under Article 19(1)(g) or the right of minority schools under Article 30(1) of the Constitution, but the law made Under Article 21A may affect these rights Under Articles 19(1)(g) and 30(1). The law made by the State to provide free and compulsory education to the children of the age of 6 to 14 years should not, therefore, be such as to abrogate the right of unaided private educational schools Under Article 19(1) (g) of the Constitution or the right of the minority schools, aided or unaided, Under Article 30(1) of the Constitution.

¶264

While discussing the validity of Clause (5) of Article 15 of the Constitution, we have already noticed that in paragraphs 53 and 68 of the judgment in T.M.A. Pai Foundation (supra), this Court has held that admission of a small percentage of students belonging to weaker sections

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¶267

of the society by granting them freeships or scholarships, if not granted by the Government and the admission to some of the seats to take care of poorer and backward sections of the society may be permissible and would not be inconsistent with the rights Under Articles 19(1)(g) of the Constitution. In P.A. Inamdar (supra), however, this Court explained that there was nothing in this Court's judgment in T.M.A. Pai Foundation (supra) to say that such admission of students from amongst weaker, backward and poorer sections of the society in private unaided institutions can be done by the State because the power vested on the State in Clause (6) of Article 19 of the Constitution is to make only regulatory provisions and this power could not be used by the State to force admissions from amongst weaker, backward and poorer sections of the society on private unaided educational institutions. While discussing the validity of Clause (5) of Article 15, we have also held that there is an element of voluntariness of all the freedoms Under Article 19(1) of the Constitution, but the voluntariness in these freedoms can be subjected to law made under the powers available to the State under Clause (2) to (6) of Article 19 of the Constitution.

¶268

In our considered opinion, therefore, by the Constitution (EightySixth Amendment) Act, a new power was made available to the State Under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under Clause (6) of Article 19 of the

¶269

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¶271

Constitution and has affected the voluntariness of the right Under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power Under Article 21A of the Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions Under Article 19(1)(g) of the Constitution.

¶272

To give an idea of the goals Parliament intended to achieve by enacting the 2009 Act, we extract paragraphs 4, 5 and 6 of the Statement of Objects and Reasons of the Bill which was enacted as the 2009 Act hereinbelow:

¶273

The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

¶274

It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in Article 21A of the Constitution.

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The Bill seeks to achieve this objective.

¶278

It will be clear from the aforesaid extract that the 2009 Act intended to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all and also intended that private schools which did not receive government aid should also take the responsibility of providing free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections.

¶279

When we examine the 2009 Act, we find that under Section 12(1)(c) read with Section 2(n)(iv) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is required to admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. We further find that under Section 12(2) of the 2009 Act such a school shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the children belonging to weaker sections and several groups in the neighbourhood, which are admitted to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right Under Article 19(1)(g) of the

¶280

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¶281

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¶282

Constitution, as interpreted by this Court in T.M.A. Pai Foundation (supra) and are meant to achieve the constitutional goals of equality of opportunity in elementary education to children of weaker sections and disadvantaged groups in our society. We, therefore, do not find any merit in the submissions made on behalf of the non-minority private schools that Article 21A of the Constitution and the 2009 Act violate their right Under Article 19(1)(g) of the Constitution.”

¶283

They further relied upon the judgment passed by the Hon’ble

¶284

Supreme Court in the matter of Maulavi Hussein Haji Abraham Umarji Vs. State of Gujarat & Anr. reported in 2004 (6) SCC

¶285

672 , where in paras No.19 & 20, it has been held as under:-

¶286

“19. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. [1977]2 SCC 272, it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

¶287

While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain). The legislative casus omissus cannot be supplied by judicial interpretative process.”

¶288

They also relied upon the judgment passed by the Hon’ble

¶289

Supreme Court in the matter of Kerala State Electricity Board

¶290

& Ors. Vs. Thomas Joseph @ Thomas M.J. & Ors. reported in

¶291

(20 of 56)

¶292

[CW-8567/2023]

¶293

AIR 2023 SC 126 , where in paras No.64 & 65, it has been held as under:-

¶294

“64. At this stage, it is apposite to state about the Rule making powers of a delegating authority. If a Rule goes beyond the Rule making power conferred by the statute, the same has to be declared invalid. If a Rule supplants any provision for which power has not been conferred, it becomes invalid. The basic test is to determine and consider the source of power, which is relatable to the rule. Similarly, a Rule must be in accord with the parent statute, as it cannot travel beyond it.

¶295

Delegated legislation has come to stay as a necessary component of the modern administrative process. Therefore, the question today is not whether there ought to be delegated legislation or not, but that it should operate under proper controls so that it may be ensured that the power given to the Administration is exercised properly; the benefits of the institution may be utilised, but its disadvantages minimised. The doctrine of ultra vires envisages that a Rule making body must function within the purview of the Rule making authority conferred on it by the parent Act. As the body making Rules or Regulations has no inherent power of its own to make rules, but derives such power only from the statute, it has to necessarily function within the purview of the statute. Delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect. Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated

¶296

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¶297

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¶298

legislation may be inconsistent with the provisions of the parent Act or statute law or the general law; there may be non-compliance with the procedural requirement as laid down in the parent Act. It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires.”

¶299

They further relied upon the judgment passed by the High Court of Bombay in the matter of Dr. Vikhe Patil Foundation's Vikhe Patil Memorial School Pune and Ors. vs. Union of India and Ors. (Writ Petition No.4457 of 2015) decided on 14.08.2015, where in paras No.45 to 47, it has been held as

¶300

under:-

¶301

“45. The State Government and its officers so also the local authorities/bodies and/or appropriate authority as provided under Section 11 of the RTE Act are under obligation to take care of children and make arrangement for the children who are in the age group of 3 to 6 years. We have already observed in Uran (supra) as under:

¶302

"14. The learned Advocate General appearing for the State of Maharashtra submitted that the proviso to Section 12(1) of the Act provides for compulsory preschool education whereas sub-section (2) of Section 12 provides for reimbursement only for elementary education and elementary education is defined to mean education from 1st standard to 8th standard and therefore there is lacuna in the Act. Having considered the entire provisions of the Act, in our view, there is no lacuna at all. Chapters II and III deal with providing free and compulsory education to every child of the age of 6 to 14 years. In Chapter III of the Act, Section 11 provides for preparing children above age of 3 years for elementary education. It also states that the appropriate Government may make necessary arrangements for providing free pre-school education and early childhood care for all children until they complete the age of 6 years.

¶303

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¶305

Section 12 which is in Chapter IV of the Act deals with the responsibilities of the school for free and compulsory education. As the petitioners are private unaided school which fall under sub-clause (4) of clause (n) of Section 2, we are restricting our comments to only Section 12(1)(c). Under Section 12(1)(c), a school, which is an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authorities, shall admit in class I to the extent of at least 25% of the strength of that class children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. The Proviso to sub-section 12(1), provides further that where a school specified in clause (n) of Section (2) imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education. Therefore, it is quite clear that whether schools impart only pre-school but not elementary education like for e.g., a Montessori, then such schools do not have the responsibilities as required under Section 12 of the Chapter IV of the said Act.

¶306

Sub-section (2) of Section 12 deals with reimbursement of the expenditure incurred by an unaided school not receiving any kind of aid or grants to meet the expenses. It provides that such a school, i.e., an unaided school not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authorities which imparts elementary education shall be reimbursed expenditure so incurred by it and the quantum of reimbursement. Sub-section (2) cannot be read to mean that reimbursement will be only for providing free and compulsory elementary education. The expression "................................... specified in sub-clause (iv) of clause (n) of Section (2) providing free and compulsory education as specified in clause (c) of Subsection 1 ................ " shall identifies the school and not the education for which reimbursement will be given.

¶307

When one reads Section 11, it is quite clear

¶308

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¶310

that the responsibility is thrust upon the appropriate Government which in the present case will be the Government of Maharashtra, for providing free preschool education for children between age group of 3 to 6 years to prepare them for elementary education and to provide early childhood care. The moment, the appropriate Government, i.e., the State of Maharashtra makes arrangements for free pre-school education for such children and directs the schools including schools specified in sub-clause (iv) of clause (n) of Section 2, it is the responsibility and obligation of the State Government to reimburse such schools. In this case, the State Government has issued a directive to all schools imparting elementary education and pre-school education to admit in pre-school to the extent of at least 25% of the strength of that class, children belonging to weaker section and the disadvantaged group in the neighbourhood and provide free and compulsory education. Therefore, the State Government is bound and liable to reimburse such schools to the extent of the amount mentioned in Sub-section (2) of Section 12 of the Act.

¶311

In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (2012) 6 SCC, the Apex Court has already interpreted Section 12(1)(c) and (b) read with Section 2(n)(i) to (iv) read with Section 18(3) along with constitutional provision as under covering the pre-school education by the school as under:

¶312

"14. Chapter IV of the 2009 Act deals with responsibilities of schools and teachers. Section 12(1)(c) Sections (2(n)(iii) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authority, is obligated to admit in Class I, to the extent at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. As per the proviso to Section

¶313

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¶314

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¶315

12(1)(c), if the school is imparting pre-school education, the same regime would apply.

¶316

By virtue of Section 12(2) the unaided school which has not received any land, building, equipment or other facilities, either free of cost or at concessional rate, would be entitled for reimbursement of the expenditure incurred by it to the extent of per child expenditure incurred by the State, or the Actual amount charged from the child, whichever is less, in such manner as may be prescribed. Such reimbursement shall not exceed per child expenditure incurred by a school established, owned or controlled by the appropriate Government or a local authority."

¶317

In view of the above clear provisions, there is no issue that these Acts and rules made thereunder made mandatory for the appropriate Government, local authorities to make elementary education compulsory and provide all facilities. Section 12 as referred above and the respective rules made thereunder, deals with the aspect of reimbursement whenever there is a question and/or direction issued to admit the students to the extent of at least 25% of the strength of the class, children belonging to weaker section and disadvantaged group and provide free and compulsory education. The free and compulsory education therefore needs to be within the ambit of provisions of this Act. All concerned are bound by the same including the guardian/parent. Apart from the constitutional articles so referred above, this Act, itself has taken care of the important duties of appropriate Government, local authorities and parents about the child who is of age 3 to 6 years. From six years onwards, as recorded above, the elementary education commenced and there is no provision made of child care aspect of children below three years. It is necessary to note that the Central and the State Government have already announced from time to time various child care and education policies/schemes whereby the respective Governments provided and even made various arrangements to take care of child/children of every age. We are concerned with the concept of free pre-

¶318

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¶319

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¶320

school education for children between 3 to 6 years.

¶321

The issue of reimbursement for providing education to such children from age 3 to 6 years also cannot be read in isolation by distinguishing it from Section 11. Section 12 itself contemplates and provides so far as the elementary education is concerned to admit students at least to the extent of 25% as recorded above. The said provisions along with the rules definitely contemplates the entitlement of reimbursement of such schools/institutions which provide such education by admitting such 25% children. In our view, the moment such school/institution admits such students of aged 3 to 6 years, their entitlement of reimbursement should follow. The appropriate Government is even otherwise providing only a limited reimbursement amount as per the policy so declared. The schools/institutions have been left to bear balance amount so spent for imparting such free education of all levels. At this stage, we are not dealing with the fact as to what extent the reimbursement should be granted and/or amount is less or more. However, we are inclined to observe that the Supreme Court's decision in Pramati Educational and Cultural Trust (supra) so referred above, while dealing with the aspect of constitutional validity of the Act has confirmed the issue of reimbursement.

¶322

All the schools which are admitting the children for pre-school education in view of provision to Sub-section (1)(c) of Section 12 of the Act, it is difficult to accept the contention that the provisions of reimbursement is not be applicable to such schools and/or institutions. To interpret otherwise means we are creating two classes : the institutions/schools which admit the students of 25% for providing elementary education, they are entitled for the reimbursement, but the institution and/or schools which are also admitting the children for pre-primary education, they are disentitled for such reimbursement. The appropriate Government itself permitted them to select the entry level. The whole submission and circulars of the State Government are, therefore, inconsistent and

¶323

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¶324

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¶325

self destructive. Such two classes, in our view, cannot be created when the provisions are so clear and are read together with the constitutional provisions. Once 25% children belong to the weaker section- disadvantaged class admitted in elementary and/or in preschool education, such schools/institutions are entitled for the reimbursement as per the law."

¶326

We are concerned with the situation where the schools, like the Petitioners, who are imparting "pre-school education" as well as "elementary education" in their respective schools/institutions. The submission, therefore, is made by referring to provisions including the RTE State Rules and by submitting their interpretation to Section 12(c) and proviso that the State Government's circular of creating two entry level, pre-school level, as well as, class I level is contrary to law. According to their submission, the State Government cannot compel them by Resolution and specifically of 21.01.2015 and/or 13.04.2015 to admit the students in pre-primary and class I level to the extent of 25% of strength of both the classes. The two entry points, therefore, according to the Petitioners, who have such schools of two levels, primary and elementary, contrary to the scheme of the RTE Act and so also to Section 12 read with other provisions. According to them this would also infringe their rights as contemplated under Article 19(1)(g) of the Constitution.

¶327

The clarificatory circular dated 21 January 2015 has taken note of situation where quota seats remained vacant, in either of the classes.

¶328

The purpose and object and specifically of Section 12(1)(c) with proviso is crystal clear, positive affirmation for the "school" to admit children of 25% of the schools strength of every class of entry level. Therefore, the "schools" in question and/or which runs both classes of pre-primary school and elementary school, they are under obligation to have reservations of 25%, based upon the strength of the respective first entry classes. There is no specific intention expressed and/or no such

¶329

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¶330

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¶331

choice and/or option is provided to such schools to select one out of these two entry classes, for providing admission and reservation in question. The mandate is to provide reservation irrespective of the classes i.e. pre-primary, at both levels.”

¶332

They further relied upon the order passed by the Division

¶333

Bench of this court in the matter of Smile For All Society(NGO) Vs. Elementary Education Rajasthan & Anr. (D.B. Civil Writ (PIL) Petition No.9887/2020) & connected petition, wherein on 23.10.2021 & 23.02.2022, the following orders were passed:-

¶334

“ 23.10.2021:-

¶335

In this PIL, challenge has been made to the policy of the State insofar as direction has been issued by the State Authorities that admission to pre-school classes in educational Session 2020-21 shall not be governed by The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the ‘RTE Act’). During the pendency of this petition, the aforesaid direction has been reiterated for the purposes of admission to be made in the Educational Session 2021-22, copy of which has already been placed on record.

¶336

Learned counsel for the petitioners would contend that the State’s directions to prohibit admission to pre-classes under RTE Act is contrary to the statutory scheme of Section 12 of the RTE Act and the State has illegally absolved the private schools from complying with the statutory obligation enjoined under Section12(1)(c), in relation to per-educational classes, in ignorance of scheme under Proviso to that provision.

¶337

On the other hand, learned State Counsel would submit that in view of definition of ‘child’ as provided in Clause (c) of Section2 and that of ‘elementary education’ under Clause (f), the petitions are misconceived as the statutory obligations under the Act cannot be fastened where the education is being provided in per-school to children under the age of six years which, otherwise, is not a part of the elementary education.

¶338

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¶339

[CW-8567/2023]

¶340

In the alternative, State Government would submit that the applicability of the provisions to per-school would essentially depend upon proper reimbursement to be made to the State by the Central Government under the scheme of Section 7 of the Act and, therefore, unless such scheme is properly worked out and implemented, no direction could be sought in the garb of PIL by the petitioners.

¶341

At this stage, learned counsel for the petitioners has submitted that as the process of admission has been initiated and the last date of submitting application is 24.10.2021, an appropriate interim order may be made, so that at least for the present ongoing session, the petitions may not be rendered infuctuous.

¶342

We have been apprised that a notification on 08.10.2021 has been issued by the office of the Director of Elementary Education Rajasthan, Bikaner, which shows that the schedule of admission procedure provides last date as 24.10.2021 for submission of online applications and uploading of necessary documents.

¶343

On prima-facie consideration, we find that proviso to Sub-section (1) of Section 12 provides that where a school specified in Clause (n) of Section 2 imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such perschool education. Thus, Proviso creates an obligation on the schools specified in Subclauses (iii) and (iv) of Clause (n) of Section 2 to admit, to the extent of at least twenty five percent of the class, Children belonging to weaker section and disadvantaged group.

¶344

The direction issued by the State Government, on a prima-facie consideration, seeks to absolve the schools of the aforesaid specified category from the statutory obligation as stated under proviso of SubSection 2 of Section 12.

¶345

Therefore, we are inclined, at this stage, to pass an interim order to the effect that the direction of the State shall not come in the way of performance of statutory obligation

¶346

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¶347

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¶348

by the schools specified in Sub-clauses (iii) and (iv) of Clause (n) of Section 2 of the RTE Act and Proviso as referred to above shall oblige them to make admission under the RTE Act. Such admission, however, would be provisional in nature and to be governed by the final order that may be passed by this Court in the writ petitions.

¶349

Considering the nature of litigation, we deem it proper to list these petitions for final hearing on 17.11.2021.

¶350

Central Government, if so advised, may file its return on or before 10.11.2021. Rejoinder, if any, may be filed by the petitioners to the reply of the Central Government, if filed, and the reply which has already been filed.

¶351

Certified copy of the order be supplied today itself.”

¶352

23.05.2022:-

¶353

Despite a very detailed order passed by this Court on23.10.2021, the authorities are not acting in compliance of the order passed by this Court and even now the benefit of that order is not being granted in the matter of admission to Pre Primary School Education.

¶354

After hearing learned counsels for the parties, we had passed detailed order on 23.10.2021 wherein this Court passed the interim order to the effect that the directions issued by the State shall not come in the way of performance of statutory obligation by the school specified in sub-clauses-iii and iv of clause (n) of Section 2 of the RTE Act and proviso as referred to above shall oblige authority to make admission under the RTE Act, though such admission was directed to be provisional in nature. The case was listed for final hearing but the hearing could not take place. It appears that despite the orders passed by this Court, the authorities are again following the same scheme denying the benefit of RTE Act, in the matter of Pre Primary School Education.

¶355

This Court has already granted the interim order though relating to earlier session of

¶356

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¶358

2021-22; but the order was not complied with.

¶359

Thus, we are inclined to direct the State to allow the benefit for the Session 2022-23 also as per order dated 23.10.2021. The State authority shall take necessary action accordingly and admission under RET Act shall be kept open also.

¶360

The two applications are accordingly disposed of.

¶361

List these cases for final hearing on 28.06.2022.”

¶362

They also relied upon the judgment passed by the High Court of Delhi in the matter of Social Jurist, A Civil Rights Group Vs.

¶363

Govt. of NCT of Delhi & Anr . reported in 2012 (128) DRJ 16 (DB) .

¶364

They further relied upon the judgment passed by the High Court of Madhya Pradesh (Indore Bench) in the matter of The Daly College Vs. State of M.P. reported in 2015 (2) JLJ 26 .

¶365

Mr. M.S. Singhvi, learned Advocate General, assisted by Mr. Darsh Pareek Adv., opposed the writ petitions, however fairly submitted that so far as the challenge to the admission of any student from neighbourhood is concerned, the officers of the State will look into this aspect and they will allot the students only from the neighbourhood of the schools.

¶366

Learned Advocate General further submitted that the State Government has every authority to issue guidelines for implementation of the provisions of the Act of 2009 as well as the Rules of 2011. He further submitted that the State Government has power to issue guidelines under section 35 read with section 8. He further submitted that as per section 8(f) of the Act of 2009

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¶369

the State Government has every right to monitor the admissions and completion of elementary education by every child. He further submitted that under sections 9 & 3 of the Rajasthan NonGovernment Educational Institutions Act, 1989 (hereinafter to be referred as the “Act of 1989” ) there is a provision for constitution of management committee and a recognition to these institutions has also been granted after constitution of the management committee by them, therefore the State Government has every authority to issue the guidelines to monitor the admissions in such schools/institutions either at pre-primary level or at Class-I. Learned Advocate General further relied upon Rule 10 of the Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter to be referred as the “Rules of 2011” ). He further submitted that the petitioners-institutions are not entitled for reimbursement as the students in these institutions are admitted in pre-school Section i.e. PP3+, PP4+ & PP5+ and according to the scheme of the Act of 2009 the State Government is under obligation for reimbursement only from Class-I and not for pre-school Education. Learned Advocate General further submitted that the respondents have issued the guidelines for pre-shcool education in the light of the directions issued by the Division Bench of this Court in the matter of Smile For All Society (NGO) (supra) . He further submitted that as earlier they were providing elementary education from Class-I level as per the scheme of the Act of 2009 therefore they were under obligation to provide elementary education to the students of weaker sections from Class-I to Class-8. He further submitted

¶370

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¶372

that the State Government is also receiving aid from the Central Government therefore without impleading the Union of India as party respondent in the writ petitions the State is not under obligation to provide reimbursement to the petitioners-institutions towards the pre-primary Education. He further submitted that the mandamus cannot be issued by this Court for reimbursement towards pre-school Education for the students admitted in these schools/institutions.

¶373

He further submitted that though in the earlier years they have provided reimbursement to pre-schools also but this Court cannot issue mandamus for further reimbursement and it is the discretion of the State Government. Learned Advocate General further submitted that the Central Government has not been made party and the Central Government is under obligation to provide funds to the State Government in view of Section 7 of the Act of 2009 as well as the Rules of 2011.

¶374

Learned Advocate General has relied upon the judgment passed by the Hon’ble Supreme Court in the matter of T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. reported in (2002) 8 SCC 481 , where in para No.53, it has been held as under:-

¶375

“53. With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting

¶376

(33 of 56)

¶377

[CW-8567/2023]

¶378

them feeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific individuals on governing bodies. Nomination by the state, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restrictions on the attorney of the private unaided educational institution.”

¶379

He further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Brahmo Samaj Educational Society Vs. State of W.B. reported in 2004 (6) SCC 224 , where in para No.10, it has been held as under:-

¶380

“10. When a larger Bench consisting of eleven Judges of this Court in T.M.A. Pai [(2002) 8 SCC 481] has declared what the law on the matter is, we do not want to dilute the effect of the same by analysing various statements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take note of the declarations of law made by this Court in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein.”

¶381

(34 of 56)

¶382

[CW-8567/2023]

¶383

He also relied upon the judgment passed by the Hon’ble

¶384

Supreme Court in the matter of Society for Unaided Private Schools of Rajasthan Vs. Union of India reported in 2012 (6) SCC 1 , where in paras No.28,29,30,31,33,37 & 38, it has been held as under:-

¶385

“28.To provide for right to access education, Article 21-A was enacted to give effect to Article 45 of the Constitution. Under Article 21-A, right is given to the State to provide by law “free and compulsory education”. Article 21-A contemplates making of a law by the State. Thus, Article 21-A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child-centric and not institution-centric. Thus, as stated, Article 21-A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is thus enacted in terms of Article 21-A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education.

¶386

29.One more aspect needs to be highlighted. It is not in dispute that education is a recognised head of “charity” (seeT.M.A. Pai Foundationv.State of Karnataka[(2002) 8 SCC 481] ). Therefore, even according to T.M.A. Pai Foundation[(2002) 8 SCC 481] , if an educational institution goes beyond “charity” into commercialisation, it would not be entitled to protection of Article 19(1)(g). This is where the paradox comes in. If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in Class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution?

¶387

[CW-8567/2023]

¶388

(35 of 56)

¶389

30.Coming to the principle of reasonableness, it may be stated, that though subjectwise, Article 21-A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access to education within Article 21-A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. (See Khudiram Dasv.State of W.B.[(1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832] ) After the judgment of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] , the principle of reasonableness is applicable to Article 14 of the Constitution. As held by this Court in Glanrock Estate (P) Ltd. v. State of T.N. [(2010) 10 SCC 96] , Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help us to correlate Article 21 with Article 14, Article 19 and, so on.

¶390

Applying the above principle of reasonableness, though the right to access to education falls as a subject-matter under Article 21-A and though to implement the said article, Parliament has enacted the 2009 Act, one has to judge the validity of the said Act in the light of the principle of reasonableness in Article 19(6), particularly, when in T.M.A. Pai Foundation [(2002) 8 SCC 481] and in P.A. Inamdar v. State of Maharashtra [(2005) 6 SCC 537] , it has been held that right to establish and administer an educational institution falls under Article 19(1)(g) of the Constitution. Thus, the question which arises for determination is — whether Section 12(1)(c) of the 2009 Act is a reasonable restriction on

¶391

(36 of 56)

¶392

[CW-8567/2023]

¶393

the non-minority's right to establish and administer an unaided educational institution under Article 19(6)?

¶394

It is true that, as held in T.M.A. Pai Foundation [(2002) 8 SCC 481] as well as P.A. Inamdar [(2005) 6 SCC 537] , the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article 19(1)(g), however, in the said two decisions the correlation between Articles 21 and 21-A, on the one hand, and Article 19(1)(g), on the other, was not under consideration. Further, the content of Article 21-A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21-A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority schools to admit 25% children in Class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to Class I and not to restrict the freedom under Article 19(1)(g).

¶395

Thus, from the scheme of Article 21-A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6).

¶396

The 2009 Act not only encompasses the aspects of right of children to free and

¶397

(37 of 56)

¶398

[CW-8567/2023]

¶399

compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school(s) as also grant of recognition (see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided nonminority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges.”

¶400

He further relied upon the judgment passed by the Hon’ble

¶401

Supreme Court in the matter of Vivek Narayan Sharma

¶402

(Demonetisation Case-5 J.) & Ors Vs. Union of India & Ors.

¶403

reported in 2023 (3) SCC 1 , where in paras No.134, 135 & 146, it has been held as under:-

¶404

“134. Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose [“Some Reflections on the Reading of Statutes” [(1947) 47 Columbia LR 527] , Columbia LR at p. 538].” This is how Justice Frankfurter succinctly propounds the principle of purposive interpretation.

¶405

It is thus necessary to cull out the legislative policy from various factors like the words in the statute, the Preamble to the Act, the Statement of Objects and Reasons, and in a given case, even the attendant circumstances. After the legislative policy is found, then the words used in the statute must be so interpreted

¶406

[CW-8567/2023]

¶407

(38 of 56)

¶408

such that it advances the purpose of the statute and does not defeat it.

¶409

In State of Gujarat v. R.A. Mehta [State of Gujarat v. R.A. Mehta, (2013) 3 SCC 1 : (2013) 2 SCC (Cri) 46 : (2013) 1 SCC (L&S) 490] , this Court held as under : (SCC pp. 47-48, para 98)

¶410

“98. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. ‘The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative.’The court must take a pragmatic view and must keep in mind the purpose for which the statute was enacted as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure that the Act itself does not become a dead letter and the obvious intention of the legislature does not stand defeated unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy and ‘to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico’. The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted

¶411

(39 of 56)

¶412

[CW-8567/2023]

¶413

a reasonable statute. (Vide M. Pentiah v. Muddala Veeramallappa [M. Pentiah v. Muddala Veeramallappa, (1961) 2 SCR 295 : AIR 1961 SC 1107] , S.P. Jain v. Krishna Mohan Gupta [S.P. Jain v. Krishna Mohan Gupta, (1987) 1 SCC 191] , RBI v. Peerless General Finance & Investment Co. Ltd. [RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424], Tinsukhia Electric Supply Co. Ltd. v. State of Assam [Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709] , SCC at p. 754, para 118; UCO Bank v. Rajinder Lal Capoor [UCO Bank v. Rajinder Lal Capoor, (2008) 5 SCC 257 : (2008) 2 SCC (L&S) 263] and Grid Corpn. of Orissa Ltd. v. Eastern Metals & Ferro Alloys [Grid Corpn. of Orissa Ltd. v. Eastern Metals & Ferro Alloys, (2011) 11 SCC 334].)”

¶414

He further relied upon the judgment passed by the Hon’ble

¶415

Supreme Court in the matter of State of Uttar Pradesh Vs. Principal Abhay Nandan Inter College & Ors., reported in 2021 (15) SCC 600 , where in paras No.28 & 30, it has been held as under:-

¶416

“28. We will first take up the right of institutions qua the aid. A decision to grant aid is by way of policy. While doing so, the Government is not only concerned with the interest of the institutions but the ability to undertake such an exercise. There are factors which the Government is expected to consider before taking such a decision. Financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid.

¶417

“30. We are dealing with a case where aid is not denied in toto but sought to be given in different form. The reason for such a decision is both efficiency and economy. When such a decision is made as a matter of policy and is being applied not only to educational institutions but spanning across the entire State in every department, one cannot question it and that too when there is no express arbitrariness seen on the face of it.”

¶418

(40 of 56)

¶419

[CW-8567/2023]

¶420

He further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Medical Council of India Vs. State of Kerala reported in 2019 (13) SCC 185 , where in para No.23, it has been held as under:-

¶421

“23. What has been done by the impugned Ordinance by the State Government is clearly entrenching upon the field of judicial review and it was obviously misadventure resorted to. In our considered opinion, it was not at all permissible to the State Government to promulgate the Ordinance/legislate in the matter. Not only the judgment of the court is nullified and the arbitrariness committed in admissions was glaring, and the decision of the High Court of Kerala which was affirmed by this Court with respect to applications to be entertained if they were online applications has been undone. It was clearly an act of nullifying judgment and is violative of judicial powers which vested in the judiciary. It was not open for the State Government to nullify the judgment/orders passed by the Kerala High Court or by this Court. It was not a case of removal of a defect in existing law. Various Constitution Bench decisions of this Court have settled the principles of law governing the field. It passes comprehension how the State Government has promulgated the Ordinance in question.”

¶422

He further relied upon the judgment passed by the Hon’ble

¶423

Supreme Court in the matter of Naresh Shridhar Mirajkar and

¶424

Ors. vs. State of Maharashtra and Ors. reported in AIR 1967

¶425

SC 1 , where in paras No.38 & 39, it has been held as under:-

¶426

“38. The impugned order is, in a sense, an order of a collateral nature; it has no direct relation with the decision of the dispute which had been brought before the Court in the proceedings between the parties. The learned Judge however, thought that in order that he should be able to do full justice between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is collateral to the proceedings which were pending before the Court, it was

¶427

(41 of 56)

¶428

[CW-8567/2023]

¶429

directly connected with the said proceedings inasmuch as the learned Judge found that he could not do justice between the parties and decide the matter satisfactorily unless the publication of Mr. Goda's evidence was prohibited pending the trial. The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Art. 19(1), must fail.

¶430

Assuming, however, that the impugned order can be said incidentally and indirectly to affect the fundamental rights of the petitioners under Art. 19(1), can such incidental and indirect effect of the order justify the conclusion that the order itself infringes Art. 19(1) ?”

¶431

He further relied upon the judgment passed by the Hon’ble

¶432

Supreme Court in the matter of P.T.C. India Ltd. vs. Central

¶433

Electricity Regulatory Commission through Secretary

¶434

reported in 2010 (4) SCC 603 , where in para No.65, it has been held as under:-

¶435

“65. The above two citations have been given by us only to demonstrate that under the 2003 Act, applying the test of "general application", a Regulation stands on a higher pedestal vis-à-vis an Order (decision) of CERC in the sense that an Order has to be in conformity with the regulations. However,

¶436

[CW-8567/2023]

¶437

(42 of 56)

¶438

that would not mean that a regulation is a pre- condition to the order (decision). therefore, we are not in agreement with the contention of the appellant(s) that under the 2003 Act, power to make regulations under Section 178 has to be correlated to the functions ascribed to each authority under the 2003 Act and that CERC can enact regulations only on topics enumerated in Section 178(2). In our view, apart from Section 178(1) which deals with "generality" even under Section 178(2)(ze) CERC could enact a regulation on any topic which may not fall in the enumerated list provided such power falls within the scope of 2003 Act. Trading is an activity recognized under the said 2003 Act.”

¶439

He further relied upon the judgment passed by the Hon’ble

¶440

Supreme Court in the matter of Union of India Vs. VKC Footsteps India Pvt. Ltd. reported in (2022) 2 SCC 603 , where in paras No.91 & 92, it has been held as under:-

¶441

“91. Provisos in a statute have multi-faceted personalities. As interpretational principles governing statutes have evolved, certain basic ideas have been recognized, while heeding to the text and context. Justice GP Singh, in his seminal text, Principles of Statutory Interpretation24 formulates the governing principles of interpretation which have been adopted by courts while construing a statutory proviso. The first Rule of interpretation is that: “The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As stated by LUSH, J. "When one finds a proviso to a Section the natural presumption is that, but for the proviso, the enacting part of the Section would have included the subject- matter of the proviso. In the words of LORD MACMILLAN: "The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case." The proviso may, as LORD MACNAGHTEN laid down, be "a qualification of the preceding enactment which is

¶442

[CW-8567/2023]

¶443

(43 of 56)

¶444

expressed in terms too general to be quite accurate". The general Rule has been stated by HIDAYATULLAH, J., in the following words: "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule". And in the words of KAPUR, J.: "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment.

¶445

But then these principles are subject to other principles of statutory interpretation which may supplement or even substitute the above formula. These other Rules which have been categorized by Justice GP Singh are summarized as follows:

¶446

92.1 (i) A proviso is not construed as excluding or adding something by implication:

¶447

Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the Section so as to exclude something by implication which is embraced by clear words in the enactment.

¶448

92.2. A proviso is construed in relation to the subject matter of the statutory provision to which it is appended:

¶449

“The language of a proviso even if general is normally to be construed in relation to the subject-matter covered by the Section to which the proviso is appended. In other words normally a proviso does not travel beyond the provision to which it is a proviso. "It is a cardinal Rule of interpretation", observed BHAGWATI, J., "that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.

¶450

92.3 Where the substantive provision of a statute lacks clarity, a proviso may shed light on its true meaning:

¶451

If the enacting portion of a Section is not clear, a proviso appended to it may give an

¶452

(44 of 56)

¶453

[CW-8567/2023]

¶454

indication as its true meaning. As stated by LORD HERSCHELL: " Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it.

¶455

92.4. An effort should be made while construing a statute to give meaning both to the main enactment and its proviso bearing in mind that sometimes a proviso is inserted as a matter of abundant caution:

¶456

The general Rule in construing an enactment containing a proviso is to construe them together without making either of them redundant or otiose. Even if the enacting part is clear effort is to be made to give some meaning to the proviso and to justify its necessity. But a Clause or a Section worded as a proviso, may not be a true proviso and may have been placed by way of abundant caution.

¶457

92.5. While ordinarily, it would be unusual to interpret the proviso as an independent enacting clause, as distinct from its main enactment, this is true only of a real proviso and the draftsperson of the statute may have intended for the proviso to be, in substance, a fresh enactment:

¶458

To read a proviso as providing something by way of an addendum or as dealing with a subject not covered by the main enactment or as stating a general Rule as distinguished from an exception or qualification is ordinarily foreign to the proper function of a proviso. However, this is only true of a real proviso. The insertion of a proviso by the draftsman has not always strictly adhered to its legitimate use and at times a Section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before.”

¶459

He further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Mavilayi Service Cooperative

¶460

(45 of 56)

¶461

[CW-8567/2023]

¶462

Bank Ltd. Vs. CIT, Calicut reported in 2021 (7) SCC 90, where

¶463

in para No.44, it has been held as under:-

¶464

“44. A number of judgments have held that a proviso cannot be used to cut down the language of the main enactment where such language is clear, or to exclude by implication what the main enactment clearly states. Thus, in CIT, Mysore v. Indo Mercantile Bank MANU/SC/0070/1959 : 1959 Supp. (2) SCR 256, this Court held:

¶465

“9….The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. "It is a fundamental Rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso". Therefore it is to be construed harmoniously with the main enactment. (Per Das, C.J.) in Abdul Jabar Butt v. State of Jammu & Kashmir [MANU/SC/0017/1956 : (1957) SCR 51, 59]. Bhagwati, J., in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax [MANU/SC/0084/1955 : (1955) 2 SCR 483, 493] said:

¶466

‘10. ….It is a cardinal Rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.’

¶467

Lord Macmillan in Madras & Southern Maharatta Railway Co. v. Bezwada Municipality [MANU/PR/0060/1944 : (1944) LR 71 IA 113, 122] laid down the sphere of a proviso as follows:

¶468

‘….The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a

¶469

(46 of 56)

¶470

[CW-8567/2023]

¶471

proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms.’

¶472

The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Corporation of City of Toronto v. Attorney-General for Canada [(1946) AC 32, 37].

¶473

He further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Casio India Company Pvt. Ltd. Vs. State of Haryana reported in 2016 (6) SCC 209 , where in para No.22, it has been held as under:-

¶474

“22. It needs no special emphasis to mention that provisos can serve various purposes. The normal function is to qualify something enacted therein but for the said proviso would fall within the purview of the enactment. It is in the nature of exception. [See: Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer MANU/SC/0290/1965 : AIR 1966 SC 12]. Hidayatullah, J. (as his Lordship then was) in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha MANU/SC/0336/1961 : AIR 1961 SC 1596 had observed that a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, and the proviso is not interpreted as stating a general rule. Further, except for instances dealt with in the proviso, the same should not be used for interpreting the main provision/enactment, so as to exclude something by implication. It is by nature of

¶475

(47 of 56)

¶476

[CW-8567/2023]

¶477

an addendum or dealing with a subject matter which is foreign to the main enactment. (See: CIT, Mysore etc. v. Indo Mercantile Bank Ltd. MANU/SC/0070/1959 : AIR 1959 SC 713). Proviso should not be normally construed as nullifying the enactment or as taking away completely a right conferred.”

¶478

He further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Union of India Vs. Dileep Kumar Singh reported in 2015 (4) SCC 421 , where in para No.20, it has been held as under:-

¶479

“20. Equally, it is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. This is laid down in Dwarka Prasad v. Dwarka Das Saraf MANU/SC/0505/1975 : (1976) 1 SCC 128, as follows:

¶480

We may mention in fairness to counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: CIT v. Indo-Mercantile Bank Ltd. [MANU/SC/0070/1959 : AIR 1959 SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1]; Ram Narain Sons Ltd. v. Asstt. CST [MANU/SC/0084/1955 : AIR 1955 SC 765 : (1955) 2 SCR 483, 493 : (1955) 6 STC 627]; Thompson v. Dibdin [(1912) AC 533, 541 : 81 LJKB 918 : 28 TLR 490]; Rex v. Dibdin [1910 Pro Div 57, 119, 125] and Tahsildar Singh v. State of U.P. [MANU/SC/0053/1959 : AIR 1959 SC 1012 : 1959 Supp (2) SCR 875, 893 : 1959 Cri LJ 1231]. The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin 1912 AC 533).

¶481

(48 of 56)

¶482

[CW-8567/2023]

¶483

If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.”

¶484

He further relied upon the judgment passed by the High

¶485

Court of Bombay in the matter of Dr. Vikhe Patil Foundation's

¶486

Vikhe Patil Memorial School Pune and Ors. (supra) where in

¶487

paras No.50 to 51, it has been held as under:-

¶488

“50. The RTE Rules so referred and appears to be made to address the situation where the schools run either pre-school and/or elementary school, then one level entry would be sufficient. But the situation like the present one, in our view, as the provisions are clear, therefore, the State Government Circulars including 21.01.2015 and such other communications and earlier action to insist upon 25% quota at both levels is correct reading of Sections in the background of purpose and object of providing free education and related benefits/facilities to children of "disadvantage group" and/or "weaker section". The submission and the propositions so made by the counsel appearing for the Petitioners are unacceptable as are contrary to the provisions of law and, therefore, the same are rejected.

¶489

The State Government is under obligation to frame Rules, Regulations and issue necessary circulars and to take policy decision with an object to achieve the purpose and object of RTE Act. Apart from the provisions of the RTE Act, Article 162 of the Constitution of India, if necessary need to be invoked to implement and/or enforce the scheme and purpose of the RTE Act to fill in the gap, if any. This also may be with a

¶490

(49 of 56)

¶491

[CW-8567/2023]

¶492

view to achieve central education policy, as well as, of the State. The Circulars and the communications, therefore so issued are well within the State power and jurisdiction. The validity of individual circular needs to be tested from the point of view of the provisions of the RTE Act and the policy. Circular dated 30.04.2015 as withdrawn, the challenge related to it is, therefore, rendered infructuous.”

¶493

He further relied upon the judgment passed by the Coordinate Bench of this court Principal seat at Jodhpur in the matter of Ram Nivas and Ors. vs. State of Rajasthan and Ors. passed in S.B. Civil Writ Petition No.604/2021 & other connected petitions , decided on 23.02.2022 , relevant paras thereof are reproduced as under:-

¶494

The submission now made in these writ petitions seeking to question the action of the respondents in not following the mandate of provisions of Rule 277A (vi) of the Rules and/or various judgments of the Hon'ble Supreme Court, is essentially requiring this Court to examine the validity/to take a view/issue directions contrary to what is contained in paragraph 51 of the order in the case of Kuldeep Kumar (supra).

¶495

The Hon'ble Supreme Court in the case of Naresh Shridhar Mirajkar (supra) inter-alia observed as under:

¶496

"38. The argument that the impugned order affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions, of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the

¶497

[CW-8567/2023]

¶498

(50 of 56)

¶499

appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19 (1).What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Art. 19(1).

¶500

The impugned order is, in a sense, an order of a collateral nature; it has no direct relation with the decision of the dispute which had been brought before the Court in the proceedings between the parties. The learned Judge however, thought that in order that he should be able to do full justice between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is collateral to the proceedings which were pending before the Court, it was directly connected with the said proceedings inasmuch as the learned Judge found that he could not do justice between the parties and decide the matter satisfactorily unless the publication of Mr. Goda's evidence was prohibited pending the trial. The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack

¶501

(51 of 56)

¶502

[CW-8567/2023]

¶503

against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Art. 19(1), must fail."

¶504

Similarly, in the case of Kanta Parihar (supra), following the principles laid down in the case of Naresh Shridhar Mirajkar (supra), it was observed as under:

¶505

"27. In fact, the impugned order dated 19.8.98 cannot be said to be an amendment even by stretch of imagination. It was meant merely for information to the concerned authorities about the judgments of this Court for their enforcement/implementation. Issuing such a circular/order directing the authorities to implement the order of court of law cannot be said to be an amendment of the Statutory Rules. Therefore, that judgment is with all due respects to my esteemed brother Sharma, J., is of no assistance to the petitioners. The impugned order dated 19.8.98 is an order passed consequent to the judgments and orders of this Court. I am at complete loss to understand as how these petitions can be entertained for the reason that a judicial order can be challenged only in appeal and it can never be amenable to judicial review in writ jurisdiction. (Vide Naresh Shridhar Mirajkar v. State of Maharashtra (7). Entertaining these petitions would amount to sitting in appeal against the earlier judgments of the Division Benches of this Court, and such an action, undoubtedly, cannot be sustained in the eyes of law."

¶506

In view of above fact situation, wherein apparently in absence of any review/appeal qua the order dated 20.07.2020 in the case of Kuldeep Kumar (supra), the same has become final, the modification made by the learned Single Judge by order dated 25.02.2021 having been reversed by the Division Bench and passing of the order in the present circumstances by this Court contrary to what has been directed in the order dated 20.07.2020 without commenting on the merit of said order, which is impermissible in law, the petitions filed by the petitioners seeking exactly the same from this Court, cannot be accepted.”

¶507

[CW-8567/2023]

¶508

(52 of 56)

¶509

As per the averments made in the writ petitions as well as the reply to the writ petitions submitted on behalf of the Staterespondents, four points needs to be considered by this Court which are as follow:-

¶510

“1. Whether the State Government is within its jurisdiction to issue guidelines for admitting the students at multiple entry levels in elementary or in pre-school education under the provisions of the Act of 2009 as well as the Rules of 2011 ?

¶511

Whether under Clause-I of the guidelines the State Government has rightly given directions for admitting the students at all levels i.e. pre-school education i.e. PP3+, PP4+, PP5+ and at Class-I ?

¶512

Whether the petitioners-institutions are entitled for reimbursement from the State Government for the students admitted in the Pre-School Education ?”

¶513

Heard counsel for the parties and perused the record.

¶514

So far as the issuance of guidelines by the State Government for admitting the students in the pre-school education for the academic session 2023-24 is concerned, in my considered view the State Government is within its competence to issue such guidelines to monitor the admissions and completion of elementary education by every child in the light of the specific provisions of section 8(f) read with section 11 & section 35 of the Act of 2009.

¶515

So far as the point regarding the entry level of admission to the students is concerned, since these institutions are providing pre-school education therefore in my considered opinion in view of the provisions of the Act of 2009 as well as the Rules of 2011 the

¶516

[CW-8567/2023]

¶517

(53 of 56)

¶518

institutions are under obligation to have reservation of 25% seats at each entry level and also to provide admissions to the students at the pre-school entry level i.e. Nursery/PP3+, at the same time, the State Government has also every right to check and allot the students at Class-I which is the entry level for elementary education. Further the policy of the State Government so far it relates to allotting the students at all levels in pre-school education i.e. PP3+, PP4+ and PP5+ is concerned, the same in my considered view is bad in the eye of law as there should be two entry level; one at pre-school education i.e. Nursery/PP3+ and second at Class-I at the level of elementary education, therefore the State Government has every right to allot the students at the entry level of pre-school education i.e. Nursery/PP3+ and at Class-I for elementary education and further where the school/institution is providing education from pre-school education as well as elementary education then it will be at both the levels. 41. The High Court of Karntaka at Bengaluru in the matter of Soujanya Patel Trust & Ors. Vs. State of Karnataka & Ors. reported in 2017(3) KCCR 2242 , in para No.16, 18 & 24, has held as under:-

¶519

“16. Thus, from a conspectus reading of the authorities referred to above, it is manifest that the function of the proviso ordinarily is to qualify the preceding enactment which is expressed in a quite accurate manner. The proper function of a proviso is to accept and deal with the case which would otherwise fall within the main enactment but this is not an inflexible Rule. It is settled legal position that language employed in the proviso depicts whether the legislature intended to exercise its enacting power. Where the language of the main enactment is explicit

¶520

(54 of 56)

¶521

[CW-8567/2023]

¶522

and unambiguous, the proviso has to be read along with the main enactment. It can be held that Section 12[1][c] of the RTE Act, envisages a specified extent of school's responsibility for free and compulsory education, in as much as, admission of students in Clause-I and by way of proviso, it widens the scope of Section 12[1][c], supplementing, pre-school education.

¶523

The Govt. Order dated 6.3.2017 is similar to that of the Circular considered by the High Court of Judicature at Bombay in the case of Dr. Vikhe Patil Foundation's case (supra), wherein similar circulars are upheld holding that the compulsory admission of minimum 25% in class-I or pre-school at both entry levels to the children belonging to disadvantageous or weaker section is within the framework of law and the simultaneous entry to both levels is permissible. Though the judgment may not strictly be binding on this Court, it has the persuasive effect.

¶524

As aforesaid, proviso gets integrated to Section 12(1)(c) in terms of the language employed therein. That means "to the extent of at least 25% of the strength of that Class-I" applies to both the entry levels if the school is imparting education at both the entry levels, no option is left to the schools to pick and choose any one entry level. Reservation at 25% of the strength of the class separately cannot be fixed, if the school is imparting education at both the levels. The proviso if read together with 12(1)(c) at least 25% of strength of Class-I has to be maintained at both the entry levels i.e., Class-I + pre-school or at one level either Class-I or pre-school depending upon the school imparting the education. In other words, if the school is imparting education in both the levels, reservation under 12(1)(c) read with proviso has to be maintained simultaneously at both the levels; if the school is imparting only elementary education from class-I as the entry level, the reservation to be maintained only at one entry level Class-I; if the school is imparting education only in preschool not with any elementary education, reservation to be maintained at pre-school level.”

¶525

[CW-8567/2023]

¶526

(55 of 56)

¶527

So far as the entitlement of the petitioners-institutions for reimbursement towards the students allotted by the State Government at Pre-school level is concerned, in my considered view these institutions are entitled for reimbursement from the State Government as the State Government is under obligation to provide free and compulsory education to such admitted students, in view of the provisions of the Act of 2009 & the Rules of 2011. A plain reading of the provisions contained in Section 12(2) of the Act of 2009 makes it explicitly clear that such schools/institutions providing free and compulsory elementary education and covered under the Act of 2009 as well as the Rules of 2011, they shall be reimbursed the expenditure so incurred by them and apart from it, till last year, as informed to this Court, the State Government has been reimbursing the expenses for the students allotted by them in pre-school education and in the facts and circumstances at hand this Court concurs with the view which has been expressed by the High Court of Bombay in the matter of Dr. Vikhe Patil Foundation's Vikhe Patil Memorial School Pune as well as the view expressed by the High Court of Karnataka at Bengaluru in the matter of Soujanya Patel Trust & Ors. (both supra). 43. So far as the allotment of the students from neighbourhood area is concerned, this Court records the assurance given by the learned Advocate General that they will allot the students to the schools only from the neighbourhood areas whether it is either at the level of pre-school education or Class-I of elementary education.

¶528

[CW-8567/2023]

¶529

(56 of 56)

¶530

In that view of the matter, these writ petitions are partly allowed with the above directions/observations. The State Government is held entitled for allotment of students to these institutions at two levels namely Nursery/PP3+ at pre school education as well as at Class-I for elementary education and the institutions which are providing education at both the levels i.e. pre school education and elementary eduction there shall be two entry levels; one at pre school education at Nursery i.e. PP3+ and at Class-I also. The petitioners-institutions are also held entitled for reimbursement from the State Government.

¶531

It is also observed that the State Government is free to claim reimbursement from the Central Government in accordance with the provisions of the Act of 2009 and the Rules of 2011.

¶532

(INDERJEET SINGH),J

¶533

VS Shekhawat/-

Progressive School Association v. State of Rajasthan

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Progressive School Association v. State of Rajasthan

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