- (1.) THE instant writ petition has been filed by Meritorious Education for Youths Development & Humane Activities (MEYDHA). It was filed initially with the following prayers: - "(i) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to ensure free and compulsory elementary education to all children residing in neighbourhood of unaided schools recognized by CBSE New Delhi, ISCE New Delhi and Basic Education Department, U.P. and to reimburse the expenditure incurred to such schools as entitled u/s 12 (2) of RTE Act 2009 (Act No. 35 of 2009) with immediate effect. (ii) issue further a writ, order or direction in the nature of mandamus commanding the opposite parties to issue direction/orders to such unaided recognized schools not to charge any fee from children below 14 years of their neighbourhood with immediate effect." During the pendency of the instant petition, by way of amendment, following prayer was also added as prayer no. (i -a): - "(i -a) issue a writ, order or direction in the nature of certiorari quashing the G.O. Dated 10.10.2011 filed as Annexure B -6A to the C.A. Dated 23.11.2011 and Para -6 of the G.O. Dated 03.12.2012 filed as Annexure SCA -2 to the SCA dated 17.04.2013 both issued by the State and impugned by the petitioner during the pendency of the writ petition." Main challenge in the G.O. dated 3.12.2012 is paragraph no. 6, which reads as under: "XXX XXX XXX" The G.O. Dated 10.10.2011 bearing No. 1042/79 -6 -2011 issued by Secretary, Basic Education, Government of U.P., wherein certain directions regarding fee were issued. The said G.O. reads as under : - "XXX XXX XXX"
(2.) THE case of the petitioner was that Right to free education to all children from the age of six years to fourteen years, flows from Article 21 A of the Constitution of India and under the Article all children are entitled to free elementary and compulsory education. Article 21 A of the Constitution of India reads as under: - Article 21 A. The State shall provide free and compulsory education to all children of the age of 6 to 14 years as the State may by law determine.
(3.) THE Right to free Compulsory Education Act 2009 (Act No. 35 of 2009) (hereinafter referred to as the Act) was passed by the Parliament on 27.8.2009 and it came into force on April 1, 2010. The unaided educational institutions recognized by CBSE New Delhi, ICSE New Delhi and Basic Education Department, U.P. were also commanded to provide free and compulsory education to all the children of their neighbourhood as defined in Section 2 n of the Act and 3 (1) and 3 (2) of the aforesaid Act to the extent of minimum 25% of the seats in Class -I. Section 2 n defines school, which reads as under: - "2 n "School" means any recognized school imparting elementary education and includes: - (i) a school established owned or controlled by the appropriate Government or local authority. (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority. (iii) a school belonging to specified category and; (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. Section 3 (1) and 3 (2) are being reproduced below: - "3 (1) every child of the age of six to fourteen years shall have a right to free and compulsory education in neighbourhood school till completion of elementary education. (2) For the purpose of sub section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education." It has further been pleaded by the petitioner that Section 8 (g) and 9 (h) of the Act ensures good quality elementary education to all the children from six years to fourteen years by appropriate Government or local authority. Section 8 deals with the duties of appropriate State Government while Section 9 deals with the duties of local authority. The said provision are being reproduced as under: - "8 (g) ensure good quality elementary education confronting to the standards and norms specified in the schedule;" 9 (h) ensure good quality elementary education confronting to the standards and norms specified in the schedule;" Section 12 (2) of the said Act ensures the reimbursement of the expenditure incurred by unaided schools. The said the provision, reads as under: - "12 (2) The school specified in sub clause (iv) of clause (n) of Section 2 providing free and compulsory elementary education specified in clause c of sub section (1) 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. Provided that such reimbursement shall not exceed per child expenditure incurred by a school specified in sub clause (i) of clause (n) of Section 2:" For the purpose of instant petition, the provision of Section 12 (1) (c) of the said Act are very important. The said provision reads as under: - "12 (1) (c) - specified in sub clause (iii) and (iv) of clause (n) of Section 2 shall admit in Class 1, to the extent of at least twenty five percent 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. Provided further that where a school specified in clause (n) of section 2 imparts preschool education, the provisions of clause (a) to (c) shall apply for admission to such preschool education.;