1 2025:CGHC:14394-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Order reserved on: 18.03.2025 Order delivered on: 26.03.2025 WPPIL No. 61 of 2017 C.V.Bhagvant Rao S/o Late Shri C.V. Suryanarayanan Aged About 57 Years R/o MIG/2-39, Hudco Colony, Bhilai, PS-Kotwali, District- Durg, Chhattisgarh, Chhattisgarh ... Petitioner versus 1 - Union Of India Through Secretary, School Education, Ministry Of Human Resources And Development, Shastri Parliament Street, New Delhi, Delhi 2 - State Of Chhattisgarh, Through Chief Secretary, New Mantralaya, Mahanadi Bhavan, New Raipur, Chhattisgarh 3 - The Secretary, Department Of School Education, New Mantralaya, Mahanadi Bhavan, New Raipur, Chhattisgarh 4 - Director, Department Of Education, New Mantralaya, Indirawati Bhawan, New Raipur, Chhattisgarh ... Respondents For Petitioner : Mr.Devershi Thakur, Advocate For Respondent No.1 For Respondents No.2 to 4 : : Ms.Anmol Sharma, Central Government Counsel Mr.Yashwant Singh Thakur, Additional Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.03.26 14:55:46 +0530 2 C.A.V. Order Per Ramesh Sinha, C.J . 1. Heard Mr.Devershi Thakur, learned counsel for the petitioner as well as Ms.Anmol Sharma, learned Central Government Counsel for respondent No.1/Union of India and Mr.Yashwant Singh Thakur, learned Additional Advocate General appearing for respondents No.2 to 4/State. 2. By way of this writ petition (PIL), the petitioner has prayed for following reliefs:- “10.1.A writ and/or an order of appropriate nature quashing the impugned notification No.F13-73/20-3/11 Dated 23.08.2011 passed by the Respondent State, regarding speculation of being BPL List in place of being of Economic Weaker Section. 10.2. A writ and/or an order in the appropriate nature of directing the respondents to explicitly apply the conditions of the RTE Act & RTE Rules to the fullest and ensure that Schools shall not deny any admissions on the grounds that wards/parents of the children coming from EWS category are not on the BPL List. 10.3. A writ and/or an order in the appropriate nature of directing the respondents to give admission to all the children who's parent's annual family income is not more 3 than Rs.3 lakhs. as Economic Weaker Section defined in Annexure P/4 by the Central Government. 10.4. A writ and/or an order in the appropriate nature of directing the Respondent State to ensure through their responsible officers, that all the children are given admission under 25% quota in private unaided school in compliance of Sec 12(1)(c) of the RTE Act without hindrance arising of the impugned order(P/1). 10.5. Any other relief, which this Hon'ble Court, may deem fit in the facts and circumstances of the case. 0.6. Cost of the petition may also be awarded.” 3. The petitioner by way of this public interest litigation wants to bring to notice the present matter before this Court where on account of the Gazette notifications / directions, the respondent State has imposed such conditions, amending definition of EWS children, which is practically impossible to enable parents of the children to get them admitted in private schools. The impugned notification is against the Spirit and Object of the Right to Education Act, 2009 (hereinafter called as “RTE Act”), which is denying the Fundamental Rights of Children to 'Free Education' to children coming from Economically Weaker Section (hereinafter called as ‘EWS’) and disadvantage group of the society, only to facilitate the Private School Business. 4 4. The RTE Act was enacted for implementation of the mandate and spirit of Article 21A of the Constitution of India inserted vide 86th Amendment Act, 2002. Article 21A of the Constitution of India provides for free and compulsory education to all children in the age group of 6 to 14 years as a Fundamental Right. To achieve this goal, Section 12(1)(c) of the RTE Act requires private unaided schools to admit in Class-1, to the extent of at least 25% of the strength of that class, children belonging to Economically weaker Sections (EWS) and disadvantage groups in the neighborhood provide free & compulsory elementary education till its completion. 5. The Government of Chhattisgarh for implementing the various provision of the RTE Act had notified through Gazette notification P-13-47/20-3/10 dated 15.11.2010 Right to Education Rule 2010. The said Act defines the Economically Weaker Section in Section 2 (e) as follows:- "दु्ቜल व्ቇ का ्ቜालक से ऐसे माता-पिता या संर्ቌक का ्ቜालक अभि्ቚेत है, जिसकी वाቦኌ क आय समुचि#त सरकार ्ቛारा अचि%सू#ना ्ቛारा पिवपिनቖኌदश्ट न्यूनतम सीमा से कम है।" 6. Be that as it may, very crucial and important aspect is all the families belonging to below poverty line are coming under criteria of Economically Weaker Section, but all the families who are said to be Economically weaker section may not come under list Below Poverty Line. 7. The Government of India had notified the Housing scheme for all the India resident who do not have a house of their own. In the 5 said notification, the Government of India had defined the upper annual income of Economically weaker section family as 3.00 lakh/annum. 8. Be that as it may, few of the States in implementation of the RTE Act in it's proper prospective, as the State of Karnataka had in it's notification dated 8th May 2012, has notified Child belonging weaker section means, child belonging to all other caste and communities residing in Karnataka excluding the above categories whose parent's or guardian's annual income is less than the prescribed by the Social Welfare Department from time to time to determine the creamy layer of socially & educationally Backward Class. The said limit currently is Rs. 3.50 Lakhs (Rupees Three Lakhs fifty thousand)". Similarly in the State of Rajhasthan, the said limit currently Rs.2.50 Lakhs and in the State of Tamil Nadu, the said limit currently Rs 2.00 Lakhs. 9. In comparison with the Notification of Karnataka and an idea of the State giving huge relaxation to the Industries with Free electricity, land etc, the Government should also keep the fundamental rights of the children above all under the RTE Act for child belonging to all other caste and communities residing in Chhattisgarh excluding the above categories whose parent’s or guardian's annual income is less than the prescribed by the Social Welfare Department from time to time to determine the creamy layer of socially & educationally Backward Class, which should be 6 not less than Rs.3.00 Lakhs if not Rs.3.50 Lakhs for the purpose of implementation of RTE Act 2009. 10. The petitioner had made the representation which has been untouched, orally denied that the same would never be entertained being policy matter. It was stated in the reply that the admissions are to be done as per the directions of the State and efforts will be done as per the directions issued by the State. The RTE Act does not give any sort of powers to the State to amend the provision of the RTE Act 2009. 11. Section 35 of the RTE Act provides for the Central Government to issue guidelines and directions to the appropriate government or local authority for effective implementation of the proposed Act. It also provides for the appropriate Government to issue guidelines and directions to local authorities, and for local authorities to give guidelines to School Management Committees. Section 38 of the RTE Act provides powers to the appropriate government to make rules, and for laying of rules and notifications made, before each House of Parliament. The Central Government may by notification amend the schedule by adding to or omitting there from any norm and standard. 12. It is humbly submitted that the child has a fundamental right to 'Free Education’ under Article 21A of the Constitution of India and the word 'Free' signifies 'without any restraint or barriers'. According to the petitioner, the State has a duty to facilitate, not to obstruct, admission of any child in a school of his/her choice when 7 there is no burden put by him/her on the State exchequer. All the above if considered, are the reasons of the unsaid and un-accounted donation being funded to the schools, which unfortunately has turned into a big business rather a community service. The Legislature had brought this RTE Act with an intent to aware the generations to come of their rights through Article 21A of the Constitution of India, regarded as communal service educating the coming forth generation. Schools when termed as 'business', greed and benefits steps in, and the ethics are being compromised at the cost of the fundamental rights of the children under Article 21 A of the Constitution of India. 13. It is further case of the petitioner that the impugned Notification / directive is violative of Articles 14 and 19(1)(g) of the Constitution of India as they are discriminatory and arbitrary. It is also stated that under the Fundamental Rights, Directive Principles and the Governing Laws, namely, the RTE Act, from the parents/child's point of view, all private unaided schools constitute one class, whether they have the neighborhood condition in the allotment letter from Authority or not. It is humbly submitted that a restriction should not only be pure in its means but also in its ends. It is also submitted that there can be no estoppel against Constitution or waiver of fundamental rights and respondent State Authority condition/impugned directive is contrary to 'public policy'. Hence, this petition. 8 14. Learned counsel for the petitioner submits that there is no authority to respondent No.2 to change the definition of the economically weaker section person. The respondent-State has not updated the BPL list since 2007-2008 which is denying the rights of coming from the EWS Category. He further submits that the State invites industries and give them relaxation in nature of land, electricity duty, taxes etc, and on the other hand are deliberately denying the primary duty of developing the future human resources by educating children. The schools are supposed to be social and community service run on the basis of ‘no profit no loss’. Now through such impugned notifications, these community service of imparting education has now turned into a business. Education/Schools when termed as 'business', greed and benefits steps in, and the ethics are being compromised, at the cost of the fundamental rights of the children under Article 21A of the Constitution of India. He also submits that all the families belonging to below poverty line (BPL) are coming under the criteria of Economically Weaker Section (EWS), but all the families who are said to be economically weaker section may not come under the list Below Poverty Line. The RTE Act or the RTE Rules, nowhere states that the State Government has power to change the basic RTE Act/RTE Rules and the the Private Schools are bluntly denying the admissions on this grounds which are to be given to children admitted in compliance of Section 12 of the RTE Act. He contended that Section 35 of the RTE Act 9 provides for the 'Central Government to issue guidelines and directions' to the appropriate government or local authority for effective implementation of the proposed Act. It also provides for the appropriate Government to issue guidelines and directions to local authorities, and for local authorities to give guidelines to School Management Committees. Section 20 of the RTE Act provides power to Central Government to amend the schedule on norms and standards. He further contended that inalienable common law right to freedom is the source of constitutional and statutory provisions that protects a person right to go around without fear is a part of basic jurisprudence of land and order/direction by the Respondent State in the instance case, is brought as an amendment in the RTE Rules 2010, which is for sure not permissible under the law, as the same is deceiving the very object of the RTE Act and the RTE Act or the RTE Rules nowhere states that the State Government has the power for fixing the limitations or could substitute the EWS definition with list of BPL depriving the fundamental Rights of the children coming from EWS and disadvantage groups. As such, the writ petition deserves to be allowed and the impugned notification dated 23.08.2011 deserves to be quashed. 15. On the other hand, learned Additional Advocate General appearing for respondents No.2 to 4/State opposes the submissions made by learned counsel for the petitioner and submits that education is the primary area that needs focus as it is 10 crucial to the development of the country. Educated individual contributes more towards the economy is a universal truth. As multi dimensions are attached to the subject education, some aspects relating to education falls under the Union List i.e. List -1 Entry No. 63, 64 & 65 specifically and the rest under the concurrent list in Entry No. 25 of the Constitution of India. Thus, both the State and the Union are empowered to make legislation on the subject education. By the 86 constitutional amendment, Section 21-A has been introduced in the Constitution of India making education a fundamental right. The Right to Education Act, 2009 was enacted and it finally came into force in the year 2010 and education has now been made compulsory and free for children in the age bracket of 6 years to 14 years. Free education implies free education for those who have enrolled themselves in the institutions aided by the Government. In order to enforce the fundamental right of education, all the private and government schools are required to reserve at least 25% of their seats for the disadvantaged and weaker section. Section 12(c) of the RTE Act envisages this proposition. Section 2(d) of the RTE Act defines a child belonging to a disadvantaged group as follows:- "A child with disability or a child belonging to the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other fact, as may be specified by the appropriate Government, by notification." 11 Section 2(e) of the RTE Act defines a child belonging to a weaker section as below: "A child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification." He further submits that The Right to Education Act not only targets the weaker section of the society but it seeks to uplift the weaker sections and prevent them from being discriminated against the right to education provided to all the children. Article 45 of Constitution of India which comes under the directive principles of the State policy provides that the State shall endeavor to provide free and compulsory education until they complete the age of 14 years. A bulk of incentive has to be given to the under privilege group of children in order to uplift them so as to have the same expertise and skill with other children to be a part of healthy competition. Section 35(2) of the RTE Act empowers the appropriate government to issue guidelines and give such directions as deems fit to the local authorities or the school management authorities regarding the implementation of the provision of this Act and it is paramount duty of the respondents through the Department of School to ensure that the implementation of the Act is done in its totality and all the eligible candidates who belongs to the economically weaker section and 12 disadvantaged group are being given admission under the RTE Act. 16. He also submits that the Government of India, Ministry and Rural Development vide letter dated 13.09.2002 has requested the Secretary, Rural and Development Department, Government of Chhattisgarh for identification of the Families Below Poverty Line for targeting them under various programs and 10th five year plan (2002-2007). It has been mention that the Data which has been obtained through the B.P.L.. survey conducted for the previous plan suffered from various discrepancies. Hence, in order to improve the methodology for identification of BPL families, an expert group has been constituted and consulted all the State Governments/UT Administrations as well as sister Ministry of Government of India and recommendation of the expert group and a Schedule which has to be adopted for identification of rural poor which introduced a score based ranking based on Socio Economic indicators in contrast to the income and expenditure approach adopted in BPL Census 1992 & 1997 has been accepted by the Government and 13 cardinal indicators have been identified and the scores have been assigned on the relative scale for categorizing the house holds as BPL. The State Government has been given the flexibility to decide the cut-off score. It has further been directed for field investigator to visit the house hold for filling of the schedule. The State/UT are directed to complete the operation by 31.12.2002 and the process of 13 finalization of BPL List be completed before 31.03.2003. He contended that the respondents have issued guidelines to the authorities for ensuring the admission to the eligible candidates and the notification that are being issued time to time have been issued with the sole purpose of including the eligible candidates under the definition of disadvantaged group and weaker sections, so that an eligible child is not deprived of its right to education and have have endeavored that the eligible child in the aforementioned category are being taken care of the process adopted by the respondents in identifying the weaker sections and B.P.L. families clearly reveal that every eligible child of the weaker section and disadvantaged group has been included in the B.P.L. list. The contention of the petitioner that by way of the Notification dated 23.08.2011, the respondent-State has amended the definition under Section 2(e) defining child belonging to weaker section by imposing a condition that only those children will be regarded as economically weaker section whose parents come in the list of B.P.L. effective at that time and further that the power to amend the norms and standards as per Section 20 of the RTE Act is vested only on the Central Government. 17. He further contended that Section 20 of the RTE Act states that the Central Government may by notification amend the schedule by adding to or by omitting there from any norms and standards. The schedule appended with the Act describes about the scheduled under Sections 19 and 25 of the RTE Act. Section 19 14 of the RTE Act deals with norms and standard for school and Section 25 deals with pupil teacher ratio. This schedule can be amended by the Central Government by adding to or by omitting there from. Section 35(2) of the RTE Act empowers the State Government which is the appropriate Government to issue guidelines and give such direction to the local authority or the School Management Committee regarding implementation of the provision of the Act. He also contended that Section 2(e) of the RTE Act only prescribed that a child belonging to a parent or a guardian whose annual income is lower than the limit specified by the Government by the notification. The RTE Act makes the right of children to free and compulsory education justiciable and envisages that each child must have access to a neighbourhood school. The RTE Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The directive principles of the State policy enumerated in our Constitution lay down that the State shall provide free and compulsory education to all children up to the age of 14 years. The said Act provides for right (entitlement) of children to free and compulsory admission, attendance and completion of elementary education in a neighbourhood school. 18. He lastly contended that as per Article 21A of the Constitution of India, the State shall provide free and compulsory education to all children of the specified age in such manner as the State may by 15 law determine. It is true that the primary obligation to provide free and compulsory education will be discharged by the State, however, the manner in which the obligation will be discharged has been left to the State to determine by law. The State may do so through its own school or through aided school or through private school so long as the law made in this regard does not transgress any other constitutional limitation. Article 21A vests the power in State to decide the manner in which it will provide free and compulsory education to the specified category of children. The respondent-State vide issuing the notification dated 23.08.2011 in this regard has performed its obligation in expanding the scope in order to determine the child belonging the weaker section. Article 46 of the Constitution of India provides for promotion of educational and economical interest of schedule caste/schedule tribe and other weaker section to protect them from social injustice and all forms of exploitation. The expression "weaker section" comprise of the section of people who are socially and economically backward and it takes within its campass individuals who constitute weaker part of society which certainly encompasses the individuals belonging to the category of below poverty line. The State has carved out the manner for identification of the weaker section of the society by issuing guidelines for identification and the notifications issued in this regard in defining and determining the child belonging to the weaker section and disadvantage group. 16 19. He submitted that on 08.09.2006, the Secretary, Panchayat and Rural Development Department has directed the Collectors of all the District of the State of Chhattisgarh and the Chief Executive Officer of District Panchayat, Chhattisgarh for revising the cut-off marks for identification of the BPL families and have directed to prepare a final list of BPL family as per Form-1 in an ascending order of mark on village wise and Gram Panchayat wise basis and to submit the information of the results of the BPL survey 2002- 2003 in Form-III to the Joint Commissioner at the office of Development Commissioner Office, Vikas Bhawan Civil Lines Raipur. As per order dated 21.03.2007 issued by the Panchayat and Rural Development Department Chhattisgarh, it has been informed to all the Collectors of the State of Chhattisgarh and all the Chief Executive Officers Zila Panchayat that a decision has been taken that the B.P.L. list 2002 should be implemented from 26th January 2007 and in consonance with the direction of the Government of India dated 13.09.2002 and the guidelines framed for identification of the families Below Poverty Line based on the cardinal indicators and scores assigned on the relative scale, a survey was conducted for determining the families coming under the B.P.L. list and for identifying the B.P.L. families certain cardinal indicators have been laid down depending upon the financial and social status and marks have been determined for various heads. Thirteen point cardinal indicators have been laid down and form has to be filled up in determining a family to be a B.P.L..Family. A 17 form as per Annexure-1, 2 & 3 has to be filled-up and on the basis of the form filled-up marks were given to the family and the family thereafter is being listed up as a B.P.L. family. A final B.P.L. family list was prepared and a survey being conducted on the basis of Thirteen cardinal indicators the B.P.L. Families are being identified. The survey that has been conducted for the determination of B.P.L. Family itself shows that the criteria being adopted by the State Government for identifying the B.P.L. Family itself is the criteria for the families belonging to the economically weaker section and hence the above survey and the procedure adopted by the respondent-State for determination of economically weaker section is in consonance and is accordance to the Section 2(d) & 2(e) of the RTE Act. 20. He further submitted that vide letter dated 25.07.2017 issued by the Secretary, School Education Department to the Director of Directorate of Public Instructions has sought a proposal from the Directorate of Public Instructions for defining the eligibility of the beneficiaries for beneficiary oriented projects, considering the figures on the basis of their social, economical and caste census 2011 for implementation of the various State and Central fostered projects. The Director of Directorate of Public Instructions vide its letter dated 30.12.2017 addressed to the Principal Secretary, School Education Department has given information with regard to the determination of the beneficiaries in various departmental projects on the basis of their social, economical and caste wise 18 census and have proposed to include certain other indices in the child belonging to weaker section category which includes family belonging to homeless and scavengers, bonded labours being released legally under the deprivation indicator and family living in kutchcha (mud-brick) House or living in a one room house, child belonging to a family who is not having a major person belonging to the age group about 16-59 years family having disabled members, Scheduled Caste, Scheduled Tribe families, land less families earning on the daily wages basis, child who is HIV Positive or whose parents or guardian is HIV Positive. The figure received from social, economical and caste census 2011 has to be considered for the above mentioned determination of child belonging to weaker section. It has been further been opined that the proposal should be kept before the Cabinet for considering the mentioned categories being eligible as a beneficiary for the project. On 05.03.2019 the Director, Directorate Public instructions, Chhattisgarh has informed the Secretary, School Education Department for taking decision with respect to the issuance of notification for determination of the child belonging to weaker section for effective implementation of the RTE Act Act. The notification dated 23.08.2011 and amendment dated 08.05.2014 have been issued defining the weaker section but in order to comply the expectation and the direction of this Court in WP(PIL) No. 22 of 2016 a decision has to be taken by the State Government defining weaker section. He also submitted that from 19 the perusal of the methodology adopted for preparation of the BPL list, it is evident that the criteria adopted for identification of BPL families itself identifies the child belonging to the weaker section and thus entitling him or her to be the beneficiary of RTE Act. As such, the writ petition (PIL) deserves to be dismissed. 21. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also perused the documents appended with writ petition and the return filed by respondents No.2 to 4. 22. After the Constitution (Eighty-sixth Amendment) Act, 2002, which inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right, and with the advent of the Right of Children to Free and Compulsory Education Act, 2009, ensuring free and compulsory education to all children of the age of six to fourteen years became a solemn responsibility and commitment on the part of state. 23. Let us now briefly traverse across the journey for providing free and compulsory education for children in India. The first official document on the Right to Education was the Ramamurti Committee Report in 1990. In 1993, the Hon'ble Supreme Court‟s landmark judgment in Unnikrishnan JP v. State of Andhra Pradesh & Others, 1993 SCC (1) 645 held that education is a fundamental right flowing from Article 21. Tapas Majumdar Committee (1999) was set up, which encompassed insertion of 20 Article 21-A. The 86th Constitutional Amendment in 2002 provided Right to Education as a fundamental right in Part-III of the Constitution. It inserted Article 21-A which made Right to Education a fundamental right for children between 6-14 years and was followed up by the legislation - RTE Act. 24. The Preamble, the Fundamental Rights and the Directive Principles of State Policy forming the Golden Trinity are the soul of the Constitution. The Preamble visualizes to remove economic inequalities and to secure to all citizens of India, Justice - Social, Economic and Political, which in its substance is the sum total of the aspirations as enshrined in the Part IV of the Constitution. 25. Economic empowerment to the weaker sections of the society is a fundamental requirement for ensuring equality of status and to promote fraternity assuring dignity as envisioned by the founding fathers of our Constitution. Therefore, any positive discrimination in favour of the weak or disadvantaged class of people by means of a valid classification has been treated as an affirmative action on the part of the State. The Preamble to the Constitution and the Directive Principles of the State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from the society. 26. The Constitution of India was amended by the Eighty-sixth Amendment Act, 2002, to include the right to education as a fundamental right under Article 21-A providing that “the State shall provide free and compulsory education to all children of the age of 21 six to fourteen years in such manner as the State may, by law, determine.” 27. The RTE Act, being the consequential legislation envisaged under Article 21-A, provides that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. 28. Article 21-A and the RTE Act came into effect on 1st April 2010. The long title of the RTE Act reads as “a Bill to provide for free and compulsory education to all children of the age of six to fourteen years.” The words incorporated therein are ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this enactment, India moved forward to a rights-based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act. 22 29. The Statement of Objects and Reasons of the RTE Act is furnished hereunder: “The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State shall provide free and compulsory education to all children up to the age of fourteen years. Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education. 2. Article 21A, as inserted by the Constitution (Eighty- sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine. 3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide,— (a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; 23 (b) ‘compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education; (c) ‘free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education; (d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and (e) a system for protection of the right of children and a decentralized grievance redressal mechanism. 4. 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. 5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in article 21-A of the Constitution. 6. The Bill seeks to achieve this objective.” 24 30. Furthermore, in the case of Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, the Hon’ble Supreme Court while upholding the constitutionality of the RTE Act held as under: “27. At the outset, it may be stated, that fundamental rights have two aspects─they act as fetters on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State’s endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word '“for” in Article 45 is a preposition. The word “education” was read into Article 21 by the judgments of this Court. However, Article 21 merely declared “education” to fall within the contours of right to live. 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 25 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. 38. The 2009 Act not only encompasses the aspects of right of children to free and 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 non-minority 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. 39. In T.M.A. Pai Foundation [(2002) 8 SCC 481] , this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students 26 belonging to weaker sections of the society by giving them freeships, if not granted by the Government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6). 40. Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), a private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects viz. upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools. 41. We also do not see any merit in the contention that Section 12(1)(c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to Class I, to the extent of 25% of the strength of the class, of the children belonging to weaker sections and disadvantaged group in the neighbourhood and 27 provide free and compulsory elementary education to them till its completion. The emphasis is on “free and compulsory education”. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees.” 31. Therefore, the right of children to free and compulsory education guaranteed under Article 21-A and the RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. In exercise of the powers conferred upon the appropriate Government under Section 38 of the RTE Act, the Government shall frame rules for carrying out the purposes of this Act. 32. Considering the submissions advanced by learned counsel of the parties, also considering the grievance raised by the petitioner by way of this public interest litigation, documents annexed with public interest litigation and return filed by respondents No.2 to 4 and the law laid down by the Supreme Court in the above-stated judgment and the provisions contained in the RTE Act and from the above analysis, we find that there appears to be no clear road 28 map by the State Government on the above subject. As such, this Court deem it appropriate to direct the respondent-State to frame the policy with respect to the Right of Children to Free and Compulsory Education to the children belonging to ‘Economically Weaker Section’ in order to enable to achieve the spirit and object of the RTE Act as enshrined in Article 21A of the Constitution of India in accordance with the law, as early as possible preferably within a period of six months from today. Order accordingly. 33. With the aforesaid direction / observation, the writ petition (PIL) finally stands disposed of. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Order Date : 26th March, 2025 Bablu