Albert K.P. v Union of India, State of Kerala, Central Board of Secondary Education (CBSE), and Council for the Indian School Certificate Examinations (CISCE)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **MONDAY, THE 3RD DAY OF APRIL 2023 / 13TH CHAITHRA, 1945** ## **WP(C) NO. 18727 OF 2020** ## **PETITIONER:** ALBERT K.P., AGED 51 YEARS S/O. K.J.PHILIP, KOLLAMPARAMBIL HOUSE, MADAPATT ROAD, VENNALA PO, CHALLIKAVATTOM, ERNAKULAM DIST, PIN 682 028. BY ADVS. SRI. A. P. SAMAL KUMAR SRI.T. M. SUDHEER SRI. K. K. VINOD ## **RESPONDENTS:** 1 UNION OF INDIA REP. BY ITS JOINT SECRETARY, MINISTRY OF SCHOOL EDUCATION AND LITERACY, HUMAN RESOURCE AND DEVELOPMENT, 217-C SHASTRI BHAVAN, NEW DELHI-110001. 2 STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF PUBLIC INSTRUCTION, ROOM NO.302 3RD FLOOR, ANNEX-II, SECRETARIAT, THIRUVANANTHAPURAM-695 001. - 3 THE CHAIRMAN (CBSE) CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA 2, COMMUNITY CENTR, PREET VIHAR, DELHI-110092. - 4 THE CHAIRMAN, (ICSF) COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATION, PRAGATI HOUSE, 3RD FLOOR, 47-48 PLACE, NEW DELHI-110019. BY ADV. SRI. P. VIJAYAKUMAR, ASG OF INDIA BY ADV. SRI.RANJITH THAMPAN, BY ADV. SRI. NIRMAL S., SC, CBSE BY ADV. SRI. M. T. SURESH KUMAR, SC, CISCE WP(C): 18727/2020 -:2:- BY SENIOR GOVERNMENT PLEADER SRI.V.TEKCHAND BY ADVS. SRI.R.RENJITH SRI.DARSAN SOMANATH SRI.RAFEEZ NOOH BY ADV. SRI. MANU S., DSG OF INDIA **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C): 18727/2020 -:3:- ## **JUDGMENT** Dated this the 3[rd] day of April, 2023 ## **S. Manikumar, CJ** Instant Public Interest Litigation is filed by the petitioner seeking for the following reliefs: - (i) Issue a writ, order or direction in the nature of mandamus to all the respondents, to take appropriate steps to appoint officers to assess actual tuition fee for conducting online classes, and devise appropriate mechanism to identify eligible students based on income of parents through current situation; - (ii) Issue a writ, order or direction in the nature of mandamus to respondents 1 and 2, to ensure that properly assessed tuition for education upto elementary level for all eligible students are directly paid to such schools referred to in Section 2(n)(iv) of the Act for the balance academic year by Central and State Governments. - (iii) Issue a writ, order or direction in the nature of mandamus to respondent No.2 to appoint a Deputy Director of Education level officer in each district who will be the point officer in that district for ensuring that no such incidents of discontinuation of studies due to lack of payment of fees happens. ## 2. Short facts leading to the filing of the instant writ petition are as under: WP(C): 18727/2020 -:4:- 2.1. The petitioner herein is a social worker residing in Chalikkavattom, Ernakulam. He has filed this public interest writ petition to alleviate the sufferings of a section of parents whose children are studying in private schools mainly affiliated to CBSE/ ICSE or following state syllabus. Such schools are not getting any financial assistance or grants from the government or local authority and hence depending on fee from students to meet their operational expenses including salary to teachers. Hence, such schools are raising continuous demand for payments of fees in spite of lock down and COVID-19 related recession. In support of his contentions, petitioner has referred to certain newspaper articles (Exhibits-P2 P3 and P4). 2.2. Petitioner has further stated that after the COVID-19 pandemic break out in the world, India is also badly affected. Many parents who choose to sent their children in CBSE/ICSE/ Private management schools are now struggling to meet school fee due to job loss or economic slow-down. As Article 21-A guarantees right to education as a fundamental right and provides for free and compulsory education to all children in the age group of 6 14 years. Many students who are pursuing their – elementary WP(C): 18727/2020 -:5:- education in schools other than those funded or aided by the government are now finding it difficult to pursue their elementary education due to the sudden financial hardship faced by their parents which results in defaulting of school fees and consequent danger of halting of studies. 2.3. Petitioner has further stated that the Right of Children to Free and Compulsory Act, 2009 which embodies the spirit of Article 21-A has provision for providing financial assistance to such schools. The Central and State Governments should step in at this most vulnerable time and provide necessary financial support and solace to the suffering students and parents. Appropriate government shall step in to device mechanism to identify such needy students and provide help to them to carry on with their education. The Act only prohibits claiming the cost of elementary education as reimbursement by the parents or guardians. Otherwise, nothing prevents the Government from coming forward and extending financial aid directly to such schools. Such an extra-ordinary act would be highly appreciated during the time of crises. Petitioner has also stated that respondents 1 and 2 are bound to give such a relief during the WP(C): 18727/2020 -:6:- grave situation, to uphold the true spirit of Article 21-A of the Constitution of India. Hence, this writ petition. 3. Grounds, on the basis of which averments were made by the petitioner, are as under: - A. Frequent demanding of fees by CBSE/ICSE/Private Management schools have resulted in a situation wherein most of the parents find it hard to continue with studies of their children, as they are rendered income less by continuous lock downs and resultant economic slow down. As children are on the verge of discontinuing studies, State shall step in and provide elementary education to those who cannot afford to pay tuition fees. - B. It is further contended that private schools also falls within the definition of schools in the Act as per the provisions of clause (n) of Section 2 and as such, students shall not be discriminated in not being able to carry forward their studies just because of the fact that their parents are incapacitated to pay school fees, due to sudden and adverse economic conditions. - C. Such schools falling under sub-clause (iv) of clause (n) of Section 2 are also at par with other schools falling under sub-clauses (i) and (ii) of clause (n) of Section (2) of the Act, in so far as they are also imparting elementary education to all the children WP(C): 18727/2020 -:7:- aged between six to fourteen years as per the mandate of Article 21-A and is in no way outside the purview of the Act. - D. It is further contended that only claiming reimbursement of cost of elementary education by parents or guardians of children studying in schools falling within the purview of sub-clause (iv) of clause (n) of Section 2 is barred by Section 8 of Act. Act does not bar payment of fees by appropriate Government directly to such schools, as envisaged in sub-section 2 of Section 12 of the Act. - E. It is further contended that this Court has the jurisdiction to entertain and try this Petition. The petitioner craves leave to alter, amend or add to this Petition. The petitioner espouses the cause of safeguarding the educational rights of children, including parent's, guaranteed under Article 21-A of the Constitution. ## 4. On 22.09.2020, a Hon'ble Division Bench passed the ## following order: “Inviting the attention of the Court to the provisions in Right of Children to Free and Compulsory Education Act, 2009, Mr. Nirmal S., leamed Standing Counsel for CBSE submitted that CBSE is only an affiliating examining body for CBSE schools, whether aided or unaided. According to him, with respect to the unaided schools as per clause (iv) of sub-section (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, the appropriate Government would WP(C): 18727/2020 -:8:- be the State Government, which has to provide a specific grant for free and compulsory education to every child of the age of 6 to 14 years. Appropriate Government as defined in Section 2 (1) of the Right of Children to Free and Compulsory Education Act, 2009 indicates that in relation to a school established, owned or controlled by the Central Government, or the Administrator of the Union Territory, having no legislature, it is the Central Government which is the appropriate Government. In the light of the above provision, we require appropriate response from the State / Central Governments as well as ICSF, respondents 1, 2 and 4 respectively. Mr. Nirmal S., Standing Counsel appearing for the Central Board of Secondary Education, Delhi, respondent No. 3 shall file an affidavit / statement as the case may be. Respondents shall file the counter affidavit / statement within one week from today. Post on 07.10.2020.” 5. Refuting the averments made by the petitioner and the reliefs sought for, the Central Board of Secondary Education (CBSE), New Delhi, through their standing counsel has filed a statement dated 30.09.2020, wherein they have referred to the statutory provisions, which are extracted hereunder: - A. When the matter came up on 22.09.2020, the 3[rd] respondent submitted that the appropriate Government to provide a specific grant free and compulsory education with respect to unaided schools as per clause (iv) of subsection (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009 would be the respective State Governments. The court further directed WP(C): 18727/2020 -:9:- the standing counsel for file a statement in this regard. The relevant provisions under the RTE Act & rules along with the law laid down by various High Courts in this regard is submitted hereunder:- - B. The Right of Children to Free and Compulsory Education Act, 2009 was formulated under Article 21A of the Constitution of India to impart free and compulsory education for children between the age of 6 to 14 years in India. - C. Section 2(a) defines “appropriate Government” to mean,- - (i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government; - (ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of-- - (A) a State, the State Government; - (B) a Union territory having legislature, the Government of that Union territory; - D. Section 2(n) defines “school” to mean any recognised school imparting elementary education and includes- - (i) a school established, owned or controlled by the appropriate Government or a 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; WP(C): 18727/2020 -:10:- - E. Chapter III of the RTE Act, 2009 deals with the duties of appropriate Government, local authority and parents. In chapter III, Section 6 speaks about duty of appropriate Government and local authority to establish school. Section 6 states that For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area or limits of neighbourhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act. - F. Section 7 speaks about sharing of financial and other responsibilities and it reads thus: - (1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act. - (2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act. - (3) The Central Government shall provide to the State Governments, as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State Governments. - (4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of Article 280 to examine the need for additional resources to be provided WP(C): 18727/2020 -:11:- to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act. (5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the sums provided by the Central Government to a State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act. (6) The Central Government shall-- - (a) develop a framework of national curriculum with the help of academic authority specified under Section 29; - (b) develop and enforce standards for training of teachers; - (c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building. - G. Article 280 of the Constitution of India deals with the Constitution and power of the Finance Commission. As per sub-clause (d) of Clause (3) of Article 280 of the Constitution of India: (3) It shall be the duty of the Commission to make recommendations to the President as to- (d) any other matter referred to the Commission by the President in the interests of sound finance. H. Further, as per Section 8 of the RTE Act, 2009, the appropriate Government shall,- “(a) provide free and compulsory elementary education to every child: WP(C): 18727/2020 -:12:- Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.” - I. Further, Section 12 of the RTE Act, 2009 speaks about the responsibilities of schools and teachers. ## “ **12. Extent of school’s responsibility for free and compulsory education** . (1) For the purposes of this Act, a school,- (a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein; (b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall 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: Provided 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. (2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall WP(C): 18727/2020 -:13:- 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: Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be. J. Apart from the above, the 3[rd] respondent has referred to the provisions of Right of Children to Free and Compulsory Education Rules, 2010. Said rules were framed in exercise of the powers conferred by Section 38 of the RTE Act, 2009. Rule 7 of the RTE Rules, reads thus: “7. Financial Responsibility of the Central Government. (1) The Central Government shall prepare annual estimates of capital and recurring expenditure for carrying out the provisions of the Act, for a period of five years, within one month of the appointed date, which may be reviewed for every three years. (2) In order to implement the provisions of the Act, the Central Government shall, within a period of six months of the appointed date, ensure that its programmes for elementary education are in conformity with the provisions of the Act. WP(C): 18727/2020 -:14:- (3) The Central Government shall, within a period of six months from the appointed date, hold consultation with the State Governments and determine the percentage of expenditure which it shall provide to the State Governments as grants-in-aid of revenues for implementation of the Act. (4) Within one month of the appointed date, the Central Government shall cause a reference to be made to the Finance Commission, and cause similar references to be made every time the estimates are revised: Provided that in case there is no Finance Commission in existence at the time of a particular reference, the Central Government may set up an alternative mechanism for the purpose of providing resources to the State Governments.” K. Further, the responsibilities of the appropriate Government and local authority are enumerated in Rule 9, which reads as under: “ _**9. Responsibilities of the appropriate Government and local authority**_ ,- (1) A child attending a school of the appropriate Government or local authority referred to in sub-clause (i) of clause (n) of Section 2, a child attending a school referred to in sub-clause (ii) of clause (n) of Section 2 in accordance with clause (b) of sub-section (1) of Section 12, and a child attending a school referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 in accordance with clause (c) of sub-section (1) of Section 12 shall be entitled to free education as provided for in subsection (2) of Section 3 of the Act, and in particular to free text books, writing materials and uniforms: Provided that a child with disability shall be entitled also for free special learning and support material. Explanation. For the purposes of sub-rule (1), it may be stated that in respect of the child admitted in accordance with clause (b) of sub-section (1) of Section 12 and a child admitted in accordance with clause (c) of subsection (1) of Section 12, the responsibility of providing the free entitlement shall be of the school referred to in WP(C): 18727/2020 -:15:- sub-clause (ii) of clause (n) of Section 2 and of sub-clauses (iii) and (iv) of clause (n) of Section 2, respectively. (2) For the purpose of determining and for establishing neighbourhood schools, the appropriate government or the local authority shall undertake school mapping, and identify all children, including children in remote areas, children with disability, children belonging to disadvantaged group, children belonging to weaker section and children referred to in Section 4, within a period of one year from the appointed date, and every year thereafter. (3) The appropriate Government or the local authority shall ensure that no child is subjected to caste, class, religious or gender abuse in the school. (4) For the purposes of clause (c) of section 8 and clause (c) of Section 9, the appropriate Government and the local authority shall ensure that a child belonging to a weaker section and a child belonging to disadvantaged group is not segregated or discriminated against in the classroom, during mid-day meals, in the play grounds, in the use of common drinking water and toilet facilities, and in the cleaning of toilets or classrooms.” L. Rule 11 of the said rules deals with Admission of children belonging to weaker section and disadvantaged group. Rule 11 reads as under: “ **11. Admission of children belonging to weaker section and disadvantaged group** . (1) The school referred to in clauses (iii) and (iv) of clause (n) of Section 2 shall ensure that children admitted in accordance with clause (c) of sub-section (1) of Section 12 shall not be segregated from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children. (2) The school referred to in clauses (iii) and (iv) of clause (n) of Section 2 shall ensure that children admitted in accordance with clause (c) of sub-section (1) of Section 12 WP(C): 18727/2020 -:16:- shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as text books, uniforms, library and Information, Communication and Technology (ICT) facilities, extracurricular and sports. (3) The area or limits of neighbourhood specified in subrule (1) of Rule 6 shall apply to admissions made in accordance with clause (c) of sub-section (1) of Section 12: Provided that the school may, for the purposes of filling up the requisite percentage of seats for children referred to in clause (c) of sub-section (1) of section 12, extend these areas or limits with the prior approval of the appropriate Government.” M. Rule 12 of the RTE Rules, 2010 speaks about reimbursement of per-child-expenditure by the appropriate Government and it reads thus: ## “ **12. Reimbursement of per-child-expenditure by the appropriate Government** . (1) The total annual recurring expenditure incurred by the appropriate Government, from its own funds, and funds provided by the Central Government and by any other authority, on elementary education in respect of all schools referred to in sub-clause (i) of clause (n) of Section 2, divided by the total number of children enrolled in all such schools, shall be the per-childexpenditure incurred by the appropriate Government. Explanation. For the purpose of determining the per-child-expenditure, the expenditure incurred by the appropriate Government or local authority on schools referred to in sub-clause (ii) of clause (n) of Section 2 and the children enrolled in such schools shall not be included. (2) Every school referred to in clauses (iii) and (iv) of clause (n) of Section 2 shall maintain a separate bank account in respect of the amount received by it as reimbursement under sub-section (2) of Section 12.” WP(C): 18727/2020 -:17:- N. It is further contended that the Government of Kerala have also framed Right of Children to Free and Compulsory Education Rules, 2011, in exercise of the powers conferred by Section 38 of the RTE Act, 2009. Rule 8 of the said Rules, 2011 speaks about responsibilities of the Government and local authority and it reads thus: “Rule 8: Responsibilities of the Government and local authority.- (1) A child attending a school referred to in sub-clause (i) and (ii) of clause (n) of Section 2, and a child attending a school referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall be entitled to free education and in particular to free text books, writing materials, uniforms, free transportation and residential facilities. The 2[nd] Explanation to Rule 8 reads as under: “Explanation:- For the purposes of sub-rule (1), in respect of a child admitted as provided in clause (c) of sub-section (1) of Section 12, the responsibility of providing free entitlements shall be of the school referred to in sub-clauses (iii) and (iv) of clause (n) of section 2, respectively.” O. Further, Rule 11 in Part V of the Kerala RTE Rules, 2011 speaks about reimbursement of per-child-expenditure by the Government and it reads thus: “ **11** . **Reimbursement of per-child-expenditure by the Government.** — (1) The ratio between total annual recurring expenditure incurred by the Government, from the Consolidated Fund and fund provided by the Central Government or any other authority, on elementary education in respect of all Government and local authority schools referred to in sub-clause (i) of clause (n) of section 2, and total number of children enrolled in all such schools, shall be the per-child-expenditure incurred by the Government. **Explanation** .-1. For the purpose of determining the WP(C): 18727/2020 -:18:- per-child-expenditure, the expenditure incurred by the Government or local authority on schools referred to in sub-clause (ii) of clause (n) of section 2 and the children enrolled in such schools shall not be included. (2)(a) The Government shall constitute a committee comprising of Secretary (Finance), Secretary (General Education), Secretary (Local Self Government), Director of Public Instruction and Director (Sarva Siksha Abhiyan) to assess the per-child-expenditure for the next academic year. (3) The committee shall meet three months after the appointed date and thereafter every year during the month of September. (4) The reimbursement of expenditure incurred by a school under specified category and an un-aided school on the children admitted under clause (c) of sub-section (1) of Section 12 shall be made directly through electronic transfer to a separate bank account maintained by the school in two instalments during the academic year. The first instalment of 50% shall be reimbursed during the month of September and balance during the month of January. The second instalment shall be made after verification of the retention and attendance of such children subject to a minimum of 80% and the pupil cumulative record. (5) Every school referred to in sub-clauses (iii) and (iv) of clause (n) of section 2 shall maintain a separate bank account in respect of the amount received by it as WP(C): 18727/2020 -:19:- reimbursement under sub-section (2) of section 12. (6) Every school shall provide such information as may be called for by the Government or the local authority under this rule.” P. It was further contended that the Central Board of Secondary Education has framed affiliation to what the chargeable fees should be by the schools affiliated to the Board. Chapter of the CBSE Bye-laws 2018 deals with School fees with respect to.- _Societies/trust/companies are required to run schools without any profit motive in accordance with the provisions contained in these bye-laws. The school shall endeavour to charge fees to the extent the expenses for running the school are met. Schools shall follow the following norms in respect of the fees charged from pupils:_ _7.1 No society/Trust/Company/School shall charge capitation fee or accept donations for the purposes of admissible for pupils._ _7.2 Admission fee and Fee charged under any other head are to be charged only as per the regulations of the Appropriate Government._ _7.3 Fees shall be charged under the heads prescribed by the Department of Education of the State/UTs._ ## _7.4 REFUND OF FEES:_ _In case not other provided by the Appropriate Government, in the event of a student discontinuing the studies wishing to migrate to some other schools, dues shall be collected only upto the month of discontinuance or migration and not up to the month in which the transfer certificate is applied for. This shall apply to all Heads of fee._ ## _7.5 FEE REVISION:_ _7.5.1 Fee revision of schools shall be subject to laws, regulation and directions of the Appropriate Government._ WP(C): 18727/2020 -:20:- _7.5.2 Fees shall not be revised without the express approval of the School Management Committee or the process prescribed by the Appropriate Government under any circumstances._ _7.6 The acts and regulations of the Central and State/UT Governments enacted/framed in connection with regulation of fee in respect of various categories of the schools situated in the State will be applicable to the school affiliated with CBSE also._ _7.7 For schools situated in foreign countries a transparent process, as per the applicable laws and regulations of the country where the school is situated, shall be followed in respect of all matters related to fee and revision of fee etc._ - Q. Therefore, it is contended that schools can only charge fees to the extent the expenses for running the school are met and the levy of fees is to be without any profit motive. Also the revision of school fees is subject to laws and regulations of the appropriate Government. - R. In support of the contention raised by the CBSE that appropriate Government is the State Government to provide specific grant for free and compulsory education, the learned standing counsel has relied on the decision of the Madras High Court in **Lakshmi School, Veerappachan, Karuppayurani Post, Madura and Ors.** v. **State of Tamil Nadu and others** reported in **2012 (7) MLJ 301** , wherein at paragraph 76, it was held thus: - “In the absence of any Central Act or any statutory body, to regulate these schools, education, being the subject in Entry 25 of List-III of Schedule VIII of the Constitution of India, State Government does have control to regulate these schools” - S. Learned standing counsel also placed reliance on the decision of the Delhi High Court in **Justice or All** v. **Govt.** WP(C): 18727/2020 -:21:- **of NCT of Delhi and Ors.** reported in **MANU/DE/1740/2020** , wherein it was held that in the first instance, the State Government shall be responsible for implementation of the RTE Act, 2009. - T. Finally, he contended that going by the above referred decisions and the relevant provisions of RTE Act and rules, the private unaided school has to provide free education to children belonging to weaker section & disadvantaged group. The school can also seek reimbursement of the cost incurred from the respective State Government. 6. The 2[nd] respondent – State of Kerala, represented by its Secretary, Department of Public Instructions, Thiruvananthapuram has filed a statement dated 07.10.2020, wherein it is, _inter alia_ , contended as under: - A. By following the spirit of the Directive Principles of State Policy, Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009, which mandates free and compulsory education to all children up to the age of 14 years. Section 2(f) of the Right of Children to Free and Compulsory Education Act, 2009 define the word 'elementary education' and brought education from 1[st] class to 8[th] class under the purview of the Act. - B. In 2016, the Hon'ble Vice President of India, Sri. Hameed Ansari honoured the State of Kerala for becoming the first State in India to achieve 100% of Primary Education. In order WP(C): 18727/2020 -:22:- to achieve the same, State of Kerala devised its own Literacy Programme viz., 'Athulyam' through this Literacy Programme, State of Kerala wanted to educate those, who had been unable to complete their primary education up to 4[th] Standard. The General Education Department of Government of Kerala is managing as many as 14000 schools in Kerala, which includes Government, Aided and Unaided schools. - C. The Parliament, in fact, consciously used the word 'neighbourhood school' in Section 3 of the Right of Children to Free and Compulsory Education Act, 2009. The State of Kerala is achieved Human Development Index, equal to the developed countries of the world, by way of education. For that, Government established its own schools in each Village. Considering the general scenario prevailing in the State of Kerala, pupils need not go to Unaided Schools, because they could afford more than one neighbouring Government School within their area. Section 3(1) of the Right of Children to Free and Compulsory Education Act, 2009, is referred herein after; “ _Section 3 – Right of Child to Free and Compulsory Education (1) every child of the age of 6 to 14 years shall have a right to Free and Compulsory Education in a neighbourhood school, till the completion of elementary education.”_ - D. Section 8 of the Act, 2009 provides duties of appropriate Government, in which, it has specifically stated that the parents or child could not claim reimbursement of expenditure incurred on elementary education in such other schools by overlooking the availability of schools established or controlled by the appropriate Government. The aforesaid provision is referred hereinafter,- WP(C): 18727/2020 -:23:- “ _Section 8 – duties of appropriate Government – the appropriate Government shall - (a) provide Free and Compulsory Elementary Education to every child,_ _Provided that, where a child is admitted by his or her parents or guardian as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a Local authority, such child or his or her parents or guardians, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school._ _“Section 10 – impose duty on parents and guardians, whereby, it has required the parents to admit their children in the neighbourhood schools.”_ - E. By invoking the powers conferred under Section 38 of the Right of Children to Free and Compulsory Education Act, 2009, the State of Kerala framed Rules in 2011, namely the Kerala Right of Children to Free and Compulsory Education Rules, 2011. Rule 2(1)(o) defines, neighbourhood, which is referred herein after; _Rule 2(1)(o) - neighbourhood means, the area near or within a walkable distance of an elementary school referred to in Sub Clauses (i) and (ii) of Clause (n) of Section 2 of the Act and shall include areas of such school in adjacent local bodies. Rule 2 (1)(t) defines the word 'walking distance', which is referred herein after;_ _'walking distance' means, the maximum distance of one Kilometer in respect of a child studying in Standard 1 to 5 and 3 (three) Kilometer in respect of a child studying in Standard 6 to 8 covered by a child from his residence to the school on the shortest, generally accepted path._ - F. The combined reading of the provisions of the Act 2009 and Rules, 2011, would show that, parents of a child cannot choose schools bypassing the limitation imposed by the Statute, which WP(C): 18727/2020 -:24:- strictly require the parents to admit the neighbouring school for getting the benefit of the 2009 Act. Considering the walking distance provided in the Rules, a child in Kerala can get admission in a neighbouring Government School and Aided Schools within the walking distance provided in the Rules. G. The following Table would show details regarding Government, Aided and recognised Unaided Schools in Kerala. |Type|LP|UP|HS|HSS|VHSE|Total| |---|---|---|---|---|---|---| |Government|2749|867|1266|852|261|5995| |Aided|3919|1873|1444|846|128|8210| |Unaided|367|271|806|379|NA|1823| H. Hence, it is further contended that the prayer of the petitioner to disburse tuition fees to the schools referred in Section 2(n) (iv) of the Act, 2009, is not sustainable, considering the lack of statutory provision to support the claim of the petitioner. In the absence of binding statutory provision, the petitioner cannot approach this Court by way of writ of mandamus. For the foregoing reasons 2[nd] respondent prayed for dismissal of the writ petition, since it is devoid of merit. 7. The Assistant Solicitor General of India, on behalf of the 1[st] respondent – Union of India, represented by its Joint Secretary, Ministry of School Education and Literacy, Human Resource and Development, New Delhi, has filed a statement dated 19.10.2020, reiterating the contentions made and the rules and decisions relied on by the learned standing counsel for the CBSE in their statement. Relevant portion of said statement is reproduced: WP(C): 18727/2020 -:25:- A. It is submitted that Education is a subject in the Concurrent List of the Constitution and majority of schools are under the jurisdiction of the State Government/UTs irrespective of the Education Board. Thus, the mater relating to fees and its components in schools are regulated in terms of Rules and instructions of the State Government/UT concerned. B. Referring to Section 2(n) of the RTE Act, 2009, it is submitted that school is defined as any recognised school imparting elementary education and includes (i) a school established, owned and controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grant to meet whole or part of its expenses from the appropriate Government or the local authority; 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; C. Referring to Section 3(1) of the RTE Act, 2009, it is further submitted that every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till the completion of elementary education. RTE Act also provides support for the studies of children belonging to weaker section and disadvantaged group studying in schools falling under Section 2(n)(iv) of the Act. D. Referring to Section 12(1)(c) of the RTE Act, 2009 , it is further submitted that school specified in sub clauses (iii) and (iv) of clause (n) of Section 2 shall admit in Class I, 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 education till its completion. Referring to the proviso to said section, it is further submitted 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. E. Referring to Section 12(2) of the RTE Act, 2009, it is WP(C): 18727/2020 -:26:- further submitted that the school specified in sub-clause (iv) of clause (n) of Section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall reimburse the 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 matter, 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. F. Apart from the above statutory provisions, the ASGI has also placed reliance on the decision in _**Lakshmi School Veerappanchan Karuppayurani Post, Madurai & Others v. State of Tamil Nadu and Others,**_ [judgment dated 21.09.2012 in W.P. No.15373/2011 and other connected cases] reported in MANU/TN/1289/2012, wherein the Hon’ble Madras High Court held thus: “It is incorrect to state that State Government is totally alien to have a control over the CBSE Schools under Section 2(a)(ii) (A) and appropriate Government for all the Schools established within the territory of the State is only State Government, which can exercise domain over all the States including CBSE and ICSE Schools. The ultimate object of the T.N. Schools Fee Act, 2009 is to regulate the collection of fee by schools in the State of Tamil Nadu. Excluding the CBSE Schools and ICSE Schools from the ambit of the Act would defeat the object of the Act. Now by virtue of Section 12(1)(c) of Right of Children to Free and Compulsory Education Act, all the schools established within the territory of the State shall admit students to the extent of 25% of the strength of the Class from among the children belonging to the weaker sections and disadvantaged group. The expenditure incurred by the Schools for WP(C): 18727/2020 -:27:- providing free and compulsory education to those students of weaker sections and disadvantaged group shall be reimbursed by the State as per Rule 9 of Tamil Nadu Right of Children to Free and Compulsory Education Rules. When such being the situation, the State Government should have right to regulate the collection of fee by the State.” Further, the ASGI has placed reliance on a recent judgment of the Hon’ble Delhi High Court, in _**Justice for All v. Government of NCT of Delhi and Others** ,_ [judgment dated 18.09.2020 in in W.P.(C) No.3004/2020 and other connected cases, reported in MANU/DE/1740/2020, wherein, it was held as under: “Non-discrimination is a significant aspect of the scheme of the RTE Act. Section 12(1)(c), as we have seen, creates a special quota to the extent of 25 per cent seats being reserved for students from EWS/DG categories. Section 8(c) of the RTE Act, 2009 places an obligation on the appropriate Government to ensure nondiscrimination against a student belonging to a weaker section or disadvantaged group. Further, Rule 11 of the Right of Children to Free and Compulsory Education Rules, 2010 places an obligation upon the schools (referred to in Sub-Clauses (iii) and (iv) of Clause (n) of Section 2 of the RTE Act) to ensure that children admitted in accordance with Clause (c) of Sub-Section (1) of section 12 of the Act "shall not be segregated from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children" and further, they "shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as textbooks, uniforms, library and Information, Communications and Technology (ICT) facilities, extra-curricular and sports". WP(C): 18727/2020 -:28:- Therefore, both the Act as well as the Rules, read together place obligation upon the State as well as the schools to ensure that there is no discrimination faced by any student in a classroom on any ground whatsoever. Section 12(1)(c) is well designed and cannot be restricted in its application, to not apply to a situation when the schools have adopted technology as a medium to impart education.” Therefore, , it is submitted that as per the above referred decisions and relevant provisions of the RTE Act, 2009 and the rules framed thereunder, the private schools has to provide free education to the children belonging to the weaker and disadvantaged sections of the society. The school can seek reimbursement of the cost incurred from the State Government as specified in sub-clause (i) of clause (n) of Section 2. 8. The 4[th] respondent – Chairman, (ICSF), Council for the Indian School Certificate Examinations, Pragati House, New Delhi, has filed a statement dated 27.11.2020, wherein it is contended as under: A. This statement is filed for and on behalf of the 4th respondent. The Council for the Indian School Certificate Examinations is registered as a society under the Societies Registration Act, 1860. The council is listed in the Delhi School Education Act, 1973 as a body conducting public examinations. The council is conducting three examinations such as The Indian Certificate of Secondary Education for Class —X, The Indian School Certificate for Class- XII and The certificate in Vocational Education for CVE Year 12. The present syllabus is based on the 1986 WP(C): 18727/2020 -:29:- Education policy of the Government. - B. The petitioner is seeking a balancing solution through infusion of Government fund under Right of Children to Free and Compulsory Education Act (RTE Act for brevity) during this Academic year to all schools falling under Section 2(n) (iv) of the said Act. - C. It is further contended that the online classes conducted during the pandemic period is arranged with more than double efforts normally required by a teacher due to change of the teaching methodology forced by the present grim circumstances. - D. It is further contended that as per C1SCE's Affiliation Rules, fees to be charged is to be commensurate with the facilities provided by the school. The preamble of the Right of Children to Free and Compulsory Education Act, 2009 made it clear that the Act is intended for providing free and compulsory education to all children of the age of 6 to 14 years. The Parliament had enacted the law keeping in mind that opportunity for education has been not equally distributed. The parliament obviously kept in mind the poor children with adversities of various nature and clearly identified and defined 'child belonging to disadvantaged group' as per Section 2(d) and 'child belonging to weaker Section' as per Section 2(e) and 'child with disability is defined under Section 2 (ee) of the Act. - E. A reading of the Act would show that the enactment is addressing the specific issue of denial of opportunity to WP(C): 18727/2020 -:30:- have elementary education to the children belong to the age category of 6 to 14 years. The 'free and compulsory education' in a neighbourhood school till the completion of his/her elementary education is mandated by the Act to those children who has been denied the opportunity to have elementary education and to the extent of twenty five percent of the total strength of the class. - F. The parents and children are willingly giving education to the children by admitting them in any 'school' as defined under Sections 2 (n), 2(h) or 2(o) of the Act. The pleadings in the Writ petition and the prayers sought therein are on the basis of a circumstance which is not contemplated under the Act. G. No incident has been pointed out in the Writ petition that any child is ousted from the school due to his inability to pay the fees. But, 4[th] respondent is not resisting any attempt in regulating any fees in any school if collected beyond the scope of explanation either under any law or under any directions from the Court or from the 'appropriate government'. The enactment also providing for right of transfer child to any other school under Section 5 of the Act and that any delay in producing the transfer Certificate shall not be a ground for either delaying or denying admission for the child in any other school. It is also provided that any head teacher in charge of the school in delay in issuing the transfer Certificate is liable for disciplinary action. WP(C): 18727/2020 -:31:- - H. It is also pertinent to note that variety of curriculum among various schools and opportunity to select and elect the same would only improve standard of education. - I. In this connection, the 4[th] respondent has relied on Sections 6 and 7 of the Right of Children to Free and Compulsory Education Act, 2009 which, at the risk of repetition, reads as follows:- “ **6. Duty of the appropriate Government and local authority to establish school** . - For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish within such area or limits of neighbourhood as may be prescribed a school where it is not so establish within a period of 3 years from the commencement of this Act.” Section 7 contemplates about the sharing of financial responsibilities between the Central Government and the State Government and says that it is concurrent responsibility of both Central and State for providing funds for carrying out the provisions of this Act. A reading of Section 7 is as follows;- “7 Sharing of financial and other responsibilities.- (1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act. (2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act. (3) The Central Government shall provide to the State Governments, as grants-in-aid of revenues, such percentage of expenditure referred to in WP(C): 18727/2020 -:32:- sub-section (2) as it may determine, from time to time, in consultation with the State Governments. (4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of this Act. (5) Notwithstanding anything contained in subsection (4), the State Government shall, taking into consideration the sums provided by the Central Government to a State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act. (6) The Central Government shall - (a) develop a framework of national curriculum with the help of academic authority specified under Section 29; (b) develop and enforce standards for training of teachers: (c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building. Thus, its clear from the provisions of the Act that both the State and Central, and also the local authority are given specific duties, powers and also provided for funds. J. The duties of the appropriate Government is stated in Section 8 and the term 'compulsory education' has been explained in the said Section. Proviso to Section 8(a) states that where a child is admitted in a school other WP(C): 18727/2020 -:33:- than the one established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education. The duties of the local authorities have also been explained in Section 9. A similar proviso as stated above has also been provided for Section 9. Section 10 speaks about the duties of parents and Guardian, as per which it shall be the duty of every per parent or guardian to admit or caused to be admitted his child for elementary education in the neighbourhood school. The Act also contemplates necessary actions by the Government to provide elementary education and also childhood care and education for all children until they complete the age of 6 years under Section 11. Chapter 4 of the Act provides for responsibilities of schools and teachers and the chapter 5 speaks about the curriculum and completion of elementary education. K. In Chapter 5, Section 31 provides for the National Commission for Protection of Child Rights Act constituted under Section 3 of the Act and also provided for Redressal of grievances in Section 32 of the Act. The said Section provides a complaint in writing to the local authority defined under the Act, having jurisdiction and that decision on the basis of the complaint shall be made within 3 months after affording reasonable opportunity of WP(C): 18727/2020 -:34:- being heard to the parties concerned. An appeal provision is also provided under Section 32 (3) before the state Commission for Protection of Child Rights Act. The petitioner or any person can raise any grievances before the local authorities concerned and there are specific authorities to look after the violation of the provisions of the Act and any grievances of any child with respect to the implementation of the Act. The petitioner failed to produce any evidence to show that any complaints were received by concerned local authorities as provided under Section 32 of the Act. On the contrary this Respondent has submitted a detailed report in June 2020 to the Kerala State Commission for Protection of Child Rights on the conduct of online classes by its affiliated schools in the State and compiled an empirical analysis on the basis of the responses received from schools to the questionnaire sent by the Commission on the issues of equipment being provided, physical and mental health, effectiveness of teaching methodology etc. The Commission on 18.9.2020 had passed a detailed order wherein many of the findings in this Respondent's report were taken into consideration and acknowledged. L. It is also contended that the State Government has already constituted State Advisory Council as provided under Section 34 of the Act vide notification dated 4/3/2014 with G.O.(P) No. 50/2014/G. Edn. It is pointed out that Sections 13, 18 and 19 of the Act contemplated prosecution and penalty for collecting capitation fees and WP(C): 18727/2020 -:35:- screening procedure for admission, for establishing schools without obtaining Certificate of recognition and for running schools without fulfilling norms and standards specified and for running schools after withdrawal of recognition. The definition of 'capitation fees' as per Section 2 (b) is defined to mean any kind of donation or contribution or payment other than the fee notified by the school. Section 13 (2) of the Act provides for prosecution of the school authorities for collecting any amount other than the notified fee. There is no mentioning of such complaints ever been filed before any authorities by the petitioner. It is pertinent to note that all remedies available under the Act can be utilised by the children/parents for any violation. As per of the Rule 10 (9) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 (`State Rules' for brevity), the Director of Public Instruction is authorised to impose fine under Section 13 (2) of the Act. M. With respect to the reimbursement of Per-Child Expenditure by the Government, under Rule 11 of the State Rules, a committee has been constituted comprising Secretary (Finance), Secretary (General Education) Secretary (Local Self-Government), Director of Public instructions and Director of Sarva Siksha Abhiyan. The Right of Children to free and Compulsory Education Rules, 2010 have been framed by the Central Government under the RTE Act. (`Central Rules' For brevity). As per Section 12 of the Central Rules it is stated that, reimbursement of WP(C): 18727/2020 -:36:- per child expenditure by the appropriate government shall be met from its own funds and the funds provided by the Central Government and any other authority. It is further pointed out that the Rule 11 of the State Rules regarding reimbursement of the Per-Child Expenditure and Rule 10 regarding of admission of children belonging to weaker Section is comprehensive and is addressing those issues that are likely to be faced by the children belonging to disadvantaged group, child belonging to weaker section etc. - N. With respect to the contentions in Para 6, this respondent is of the view that it is for the appropriate government to take steps for providing education to those children who are affected by negative impacts of the pandemic. The lockdown and the pandemic situation had taken away the opportunity of the minor children to be in schools and have the company of their friends and teachers but that had not affected the opportunity for learning. The concerns reflected in Paras 7 and 8 are taken care of by the respective governments and the present situation is unavoidable and it is for the governments concerned, to take appropriate steps and no one can attribute inaction on the part of the 4[th] respondent. - O. With respect to the contentions raised in para 10 of the Writ Petition, the same is projected mainly on the basis of Article 51A (k) of the Constitution which reads as follows;- - “51A(k) 'who is a parent or guardian to provide opportunities for education to his child or, as WP(C): 18727/2020 -:37:- the case may be, ward between the age of 6 and 14 years.” The said Article make it clear that every parent or guardian, who are capable of affording education to his child, shall provide him with the same. The RTE Act, 2009 has clearly defined the duties of the appropriate Government and the rules framed thereunder have made it clear the provisions for implementation of the same. The contention that the RTE Act has created a discrimination among students is not correct. Any child from a family whose annual income is lower than the minimum limit specified by the Government by notification is included as a 'child belonging to weaker Section' and a child from a family belonging to SC/ST and socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor specified by the appropriate government is treated as 'child belonging to disadvantaged group'. - P. It is further contended that a reading of the relevant provisions would clearly show that the contentions raised in the Writ petition regarding the projected conflict between Article 51A and the provisions of the RTE Act is only imaginary. - Q. It is also contended that the claim that most of the parents find it hard to continue with the studies of the children in CBSE/ICSE/Private Management schools are unfounded and are opposed to reality. While contending WP(C): 18727/2020 -:38:- that the petitioner espouses the course of safeguarding educational rights of the children guaranteed under Article 21A of the Constitution, there is nothing on record to suggest that any such constitutional right has been violated in any case. If at all there is any dispute with regard to the structure of the fees the same is to be raised before the appropriate authorities constituted by the Rules framed by the State Government. R. It is further contended that similar petitions of charging of fees for the pandemic period have been filed in various other High Courts and no High Court has barred charging of fees by the schools. Wherever necessary, concession and reduction of fees has been provided to some parents. S. The 1[st] prayer in the Writ Petition for a direction to appoint officers to assess actual tuition fees for conducting online classes is for the entire students of various schools whereas the reimbursement of the PerChild-expenditure by the Government is contemplated only for those children falling under Section 2(n)(i) of the RTE Act, 2009. Moreover, as per the State Rules, a Committee has been constituted comprising Secretaries of Finance, General Education, Local Self-Government, DPI and the Director (SSA). The 2[nd] prayer is almost identical with the 1[st] prayer. With respect to the 3[rd] prayer, any measures to identify and prevent discontinuation of elementary education by any child can be possible by reporting of the same by the school to the WP(C): 18727/2020 -:39:- ## authorities concerned. T. Finally, it is contended that the 4[th] respondent had not received any complaint so far with regard to collection of excess fees by the school authorities and to its best knowledge, many schools are charging reduced fees from students considering the present circumstances. It is also pertinent to note that as regards schools affiliated with the 4[th] respondent, online classes are conducted on regular basis and the teachers are putting in more efforts to conduct virtual classes more effectively and systematically. Any contention that physical classes are not commenced, and hence, no fees can be collected, cannot be fully accepted, as the same has other adverse consequences. For the foregoing reasons, the 4[th] respondent prayed for dismissal of the writ petition. ## 9. On 01.12.2020, a Hon'ble Division Bench, passed the following order: “Conjoint reading of the statutory provisions of the Right of Children to Free and Compulsory Education Act, 2009, in particular, Section 7 which deals with sharing of financial and other responsibilities for providing funds for the purpose of carrying out the provisions of the statute, Section 8 which deals with duties of the appropriate Government, Section 9 which deals with duties of local authority, Section 12 which deals with extent of school's responsibility for free and compulsory education, Section 18 which stipulates that no school to be established without obtaining certificate of recognition, Section 31 which deals with monitoring of child's right to education, Section 32 which deals with redressal of grievances and rules framed by the Central Government namely Right of WP(C): 18727/2020 -:40:- Children to Free and Compulsory Education Rules, 2010 as well as the Right of Children to Free and Compulsory Education Rules, 2011 framed by the Government of Kerala, makes it clear that it is the responsibility of the schools in Section 12(c) of the Act to 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 education till its completion. For brevity, provisions stated supra are extracted: “ **7. Sharing of financial and other responsibilities** .— (1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act. (2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act. (3) The Central Government shall provide to the State Governments, as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State Governments. (4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act. (5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the sums provided by the Central Government to a State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation WP(C): 18727/2020 -:41:- of the provisions of the Act. (6) The Central Government shall— (a) develop a framework of national curriculum with the help of academic authority specified under section 29; (b) develop and enforce standards for training of teachers; (c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building.” “ **8. Duties of appropriate Government** .—The appropriate Government shall— (a) provide free and compulsory elementary education to every child: Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school. _**Explanation**_ .— The term “compulsory education” means obligation of the appropriate Government to — (i) provide free elementary education to every child of the age of six to fourteen years; and (ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years; (b) ensure availability of a neighbourhood school as specified in section 6; WP(C): 18727/2020 -:42:- (c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds; (d) provide infrastructure including school building, teaching staff and learning equipment; (e) provide special training facility specified in section 4; (f) ensure and monitor admission, attendance and completion of elementary education by every child; (g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule; (h) ensure timely prescribing of curriculum and courses of study for elementary education; and (i) provide training facility for teachers.” “ **9. Duties of local authority** .—Every local authority shall—(a) provide free and compulsory elementary education to every child: Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school; (b) ensure availability of a neighbourhood school as specified in section 6; (c) ensure that the child belonging to weaker section and the child belonging to disadvantaged WP(C): 18727/2020 -:43:- group are not discriminated against and prevented from pursuing and completing elementary education on any grounds; (d) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed; (e) ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction; (f) provide infrastructure including school building, teaching staff and learning material; (g) provide special training facility specified in section 4; (h) ensure good quality elementary education conforming to the standards and norms specified in the Schedule; (i) ensure timely prescribing of curriculum and courses of study for elementary education; (j) provide training facility for teachers; (k) ensure admission of children of migrant families; (l) monitor functioning of schools within its jurisdiction; and (m) decide the academic calendar.” ## **“12. Extent of school's responsibility for free and compulsory education** .— (1) For the purposes of this Act, a school,— - (a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein; - (b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of WP(C): 18727/2020 -:44:- children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; - (c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall 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: Provided 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.” “ **18. No School to be established without obtaining certificate of recognition** .— (1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. (2) The authority prescribed under sub-section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed: Provided that no such recognition shall be granted to a school unless it fulfills norms and standards specified under section 19. (3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition: WP(C): 18727/2020 -:45:- Provided that such order shall contain a direction as to which of the neighbourhood school, the children studying in the derecognised school, shall be admitted: Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed. (4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function. (5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” **“31. Monitoring of child's right to education** . — (1) The National Commission for Protection of Child Rights constituted under section 3, or, as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely:— - (a) examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation; - (b) inquire into complaints relating to child's right to free and compulsory education; and - (c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act. WP(C): 18727/2020 -:46:- (2) The said Commissions shall, while inquiring into any matters relating to child's right to free and compulsory education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under sections 14 and 24 of the said Commissions for Protection of Child Rights Act. (3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed.” — **“32. Redressal of grievances.** (1) Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this Act may make a written complaint to the local authority having jurisdiction. (2) After receiving the complaint under subsection (1), the local authority shall decide the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned. (3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be. (4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.” WP(C): 18727/2020 -:47:- 2. Mr. Ranjith Thampan, learned Additional Advocate General submitted that so far, no schools in State of Kerala has approached the State Government for reimbursement of any fees or expenditure incurred for providing free and compulsory education to children, from the age of 6 to 14 years, belonging to weaker section and disadvantaged group in the neighbourhood. 3. From the above statement, we can only infer that in schools defined under Section 2(n) of the Act, children admitted in Class I, belonging to weaker section and disadvantaged group have paid the fees, and if so, State/Central Governments, as the case may be, may have to discharge the duties to reimburse the fees paid by such children. 4. Mr. Nirmal S., learned standing counsel for the CBSE submitted that reimbursement of the fee and other expenditure incurred by the CBSE schools affiliated to the society, have to be reimbursed only by the State Government. But as of now, no details are furnished, as regards the number of children belonging to weaker section and disadvantaged group, admitted in Class I. 5. Having regard to Section 7 of the Act extracted supra, we are _prima facie_ of the view that the financial and other responsibilities have to be discharged as per Section 7 of the Act and State alone cannot be made responsible. No doubt, such an eventuality is also provided therefore in sub-section (5) of Section 7 of the Act, but that is with reference to the provisions made in sub-section (4) of Section 7 of the Act. 6. Posed with a question as to whether the Central Government have initiated any process towards providing grant in aid of revenue to the State Government in terms of the above said Act, Mr. Gireesh Kumar, learned Central Government Counsel seeks time to get instructions. 7. Section 2(d) of the Act defines children belonging to the disadvantaged group. The said definition reads thus: WP(C): 18727/2020 -:48:- “(d) “child belonging to disadvantaged group” means a child with disability or a child belonging to the Scheduled Caste, 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 factor, as may be specified by the appropriate Government, by notification.” 8. Section 2(e) of the Act defines child belonging to weaker section. The said definition is extracted: “(e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification.” 9. The State / Central Governments are directed to furnish details as to whether the Governments have issued notifications in terms of Section 2 (d) and (e) of the Act. 10. State/Central Governments are also directed to furnish details as to whether any guidelines have been issued by the respective Governments to identify the children belonging to the weaker section and disadvantaged group of the society. Both the Governments are directed to furnish the details, duly supported with documents. 11. From the submission of the learned counsel for the parties, it is clear that no specific grant has been made to the State Government for the purpose of carrying out the provisions of the Act. 12. The State Government/CBSE/ICSE are directed to furnish the total strength of the students admitted in class I, in the schools falling in Section 2(n) of the Act. 13. Act also contemplates action for violating the statutory provisions, which includes admission of children belonging to weaker section and disadvantaged group in the neighbourhood. WP(C): 18727/2020 -:49:- 14. State/Central Governments are directed to furnish details as to whether there is any guidelines issued for effective monitoring of the statutory provisions. 15. From a reading of the statutory provisions in entirety and the rules framed thereunder, we are of the view that the intention behind the Right of Children to Free and Compulsory Education Act, 2009 is to provide admission in class I to the extent of atleast 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory education till its completion ie., up to the age of 14 years. 16. There are provisions in the Act and the Rules to ensure that such children are not discriminated or put in any disadvantage. Thus, the statutory provisions have to be implemented in letter and spirit. CBSE/ICSE are permitted to issue instructions to the schools affiliated by them to furnish the details as stated supra. CBSE/ICSE shall file a consolidated statement, after getting the details from the schools. Accordingly, State also to file a statement. Post after ten days.” 10. The 2[nd] respondent – State of Kerala, represented by its Secretary, has filed a statement dated 11.12.2020, wherein it was contended as under: - A. This statement is being filed without prejudice to the right of the 3[rd] respondent to file a detailed counter affidavit, if found necessary at a later stage. - B. This statement is filed pursuant to the directions of the Division Bench of this Honourable Court dated 01.12.2020, in the above writ petition. The direction of this WP(C): 18727/2020 -:50:- Honourable Court is to detail the steps and the parameters designed to identify children belonging to disadvantaged group and weaker section of the society and the measures taken to reimburse the expenditure incurred by schools falling under sub-clause (iv) of clause (n) of Section 2 of the Right to Children to Free and Compulsory Education Act, 2009. - C. It is respectfully submitted that as per Clause (c) of Section 8 of the RTE Act, 2009, it is the responsibility of the appropriate Government to ensure that a child belonging to weaker section and to a disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds. Clause (c) of Section 9 of the Act invests with a similar responsibility on every local authority as part of their duty to provide free and compulsory elementary education to every child in the society. A child belonging to a disadvantaged group is to mean a child with disability or a child belonging to the Scheduled Caste, Scheduled Tribe, Socially and Educationally Backwards Class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by appropriate Government by notification. Similarly, a child belonging to a weaker section to mean a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the Appropriate Government by notification. In contemplation thereof, Government as WP(C): 18727/2020 -:51:- per Annexure-R2(a) G.O(Ms) No.158/2013/G.Edn dated 04.05.2013, has issued guidelines regarding the procedure for admission in un-aided and specified category of schools under Section 12(1)(c) of the RTE Act. - D. In Annexure – R2(a) order, Government have notified that for the purpose of the Act, a child belonging to weaker section to mean a child belonging to a parent or guardian whose annual income is less than Rs.60,000/-. Further, a child belonging to disadvantaged group means a child belonging to scheduled Caste, Scheduled Tribe, socially and educationally backward class and a child belonging to the following categories, namely: - i. HIV affected children and children of HIV affected parent. - ii. Orphans and children from recognised orphanages. iii. Children with learning disabilities. iv. Children with autism, cerebral palsy etc. v. Children with special needs. - E. The above order further specifies that while determining the number of seats for the above purpose, the admission of children from among the above group shall be in the ratio 1:1, provided that in the absence of students in any one category, such shortage shall be filled up from children belonging to the other category. For selection of such children to schools, the school concerned shall publish a list of applicants and selection shall be by drawing lots from each category, the selection of which WP(C): 18727/2020 -:52:- shall be displayed on the notice board of the School. The above order further insists on the Head teachers of such schools to ensure that the above category of children so selected are not subjected to any discrimination or being segregated from other children in the matter of facilities available and offered to the children. The above procedures prescribed are clearly in consonance with Rule 10 of the RTE Rules issued by the Government. F. It is further contended that as per clause (c) of Section 12 of the Act, a school specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall admit in class I 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 education till its completion. In such an event, the school specified in sub-clause(iv) of clause (n) of Section 2 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 established, owned or controlled by the Government or a local authority. G. In contemplation of the provisions of the Act, the State Government have prescribed the modalities for deciding upon the reimbursement of per-child expenditure to be WP(C): 18727/2020 -:53:- incurred as per Rule 11 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011. The ratio between total annual recurring expenditure incurred by the Government from the Consolidated Fund and fund provided by the Central Government or any other authority on elementary education in schools established, owned or controlled by the Government or a local authority and total number of children enrolled in such schools shall be the per-child expenditure incurred by the Government. Further, in order to assess the per-child expenditure to be met for an academic year, the Rules contemplate constitution of a Committee comprising of Secretary (Finance), Secretary (General Education), Secretary (Local Self Government), Director of General Education and Director (Sarva Siksha Abhiyan). In contemplation thereof, Government constituted a committee as per G.O.(P) No.153/2013/G.edn dated 02.05.2013. The true copy of the order dated 02.05.2013 is produced herewith and marked as Annexure – R2(b). The Rules further elaborate that the reimbursement of expenditure incurred by a school shall be made directly through electronic transfer to a separate bank account maintained by such schools in two instalments during the academic year. The first instalment of 50% shall be reimbursed during the month of September and balance during the month of January. The second instalment shall be made after verification of the retention and attendance of such children subject to a minimum of 80% and the WP(C): 18727/2020 -:54:- pupil cumulative record. Every such schools shall maintain a separate bank account in respect of the amount received by it as reimbursement under subsection (2) of Section 12 of the Act. Every such school shall provide such information as may be called by the Government or the local authority for the above purpose. However, it has been made clear that such schools shall be eligible for reimbursement only if there are no Government or aided school in the neighbourhood within a walking distance as specified in the RTE Rules. H. It is further contended that, no schools in the State has approached the Government so far seeking reimbursement of any fees incurred by it for meeting the expenditure for providing free and compulsory education to children belonging to weaker section and disadvantaged group as contemplated in the Act. The Government is ready to address such demands as per the prescribed procedure, being a Constitutional mandate to provide free and compulsory education to all children of the age of six to fourteen years as enshrined in Article 21A of the Constitution of India and in this pursuit, the State is bound to ensure that children belonging to weaker section and disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds. It is submitted that by providing a proper method and machinery to meet the claims of reimbursement as detailed in Rule 11 of the RTE Rules, Government is ready WP(C): 18727/2020 -:55:- to take up the task of meeting such expenditure in concurrent responsibility with the Central Government and to ensure that the above class of children are not subjected to any discrimination or being prevented from pursuing elementary education and not segregated or treated differently in the matter of common class room facilities, in mid-day meal programmes, play grounds, common drinking water facilities and toilets and such other safeguards. In this context, it is submitted that, while granting recognition to schools under Section 18 of the RTE Act, Government ensures that schools are providing such facilities to students enrolled in such educational institutions. I. It is further submitted that along the side of the responsibility of the State Government to meet the expenses of claims of reimbursement by schools falling under sub-clause (iv) of clause (n) of Section 2 of the Act, the Government is focusing on strengthening the General Education Sector for the last many years titled "Pothu Vidyabhyasa Samrakshana Yajnam" as part of the Nava Kerala Mission, an initiative launched in the year 2016, which seeks to address problems faced by four key sectors, namely, health, education, agriculture and housing with the help of Local Self-Governments. By implementing the novel concept of "Pothu vidyabyasa Samrakshana Yajnam", it became possible for the Government to recapture the General Education Sector eliminating factors of slackness and gradual slow down by WP(C): 18727/2020 -:56:- public participation thereby converting quality education as a part and parcel of the Right to Education of every child. By the new inspiration that pulled into the General Education sector through the Public Education rejuvenation mission, it was possible to create a new atmosphere and instil confidence in the sector which resulted in the increase of enrolment of children in Government schools. J. The statistics would show that during the last three academic years spanning the period from 2017-18 to 201920, 5.05 lakhs of new enrolment was recorded in Government schools. This is a quantum jump compared to the new enactment during 2015 – 16. As part of the rejuvenation mission, standards 8 – 12 in Government schools were made technology friendly. Computer Labs were installed in all Primary Schools extending Broadband Internet facility to all schools in the State. Further, Government could deliver 119054 Laptops, 69943 Projectors, 4578 Cameras, 4545 Television sets, 4611 Printers, 23098 Screens, Web cams etc., to schools as part of the mission and these facilities were beneficially used for online platform of education during the COVID-19 pandemic period. As an evidence to the scaling heights in the performance of offering quality education in General Education Sector in the State, Kerala State could achieve 1[st] place in the School Education Quality Index (SEQI) conducted by NITI Aayog, a policy think tank of the Government of India. WP(C): 18727/2020 -:57:- - K. It is further submitted that along with offering quality education to children, Government also focused on the health concerns of the children enrolled in Government schools and thus carry out mid-day meal programme in the schools on a better footing with the help of Local SelfGovernment institutions, ensuring quality check of the food items and drinking water given to the children. Government could also supply free uniforms to children in standards 1 to 8 irrespective of them belonging to APL/BPL sections. It is submitted in Government and Aided Schools functioning under KER, the entire expenses including tuition fee, uniform, text books, mid-day meals, salary and pension to the teaching and non teaching staff is borne by the Government. Apart from this Annual Grant is given to all Aided schools for maintain of infrastructure. But, in the Government Schools, this is being borne by the concerned Local Self Government Department. - L. It is further submitted that as a massive drive towards improvement of the infrastructure facility of the schools, Government could grant Rs.5 Crores each to 141 schools, 3 Crores to 395 schools and Rs.1 Crore each to 446 schools in the State. The development of infrastructure facilities of Government schools in a large scale is on the way with public participation utilising MP/MLA funds along with various development packages floated through local selfgovernment institutions and NABARD funds and KIIFB. Apart from focussing on infra structure development, WP(C): 18727/2020 -:58:- Government stressed on improvement in the academic front also experimenting newer methods of teaching and introducing innovative tools and programmes of education inculcating a spirit of participation among the children thereby opening up new avenues of knowledge and understanding. The rejuvenation mission rolled by the Government also draws down projects and charts for the children to equip the next generation to cop up with future challenges. M. It is further submitted that the entire mission of the Government behind strengthening the General Education Sector is to encompass within its reach children of all walks of life and to offer them quality education as part of their fundamental right to education as enshrined in the Constitution. In this pursuit, children belonging to disadvantaged group and weaker sections are covered and thus eliminating chances of any deprivation or shortcomings in pursuing and completing their elementary education to nil. The escalation in the enrolment of children in schools in the General Education Sector is clearly a pointer to the fact that the Public Education Rejuvenation Mission introduced in schools was successful in reaching out to children, particularly belonging to weaker and disadvantaged class thereby ensuring that the above class of children are not denied of quality education offered by the State. The fact that no claim has so for been placed seeking reimbursement of expenditure incurred by an unaided school is clearly a WP(C): 18727/2020 -:59:- further pointer to the fact that children belonging to weaker and disadvantaged group often opt for Government schools in pursuit of their elementary education and therefore surely are the beneficiary of inputs of the Rejuvenation Mission rolled out by the Government. By adverting to such an exercise, Government ensures compliance of its statutory obligation to address the educational needs of the children particularly belonging to disadvantaged group and weaker section of the society thus upholding the Constitutional mandate of free and compulsory education to every child within its reach and enriching its contents and application thus offering them quality education. To sum up the contentions, while the State is duty bound and willing to address any claims for reimbursement as contemplated in Section 12(2) of the RTE Act, Government by various programmes and policies is on its task to address the educational need of every child offering quality education to all by newer methods and strategies eliminating chances of any sort of discrimination or segregation against a child belonging to a weaker section or a disadvantaged group. For the foregoing reasons, the 2[nd] respondent prayed for dismissal of the writ petition. 11. Heard the learned counsel for the parties and perused the material on record. 12. G.O.(Ms) No.158/2013/G.Edn. Dated 4.5.2013 issued by WP(C): 18727/2020 -:60:- the Secretary to the Government, General Education (J) Department, Government of Kerala, reads thus: ## “ **ORDER** The Right of children to Free and Compulsory Education (RTE Act 2009) was notified for implementation by Government of India on April 1, 2010. As per the Government Order read as 2nd paper above, Government of Kerala have published Kerala Right of children to Free and Compulsory Education Rules, 2011. Section 12(1)(c) of the RTE Act provides that Unaided schools and Specified Category Schools shall admit at least 25% of the strength of the class I, children belonging to weaker section and children belonging to disadvantaged group from the neighbourhood and provide them free and compulsory education till completion of elementary education. Further, where the schools admit children at pre-primary level, such admissions shall be made at that level. The Government of India, MHRD, Department of School Education & Literacy in their letter read as Ist paper above have indicated certain guidelines for the purpose of admission under Section 13(1) and Section 12(1)(c) of the Act. The objective of the provisions of Section 13(1) read with Section 2(o) is to ensure that schools adopt an admission procedure which is nondiscriminatory, rational and transparent and that schools do not subject children and their parents, to admission tests and interviews in order to decide whether they will admit a child or not. Admission tests and interviews are generally a tool for profiling and eliminating children and therefore screening to assess a child's intelligence should be prohibited. The RTE Act is anchored in the belief that availability of equal educational opportunities to children belonging to different social and economic background will reinforce the idea of equality enshrined in our constitution and ensure that children are not discriminated on the basis of social or economic background or any such criteria. There is need for WP(C): 18727/2020 -:61:- moving towards composite classrooms with children from diverse backgrounds rather than homogeneous and exclusivist schools. It is an academically established point that heterogeneity in the class room leads to greater creativity. Taking the above facts into consideration, the following guidelines are issued: - (1) With regard to admissions in class I (or preprimary class as the case may be) under Section 12(1)(c) of the RTE Act, in Unaided and Specified Category Schools shall follow a system of random selection out of the application received from children belonging to disadvantaged groups and weaker sections for filling up the predetermined no of seats in that class, which should be not less than 25% of the strength of the class. (a) For the above purpose a child belonging to weaker section' means a child belonging to a parent or guardian whose annual income is less than 60,000/- rupees. Similarly child belonging to disadvantaged group means a child belonging to Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class and child belonging to the following categories. (i) HIV affected children and children of HIV affected parent. (ii) Orphans & children from recognised orphanages. (iii) Children with learning disabilities (iv) Children with autism, cerebral palsy etc. (v) Children with special needs. (b) While determining the number of seats for the above purpose, the admission of children from disadvantaged groups and from weaker sections of the neighbourhood shall be in the ratio of 1:1, provided that in the absence of students in any one category (disadvantaged) such shortage shall be filled up from children from the other category (weaker section). WP(C): 18727/2020 -:62:- (c) For the selection of such children, the school shall publish the list of applicants and selection shall be by drawing of lots for each category. The list of selected children shall be displayed on the notice board on the same day. (d) The Head teachers of unaided and specified category schools shall ensure that such children from neighbourhood who are admitted against the 25% seats as given above shall not be segregated from the other children in the class rooms nor shall their classes be held at places and timing different from the classes held for the other children. (e) The provision regarding neighbourhood schools in sub rule (1) of rule 6 of RTE Rules shall apply to such admissions. (f) The expenditure incurred by the specified and unaided schools will be calculated and reimbursed as stipulated in RTE Act and rules provided they will be eligible for such concession from the Government only if there are no Government or aided schools within walking distance. (g) The Head teachers of unaided or specified category schools shall ensure that such children shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as text books, uniforms, laboratory, library, Information and Communication Technology facilities, extra curricular activities and sports. 2. For admission to the remaining 75% of the seats or a lesser percentage depending upon the number of seats fixed by the school for admission under section 12(1)(c) in respect of unaided schools, each school should formulate a policy by which admissions are to take place. This policy should include criteria for categorization of applicants in terms of the objectives of the school on a rational, reasonable and just basis. There shall be no profiling of the child based on parental educational qualifications. The policy should be placed by the school in the public WP(C): 18727/2020 -:63:- domain, given wide publicity and explicitly stated in the school prospectus. There shall be no test and interviews for any child/parent falling within or outside the categories and selection should be on a random basis. Admission should be made strictly on this basis. The aforesaid guidelines shall be strictly adhered to by all concerned. (BY ORDER OF THE GOVERNOR) DR.K.ELLANGOVAN Secretary to Government.” 13. Added further, by inviting the attention of this Court to Chapter XII dealing with levy and collection of fees in schools in Kerala, under the Kerala Education Rules, 1959, it is submitted that insofar as Government and aided schools in Kerala are concerned, no tuition free is collected upto the age of 14 years. 14. Chapter XII of the Rules, 1959 dealing with Levy and Collection of Fees in Schools is extracted hereunder: ## **“1. Rate of tuition and special fees in Government and aided schools** [(1) Subject to such exemptions and concessions as Government may make by notification in the Official Gazette from time to time, tuition fees and special fees shall be collected from pupils at the rates given in the following schedule:- WP(C): 18727/2020 -:64:- **==> picture [425 x 171] intentionally omitted <==** Provided that in the case of pupils studying in Standard VIII or IX for the third and further chances tuition fees at the rate of Rs. 48.00 per annum per pupil in addition to the Special fees prescribed shall be collected. Provided further that the pupil belonging to Scheduled Castes/Scheduled Tribes shall be exempted from payment of Festival Activities Fees. Note:- (1) No special fees shall be collected in school where no facilities exist for the utilization of fee for the purpose for which it is collected. 2[(2) x x x x x x x] (2) 5[No fee other than those prescribed in sub-rule (1) and the admission fees specified in rule 2 shall be collected except with the sanction of the Government].” 15. Referring to Annexure-R2(b), G.O.(P) No.153/2013/ G.Edn. dated 02.05.2013, it is submitted that in terms of Rule 11(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, Government has constituted a committee to assess the per-child-expenditure to be incurred by the Government. Said Government order is extracted hereunder: WP(C): 18727/2020 -:65:- **==> picture [390 x 576] intentionally omitted <==** WP(C): 18727/2020 -:66:- 16. Referring to Section 3 of the Right of Children to Free and Compulsory Education Act, 2009, learned Senior Government Pleader submitted that right of a child to get free and compulsory education upto the age of 14 years is referred to in clause (d) or clause (e) of Section 2 of the Act. He further submitted that though “neighbourhood” has not been defined in the Act, 2009, the same is defined in Rule 2(o) of the Kerala Right of Children to Free and compulsory Education Rules, 2011, which reads thus: “(o) “Neighbourhood” means the area near or within a walkable distance of an elementary school referred to in sub-clauses (i) and (ii) of clause (n) of Section 2 of the Act and shall include areas of such schools in adjacent local bodies.” 17. Referring to Rules 2(t) and 6(9) of the RTE Rules, 2011, learned Senior Government Pleader further submitted that it is the duty of the parents to admit their children in the neighbourhood school, to get free and compulsory education. He further contended that children cannot claim free and compulsory education, admitted in far away schools. 18. Rule 6 in Part IV of Right of Children to Free and Compulsory Education Rules, 2020 speaks about area or limits of neighbourhood, and it reads thus: WP(C): 18727/2020 -:67:- “ **6. Area or limits of neighbourhood** .- (1) The area or limits of neighbourhood within which a school has to be established by the appropriate Government or the local authority shall be,� - (a) in respect of children in classes from I to V, a school shall be established within a walking distance of one km of the neighbourhood; - (b) in respect of children in classes from VI to VIII, a school shall be established within a walking distance of three km of the neighbourhood. (2) Wherever required, the appropriate Government or the local authority shall upgrade existing schools with classes from I to V to include classes from VI to VIII and in respect of schools which start from class VI onwards, the appropriate Government or the local authority shall endeavour to add classes from I to V, wherever required. (3) In places with difficult terrain, risk of landslides, floods, lack of roads and in general, danger for young children in the approach from their homes to the school, the appropriate Government or the local authority shall locate the school in such a manner as to avoid such dangers, by reducing the area or limits specified under sub-rule (1). (4) For children from small hamlets, as identified by the appropriate Government or the local authority, where no school exists within the area or limits of neighbourhood specified under sub-rule (1), the appropriate Government or the local authority shall make adequate arrangements, such as free transportation and residential facilities, for providing elementary education in a school, in relaxation of the area or limits specified in the said rule. (5) In places with high population density, the appropriate Government or the local authority may consider establishment of more than one neighbourhood school having regard to the number of children in the age group of 6-14 years in such places. WP(C): 18727/2020 -:68:- (6) The local authority shall identify the neighbourhood school(s) where children can be admitted and make such information public for each habitation. (7) In respect of children with disability, which prevent them from accessing the school, the appropriate Government or the local authority shall endeavour to make appropriate and safe transportation arrangements to enable them to attend school and complete elementary education. (8) The appropriate Government or the local authority shall ensure that access of children to the school is not hindered on account of social and cultural factors.” 19. Mr. Nirmal, learned standing counsel appearing for the CBSE, submitted that in Section 3 of the RTE Act, 2009, Section 2(n)(iv) has been excluded. Statutory provisions relevant for the purpose of the prayers sought for, have already been extracted above. However, at the risk of repetition, few provisions are reproduced hereunder: 20. Section 2(d) of the Right of Children to Free and Compulsory Education Act, 2009 defines “child belonging to disadvantaged group” to mean [a child with disability or] a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, WP(C): 18727/2020 -:69:- geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification. 21. Section 2(e) of the Act, 2009 defines “child belong to weaker section” to mean a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification. 22. Section 2(n)(i) of the Act, 2009 states that a school established, owned or controlled by the appropriate Government or a local authority. It refers to Government school or school run by a local body. 23. Section 2(n)(ii) of the Act states that an aided school receiving aid or grants to meet whole or part of the expenses from the appropriate Government or local authority. It refers to an aided school. 24. We are concerned with unaided school, which is stated in Section 2(n)(iv) of the Act, 2009, that an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. WP(C): 18727/2020 -:70:- ## 25. Section 3 of the RTE Act, 2009 speaks about right of child to free and compulsory education and it reads thus: “ **3. Right of child to free and compulsory education** .- [(1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of Section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her 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. * * * * * (3) A child with disability referred to in sub-clause (A) of clause (ee) of Section 2 shall, without prejudice to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996), and a child referred to in sub-clauses (B) and (C) of clause (ee) of Section 2, have the same rights to pursue free and compulsory elementary education which children with disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: Provided that a child with "multiple disabilities" referred to in clause (h) and a child with "severe disability" referred to in clause (o) of Section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) may also have the right to opt for home-based education.]” 26. Reading of the above provisions make it clear that every child of the age six to fourteen years, including a child referred to WP(C): 18727/2020 -:71:- in clause (d) of Section 2 of the RTE Act, 2009, i.e. child belonging to disadvantaged group, or clause (e) i.e. child belonging to weaker section, shall have the right of free and compulsory education in a neighbourhood school till the completion of his or her elementary education. 27. Though Section 8 of the Right of Children to Free and Compulsory Education Act, 2009 – Duties of appropriate Government, does not enable a parent or guardian to claim for reimbursement, for the expenditure incurred on elementary education of the child admitted in a school referred to in the said section and that there is also a duty of the parent or guardian to admit the child in the neighbourhood school, and accordingly Rule 6(9) of the RTE Rules, 2011 has been framed, the above does not mean that the child referred to in Section 2(d) and (e) of the RTE Act, 2009, are not entitled to free and compulsory education in the schools falling within sub-clause (iii) or (iv) of clause (n) of Section 2 of the Act, 2009, i.e., in the case on hand, unaided schools. 28. At the risk of repetition, Section 12 of the Act, 2009 is reproduced hereunder:. WP(C): 18727/2020 -:72:- “ **12. Extent of school’s responsibility for free and compulsory education.** - (1) For the purposes of this Act, a school,-- - (a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein; - (b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.; - (c) specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall 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: Provided 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. (2) The school specified in sub-clause (iv) of clause (n) of Section 2 providing free and compulsory elementary education as 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: Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement WP(C): 18727/2020 -:73:- to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.” 29. Section 12(1)(a) of the Act, 2009 speaks about Government schools, which means a school established, owned or controlled by the appropriate Government or a local authority. 30. Section 12(1)(b) of the Act, 2009 speaks abut aided schools, which means an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority. 31. Section 12(2) speaks about schools referred to in Section 2(n)(iii) and (iv) of the Act, 2009, wherein such schools shall admit in Class I, to the extent of at least twenty-five percent of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. 32. No doubt Section 12(c) of the RTE Act, 2009, emphasis on admission in the neighbourhood school. But, at this juncture, it is also relevant to reproduce Section 12(2) & (3) of the Act, 2009, which deals with reimbursement of expenditure incurred by WP(C): 18727/2020 -:74:- the school providing free and compulsory education to the children referred to in Section 2(d) and (e) of the Act, 2009. ## “ **12. Extent of school’s responsibility for free and compulsory education** .- xxxxxxxxxxxxx (2) The school specified in sub-clause (iv) of clause (n) of Section 2 providing free and compulsory elementary education as specified in clause (c) of subsection (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; Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.” ## 33. It is also relevant to consider Rule 8(1) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 and the explanation thereto, which read as under: ## “ **Responsibilities of the Government and local** **authority** .-(1) A child attending a school referred to in sub-clause (i) and (iii) of clause (n) of Section 2, and a child attending a school referred to in sub- WP(C): 18727/2020 -:75:- clauses (iii) and (iv) of clause (n) of Section 2 shall be entitled to free and compulsory education and in particular to free text books, writing materials, uniforms, free transportation and residential facilities. xxxxxxxxxxxxx **Explanation.-** For the purpose of sub-rule (1), in respect of a child admitted as provided in clause (c) of sub-section (1) of Section 12, the responsibility of providing free entitlements shall be of the school referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2, respectively.” 34. In terms of Section 12(2) of the Act, 2009, the State Government have framed Rule 11 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, which deals with reimbursement of per-child-expenditure by the Government. Rule 11 reads as under: “ **11. Reimbursement of per-child-expenditure by the Government** .- (1) The ratio between total annual recurring expenditure incurred by the Government, from the Consolidated Fund and fund provided by the Central Government or any other authority, on elementary education in respect of all Government and local authority schools referred to in sub-clause (i) of clause (n) of Section 2, and total number of children enrolled in all such schools, shall be the per-child-expenditure incurred by the Government. Explanation.-1. For the purpose of determining the per-child-expenditure, the expenditure incurred by WP(C): 18727/2020 -:76:- the Government or local authority on schools referred to in sub clause (ii) of clause (n) of Section 2 and the children enrolled in such schools shall not be included. (2)(a) The Government shall constitute a committee comprising of Secretary (Finance), Secretary (General Education), Secretary (Local Self Government), Director of Public Instruction and Director (Sarva Siksha Abhiyan) to assess the per-child-expenditure for the next academic year. (3) The Committee shall meet three months after the appointed date and thereafter every year during the month of September. (4) The reimbursement of expenditure incurred by a school under specified category and an unaided school on the children admitted under clause (c) of sub-section (1) of Section 12 shall be made directly through electronic transfer to a separate bank account maintained by the school in two instalments during the academic year. The first instalment of 50% shall be reimbursed during the month of September and balance during the month of January. The second instalment shall be made after verification of the retention and attendance of such children subject t a minimum of 80% and the pupil cumulative record. (5) Every school referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall maintain a separate bank account in respect of the amount received by it as reimbursement under sub-section (2) of Section 12. (6) Every school shall provide such information as may be called for by the Government or the local authority under this rule.” 35. As stated supra, the State Government, in terms of explanation (2)(a) to Rule 11(1) of the Kerala Right of Children to WP(C): 18727/2020 -:77:- Free and Compulsory Rules, 2011, has framed a Committee, extracted supra. 36. Reading of the explanation also makes it clear that for the purpose of determining the per-child-expenditure, the expenditure incurred by the Government or local authority on schools referred to in sub clause (ii) of clause (n) of Section 2 and the children enrolled in such schools shall not be included, which means, the expenditure incurred by the Government on schools referred to in Sections 2(n)(i), and Section 2(n)(ii) of the Act, 2009, which speaks about an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority, are to be excluded, thereby meaning that the expenditure incurred by the schools referred to in sub-clauses (iii) and (iv) of clause (n) of Section 2 have to be reimbursed to the schools admitting children belonging to weaker and disadvantaged group in the neighbourhood, which shall admit in Class I, to the extent of at least 25% of that class. 37. Rule 11(4) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 also makes it clear as to how WP(C): 18727/2020 -:78:- and when the reimbursement has to be done. Government is also empowered to call for information from the schools concerned. 38. Conjoint reading of the statutory provisions, rules framed and the Government orders, referred to above, makes it clear that children belonging to disadvantaged group and weaker sections have a right to get themselves admitted in the schools referred to in sub clauses (iii) and (iv) of Section 2(n) of the RTE Act, 2009 in Class I o the extent of 25% of the strength. Schools mentioned in the above said clauses shall, admit the children as per the statutory provision. Sections 3 and 12 of the RTE Act, 2009 have to be read together and cannot be read in isolation. If done, it would be a violence to Section 12 of the Act and deprive the children belonging to weaker section and disadvantaged group, from getting admission into the schools referred to in sub clauses (iii) and (iv) of clause (n) of Section 2 of the Act, of course in the neighbourhood. ## 39. In **Lakshmi School, Veerappachan, Karuppayurani Post, Madura and Ors.** v. **State of Tamil Nadu and others** [2012 (7) MLJ 301], the Hon’ble Madras High Court held thus: WP(C): 18727/2020 -:79:- “It is incorrect to state that State Government is totally alien to have a control over the CBSE Schools under Section 2(a)(ii)(A) and appropriate Government for all the Schools established within the territory of the State is only State Government, which can exercise domain over all the States including CBSE and ICSE Schools. The ultimate object of the T.N. Schools Fee Act, 2009 is to regulate the collection of fee by schools in the State of Tamil Nadu. Excluding the CBSE Schools and ICSE Schools from the ambit of the Act would defeat the object of the Act. Now by virtue of Section 12(1)(c) of Right of Children to Free and Compulsory Education Act, all the schools established within the territory of the State shall admit students to the extent of 25% of the strength of the Class from among the children belonging to the weaker sections and disadvantaged group. The expenditure incurred by the Schools for providing free and compulsory education to those students of weaker sections and disadvantaged group shall be reimbursed by the State as per Rule 9 of Tamil Nadu Right of Children to Free and Compulsory Education Rules. When such being the situation, the State Government should have right to regulate the collection of fee by the State.” ## 40. That apart, in **Justice for All** v. **Government of NCT of** **Delhi and Others,** [judgment dated 18.09.2020 in in W.P.(C) No.3004/2020 and other connected cases, reported in MANU/DE/1740/2020, the Hon’ble Delhi High Court held as under: “Non-discrimination is a significant aspect of the scheme of the RTE Act. Section 12(1)(c), as we have seen, creates a special quota to the extent of 25 per cent seats being reserved for students from EWS/DG categories. Section 8(c) of the RTE Act, 2009 places an obligation on the appropriate WP(C): 18727/2020 -:80:- Government to ensure non-discrimination against a student belonging to a weaker section or disadvantaged group. Further, Rule 11 of the Right of Children to Free and Compulsory Education Rules, 2010 places an obligation upon the schools (referred to in Sub-Clauses (iii) and (iv) of Clause (n) of Section 2 of the RTE Act) to ensure that children admitted in accordance with Clause (c) of Sub-Section (1) of section 12 of the Act "shall not be segregated from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children" and further, they "shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as textbooks, uniforms, library and Information, Communications and Technology (ICT) facilities, extra-curricular and sports". Therefore, both the Act as well as the Rules, read together place obligation upon the State as well as the schools to ensure that there is no discrimination faced by any student in a classroom on any ground whatsoever. Section 12(1)(c) is well designed and cannot be restricted in its application, to not apply to a situation when the schools have adopted technology as a medium to impart education.” 41. Following the decisions extracted above, we are of the view that as per Section 12(1)(c), the private schools, as specified in sub-clauses (iii) and (iv) of clause (n) of Section 2, shall admit 25% of the strength, in Class I, children belonging to weaker and disadvantaged group in the neighbourhood, provide free and compulsory elementary education, till its completion, and approach the Government for reimbursement. WP(C): 18727/2020 -:81:- 42. The Committee constituted as per G.O.(Rt.) No. 153/2013/G.Edn. dated 02.05.2013 [Annexure-R2(b)], shall assess the per-child-expenditure, and reimburse the same to the schools, as per Rule 11(4) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011. With the above directions, writ petition is disposed of. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **MURALI PURUSHOTHAMAN JUDGE** Krj /TRUE COPY/ P.A. TO C.J. WP(C): 18727/2020 -:82:- ## **APPENDIX** ## PETITIONER'S EXHIBITS: - P1 COPY OF THE PAN CARD OF PETITIONER BEARING NO.AIFPA2349M. - COPY OF NEWS ARTICLE TITLED “PARENTS STAGE PROTEST SEEKING REDUCTION IN SCHOOL FEES” DT.24.07.2020 IN TOI. - P3 COPY OF NEWS ARTICLE TITLED “PARENTS SCHOOLS DEBATE ON ONLINE CLASS FEE & EFFICACY” DT. 16.06.2020 IN TOI. - P4 COPY OF NEWS ARTICLE TITLED CLASSES NOT STARTED, SCHOOLS DEMANDING FIRST TEM FEE DT.13.06.2020 IN MALAYALA MANORAMA ALONG WITH ENGLISH TRANSLATION. ## RESPONDENTS' ANNEXURES: R2(A):- COPY OF G.O.(MS) NO.158/2013/G.EDN. DATED 04.05.2013. R2(B):- COPY OF G.O.(P) NO.153/2013/G.EDN. DATED 02.05.2013. //TRUE COPY// P.A. TO C.J.