Right To Education Under RTE Act Cannot Be Unconditionally Enforced Against Private Unaided Schools: Delhi High Court

The Delhi High Court has observed that while the Right of Children to Free and Compulsory Education Act, 2009 guarantees the right to education, however, it nowhere provides that the said right can be unconditionally enforced against a private unaided school.

A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Sachin Datta upheld the validity of Rules 35 (Striking off the name from the rolls) and 167 (Name of the student to be struck off for non-payment of fees and contributions) of Delhi School Education Rules, 1973.

The plea filed by a minor through his father had challenged the said Rules as being ultra vires to Articles 19(1)(a), 21 and 21A read with provisions of Right of Children to free and compulsory Education Act, 2009 and contrary to the provisions of section 75 of Juvenile Justice care and Protection Act, 2015.

The plea also challenged an impugned communication which had struck down the name of petitioner from the role of the private school as being in deliberate disobedience of direction issued by Delhi High Court based on fee bill generated, contrary to the provisions of rule 165 of Delhi School Education Rules 1973.

Regarding the prayer challenging the validity of Rule 35 and 167 of the Delhi School Education Rules, 1973, the Court noted that notice that the Delhi School Education Act, 1973 was enacted for better organisation and development of school education in the city and for matters connected therewith or incidental thereto.

"The very object and purpose of this enactment is to improve the standard and management of school education. The rule making power in the said Act is contained in Section 28 (2). The rule making power extends to a wide gamut of areas, all concerned with meeting the prescribed standards of education and to ensure good governance practices in schools on Delhi," the Court observed.

The Court was of the view that sec. 12 of the RTE Act delineates the extent of responsibilities of the school for free and compulsory education qua government schools, aided schools and un-aided schools.

"As a matter of fact, there are independent Rules framed under the RTE Act, namely, the Right of Children to School and Compulsory Education Rules, 2010.The concerned Act along with the Rules contain self- contained provisions for effectuating and achieving the purposes of the Act and assigns responsibilities to schools, parents, the concerned local authorities, the concerned appropriate government, which all are within the ambit of the Act," the Court observed.

Given the independent and distinct framework of Delhi School Education Act and the Rules framed along with the provisions of RTE Act and its rules, the Court opined that there can be no question of Rules 35 and 167 of Delhi School Education Rules impinging upon the operation of the RTE Act.

"The RTE Act guarantees the right to education. However, it nowhere provides that the said right can be unconditionally enforced against a private unaided school," the Court said.

It was further observed that the petitioner was free to take admission in a government school if he could not afford to pay the fee of the private unaided school.

"If he is entitled to admission in the EWS category, he may apply under that category to seek waiver of the school fee. If the claim of the petitioner were to be allowed, if would mean that even a private unaided school would not be able to charge any fee even though they have to meet all their expenses from their own resources and accretions. This is completely untenable," the Court observed.

The Court also added that there is no repugnancy whatsoever between sec. 75 of Juvenile Justice Act, 2015 and the impugned Rules 35 and 167 of the Delhi School Education Rules, 1973.

Accordingly, rejecting challenge to the said Rules, the Court directed the Single Judge before whom the matter was pending, to examine other prayers on their own merit raised in the plea.

Advocate Khagesh B. Jha appeared for the petitioner. ASC Santosh Kumar Tripathi appeared for DOE. AdvocateS Kamal Gupta, Sparsh Aggarwal, Sonakshi and Ryan Sinha appeared for the School.  

Case Title: MASTER DIVYAM BHATEJA THROUGH FATHER MR VINOD BHATEJA v. BHAI PARMANAND VIDYA MANDIR AND ORS.

Citation: 2022 LiveLaw (Del) 563

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