Federation Of Private Schools And Associations Of Punjab vs The Union Of India & Ors.

Rohit Kapoor, J.

The petitioner, which is an Association of private unaided schools, functioning in the State of Punjab, has invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking quashing of Notification dated 20.03.2025 (Annexure P-6), whereby Rule 7(4) of Punjab Right of Children to Free and Compulsory Education Rules, 2011 came to be omitted. Further prayer has been made for the setting aside of Guidelines dated 14.08.2025 (Annexure P-10) and 15.04.2026 (Annexure P-12), and Communication dated 06.01.2026 (Annexure P-11).

The petitioner has assailed the impugned notification, guidelines and communication, primarily on the ground, that the same are violative of Articles 14 and 19 of the Constitution of India and contrary to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the ‘Act of 2009’) and the Punjab Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as ‘the 2011 Rules’).

The brief factual background leading to the filing of the instant writ petition is that the State of Punjab framed the 2011 Rules vide notification dated 12.10.2011 (Annexure P-4), in exercise of the rule making power conferred by Section 38 of the ‘Act of 2009’. Rule 7 (4) of the 2011 Rules, as originally framed, provided that all admissions of children belonging to the weaker section and disadvantaged group shall be made by the school itself, and that it is only if such children are unable to secure admission in government schools and aided schools, on account of non-availability of seats or for any other reason, that their parents or guardians may apply for admission in specified category schools and unaided schools, against the 25 per cent seats reserved for them.

The vires of Rule 7 (4) of the 2011 Rules came to be assailed before this Court in CWP-PIL No.285 of 2024. A Co-ordinate Bench vide order dated 19.02.2025 (Annexure P-5), recorded a prima facie satisfaction that Rule 7(4) of 2011 Rules was in the teeth of Section 12 (1) (c) of the Act of 2009 and issued an interim direction that all private unaided recognized schools, answering the description in sub clause (iv) of clause (n) of Section 2 of the Act of 2009, shall reserve 25 per cent of the seats in class I, to be filled up exclusively by children belonging to weaker sections and disadvantaged group, living in the neighbourhood of the school. The order dated 19.02.2025 reads as under :-

The State of Punjab vide impugned notification dated 20.03.2025 (Annexure P-6), published the Punjab Right of Children to Free and Compulsory Education (Amendment Rules, 2025), whereby Rule 7 (4) of the 2011 Rules, stood omitted. It transpires that in compliance with the interim directions passed by this Court, the State issued letters dated 21.03.2025 (Annexure P-7) and 24.03.2025 (Annexure P-8) to the field functionaries for implementation and compliance of the directions.

Subsequently, upon the placing on record of the notification dated 20.03.2025 (Annexure P-6), the Co-ordinate Bench of this Court disposed of CWP-PIL-285-2024 vide order dated 09.04.2025 (Annexure P-9), by inter alia observing that since the fundamental prayer was rendered infructuous, then assessing the vires of Rule 7 (4) of the 2011 Rules, would be an academic exercise. While disposing of the petition, a direction was issued that Act of 2009 shall be followed to the hilt by making admissions in Class I and that the Act of 2009 shall prevail in the event of any conflict with the Rules of 2011.

Undisputedly, the admissions for the academic session 2025-26 were thereafter made, in terms of the orders dated 19.02.2025 (Annexure P-5), notification dated 20.03.2025 (Annexure P-6) and the letters dated 21.03.2025 and 24.03.2025 (Annexures P-7 & P-8 respectively). It is in this backdrop that the State issued guidelines vide orders dated 14.08.2025 (Annexure P-10) for the implementation of Section 12 (1)(c) of the Act of 2009. The guidelines, inter alia, provide for delineation of schools to which they apply, being all private unaided schools other than minority schools; identify the categories of children eligible as belonging to disadvantaged group and weaker sections, sub-classify the 25 per cent quota category-wise; provide for allotment by online draw of lots; prohibit the collection of capitation fee and segregation and discrimination against children so admitted; besides providing for reimbursement of fee in terms of Section 12 (2) of the Act of 2009 through a designated bank account, capped at per child expenditure by the State or the actual school fee, whichever is less.

By way of communication dated 06.01.2026 (Annexure P-11), the Directorate of School Education (Secondary) Punjab, informed all District Education Officers, Deputy District Education Officers, Block Primary Education Officers and School Heads regarding launch of a School Registration Portal for RTE admissions and issued instructions for registration of private unaided schools thereon. Guidelines dated 15.04.2026 (Annexure P-12), which are admittedly para materia with the earlier guidelines dated 14.08.2025 (Annexure P-10), followed. It is in this backdrop that the petitioner filed the instant writ petition seeking the relief as mentioned hereinabove.

Mr. Arjun Pratap Atma Ram, learned counsel appearing on behalf of the petitioner Association, while inviting our attention to the provisions of the Act of 2009, and particularly Section 2 (n), read with Sections 6, 8 and 9, has argued that the statutory scheme establishes an order of priority in the matter of admission of a child seeking the benefit of the Act. Submission is that the admission is to be made first to a school established, owned or controlled by the appropriate Government or a local authority, then an aided school, then a specified category school, and only where none of these exist, to an unaided school. It is contended that the impugned notification, guidelines and communication, by directing admission straightway in private unaided schools, render Sections 6, 8 (a) (b) (d) and Section 9 (a) (b) (d) and Rule 4 (6) of the 2011 Rules, otiose and redundant.

Learned counsel for the petitioner further argues that while the Act contemplates making of rules by way of notification, there is no provision under the statutory scheme for issuance of any “guidelines”. Submission is that the impugned guidelines, being neither rules nor a notification, are mere executive instructions devoid of statutory force, and cannot override, amend or supplant the 2011 Rules.

It is further contended that the 2011 Rules, having been framed under Section 38 of the Act of 2009, continue to hold the field and there existed no lacuna or gap for the guidelines to fill, which according to the learned counsel are in direct conflict with Rule 4 (6) and Rule 4 (9) of the 2011 Rules. It is submitted that in any event, the deletion of Rule 7 (4) of the 2011 Rules has left the field, to the extent earlier occupied by that rule, unregulated by any statutory rule, and in the absence thereof, the State cannot reintroduce conditions relating to admissions, seat determination or eligibility, indirectly through guidelines.

It is further contended that neither the guidelines nor the notification dated 20.03.2025 (Annexure P-6) were laid before the State legislature as mandated by Section 38 (4) of the Act of 2009, and are therefore, vitiated on that ground alone. It is urged that even otherwise that neither the petitioner Association nor its member schools were impleaded as parties in CWP-PIL-285-2024, and therefore, cannot be bound by the orders passed therein.

Per contra, the learned State counsel has argued that the obligation cast upon private unaided non-minority schools by Section 12 (1) (c) of the Act of 2009 is a statutory obligation flowing directly from the parent enactment and is not dependent upon the existence of any subordinate legislation. It is contended that the impugned guidelines only provide the administrative machinery for the discharge of that obligation in a transparent and non-discriminatory manner. It is submitted that Rule 7 (4) has been deleted by validly exercising the powers conferred under Section 38 of the Act of 2009 and an objection is taken that the present petition is in substance, an attempt to resurrect a rule, which a Co-ordinate Bench of this Court has already found to be in the teeth of the parent statute. It is pointed out that the petitioner having admittedly acted upon the impugned notification throughout the academic session 2025-26, without any protest, cannot be permitted to assail the same after more than 13 months, that too without explaining the delay and laches.

We have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

Before adverting to the rival submissions, it is apposite to refer to the relevant provisions of the 2009 Act and the rules framed thereunder. Section 2 (d) defines a “child belonging to disadvantaged group” and includes within its meaning 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.

A “child belonging to weaker section” has been defined under Section 2 (e) and 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.

The definition of “school” under Section 2 (n) is of particular importance in the instant matter, and it means any recognized 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.

Section 3 is the essence of the Act of 2009, which guarantees that 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.

Learned counsel for the petitioner has laid special emphasis upon the provisions of Sections 6, 8 and 9 of the Act of 2009. Section 6 casts a duty upon the appropriate Government and local authority to 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 the Act.

Sections 8 and 9 inter alia mandate that the appropriate Government and the local authority shall ensure availability of a neighbourhood school, as specified in Section 6, besides providing infrastructure including school building, teaching staff and learning equipment.

In order to adjudicate one of the core issues involved, Section 12 of the Act of 2009 assumes significance, and the relevant provisions thereof are reproduced as under :-

Section 38 confers upon the appropriate Government, the power to make rules, for carrying out the provisions of the Act. Sub Section (2) thereof, provides for framing of rules for matters specified therein, which inter alia includes, the area or limits for establishment of a neighbourhood school, under Section 6; and for the manner and extent of reimbursement of expenditure, under Sub-Section (2) of Section 12.

Sub Section (3) thereof provides for laying down of every rule made under the Act and every notification issued under Sections 20 and 23 by the Central Government, before each House of Parliament, and provides for a maximum period of 30 days, for any modification in the Rule or notification or for rejecting the proposed rule or notification, by Parliament.

Sub Section (4) requires every rule or notification made by the State Government under the Act to be laid, as soon as may be after it is made, before the State Legislatures.

The State of Punjab has framed the 2011 Rules in exercise of its powers under Section 38 of the Act of 2009. Rule 4 provides for the areas or limits of the neighbourhood within which a school has to be established on the recommendation of a local authority by the State Government and in respect of children of classes I to V, the school has to be established within a distance of one kilometre from the place of their habitation, while for children of classes VI to VIII, the distance prescribed is three kilometres from the place of their habitation.

Under Sub Rule (6), the State Government or the Local Authority, as the case may be, is required to identify the neighbourhood school or schools, where children can be admitted, and is to inform the public in this regard. The State Government is required to work out an action plan to ensure that a neighbourhood school is provided for each child within a period of three years from the commencement of the Rules, under Sub Rule (9) of Rule 4 of the 2011 Rules.

The framework for admission of children belonging to weaker section and disadvantaged group has been provided under Rule 7 and reads as under :-

The challenge to the impugned notification and guidelines by the petitioner, when tested on the anvil of the above statutory framework, is found to be devoid of any substance, for the reasons detailed hereinafter.

The foundational premise of the petitioner that Section 2 (n) of the Act of 2009 prescribes an order of priority among the four category of schools, is unsustainable upon the plain reading of the provision. The language employed therein does not by any stretch of imagination suggest that the intent of the legislature is such that a child must exhaust one category before approaching the next and in our considered opinion, it is impermissible to read into a definition clause, a substantive rule of priority, which the Parliament has not enacted. Further, the fact that such enumeration is not sequential, becomes abundantly clear when Section 2 (n) is read with Section 12 (1), which fastens upon each of the four categories a distinct and simultaneous obligation calibrated to the nature of the institution, i.e. upon government schools, to provide free education to all children admitted; upon aided schools, to do so in the proportion which their aid bears to their recurring expenses, subject to the limit of 25 per cent; and upon specified category and unaided schools, to admit in class I, at least 25 per cent children of the weaker section and disadvantaged group of the neighbourhood. Had the Parliament intended the obligation under clause 12 (1)(c) of the Act of 2009 to be contingent and residual, it would have expressly provided for the same in the Act.

The emphasis laid by the petitioner on the provisions of Sections 6, 8 and 9 of the Act of 2009, does not come to its aid. These provisions cast duties upon the appropriate Government and the local authority, respectively, to establish neighbourhood schools and to provide free and compulsory elementary education. They are in the shape of separate duties cast upon the State and do not confer any corresponding immunity upon the private unaided schools. The proposition that a private unaided school may decline to discharge its own statutory obligation under Section 12 (1)(c), till the State has first discharged its obligations under Sections 6 and 8, is in our considered view bereft of any merit and cannot be countenanced. Such a construction would leave the right conferred upon the child by Section 3 (1), which is fulcrum of the entire enactment, open to be held hostage to the pace of construction of schools by the State. The submission that the impugned instruments render Sections 6, 8, 9 of the Act of 2009 and Rule 4(6) of the 2011 Rules redundant, proceeds upon the same fallacy. The said provisions continue to operate in their own field. The State remains bound to establish neighbourhood schools, to undertake school mapping, to identify neighbourhood schools and to inform the public. Nothing in the impugned guidelines dilutes those duties in the slightest. What the guidelines do is to regulate the discharge by private unaided non-minority schools, of a separate obligation cast upon them by Section 12 (1)(c). Two provisions operating in distinct fields, do not render the other otiose.

The argument of the petitioner, that the Act of 2009 does not provide for issuance of any guidelines, and therefore, the impugned guidelines are without sanction, is wholly misconceived. It is well settled that in the absence of a statutory rule occupying the field, the executive is competent to issue administrative instructions to regulate the manner in which a statutory obligation is to be worked out, provided such instructions neither contravene the parent statute nor derogate from any rule validly framed thereunder.

Tested on such touchstone, we do not find that any exception can be taken to the impugned guidelines. The obligation to admit 25 per cent children of the weaker section and dis-advantaged group of the neighbourhood in clause (1) is cast by Section 12 (1)(c) itself, and not by the guidelines. Likewise, the right to reimbursement is conferred and circumscribed by Section 12 (2) and not by the guidelines. What the guidelines provide for is the machinery i.e. identification of eligible categories, the mapping of candidates to schools by reference to graded distance, calculation of the number of seats, the receipt of application on a portal, the allotment of seats by draw of lots, the mode of reimbursement through a designated account and consequence of default. The provisions of such character fall within the domain of ordinary executive instructions and do not acquire the attributes of subordinate legislation. The argument that the guidelines are in conflict with Rules 4 and 5 of the 2011 Rules, is equally untenable. Rule 4 delineates the area of limits of neighbourhood for the establishment of schools by the State, and Rule 5 prescribes duties of the State Government and local authority for school mapping and identification of children. Neither rule regulates the process by which a child is to be admitted against the 25 per cent quota in a private unaided school.

Upon omission of Rule 7 (4) of the 2011 Rules, only provision which did so, there is no subordinate legislation with which the guidelines are said to be in conflict. The guidelines are the administrative expression of the direction of the Co-ordinate Bench, that the Act of 2009 is to be followed to the hilt, while making admissions. We may not detain ourselves on the contention founded upon Section 38 (4) of the Act of 2009, as despite having been asked about the specific pleading in this regard in the petition, learned counsel for the petitioner has failed to give any satisfactory response in this regard. Our attention has only been invited to the grounds of challenge wherein it is stated that the guidelines are not notifications within the definition of the Act, and that the same have not even been placed before the State Legislature.

We find that the petitioner has in fact raised contradictory grounds for laying challenge to the impugned guidelines, without making a specific pleading regarding the obligation under Section 38 (4) of the Act of 2009. A challenge must be founded upon pleaded and proved facts and in the absence thereof, a presumption of regularity is attached to official acts.

In-so-far as, the challenge is directed against the guidelines, we find nothing arbitrary in them. The graded neighbourhood criteria of one kilometer, three kilometer and six kilometer is a rationale device for giving content to the expression “in the neighbourhood” incorporated in Section 12 (1)(c) of the Act of 2009 and it works to the advantage of the schools by confining the pool of eligible applicants. The computation of 25 per cent seats with reference to the total admissions of the previous academic year in the entry level class supplies an objective and verifiable base, which prevents manipulation of class strength, and alternatively prescribes for the newly registered schools, namely, approved class strength, is a sensible corollary. Prescription of an online draw of lots, prima facie, free the hands of the school altogether and is a safeguard against and not an instrument of arbitrariness. The insistence upon a designated bank account and upon maintenance of records is a legitimate instrument of disbursement of public funds. Prohibitions upon capitation fee, screening procedure, upon segregations and discrimination do not amend but reiterate the provisions engrafted in Section 13 (1) and (2) of the Act of 2009, already ordained. The provisions made in clause 9 (iv) of guidelines dated 14.08.2025 (Annexure P-10) for the academic year 2025-26, permitting schools to undertake steps to indicate on the portal, seats already filled by children of the eligible categories, is in fact a concession in favour of the schools.

The plea of non-application of mind and of absence of opportunity is equally without substance. The guidelines are a measure of joint obligation issued in the discharge of an executive function in implementation of a statute. Undisputedly, the provisions of the statute are not impugned. The guidelines are not an adjudicatory order vesting the petitioner with civil consequences, and therefore, the rules of natural justice, have no application in the given facts.

As regards, violation of Article 19 (1) (g) of the Constitution of India, the reasonableness of restriction has already been authoritatively upheld and the impugned provisions, are, if anything, less onerous than the substantive obligation which has passed constitutional test.

Before parting, we must observe that we find some force in the argument of the State that the petitioner having expressly averred in paragraphs No. 6 and 7 of the writ petition, that admissions for the academic session 2025-26 were made in terms of the 2011 Rules, and subsequent notifications/letters, acquiesced to the same and raised challenge without explaining the delay and laches.

Be that as it may, for the reasons recorded above, we do not find any merit in the instant writ petition, which must fail, and is accordingly dismissed.

All pending miscellaneous application(s), if any, shall also stand disposed of.