Under s.12 (1) (c) of the landmark Right of Children to Free & Compulsory Education (aka RTE) Act, 2009 — having perhaps given up hope of ever improving learning outcomes in the country’s 1.20 million government schools — the then ruling Congress-led UPA-II government at the Centre expropriated 25 percent of capacity in private elementary (classes I-VIII) schools for poor children in their neighbourhoods.

A proviso embedded in s.12 (1)(c) also obliged elementary schools dispensing pre-primary education to reserve 25 percent of capacity in preschool for poor neighborhood children. However, to partly compensate private unaided (financially independent) primary-secondaries the cost of providing free of charge education to poor neighborhood children, s .12 (2) of the RTE Act requires the State (state or local governments) to reimburse them tuition fees equivalent to the per pupil cost incurred in their own government primary schools or actual fees of private schools, if lower.

Inevitably, the constitutional validity of s.12 (1) (c) was challenged by private school associations. In Society for Unaided Private Schools of Rajasthan & Ors vs. Union of India (2012), the Supreme Court upheld the constitutionality of s.12 (1) (c) by a 2-1 majority while exempting minority and boarding schools. 

However, despite the normative tuition fees of private unaided schools being substantially higher than the cost of per capita education incurred by the State for children in public education, state/local governments have been reluctant and/or tardy in reimbursing private schools the modest sums owing to them for complying with s.12 (1) (c).

Private budget schools in Maharashtra claim that a massive sum of Rs.450 crore is owing to them since 2012-13 under s.12 (2) of the RTE Act. However, the state’s education ministry challenges this amount and pegs it at a mere Rs.147.61 crore (2012-16). This dispute has prompted the Maharashtra English School Trustees Association (MESTA) and the Independent English Schools Association (IESA), which together represent 14,000 private budget (i.e, low cost) schools across the state, to issue a notice of stoppage of s.12 (1) (c) admissions from the academic year 2018-19 unless pending dues are cleared.

According to MESTA and IESA spokespersons, the huge mismatch in reimbursement calculations is due to a large number of schools demanding reimbursement of fees for children admitted into their pre-primary classes. However, despite the clear directive of the proviso which directs composite schools to reserve 25 percent of capacity in preschools pari passu with class I, the Maharashtra government disputes reimbursement of costs incurred towards poor children admitted in pre-primary classes on the narrow legal argument that the RTE Act is applicable only to children aged 6-14, and not younger children. 

When a division bench of the Bombay high court (April 28, 2015) directed the state government to reimburse composite schools under s.12 (2) stating “the appropriate governments (i.e, the State) cannot shirk their responsibilities by contending that they are under no obligation towards pre-primary education,” the BJP-Shiv Sena coalition state government issued a government resolution dated 30 April, 2015, “cancelling” all pre-primary admissions made under the RTE Act in the academic years 2012-15. The state government also filed an appeal in the Supreme Court against the high court order which is awaiting final adjudication.

“Why shouldn’t we be paid anything for the three years (2012-15) when we did admit students as per the government’s directive at the earliest point of entry? Once admitted, we bear the student’s education expenses until she reaches class VIII. The State has been blatantly shrugging off its responsibility to pay its share of the subsidised education we provide to underprivileged children,” says Sanjay Tayade Patil, founder president of MESTA which has a membership of 13,000 schools.

Moreover curiously, while the education ministry claims that the state government spends a minimum of Rs.30,000 per pupil annually in rural (zilla parishad) government schools, it says that the actual per pupil expenditure of budget private primaries averages Rs.17,329 per year and as such under s.12 (2) it is obliged to reimburse the lesser amount. “Today, when schools are expected to provide all-round education to students through extra-curricular activities and sports training, reimbursement of Rs.17,329 per year for children admitted under s.12 (1) (c) won’t even cover tuition fees. Has the government given a thought to what would happen if we are unable to bear this financial burden and decide to close down?” queries Rajendra Singh, secretary of IESA which has 1,000 member schools. 

Although, one can’t rule out the possibility of private schools closing down because of incremental government impositions and interference, the greater probability is that private investment into K-12 education will dry up. And with the country’s expanding middle class almost wholly averse to government school education for its children, admission queues before the gates of the state’s private schools, which already host over 40 percent of Maharashtra’s 16 million plus school-going children, are certain to grow longer.

Dipta Joshi (Mumbai)