JUDGMENT By the Court.—The petitioners-appellants’ are Committees of Management of primary schools in Districts Maharajganj and Kushinagar. In these intra-Court appeals they are aggrieved by the judgement of learned Single Judge dated 13.12.2007 in Writ Petition No. 62181 of 2005 filed by Committee of Management Adarsh Shishu Sadan Basahiya Khurd Paratawal, District Maharajganj; and Writ Petition No. 61435 of 2006 filed by Committees of Managements of six primary schools, by which he has dismissed the writ petitions, for directions to the State-respondents to provide recurring grant-in-aid to the primary schools run by them, owned and controlled by private societies, recognised by the Social Welfare Department of the State Government. 2. We have heard Shri Awadh Narain Rai and Shri Siddharth Khare, for the petitioner-appellants. Learned Standing Counsel appears for the State respondents. 3. The petitioners are the management bodies of the primary schools recognised by the Basic Education Officers of their respective districts, and also by the Social Welfare Department of Government of Uttar Pradesh. All these school, running primary classes claim that up to half of the number of their students belong to Scheduled Castes. It is alleged that they have been arbitrarily denied recurring-grant under the Circular Letter issued by the Special Secretary, Department of Social Welfare, Government of UP dated 31.3.1994, and thereafter under another Circular Letter dated 20.4.1998 issued by the Special Secretary, Department of Social Welfare, Government of U.P. 4. By a Government Order dated 21.5.1999, a one time grant was provided to be given by the State Government to only those schools, which were ten years old as on 31.3.1998, with 50% students from Scheduled Caste/Scheduled Tribe categories subject to certain conditions. Condition No. 2 (4) provided for giving an undertaking and affidavit that grant will be accepted with no further claims in future. 5. This Court in Writ Petition No. 36719/1999, set aside the condition No. 2 (4). The State respondents were required to consider the claims of the qualifying schools, for recurring grant-in-aid dehorse the restriction. The State Government considered and rejected their claim on 26.2.2002, on the ground that the responsibility of primary education under the 73rd and 74th Constitutional Amendments, has been given to local bodies/panchayats. The State Government also pleaded financial difficulty in funding these schools. 6. In Writ Petition No. 16529/2003 once again, the decision of the State Government was successfully challenged. The State Government considered and rejected their claim on 26.2.2002, on the ground that the responsibility of primary education under the 73rd and 74th Constitutional Amendments, has been given to local bodies/panchayats. The State Government also pleaded financial difficulty in funding these schools. 6. In Writ Petition No. 16529/2003 once again, the decision of the State Government was successfully challenged. By the judgement dated 3.3.2004, Government Order dated 31.3.2003 was set aside and the State Government was required to take a fresh decision in the light of the observations made in the judgment and also keeping the constitutional mandate under Article 41 of the Constitution of India. 7. The State Government once again rejected the claim for recurring grant on 26.2.2004, and once again a Writ Petition No. 77659/2005 was filed by these schools. The writ petition was again allowed on 23.3.2006 (for the third time), and while quashing the order dated 14.1.2005 the Court observed that the directions given by this Court for adjudicating the dispute has not been considered in positive perspective. The matter was dealt with only with a negative note. The State Government was required to re-consider the matter. 8. By the order dated 23.10.2006, the Principal Secretary, Government of UP, in pursuance to the directions issued by the Court on 23.3.2006 (under challenge in these two writ petitions) has observed that the State Government does not have a policy or scheme to give recurring grant to every primary school. There is a primary school run by the Basic Education Board almost in every village. Up to the year 2008, there will be one school, at a standard distance of one kilometre under the ‘Sarva Shiksha Abhiyan’ run by the State Government to fulfil the mandate of Article 21A and 41 of the Constitution of India, to provide free and compulsory education to the children upto the age of 14 years. The scheme provides for one primary school on a population of 300, in one kilometre area and one junior high school on the population of 800 in two kilometre area. The Principal Secretary observed that at the relevant time and upto the year 1994, the State Government had prepared a scheme for primary education to the children belonging to the Scheduled Caste and to give them grants through the Social Welfare Department. The Principal Secretary observed that at the relevant time and upto the year 1994, the State Government had prepared a scheme for primary education to the children belonging to the Scheduled Caste and to give them grants through the Social Welfare Department. Thereafter the Government did not have any policy to give recurring grant to the privately managed primary schools. 9. In the impugned order dated 23.10.2006, the Principal Secretary, Government of U.P., further observed in deciding the representation, that he had taken advice of the Legal Department, Basic Education Department, Finance Department; the Advocate General, after which the matter was placed before the State Cabinet. The State Cabinet rejected the claim for grant of recurring grant to these private schools. The management of the recognised schools were given recognition with the condition that under Rule 4 of the U.P. Recognized Basic Schools (Appointment and Conditions of Service of Teachers) Rules, 1975, were required to arrange for finances from its own sources. The Social Welfare Department did not undertake nor gave any assurance for giving recurring financial aid to these schools. The Government is fulfilling its responsibility of providing free and compulsory education under the ‘Sarv Shiksha Abhiyan’ and is not responsible, nor has committed to give financial aid to the private primary schools. 10. Learned Judge held that the petitioners’ schools were given recognition with a specific condition under the Rules of 1975, to run the schools through their own financial resources. The State Government is fulfilling its obligation to provide primary education through the schools run and managed by local bodies and Zila Panchayat. The ‘Sarv Shiksha Abhiyan’ has fulfilled the obligation of the State to provide free and compulsory education for children upto the age of 14 years. The management of the schools do not have a right to claim recurring grant both under the policy of the State Government as well as under Article 21A and 41 of the Constitution of India. 11. The management of the schools do not have a right to claim recurring grant both under the policy of the State Government as well as under Article 21A and 41 of the Constitution of India. 11. Learned counsels for the petitioner-appellants submit that the State is under constitutional mandate to provide free and compulsory education to the children upto the age of 14 years, vide Mohini Jain and Unni Krishnan’s case and that in view of the constitutional mandate, the petitioners’ institutions, established with the object of providing primary education to children belonging to the Scheduled Castes, recognised by the Social Welfare Department, have a right to be given recurring grant-in-aid. 12. The petitioners have established the primary school and were recognised by the Social Welfare Department of the State to provide primary education with no commitment of financial aid. Under Rule 4 of the U.P. Basic Schools (Appointment and Conditions of Service of Teachers) Rules, 1975 the financial arrangement of the costs to run the school was to be made by the management from its own sources. The State Government, in order to fulfil its aim to provide free education to primary schools recognized by the Social Welfare Department in which there are 50% students belonging to scheduled caste, provided for one time grant only by Government Order dated 21.5.1999 with the condition that they will not claim any further grant in future from the Government. The condition No. 2 (4), for giving undertaking and affidavit to that effect was set aside by this Court. Thereafter the matter was under consideration of the State Government in terms of the various directions issued by the Court concerned with fulfilling the fundamental right of the children upto the age of 14 years under the constitutional mandate. 13. Article 41 falling in Part IV Directive Principles of the State Policy provided for guidelines for securing right to work, education and to public assistance in cases of unemployment, old age sickness and disablement and in other cases of undeserved want. In Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 , the Supreme Court held that the State is under duty not only to establish educational institutions but also to effectively secure the right to education by admitting students to the seats available at such institutions by admitting candidates found eligible according to some rationale principle. In Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 , the Supreme Court held that the State is under duty not only to establish educational institutions but also to effectively secure the right to education by admitting students to the seats available at such institutions by admitting candidates found eligible according to some rationale principle. Even though it was not a fundamental right and is not judicially enforceable, once the State provides facilities for education, its action must conform to the standard of equality and rationality under Article 14. In Unni Krishnan J.P. v. State of A.P., AIR 1993 SC 2178 , the Supreme Court found that though right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life guaranteed under Article 21, having regard to the broad and expansive interpretation given by the Court. The right to education, it was held, has been treated as one of the transcendental importance. It has fundamental significance to the life of an individual and the nation. Without education being provided to the citizen of the country the objectives set forth in the preamble to the Constitution, cannot be achieved. The Supreme Court shifted the obligations under Article 41, 45 and 46 to be included as a fundamental right to education under Article 21. It was held that it was not correct to contend that Mohini Jain, was wrong in so far as it declared that right to education flows directly from right to life. It is, however, not an absolute right. It means in the context of Articles 41 and 45 that every child/children of the country has a right to free education until he completes the age of 14 years. After the child completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. 14. The Supreme Court thereafter held in Unni Krishnan’s case that the obligations under Articles 41, 45 and 46 of the Constitution can be discharged by the State either by establishing the institutions of its own, or by aiding, recognising and/granting affiliation to privately educational institutions. 14. The Supreme Court thereafter held in Unni Krishnan’s case that the obligations under Articles 41, 45 and 46 of the Constitution can be discharged by the State either by establishing the institutions of its own, or by aiding, recognising and/granting affiliation to privately educational institutions. It went on to hold that by declaring education as a fundamental right upto the age of 14, years the Court was not determining the priorities and was only reminding the State of its solemn endeavour, within a prescribed time. 15. The 86th Amendment Act, 2002 amending the Constitution w.e.f. 12.12.2002, substituted Article 45 providing for free and compulsory education for children to be provided by the State within ten years from the date of commencement of the Constitution, until they complete the age of 14 years. Article 45, as it stood prior to its amendment, was transposed by the same amendment under Article 21A in Part III Constitution of India. The newly inserted Article 21A and the substituted Article 45 by the 86th Amendment Act, 2002 provides : “Article 21A.—The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may by law determine. Article 45.—The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.” 16. The law as contemplated under Article 21A was enacted by the Parliament, after seven years. The Right of Children to Free and Compulsory Education Act, 2009 (Act No. 35/2009) received the assent of the President on August 26th 2009, and was published in the Gazette of India on 27.8.2009. The prefatory note giving ‘statements of objects and reasons’ of the Act provides that over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children, who complete elementary education. Consequently in pursuance to the fundamental right inserted in the Constitution by 86th Amendment Act, 2002 as Article 21A the right of children to free and compulsory education was enacted to provide : “3. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children, who complete elementary education. Consequently in pursuance to the fundamental right inserted in the Constitution by 86th Amendment Act, 2002 as Article 21A the right of children to free and compulsory education was enacted to provide : “3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide : (a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; (b) ‘compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education; (c) ‘free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education; (d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and (e) a system for protection of the right of children and a decentralized grievance redressal mechanism. 4. The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds. 5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in Article 21-A of the Constitution.” 17. The Parliament has finally fulfilled the mandate of Article 45 by including the duty imposed by the Constitution on the State, as a fundamental right under Article 21-A to the children of the age of 6 to 18 years to free and compulsory education. The 86th Amendment to the Constitution, in our opinion, is most significant constitutional amendment made after the Constitution was enacted, for the development of the Country. The 86th Amendment to the Constitution, in our opinion, is most significant constitutional amendment made after the Constitution was enacted, for the development of the Country. It serves the goals set forth in the preamble. The fundamental right, given to the children and the corresponding obligation of the State to provide free and compulsory education to the children of the age of 6 to 14 years is now a real and achievable right. The Courts now have an additional constitutional duty to enforce the fundamental right of free and compulsory education for the children of the age 6 to 14, and the obligation of the State, to give it full purpose and meaning. 18. Does this right and the obligation of the State gives any right to the primary schools for establishing schools, claim exemption from municipal laws and secure financial aid from the State? 19. Section 6 of the Right of Children to Free and Compulsory Education Act, 2009 provides for 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 date of commencement of the Act. The Central Government and the State Government have to share, under Section 7, concurrent responsibility for providing funds to carry out the provisions of the Act. The duty of compulsory elementary education to every child is placed upon the appropriate Government defined under Section 2 (a) of the Act, which in relation to school established, owned and controlled by the Central Government, means the Central Government and other than the schools referred to as above, the State Government or the Union Territory as the case may be. 20. The Act of 2009 defines in Section 2 (f) ‘elementary education’ to mean the education from 1st class to 8th class. 20. The Act of 2009 defines in Section 2 (f) ‘elementary education’ to mean the education from 1st class to 8th class. The duty of local authority under Section 9, is to provide free and compulsory education to every child, provided that where a child is admitted by his or her parents or guardian, as the case may, 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, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school. Section 8 (b) ensure availability of a neighbourhood school in respect of children belonging to weaker section and the child belonging to disadvantaged group. Section 8 (c) and Section 9 (c) in respect of appropriate Government and local authority responsible provide liability to ensure that they are not discriminated and prevented from pursuing and completing elementary education on any grounds. The appropriate Government and the local authority are also under duty under Sections 8 and 9 to provide infrastructure including school building, teaching staff, learning equipment; and to ensure good quality elementary education in such neighbourhood school. The Act also gives a corresponding liability under Section 10 on the parents and guardians to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhod school. 21. Chapter IV of the Act provides for responsibilities of the school to provide free and compulsory education. The school under Section 2 (n) means, (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 aided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. The school, which does not receive aid and grants under Section 12 (2), is required to provide free education. Section 12 is quoted as below : “12. The school, which does not receive aid and grants under Section 12 (2), is required to provide free education. Section 12 is quoted as below : “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 if 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.” 22. In the present case the schools were recognised by the Social Welfare Department and were given only one time grant. There was no assurance given by the State Government for giving recurring grants to the schools. The salary of the teachers and other expenses were required to be met by the management from its own funds. In the present case the schools were recognised by the Social Welfare Department and were given only one time grant. There was no assurance given by the State Government for giving recurring grants to the schools. The salary of the teachers and other expenses were required to be met by the management from its own funds. The obligation of the State to provide free and compulsory education, now enacted as fundamental right, is not to be enforced through such schools for giving recurring grants to meet the expenses of the salary of teachers and other incidental expenses. 23. The right given under Article 21A to the children for free and compulsory education and the obligation of the State cannot be taken as a fundamental right of the private unaided school. In City and Industrial Development Corporation of Maharashtra v. Ekta Mahila Mandal and others, (2007) 7 SCC 701 , the Supreme Court did not find any such right under Article 21A to regularize the encroachment of an area earmarked in the development plan as green belt on the ground that some children were taught in the school. 24. In Superstar Educational Society v. State of Maharashtra and others, (2008) 3 SCC 315 , the Supreme Court held that it is the duty of the State Government to provide access to education. Unless new schools in the private sector are permitted, it will not be possible for the State to discharge its constitutional obligation. The permission was granted by the High Court to 1495 new schools under the order dated 16.5.2006 on permanent no grant basis without any financial commitment or liability on the part of the State Government, even in future and at the same time ensuring that the schools follow the parameters and conditions prescribed by the Education Code giving liberty to the authorities to take action, if there is any violation. The Apex Court did not find it appropriate for the High Court to quash the permission granted to these schools without impleading or hearing them and without even noticing that many of the schools were English medium or non-Marathi schools run by religious and linguistic minority not entitled to be covered by the proposed master plan. 25. The Apex Court did not find it appropriate for the High Court to quash the permission granted to these schools without impleading or hearing them and without even noticing that many of the schools were English medium or non-Marathi schools run by religious and linguistic minority not entitled to be covered by the proposed master plan. 25. We do not find any right either under the Government orders issued from time to time or under the Act No. 35 of 2010, enacted to fulfill the rights under Article 21A, to any school for claiming recurring grant-in-aid. The State Government is conscious of its obligation and is making efforts to provide atleast one primary school on a population of 300 within one kilometer area and a junior high school on a population of 800 within two kilometers area under the ‘Sarv Shiksha Abhiyan’. Nothing has been brought on record to show, that the area in which the petitioners’ schools are being run do not have any school as is defined in Section 2 (n) (i), (ii) and (iii), for education of the children between the age of 6 to 14, in the neighbourhood. 26. Section 12 (2) of the Act of 2009, provides for reimbursement to the extent of per-child-expenditure incurred by the State, to those schools, which are un-aided and are not receiving any kind of aid including land, building, equipment or other facilities recognised for imparting elementary education and are providing free and compulsory education to the children. The reimbursement is to be made in a manner, in which it may be prescribed. The State shall, if there is an established school by the appropriate Government or by a local authority, as a neighbourhood school provide free and compulsory education to the children of the area through such schools. It is only when there is no school in the neighborhood that the State Government may provide for a reimbursement per child to the school, which is required for such services by the State, in accordance with the rules as may be prescribed. 27. It is only when there is no school in the neighborhood that the State Government may provide for a reimbursement per child to the school, which is required for such services by the State, in accordance with the rules as may be prescribed. 27. The fundamental rights under Article 21A given to the children of the age of 6 to 14 years and the corresponding duty of the State to provide free and compulsory education by law, now provided by the Right of Children to Free and Compulsory Education Act, 2009 w.e.f. 26.8.2009 does not give any right to the managements of the existing unaided schools to receive any kind of aid or recurring grant to meet its expenses from the appropriate Government or the local authority. 28. The Special Appeals are dismissed. —————