ORDER : 1. Heard Sri Vedula Venkata Ramana, learned Senior Counsel assisted by Mr. Sri Vijay Mathukumilli, learned Counsel for the Writ Petitioners (in W.P.No.5264 of 2023) and the learned Advocate General appearing for the Respondents. 1.1. Heard Sri B. Adinarayana Rao, learned Senior Counsel assisted by Smt. Jyothi Ratna Anumolu, learned Counsel for the Writ Petitioner (in W.P. No.5333 of 2023) and the learned Advocate General appearing for the Respondents. 2. The prayer sought in the W.P.No.5264 of 2023 is as under: “In the above circumstances, it is prayed that this Hon’ble Court may be pleased to issue an appropriate writ more in the nature of Writ of Mandamus declaring the G.O. Ms. No. 24 (School Education) Dept., dated 26.02.2023 issued by the 1st Respondent Government through which, a Notification has been issued for implementation of Section 12 (1) (c) of Right of Children to Free and Compulsory Education Act, 2009 whereby and where under, 25% of the seats in Class-I in all the Private Unaided Schools have been allotted from the academic year 2023-24 in consonance with IB/ICSC/CSC/State Syllabus without any logic as being ultra vires to the Provisions of Right to Education Act besides being arbitrary, illegal and violating Articles 14, 16 and 21 of the Constitution of India and also in contravention of the various Provisions of Right to Education Act and the Rules framed there under from time to time and consequently set aside the same as being ultra vires to the Provisions of Right to Education Act and issue such other writ or order or direction as deemed fit and proper in the circumstances of case.” 3. The prayer sought in the W.P.No.5333 of 2023 is as under: “In these circumstances and for the reasons stated above it is, therefore, prayed that this Hon’ble Court may issue an appropriate Writ or direction, more particularly one in the nature of WRIT OF MANDAMUS declaring G.O. Ms. The prayer sought in the W.P.No.5333 of 2023 is as under: “In these circumstances and for the reasons stated above it is, therefore, prayed that this Hon’ble Court may issue an appropriate Writ or direction, more particularly one in the nature of WRIT OF MANDAMUS declaring G.O. Ms. No. 24 dated 26.02.2023 passed by the 1st Respondent notified in the Andhra Pradesh Official Gazette bearing Notification No. 3 dated 28.02.2023 as being void, illegal arbitrary, violative of the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010 apart from being unconstitutional and violative of Article 14, 19 (1) (g) and 300A of the Constitution of India and consequently to set aside the same pass such order or orders as may deem fit and proper in the facts and circumstances of the case.” 4. In both these Writ Petitions, essentially, the G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 (Ex.P.1), published in the Official Gazette vide Notification No.3 on 28.02.2023, is under challenge. 5. These Writ Petitioners have raised several issues, essentially on the ground that; (a) the Impugned G.O.Ms.No.24, School Education (PROG.II) Department, dated 26.02.2023 (Ex.P.1) was issued in a hasty manner without following the procedures contemplated under ‘the Right of Children to Free and Compulsory Education Act, 2009’ (RTE Act, 2009) and also the Rules framed under the said Act namely ‘the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010’; (b) It is also contended that the Impugned G.O. has been issued in haste only for the purpose of escaping the wrath of the Court in the Contempt Case bearing C.C.No.1824 of 2022 that was filed for implementation of directions of this Court in W.P. (PIL) No.165 of 2017. 6. W.P.No.5264 of 2023 is filed by the United Private Educational Institution Federation. It is stated that the Writ Petitioner No.1 in W.P.No. 5264 of 2023 has been striving for the cause of students from Kindergarten to Post Graduation level irrespective of their social and economical status and had been in the forefront in mitigating issues concerning the management of the educational institutions and the students. It is therefore contended that, in view of these services rendered by the Writ Petitioner No.1, it is an appropriate stake holder. 7. It is therefore contended that, in view of these services rendered by the Writ Petitioner No.1, it is an appropriate stake holder. 7. The Writ Petitioner in W.P.No.5333 of 2023 is an Association of Private Unaided Schools, which is formed for the promotion of School Education, to co-ordinate between the School managements and Boards of CBSE, ICSE and all International Boards, UGC etc., for the purpose of fostering cordial relations between the Management boards of CBSE, ICSE, ISC etc., 8. On 03.03.2023, this Court had directed the Official Respondents to issue Notification in pursuance of the Impugned G.O.Ms.No.24, School Education (PROG.II) Department, dated 26.02.2023, by stating in the Notification that the contents in the Notification would be subject to the final outcome in these two Writ Petitions. Thereafter, the mater has been finally heard. VERSION OF THE WRIT PETITIONERS: 9. Sri Vedula Venkata Ramana and Sri B. Adinarayana Rao, learned Senior Counsel have assailed G.O.Ms.No.24, School Education (PROG.II) Department, dated 26.02.2023 on the following grounds: (i) That the Government has issued Memo No.SS- 18/3/2022-LEGAL –SSA dated 08.08.2022, without any prior intimation or compliance with the statutory procedures for the purpose of implementing Section 12 (1) (c) of the RTE Act. Therefore, the said Memo was challenged in W.P.No.27166 of 2022. This matter was heard and reserved for Orders. (ii) The Impugned G.O.Ms.No.24, School Education (PROG.II) Department, dated 26.02.2023 was issued in haste only to overcome the difficulty faced by the Official Respondents in C.C.No.1824 of 2022. It is submitted that this Contempt Case is filed for the purpose of implementation of the directions of this Court in W.P (PIL) No.165 of 2017. (iii) That the Impugned G.O is contrary to the guidelines of various Boards, which laydown specific norms regarding the Recruitment, Training of the Faculty, Remuneration/Salaries on par with the Government pay scales etc. It is submitted that this Contempt Case is filed for the purpose of implementation of the directions of this Court in W.P (PIL) No.165 of 2017. (iii) That the Impugned G.O is contrary to the guidelines of various Boards, which laydown specific norms regarding the Recruitment, Training of the Faculty, Remuneration/Salaries on par with the Government pay scales etc. (iv) That the Impugned G.O is also contrary to the guidelines inasmuch as the said G.O did not take into consideration the procedure for engaging Psychologists, Counsellors, Carrier Guidance Cell, appointment of multiple sports and Physical Education Trainers, Art and Craft faculty and separate Instructors for Dance, Music, Martial Arts, Yoga etc., (v) That the cost incurred by the schools for engaging the above Teachers/Trainers/Councillors under the guidelines framed in response to the National Educational Policy, 2020 have not been taken into account while fixing the School Fee, which is to be reimbursed by the Government for each student. (vi) That the fixation of School Fee under the Impugned G.O did not take into account the various infrastructural facilities, which are provided by the Schools under different grades where the norms sought by CBSE, ICSE, ISC etc., would subject an Educational Institution to heavy expenditure. Whereas, these costs have never been factored-in by the Official Respondents. (vii) The description of neighbourhood criteria with preference to siblings studying in the same school and the facts in relation to the same have not been considered in the correct manner. (viii) That the detailed schedule for the admission for the academic year 2023-2024 has not been properly considered. (ix) Dispute resolution mechanism and the fixation of per child expenditure as Rs.8,000/- in urban area, Rs.6,500/- in Rural area and Rs.5,100/- in the Tribal/scheduled area is completely misguided and does not reflect the correct position in terms of the expenditure incurred by a school in respect of a student. (x) Reimbursement process with linkage to ‘Ammavodi Scheme’ is introduced by the complete non-application of mind, thereby lacking practical knowledge of its’ dynamics and the hardship faced by the Schools for recovery of the due amounts. (x) Reimbursement process with linkage to ‘Ammavodi Scheme’ is introduced by the complete non-application of mind, thereby lacking practical knowledge of its’ dynamics and the hardship faced by the Schools for recovery of the due amounts. (xi) That there is a huge variation amongst the private unaided schools in terms of the land, the constructed buildings, Teachers/students ratio, size of the class rooms, average section strength, usage of technological equipment and gadgets such as a smart class with simple T.V or Projection system that involves heavy expenditure and the Multi Touch 4K Interactive Panel Board costing more than Rs.2,00,000/- are some of them crucial factors which have never been factored-in while fixing per child expenditure per annum. (xii) The Official Respondents have also not factored-in the variations which include the conditions for affiliation and training fees, which is very huge in the case of IGCSE and the IB boards. Infrastructural facilities and the curricular, co-curricular and extra-curricular activities would also vary from Institution to Institution. It is also stated that some of the Campuses are Air Conditioned with Acoustic Ceilings, landscaping, enhanced security measures, synthetic floors in sports facilities that involved exemplary expenditure which have not been factored-in. It is also submitted that some of the Schools have Solar systems and the Generator, elevators, HT electricity, RO Plants, water harvesting and advanced Waste Recycling Systems which have not been factored-in. (xiii) The other Sport facilities like Swimming pool, Horse Riding, Rifle Shooting, fencing, Archery, Athletic track with synthetic flooring, Auditoriums, Dining hall, Indoor Sports facilities and the Tie-ups and associations with various reputed Organizations have also not been factored-in. (xiv) That the facilities provided by some Institutions for acquisition of ‘Life Skills’ such as Robotics & Coding, Language Labs, Theatre, Drama and Music have also not been factored in that the expenditure incurred for organizing Guest Lectures & Counselling, Health Checkups have also not been factored in. (xv) That on account of variance in the facilities from School to School, it is submitted that they are not alike and that the per child expenditure will have to be assessed for each and every Unaided Private School separately by factoring-in the peculiarities that subsist for every single School. (xvi) It is also stated that the average annual expenditure for a CBSE School is about Rs.1.36 Crores, while the International affiliated Schools incur expenditure of about Rs.1.70 Crores on an average. (xvi) It is also stated that the average annual expenditure for a CBSE School is about Rs.1.36 Crores, while the International affiliated Schools incur expenditure of about Rs.1.70 Crores on an average. (xvii) That in view of the variance in infrastructural facilities, the fee that is collected by the individual Institutions vary with the other Institutions as there is no uniformity with regard to the facilities and amenities provided for each school in the curricular, co-curricular and the extra- curricular activities, Sports and hobbies and also in acquiring ‘Life Skills’. (xviii) That the Impugned Notification is not only ultra vires the parent’ statute namely the RTE Act, 2009, but also ultra vires the Rules brought in by the State of Andhra Pradesh in the year 2010. (xix) that the School mapping process has also not been done and therefore the Government has failed to identify the Government Schools and the Government Aided Schools in every neighbourhood because it is a requirement under the statute that firstly the Government should undertake an exercise to identify the Government Schools and Government Aided Schools in the neighbourhood for accommodating the students and if there is any excess number of students after accommodating the deserving once in the Government Schools and the Government Aided Schools, the Government can then insist on the private Unaided Schools to admit the students belonging to the weaker sections in the neighbourhood subject to the limit of 25% and in this process the Government has completely ignored the ‘neighbourhood’ principle which forms the very core and essence of the RTE Act. (xx) That the Impugned G.O. is trying to implement the procedures, which are not contemplated under the RTE Act, 2009 and the Rules 2010 in an arbitrary and in a non-transparent manner. (xx) That the Impugned G.O. is trying to implement the procedures, which are not contemplated under the RTE Act, 2009 and the Rules 2010 in an arbitrary and in a non-transparent manner. (xxi) That the RTE Act obligates the appropriate Government and Local Authorities to establish the Schools within such area or limits of neighbourhood within a period of three years from the commencement of the Act and the obligations of appropriate Government to provide free education under Section 8 and on Local Authority under Section 9 would therefore be fulfilled; Whereas, the State has completely ignored this aspect of the matter (xxii) That the provision for admission and private Unaided School as per Section 12 (1) (c) is transitory and secondary in nature and it is only meant for temporary period of three years from the date of the commencement of the Act; within which time, the State is rather obligated to establish the Government schools in neighbourhood so as to meet with not only the current demand but also the future demand for the purpose of providing free and compulsory education under the RTE Act. (xxiii) That the State, instead of promoting the objects of the RTE Act inasmuch as improvising the Government Schools and the Government Aided Schools, had rather completely ignored the Government Schools, thereby, consciously allowing the Government Schools to deteriorate even further, both, quantitatively and qualitatively; (xxiv) That as per the Sub Rule (6) of Rule 5 read with Sub Rule (2) of Rule-6, the State is mandated to disseminate information regarding identification/establishment of neighbourhood schools after exercising the School mapping procedures stated therein; whereas, the State has given a complete go bye to this mandate; (xxv) That Clause 9 (g) of the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023, is contrary to the legislative intent of RTE Act, which had prescribed neighbourhood principle and the Rules therein; (xxvi) That, as indicated above, the reimbursement of the per student expenditure through ‘Ammavodi Scheme’ is arbitrary as it does not cover within its’ ambit all sections of children eligible under RTE Act. It is submitted that G.O.Ms.No.63 School Education (PROG-II) Department, dated:28.12.2020 spells out the conditions for ‘Amma Vodi Scheme’ wherein, the entitlement for the benefit under the scheme would be for persons whose family income is below Rs.1,20,000/- per annum in the Rural areas or Rs.1,44,000/- per annum in the Urban areas or whose family holding of land is less than Ac.3.00 cents of wet land or Ac.10.00 cents of dry land or whose property in the Municipality area is less than 1000 sq. ft. and whose electricity consumption is less than 300 units per month. 10. Similar submissions were also made by the learned Senior Counsel appearing for the Writ Petitioner in W.P.No.5264 of 2023. Sri Vedula Venkata Ramana, learned Senior Counsel has drawn the attention of this Court to various provisions of the G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 (Ex.P.1) and also the various Judgments including the Judgment rendered by the learned Single Judge in East Godavari Private Schools Association (Regd.576/2020) Represented by its President Vs. State of Andhra Pradesh in (W.P.No.18555 of 2021 and batch, dated: 27.12.2021) (Para Nos. 13 to 26). 11. Learned Senior Counsel has also drawn the attention of this Court to the Standard Operating Procedures (SOP) issued by the National Commission for Protection of Child Rights, 2020-2021 for implementation of the Section 12 (1)(c) of the RTE Act, 2009. Learned Senior Counsel has drawn the attention of this Court to the provisions contained in Chapter-3 of the Act, 2009 titled as ‘After Completion of the Admission Process’, where the procedure for ‘reimbursement of per child expenditure’ is also stated. He had also drawn the attention of this Court to the Judgment rendered by the Division Bench of the Hon’ble High Court of Karnataka in Education Rights Trust Vs. Government of Karnataka (in W.P.No.8028 of 2019 and batch dated: 31.05.2019). Learned Senior Counsel has also drawn the attention of this Court to the Paragraph Nos. 20 to 23 therein. He has also drawn the attention of this Court to a Judgment of the Learned Single Judge of the High Court of Gujarat at Ahmedabad in Swanirbhar Shaala Sanchalak Maha Mandal (Gujarat) Rajkot & 1 other (s) Vs. State of Gujarat & 1 other (s); in (R/Special Civil Application No.13608 of 2016, dated: 03.04.2019). VERSION OF THE RESPONDENTS: 12. He has also drawn the attention of this Court to a Judgment of the Learned Single Judge of the High Court of Gujarat at Ahmedabad in Swanirbhar Shaala Sanchalak Maha Mandal (Gujarat) Rajkot & 1 other (s) Vs. State of Gujarat & 1 other (s); in (R/Special Civil Application No.13608 of 2016, dated: 03.04.2019). VERSION OF THE RESPONDENTS: 12. Common Counter-Affidavit has been filed by the Principal Secretary to Government, Department of School Education (Respondent No.1) dated: 13.03.2023. 13. The averments in the Counter-Affidavit would indicate a complete denial of all the averments in both the Writ Petitions. The averments in the Counter-Affidavit would indicate that the Government has raised preliminary objection as regards the maintainability of both the Writ Petitions. However, no arguments were advanced on this issue. The State has justified the method of connecting the ‘Ammavodi Scheme’ for the transfer of benefit amount in the form of reimbursement. It is also stated in the Counter-Affidavit that the assessment of per child expenditure was considered by the Committee in pursuance of its’ constitution in G.O.Rt.No.21 School Education (PROG.II) Department, dated: 07.02.2022 (Ex.P.6 in W.P.No.5264 of 2023). The Respondents have annexed the said G.O.Rt.No.21 School Education (PROG.II) Department, dated: 07.02.2022 along with the minutes of the meeting held on 28.03.2022. This Court notices that neither the G.O.Rt.No.21 School Education (PROG.II) Department, dated: 07.02.2022 nor the minutes of the meeting would indicate that the stakeholders namely the Private Unaided Schools have been provided with an opportunity to raise objections and whether the objections have been considered objectively or not. Even during the course of the submissions, no attempt has been made by the State to evidence the fact that there was due participation by the stake-holders. 14. Learned Advocate General appearing on behalf of the Respondents/ State has drawn the attention of this Court to various provisions of the RTE Act, the Rules of 2010 and also the impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 and would submit that the Government has already done the mapping of the schools. He would also submit that the Standard Operating Procedures (SOP) for regulating admissions under Section 12 (1) (c) of the Act are issued by the State, which governed the admissions for the Academic Year 2023-2024. He would also submit that the Standard Operating Procedures (SOP) for regulating admissions under Section 12 (1) (c) of the Act are issued by the State, which governed the admissions for the Academic Year 2023-2024. He would further submit that Chapter 2 (2) of the Standard Operating Procedures deals with regulating the admissions under Section 12 (1) (c) of the Act. He would submit that the procedure adopted by the Government in making admissions in filling up the vacancies with eligible children under Rule 9 (g) of the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 is in consonance with Chapter 2.2 of the Standard Operating Procedures. He would submit that the Standard Operating Procedures was issued by the National Commission for Protection of Child Rights. He would therefore urge that the Writ Petitions are devoid of any merit. DISCUSSION: 15. This Court has considered the contentions of the Writ Petitioners. This Court has noticed that the State, at the outset, has not done the exercise of mapping of schools in furtherance of the objects of the RTE Act, 2009. It has also noticed that the State has not complied with the provisions of the RTE Act, 2009 in fulfilling the statutory obligation of the State in establishing the Government Schools within the commencement of three years of the Act, 2009. Identification of neighbourhood schools by following the procedure prescribed under the statute and the Rules has been given a complete go bye. This Court has also noticed that the conditions laid down in the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 are in complete variance with the Standard Operating Procedures laid down by the National Commission for Protection of Child Rights and also the RTE Act, 2009 and the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010. 16. Clause-18 of Sub-Rule (1) of Rule 3 defines the ‘Neighbourhood area of a School’ to mean the habitations in a safe walking distance of 1 KM for a Primary School and 3 Km for an Upper Primary/High School having classes VI to VIII. 16. Clause-18 of Sub-Rule (1) of Rule 3 defines the ‘Neighbourhood area of a School’ to mean the habitations in a safe walking distance of 1 KM for a Primary School and 3 Km for an Upper Primary/High School having classes VI to VIII. Similarly, Sub-Rule (5) of Rule 5 mandates that in areas with high population density, the Government/Local Authority may consider opening of more sections in the neighbourhood school or to establish more than one neighbourhood school, having regard to the number of children in the age group of 6-14 years in such areas. Sub-Rule (6) of Rule 5 also mandates that the Local Authority shall identify the neighbourhood school where children can be admitted and make such information public for each habitation within its jurisdiction. Explanation No.2 in Rule-6 is also very crucial. It prescribes that for the purpose of determining and for establishing neighbourhood schools, the Government/Local Authority shall undertake school mapping and identify all children including children in remote areas, children with disabilities, children belonging to disadvantage groups, children belonging to weaker sections and the children referred to the section 4 of the Act within a period of one year from the appointed date, and also to update the data on or before 30th September of each year. The Government has not placed any material on record to evidence the fact that this exercise was infact done. 17. Sub Rule-9 of the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010 has prescribed the criteria for proof of Residence. Rule-10 deals with the Reimbursement of per child expenditure by the State Government. This rule is also in consonance with the guidelines issued for National Commission for Protection of Child Rights. However, the State did not place any material to establish that this criteria had been taken into account while issuing the impugned G.O. 18. When this Court makes a close scrutiny of the provisions of the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 in juxtaposition with the RTE Act, 2009 and the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010, this Court notices that the provisions in the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 are at complete variance with the prescriptions mandated under the statute as well as the subordinate legislation (namely the Rules, 2010). It is noticed that in the Notification No.3 issued in the State Gazette thereby publishing G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 (Ex.P.1), the title would indicate that, it is a Notification for Admission of Children in Class-I under Section 12 (1) (c) of the Right of Children to Free and Compulsory Education Act, 2009 for the academic year 2023-2024 for all private Unaided Schools in Andhra Pradesh. A reference has also made in the Impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 to the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010. 19. Needless to state that it is a well settled law that the Subordinate legislation shall be within the teeth of the parent Act and that any executive Instruction, which is the G.O.Ms.No.24 School Education (PROG.II) Department, dated 26.02.2023 as in the present case, cannot run Counter to any of the provisions of either the statute or the sub-ordinate legislation inasmuch as both have the force of law and any ‘Executive Instruction’ shall strictly be in consonance with the statute and the Rules, but it cannot be at variance even by the slightest of the deviation. In the present case, this Court has noticed that the State has issued the Impugned G.O with an intent to completely deviate from the tone and tenor of the RTE Act, 2009 and the Rules-2010, for the reasons best known to it. The Counter-Affidavit filed by the Principal Secretary also did not justify with proper material documents and necessary data that it had done the required statutory exercise. The Counter- Affidavit is also silent about the stage at which the Stakeholders have been involved in mutual discussions and also calling for relevant material for fixation of ‘per student expenditure’ basing on the overall infrastructural expenditures incurred by the individual school. Although, the infrastructural expenditure incurred by the individual school is not the sole criteria for fixation, nevertheless, the same shall also be considered. 20. While the statutory mandate imposes an obligation to establish the Government Schools within a period of 3 years from the date of statute coming into force, in the year 2023-2024, the State has thrusted its’ statutory obligation on the Unaided Private Institutions indicating its’ gross failure to establish the Government Schools since 2010 till date, which is after more than a decade. This Unauthorized action is not only arbitrary, but is also highhanded on the part of the State. 21. In the above premise, this Court is of the considered opinion that the impugned G.O.Ms.No. 24, School Education (PROG.II) Department, dated 26.02.2023 runs counter to the provisions of the statute and the rules and also the guidelines, which are laid down in the form of Standard Operating Procedures by the National Commission for Protection of Child Rights for the purpose of implementation of Section 12 (1)(c) of the RTE Act and is therefore liable to be set aside. This Court is also of the considered opinion that the impugned G.O, instead of furthering the objects of the enactment, is rather frustrating the said objects. Consideration of data, seeking opinions and objections from the stake-holders, which are in form of safeguards, have been given a complete go-by. This irregularity militates against the fundamental requirement of adherence to the Principles of Natural Justice. Accordingly, the impugned G.O.Ms.No.24, School Education (PROG.II) Department, dated 26.02.2023 is set aside. 22. Accordingly, these Writ Petitions are allowed. No order as to costs. Interlocutory Applications, if any, stand closed in terms of this order.