High Court stays the order of State Information Commission

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Lucknow 5th December: Lucknow Bench of Allahabad High Court stayed order of U.P. State Information Commission whereby Chief Secretary was directed to direct all unaided schools operating in the State of U.P. to appoint Public Information Officer in their respective school for providing information sought by anyone under Right to Information Act, 2005. This order was passed by the Hon’ble Bench of Justice Rakesh Srivastava and Mr. Justice Mohd. Shamim Ahmed on a writ petition filed by an association of unaided private schools namely Association of Private Schools of Uttar Pradesh through its President Shri Atul Kumar contending that private schools not receiving any grant-in-aid from any state or local authority do not fall within the definition of ‘public authority’ as defined under RTI Act, 2005.

Mr. Ravi Prakash Gupta, advocate appearing for writ petitioner has contended in the writ petition that while exercising power in its original jurisdiction u/s 18, no such general direction could be given to Chief Secretary u/s 19(8)(a)(ii) related to appellate powers. Similarly, such direction could also not be given u/s 25(5) related to its advisory jurisdiction as has been done by State Information Commission.

Mr. Gupta contended before the Court that a coordinate bench of Mr. Justice Rajan Roy and Mr. Justice Suresh Kumar Gupta has on 14.07.2021 already stayed the operation of this order of State Information Commission in case filed by one unaided school namely City Montessori School which may also be extended to members of writ petitioner’s association as this order of State Commission would also affect them. Extending the operation of this stay order over petitioner’s association having its members in the state of Uttar Pradesh, the Hon’ble Court issued notices to RTI Activist & others and directed State of U.P. & State Information Commission to file their replies to the writ petition.

It was contended in the writ petition that the State Information Commission erroneously observed that reimbursement of private schools u/s 12(2) of  Right of Children to Free & Compulsory Education Act, 2009  in lieu of 25% free admissions to students of disadvantageous groupsamounted to grant-in-aid by the state which could be treated as ‘substantially financed’ bringing such school within the ambit of ‘public authority’ u/s 2(h) of RTI Act, 2009. It was submitted that Supreme Court in Thalappalam Ser. Coop. Bank Ltd.&Anr. vs State of Kerala &Ors [2013 (16) SCC 82] made it clear that ‘’merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist.”

It was contended by petitioner that constitution bench of Supreme Court in Primati Educational & Cultural Trust case, while examining validity of 25% free admissions in unaided schools, made it clear that reservation (constitutionally made permissible vide 93rd constitutional amendment) in favour of students of socially & educationally backward classes in private schools by inserting clause (5) in Article 15 of constitution  would not bring unaided schools at par with aided schools. Such reimbursement in lieu of free admissions would not make unaided private schools at par with aided schools.

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