To
The Lieutenant Governor
Government of NCT of Delhi
Raj Niwas Marg, Delhi-110054
25.02.2013
Sir
I wish to draw your attention to the various categorical observations made by the Hon’ble Delhi High Court through its Division Bench comprising Hon’ble Chief Justice Shri D. Murugesan and Hon’ble Mr. Justice V.K. Jain in a Public Interest Litigation entitled Social Jurist V. Government of NCT of Delhi and anr. [W.P. (C) 8533/2010]. A copy of the said judgment is attached herewith. In its judgment dated 19.02.2013 in the said PIL, the Hon’ble Delhi High Court has held that in view of non-applicability of the RTE Act for the purpose of pre-primary classes admission, the Recognised Schools (Admission Procedure for Pre-Primary Class) Order, 2007, still holds the ground for admissions to general category seats in pre-primary/nursery classes in unaided recognized private schools and observed as under:
“The Lieutenant Governor of Delhi in exercise of the powers conferred upon him by Section 3(1) of Delhi School Education Act and Rule 43 of Delhi School Education Rules, 1973 is competent to give such further directions or to make such modifications to the existing order as the Government may deem appropriate, to prevent any possible misuse or malpractice in making admission to pre-primary and pre-school classes by these private unaided schools. The petitioner may, if so advised, represent to the Lieutenant Governor, Delhi, to make such amendments to the aforesaid order, which, in their opinion, are required to be made, to rule out any possible misuse of the liberty given to the private unaided school, in the said order, in the matter of laying down the criterion for admission to pre-primary and prenursery classes”
Further, the Hon’ble High Court has observed in Para 43 as under:
“43. Though we have held that Right to Education Act is not applicable to nursery schools, in our opinion there cannot be any difference yardstick to be adopted for education to children up to the age of 14 years irrespective of the fact that it applies to only elementary education. It is the right time for the Government to consider the applicability of Right to Education Act to the nursery classes as well, as in many of the States admissions are made right from the nursery classes and the children so admitted are automatically allowed to continue from Class-I. In that sense, the provisions of Section 13 would be rendered meaningless insofar as it prohibits screening procedure at the time of selection. Importance of education is per se applicable to every child right from admission to nursery classes till it completes the eighth standard. It is common knowledge that though the there is obligation on the State to provide free and compulsory education to children and the corresponding responsibility of the institution to afford the same, educational institution cannot be allowed to run as „Teaching Shops‟ as the same would be detrimental to equal opportunity to children. This reality must not be ignored by the State while considering the observations made in this judgment. Hence, we only observe that to avail the benefit of the Right to Education Act to a child seeking for nursery school as well, necessary amendment should be considered by the State. We hope and trust that the Government may take the above observation in the right spirit and act accordingly.”
As rightly observed by the Hon’ble High Court, in view of the fact that most of the private unaided schools start from pre-primary level, and admit most of the students at pre-primary level itself, from which they are promoted to elementary level, the norms governing pre-primary admissions need to be in conformity with the Right to Education Act, failing which, the entire purpose of some key provisions of the Act would be defeated. The private schools are at liberty to start the school from pre-primary level, but this liberty should not be allowed to be misused as a device to frustrate the purpose of the provisions of the Right to Education Act, 2009.
The Recognised Schools (Admission Procedure for Pre-Primary Class) Order, 2007, in its present form, so far as it allows the schools to formulate their own criteria for selecting children, including sibling, transfer case, single-parent, minority etc. and further allows them to keep a management quota upto 20%, is arbitrary, non-child centric, unconstitutional and inconsistent with letter and spirit of the Right to Education Act, which, by virtue of Section 13 read with Section 2 (o), not only clearly prohibits adoption of any preferential criteria for discriminating amongst children seeking admission, but also makes it punishable. The said Sections are reproduced as under:
“13.(1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.
(2) any school or person, if in contravention of the provisions of sub-section (1), ---
(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;
(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contravention.”
“ 2. In this Act, unless the context otherwise requires,--
(o) screening procedure means the method of selection for admission of a child, in preference over another, other than a random method.”
Thus, it is clear that under RTE Act, only random method is permissible to be adopted. Only draw-of-lots should be used as a means for children for admission. This method would not only ensure an equal opportunity to all the children, since they all have an equal right to education irrespective of their backgrounds, but also ensure transparency in the process if open draws-of-lots are conducted.
The 2007 Order was passed prior to the enactment of the Right to Education Act, 2009, which became functional from 01.04.2010. Thus, after the commencement of the RTE Act, there is a pressing need for amending the 2007 Order to bring it in line with the RTE Act, in order to give meaning provisions contained in Section 13 of the Act, read with Section 2 (o) thereof. Moreover, the unguided powers given to the schools under the said Order are open to all sorts of misuse by private schools who are engaging in rampant commercialisation and adoption of non-transparent and irrational criteria in the name of Nursery admissions.
You are therefore requested to forthwith make the necessary amends in the 2007 Order, so as to extend the protections contained in Section 13 read with Section 2 (o) to the children in the process of admissions to pre-primary/nursery classes in general category.
Yours Sincerely
Ashok Agarwal, Advocate
Advisor, Social Jurist
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