Delhi High Court
Kumari Hina Khan vs Gnct Of Delhi And Anr on 5 August, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th August, 2010.
+ W.P.(C) 4953/2010 & CM No.9804/2010 (u/S 151 CPC for interim
directions)
% KUMARI UZMA BANO & ANR. ..... Petitioners
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GOVT OF NCT OF DELHI & ANR. .....Respondents
Through: None.
AND
+ W.P.(C) 4954/2010 & CM No.9805/2010 (u/S 151 CPC for interim
directions)
KUMARI GULAFSHAH & ANR. ..... Petitioners
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: None.
AND
+ W.P.(C) 4974/2010 & CM No.9831/2010 (u/S 151 CPC for interim
directions)
KUMARI RAKHI JAIN & ANR. ..... Petitioners
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: None.
W.P.(C)No.4953, 4954, 4974, 4986, 5178, 5191, 5192, 5194, 5195, 5197 /2010 Page 1 of 13
AND
+ W.P.(C) 4986/2010 & CM No.9848/2010 (u/S 151 CPC for interim
directions)
KUMARI FIRDOS & ANR. ..... Petitioners
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: None.
AND
+ W.P.(C) 5178/2010 & CM No.10236/2010 (u/S 151 CPC for
interim directions)
MASTER AMIR KHAN ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. Somdutt Kaushik, Adv.
AND
+ W.P.(C) 5191/2010 & CM No.10250/2010 (u/S 151 CPC for
interim directions)
KUMARI BARKHA YADAV ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. Somdutt Kaushik, Adv.
AND
W.P.(C)No.4953, 4954, 4974, 4986, 5178, 5191, 5192, 5194, 5195, 5197 /2010 Page 2 of 13
+ W.P.(C) 5192/2010 & CM No.10251/2010 (u/S 151 CPC for
interim directions)
KUMARI HINA KHAN ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. S.Q. Kazim, Adv. with Mr. Alim
Mizaj, Mr. Haris Usmani & Mr.
Mukul K. Singh, Advocates for R-1.
AND
+ W.P.(C) 5194/2010 & CM No.10253/2010 (u/S 151 CPC for
interim directions)
KUMARI RIZWANA ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates.
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. Nawal Kishore Jha, Advocate for
R-1.
AND
+ W.P.(C) 5195/2010 & CM No.10254/2010 (u/S 151 CPC for
interim directions)
KUMARI BALOON ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. Nawal Kishore Jha, Advocate for
R-1.
W.P.(C)No.4953, 4954, 4974, 4986, 5178, 5191, 5192, 5194, 5195, 5197 /2010 Page 3 of 13
AND
+ W.P.(C) 5197/2010 & CM No.10255/2010 (u/S 151 CPC for
interim directions)
MASTER MOHD FAZIL ..... Petitioner
Through: Mr. Ashok Agarwal & Mr. J.B.
Prakash, Advocates
Versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. S.Q. Kazim, Adv. with Mr. Alim
Mizaj, Mr. Haris Usmani & Mr.
Mukul K. Singh, Advocates for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Yes
be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. These writ petitions, have been preferred complaining that the
petitioner/petitioners in each of the writ petitions has/have approached the
School impleaded as respondent no.2 in each of the writ petitions, for
admission but has/have been denied admission. All the said Schools are
recognized schools within the meaning of the Delhi School Education Act,
1973 and are Government Schools. In some of the cases, it is stated that the
Principal/Head of the school has refused admission inspite of the
recommendation of the respondent no.1 Directorate of Education.
Admission is sought in various classes, all in or under Class VIII, except
four petitioners who are seeking admission in Class IX. While in some cases
admission is sought by transfer from schools outside Delhi, in other on
account of having left education in between and in yet other on account of
earlier school being till a particular class only.
2. It is inter alia the case of the counsel for the petitioners that such
denial of admission is in violation of The Right of Children to Free &
Compulsory Education Act, 2009 (RTE Act). The said Act has been
promulgated to provide for free and compulsory education to all children of
the age of six to fourteen years. Section 3(1) thereof, vests in every child of
the age of six to fourteen years, a right to free and compulsory education in a
neighbourhood School till completion of elementary education. Elementary
education is defined in Section 2(f) as education from first to the eighth
class. School has been defined in Section 2(n) as a recognised school
imparting elementary education, including a school established, owned or
controlled by the appropriate Government or local authority or an aided
school receiving aid or grant from Government or local authority or a school
belonging to specified category or even an unaided school. Section 6 of the
Act mandates the Government and local authority to establish within each
neighbourhood, schools for carrying out the provisions of the Act and where
such Schools are not there, gives a time frame of three years for
establishment of such schools. Sections 8 and 9 deal with duties of
Government and local authority. Section 10 imposes a duty on parents and
guardians to admit or cause to be admitted his/her child or ward to an
elementary education in a neighbourhood School. Section 12 imposes an
obligation on the School established, owned or controlled by Government or
local authority with which we are concerned to provide free and compulsory
elementary education to all children admitted therein. Section 14 provides
for determination of age and Section 14(2) provides that no child shall be
denied admission for lack of age proof.
3. Notices of the petitions were issued and since academic session has
begun, to avoid delays, personal presence of concerned official of
respondent no.1 Directorate of Education of Govt. of NCT of Delhi directed.
4. The Deputy Director of Education, Mr. B.D. Kaushik is personally
present in the Court today. He states that none of the Govt. Schools will
deny or have denied admission to any of the students seeking admissions in
the said schools. The counsel appearing for the respondent no.2 Schools has
also made a statement to the said effect. The counsel for the respondent no.2
Schools however states that in some of the cases, the Principals/Head of the
Schools have required the petitioners/their parents to furnish the „Transfer
Certificate‟ and/or have sought to verify the said Transfer Certificate and
which has led to a false impression of the schools denying admission.
5. Rule 139 of the Delhi School Education Rules, 1973 provides that no
student who had previously attended any recognized School, shall be
admitted to any aided school unless he produces a Transfer or School
Leaving Certificate from the school which was last attended by him.
6. The counsel for the petitioners contends that upon sweeping changes
having been brought about by the RTE Act, the same would supercede any
provision contrary thereto in the Rules aforesaid and admission cannot be
denied by insisting on Transfer Certificate. In my opinion, such general
proposition cannot be accepted. While the RTE Act is intended to ensure
elementary education, it is the School Act & Rules which concern better
organization and development of School Education. The provision for a
Transfer Certificate in the Rules is intended for the aided school to which
admission is sought to satisfy itself as to till what class the student seeking
admission has studied and what was the result of the student for the class
last attended. Moreover, I find that Section 5 of the RTE Act while
providing for Right of transfer to other School, itself in sub Section (3)
mandates the issuance of a transfer certificate though proviso thereto does
away with the delay in producing Transfer Certificate as a ground for
delaying or denying admission in other School. Thus it cannot be said that
owing to the RTE Act, the Rule 139 for Transfer Certificate has become
redundant or that the School to which admission is sought cannot demand a
Transfer Certificate.
7. Rule 139(2) provides that where a student seeks admission to an aided
school on the basis of a Transfer Certificate granted by a school in any State
or Union Territory other than Delhi, such Certificate is required to be sent
for verification and countersignature of the Head of the school in which
admission is sought, to the Education Authority of the district in which the
School from which Transfer Certificate was obtained is situated. It further
provides for provisional admission in the meanwhile. This Rule thus cannot
be said to be contrary to the RTE Act. The Rule is also found to be intended
for the School to which admission is sought, satisfy itself as to in which
class the admission is to be granted.
8. It is thus clarified that the Schools to which the petitioners have
sought admission though would be entitled to comply with the provisions of
Rule 139 and seek verification of Transfer Certificate but in the meanwhile
provisionally admit the child. If upon such verification, any
ambiguity/discrepancy is found or clarification deemed necessary, the
School shall intimate the parents of the petitioners concerned of the same in
writing. If the said ambiguity remains or the Transfer Certificate submitted
remaining unverified, the child shall be treated as one who has not
previously attended any recognized school and dealt with as mentioned
herein below.
9. The counsel for the petitioners has contended that in some of the cases
the petitioners have not studied in any recognized or Govt. School. The
provision with respect thereto is made in Rule 141 of the Delhi School
Education Rules, 1973. In such case the parent or guardian is required to
give full history of the previous education of the child and to furnish an
affidavit on non-judicial stamp paper duly attested to the effect that the child
had not attended any recognized school till then. Though Sub Rule (2) of
Rule 141 provides for the Head of the school to which admission is sought,
to in consultation with the Zonal Education Officer arrange for a test in such
cases to determine the suitability of the student for admission to the class in
which the admission is sought, the counsel for the petitioner contends that
Section 4 of RTE Act is contrary thereto and thereunder admission has to be
granted to the child in a class appropriate to his/her age. The contention of
the counsel for the petitioner is thus that even if the child aged about 13
years has not previously studied in any recognized school and seeks
admission to say, Class-VII in which others of his/her age are studying, the
School is obliged to admit the student to Class-VII only and not to any lower
class. He further invites attention to the proviso to Section 4 of the RTE Act
which provides for special training to be given to such students on
admission in such class. The counsel further invites attention to Section 2(o)
of the RTE Act defining "screening procedure" to contend that the holding
of a test as provided for in Rule 141(2) (supra) would be a screening
procedure which is prohibited under Section 13 of the RTE Act.
10. Section 2(o) defines the screening procedure as the method of
selection for admission of a child, in preference over another. I am unable to
accept the contention of the counsel for the petitioners that the holding of a
test as prescribed in Rule 141 (2) would be a screening procedure which is
prohibited under the RTE Act. The test under Rule 141(2) is intended only
to determine the class in which the student is fit to be admitted, depending
upon his past learning and capacity to learn. The student while participating
in the said test is only giving a test of his own ability and is not competing
with any other child or for admission in preference over another. Rule 132
of the Delhi School Education Rules, 1973 also, while prohibiting test for
admission, permits a test as in Rule 141(2).
11. In my view, admitting a child as aforesaid in Class-VII merely
because others of his age are studying in that class even though he may not
have the acumen or capacity to cope with course or curriculum of Class-VII
would be contrary to spirit of the RTE Act of ensuring completion of at least
elementary education for each child and rather detrimental thereto. If a child
is unable to cope with the demands of a class to which he is admitted he is
more likely to abandon his education.
12. The counsel for the petitioners however has rightly pointed out that if
such a child is admitted to say Class-I, the same would also be equally
detrimental inasmuch as a child of 13 years would be embarrassed in
attending Class-I along with students much below his age.
13. The procedure provided in Rule 141(2) of the Head of the School to
which admission is sought in consultation with the Zonal Education Officer
to assessing the class to which a child should be admitted is found to be
appropriate. They will in such a test assess that the child is able to cope with
the demands of the class to which he is admitted and is not embarrassed in
front of his peers and remains interested in pursuing the education further;
may be such a child can be admitted, if not to Class-VII, to Class-VI or
Class-V.
14. The counsel for the petitioners however contends that if such an
interpretation is taken, the first proviso to Section 4 of RTE Act will become
redundant. In my opinion, no. Even though the child may be admitted to
class below that in which others of his age are studying, the child is still
likely to require the special training mentioned in the said proviso. I may
also add that there does not appear to be any maximum age limit for
admission to any particular class and the School Act or the Rules do not
provide any class in relation to age. The counsel for the petitioners has
rather shown the explanation to Rule 21 of the Recognized Schools
(Admission Procedure for Pre-Primary Class) Order, 2007 which only
provides the minimum age for admission and expressly provides that there is
no bar for older children to getting admission for Pre-school Class or Pre-
primary Class or Class-I. For this reason also it cannot be said that there is
any law or Rule connecting a class to age. The expression "in a class
appropriate to his or her age" in Section 4 of RTE ACT cannot be read as
"in a class to which others of his age are studying" and it shall remain open
to the head of the School to which admission is sought to, in consultation
with the Zonal Education Officer determine the Class to which such student
should be admitted.
15. It is thus directed that qua the petitioners who are seeking admission
to the respondent Schools without previously attending any recognized
Schools, the Head of Schools, in exercise of powers under Rule 141 (2) and
in consultation with the Zonal Education Officer shall assess the child to
determine the suitability for admission in a particular class and in the light of
what has been laid down hereinabove.
16. The counsel for the respondents has also contended that several of the
petitioners instead of choosing the school in the proximity of their residence
are seeking admission to distant schools. The counsel for the petitioners
though controverts the same but states that if any other school closer in
proximity is pointed out, admission thereto will be accepted.
17. The counsel for the petitioners has also stated that besides the
petitioners herein, there are about 1000 other children who are also being
similarly denied admissions. To prevent this Court from being inundated
with similar petitions, the Deputy Director of Education present in the Court
is directed to, upon being approached by such children, deal with them also
on the same lines as discussed hereinabove. The counsel for the petitioners
further states that out of the aforesaid number, about 400 are children with
disabilities. He further points out the judgment dated 16 th September, 2009
of the Division Bench of this Court in W.P. (C) No.6771/2008 titled Social
Jurist, A Civil Rights Group Vs. GNCTD wherein it was held "It is made
clear that no disabled child shall be refused admission in any of the schools
either run by the State Govt. or the local bodies". The Deputy Director of
Education states that such students shall also be dealt with in accordance
with the said judgment of the Division Bench. I may also draw attention to
the proviso to Section 3(2) of the RTE Act in this regard.
18. With the aforesaid directions, the writ petitions stand disposed of. No
order as to costs.
Copy of this order be given Dasti under the signature of the Court
Master.
RAJIV SAHAI ENDLAW
(JUDGE)
5th August, 2010
bs..
