Delhi High Court

Federation Of Public Schools vs Government Of Nct Of Delhi on 31 January, 2012

Author: A.K.Sikri

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 31st January, 2012

+                                WP(C) 636/2012

FEDERATION OF PUBLIC SCHOOLS                  ..... Petitioner
                 Through: Mr. N.K. Kaul, Sr. Adv. with Mr.
                          P.D. Gupta & Mr. Kamal Gupta,
                          Advs.

                                   Versus

GOVERNMENT OF NCT OF DELHI               ..... Respondent

Through: Ms. Purnima Maheshwari, Adv. for GNCTD.

Mr. Ashok Agarwal, Adv. as Intervener.

                                   AND

+                                WP(C) 40/2012

FEDERATION OF PUBLIC SCHOOLS                 ..... Petitioner
                 Through: Mr. N.K. Kaul, Sr. Adv. with Mr.
                          P.D. Gupta & Mr. Kamal Gupta,
                          Advs.

                                  Versus
DIRECTOR (EDUCATION)                               ..... Respondent
                Through:              Ms. Purnima Maheshwari, Adv.
                                      for GNCTD.
                                      Mr. Ashok Agarwal, Adv. as
                                      Intervener.





 CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, THE ACTING CHIEF JUSTICE

1. W.P.(C) No.636/2012 is preferred on behalf of approximately 326

private unaided recognized schools functioning in Delhi impugning the

Notification No.F.15(172)/DE/ACT/2011/7290-7304 dated 27.01.2012

issued by the Lieutenant Governor of Delhi in exercise of powers conferred

under Section 35 and 38 of the Right of Children to Free and Compulsory

Education Act, 2009 (RTE Act) read with Sub-Rule 3 of Rule 10 of Delhi

Right of Children to Free and Compulsory Education Rules, 2011

(hereinafter called Delhi RTE Rules). The petition also impugns Rule 10(3)

of the Delhi RTE Rules. The petitioner alternatively has claimed that this

Court should lay down Guidelines and pre-conditions for exercise of power

under Rule 10(3) of the Delhi RTE Rules for extending the limits / area of

"neighbourhood" as defined under the RTE Act and the Delhi RTE Rules.

2. The RTE Act was enacted in implementation of the mandate and spirit

of Article 21A of the Constitution of India inserted vide 86th Amendment

Act, 2002. Article 21A provides for free and compulsory education of all

children in the age group of 6 to 14 years as a Fundamental Right. To

achieve this goal, Section 12(1)(c) requires private unaided schools, some of

which in Delhi are represented by the petitioner to admit in Class-I , to the

extent of at least 25% of the strength of that class, children belonging to

Economically Weaker Sections (EWS) and disadvantaged groups in the

neighbourhood and provide free and compulsory elementary education till

its completion. Such Schools, under Section 12(2) of the RTE Act shall be

reimbursed expenditure so incurred by them to the extent of per child

expenditure incurred by the State or the actual amount charged from the

child whichever is less. Since some Schools were already under obligation

(as per the term of allotment of land to them) to provide free education to a

specified number of children, the second proviso to Section 12 (2) provides

that the Schools shall be not entitled to reimburse to the extent of the said

obligation.

3. Though the RTE Act in Section 12 (supra) and also elsewhere uses the

word "neighbourhood" but does not define the same. Such definition is

however to be found in the Right of Children to Free and Compulsory

Education Rules, 2010 (RTE Rules) which prescribe the limit of

neighbourhood in respect of children in Classes-I to V as within walking

distance of 1 Km. and in respect of children in Classes VI to VIII as within 3

Kms. The Delhi RTE Rules also similarly prescribe the limits of

neighbourhood as radial distance of 1 Km. from the residence of child in

Classes I to V and radial distance of 3 Kms. from the residence of the child

in Classes VI to VIII. Thus the private unaided schools members of the

petitioner under the Act and the Rules aforesaid are required to admit

children belonging to the EWS and disadvantaged groups in Class I to the

extent of 25% of the strength and resident of within the limits of

neighbourhood aforesaid.

4. The respondent through Director of Education, however vide order

dated 16.12.2011 directed as follows:

"All schools shall ensure that no child under economically weaker sections and disadvantaged group is denied admission on neighbourhood / distance basis so long as the locality of the child's residence falls within the distance criteria devised by the schools for the general category children."

It being a common ground that the private unaided schools while admitting

general category children does not follow the limits of neighbourhood as

prescribed for the children from EWS and disadvantaged groups, the

aforesaid order mandated extending the limits of neighbourhood for the

children belonging to EWS and disadvantaged groups.

5. The petitioner filed W.P.(C) 40/2012 impugning the said order and the

learned Single Judge of this Court while issuing notice of the said writ

petition, on the contention of the petitioner that the Director of Education

could not have vide order aforesaid extended the limits of neighbourhood as

prescribed in the Rules, as an ad interim measure stayed the operation of the

same. The said writ petition is listed next before the learned Single Judge

on 10.02.2012.

6. However, now the Notification dated 27.01.2012 (impugned in this

petition) has been issued extending the limit of neighbourhood. Apparently,

the said Notification has been issued to get over the challenge in W.P.(C)

No.40/2012 on the ground of the Director of Education being not entitled to

extend the limits of neighbourhood by an executive order.

7. Mr. N.K. Kaul, Senior counsel for the petitioner has contended that

once the definition of neighourhood is to be understood in the same manner

as applicable to students of general category, it would mean that there is no

distance prescribed at all and even the children belonging to the EWS and

disadvantaged group who are residing at far away places would have to be

admitted by the private unaided schools. He contends that the same is not

only violative of the Rules aforesaid but also goes against the very scheme

of the Act. Our attention is drawn to the report of April, 2010 of the

Committee on Implementation of the RTE Act and to the 213 th Report on the

RTE Bill of the department related Parliament Standing Committee of

Human Resource Development and which report was presented to the Rajya

Sabha. Therefrom, it is pointed out that concerns and apprehensions were

expressed about the distance / time for commutation and need was felt to

define neighbourhood appropriately to also ensure access to education

within reasonable reach of children. It is also contended that admission in far

way schools may lead to high dropout rate. The senior counsel for the

petitioner contends that the Notification aforesaid and Rule 10(3) of the

Delhi RTE Rules (which enables the Government to for the purposes of

filling up the requisite percentage of seats reserved for children of EWS and

disadvantaged groups extend the limits of neighbourhood from time to time)

in exercise of powers whereunder the same has been issued are ulra vires the

RTE Act, the RTE Rules as well as the Delhi RTE Rules and the spirit of

neighbourhood school.

8. We have at the outset enquired as to what is the cause of action or the

reason for the private unaided schools to be aggrieved from the Notification

aforesaid or the extension of the limits of neighbourhood; it is not in dispute

that the said private unaided schools under the Act and the Rules aforesaid

are obliged to fill up 25% of the seats in Class I and / or at the entry level if

below Class I from children belonging to EWS and disadvantaged groups -

it should not matter to the School whether such children are residing within a

distance of one kilometer or more. The grievance if any should be of the

children and/ or their parents for the inability of the Government, inspite of

legislation, being unable to provide schools within the neighbourhood as

defined.

9. Though the senior counsel for the petitioner has been unable to show

as to how the private unaided schools are affected, he has contended that

being a stakeholder, they are interested in compliance of the laws. It is

argued that the Notification and the exercise of power under Rule 10(3) of

the Delhi RTE Rules to the extent of doing away rather than extending the

limits of neighbourhood is bad.

10. We are however of the view that the paramount purpose is to provide

access to education. Whether for that access, the child is to travel within 1

Km. or more is secondary. It is apparent from the executive order of the

Director of Education and the Notification aforesaid that if the obligation on

the private unaided schools to admit children belonging to EWS and

disadvantaged groups is limited to those children only, who are residing

within a distance of 1 Km. from the school, the same may result in a large

number of such children even though willing for the sake of acquiring

education to travel more than 1 Km. being deprived thereof for the reason of

there being no seats in the school within their neighbourhood. It may also

result in several of the private unaided schools who do not have sufficient

number of such children within their defined neighbourhood allocating the

seats so remaining unfilled to the general category students.

11. In the circumstances, we at the instance of the private unaided schools

who are not found to be aggrieved from the Notification aforesaid not

inclined to entertain W.P.(C) No.636/2012 challenging the same.

12. We also find that the problem already stands answered by a formula

devised by the Division Bench of this Court in its judgment dated

30.05.2007 in W.P.(C) No.3156/2002 titled Social Jurist Vs. Govt. of NCT

of Delhi. No doubt that writ petition was filed before the RTE Act had been

enacted. However, the issue was almost identical in nature. The said

judgment was rendered in a public interest litigation mandating the Schools

who had been allotted land on concessional rates to give admission to

children belonging to EWS. The issue of distance / neighbourhood had also

arisen for consideration while dealing with the said aspect and the following

solution was devised:

"Admission shall be first offered to eligible students from poorer sections residing within 3 kilometers of the institutions. In case vacancies remain unfilled, students residing within 6 kilometers of the institutions shall be admitted. Students residing beyond 6 kilometers shall be offered admission only in case the vacancies remain unfilled even after considering all students within 6 kilometers area."

13. We are of the opinion that the criteria aforesaid can be adopted for the

purpose of admission under the RTE Act and the Rules aforesaid. The

petitioner also, as aforesaid in the alternative has sought guidelines from this

Court. We are also of the view that the RTE Act being comparatively recent,

and hiccups being faced in implementation thereof, considering the laudable

objective thereof, it becomes the bounden duty of this Court to ensure that

such hiccups do not defeat the purpose of its enactment. After hearing the

counsel for the respondent GNCTD, we direct as under:

(i) Admission shall first be offered to eligible students belonging

to EWS and disadvantaged group residing within 1 Km. of the

specific schools;

(ii) In case the vacancies remain unfilled, students residing within 3

kms. of the schools shall be admitted;

(iii) If there are still vacancies, then the admission shall be offered

to other students residing within 6 kms. of the institutions;

(iv) Students residing beyond 6 kms. shall be admitted only in case

vacancies remain unfilled even after considering all the students

within 6 kms. area.

14. The senior counsel for the petitioner has stated that as per the

Schedule for admission announced earlier, the admission process is to close

soon. He seeks extension thereof, to enable the private unaided schools to

make admission in accordance with the guidelines aforesaid.

15. We find merit in the aforesaid contention. Since the clarification /

guidelines aforesaid has been issued now we are confident that further two

weeks time shall be allowed to the schools to complete the admission

process.

16. However, finding that the executive order dated 16.12.2011 earlier

issued and which has been stayed in W.P.(C) No.40/2012, we have with the

consent of the counsels taken that writ petition also on our board today. The

counsel for the petitioner admits that upon issuance of the Notification