Delhi High Court
Social Jurist, A Civil Rights ... vs Govt. Of Nct Of Delhi & Anr. on 13 July, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th July, 2012
+ CM No. 5202/2012 in W.P.(C) No. 7796/2011
% SOCIAL JURIST, A CIVIL RIGHTS GROUP ....Petitioner
Through: Mr. Ashok Aggarwal, Adv.
Versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. V.K. Tandon, Adv. for GNCTD
Mr. Ravinder Agarwal, CGSC
Mr. A.K. Singh, Adv. for DCPCR
Mr. Aagney Sail, Adv. for NCPCR
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The present proceedings are a classic example of a statute being given
an effect, which perhaps the legislature never intended it to have. The
controversy concerns the Right of Children to Free and Compulsory
Education Act, 2009 (RTE Act) and the effect thereof on Rajkiya Pratibha
Vikas Vidyalayas (RPVVs).
2. RPVVs were established as Pace Setting Government Schools vide
Cabinet Note No.F.DE-15/Act/140/97 dated 27.03.1997 of the Government
of National Capital Territory of Delhi (GNCTD). To understand the intent
and thought process which went into establishing the RPVVs, it is necessary
to reproduce in toto the said Cabinet Note:-
"The schooling pattern in Delhi is clearly divided into
two streams. On the one hand we have the so called public
schools which charge high fees and on the other hand we have
the Govt. and aided schools which provide free education.
Those who are being deterred by the poor standard of
education in Govt. schools, are forced to send their wards to
high fee charging schools. The poor are also forced to send
their wards to Govt. schools. In such a situation, very bright
children are grouped with less than average children.
Consequently, even bright children having potential suffer.
This situation has to be corrected. Majority of the people are
not bothered about status symbols and shall willingly prefer
Govt. schools provided good education is available there. A
Govt. school or a public school should be a matter of choice
not of compulsion, as it is today.
Directorate of Education has given serious thought to
this situation and has decided to make de-novo efforts to raise
the standard of education in Govt. schools to a level
acceptable to most of the parents. It has been proposed to
select certain Government schools in different areas of the
National Capital Territory of Delhi for upgrading to this level
by making necessary addition to the school, making changes
in the staff, selection of good principals and giving them
certain more powers within the existing framework. For
giving good educational facilities, emphasis will be given on
the selection of the teachers, the head of school, the students,
the quantum of autonomy and system of achievement
evaluation. These schools will also be provided extra facilities
for co−curricular activities and for inculcation of values. It is
because of the lack of these ingredients that the majority of
the Government schools are not able to provide quality
education.
In order to have at least some Govt. schools, to begin
with, having standards comparable to those available in the
so-called better public schools, we shall have to incorporate
the following ingredients in our schools on the basis of current
achievement but also taking into account his previous record
and his ability to build up an institution.
2. Teachers: We shall have to choose teachers who have
given a consistently good performance over the year and who
are well versed in the language they are expected to teach in.
All teachers shall be very carefully selected from among those
available in the government schools. On being posted in the
pace setting schools, they will not be transferred for at least 5
years, except on extreme administrative grounds. There will,
however, be no transfer on request.
3. Resources: Education will be absolutely free. However,
with the increased rates of the pupil‟s fund and the PTA fund,
the schools should have adequate funds to take care of
incentive and minor facilities.
4. Management: Each such school shall be adopted by an
officer to be decided by the D.E. The adoptive officer will be
authorized to issue orders in respect of administrative matters
connected with that school and no separate orders from the
district Dy. Director will be necessary in this regard. He will
also be responsible for inspection and supervision of the
schools. The Principal of the school shall be directly
accountable to the officer adopting the school.
The school shall have an advisory committee consisting of the
following:-
„A‟ A renowned educationist of the area.
„B‟ Head of the school - Secretary
„C‟ Adoptive officer - Chairman
„D‟ Concerned DDE (district)
„E‟ Concerned E.O.
„F‟ The parents nominated form amongst the PTA by
the Principal.
„G‟ Two teachers of the school nominated by the
Principal.
The committee shall be authorized to decide school
timings, co-curricular activities, school calendar and
introduction and abolition of subjects.
5. Institutional Planning and Self Evaluation: Before the
beginning of each academic session, the school will prepare an
institutional plan laying down the objectives, strategies and the
resources available. After the session is over, a self evaluation
exercise shall be undertaken and review of the work shall be
done by the Advisory Committee. Accountability of the staff
will be enforced and appropriate action taken.
6. Pupils Achievement Evaluation: In order that continuous
and comprehensive evaluation of the pupils is done, it will be
necessary to keep a proper record of the students‟ work and
conduct during the year and to ensure that cumulative record
cards are maintained for each student and shown to his
guardian after every terminal test.
These schools shall also be given freedom to adopt more strict
criteria of promotion of students and their admission to
different streams in Class−XI.
7. Infrastructure & facilities: Every such school shall
provide Computer Education as a compulsory subject of study
for all students and also for those interested, as an elective
subject. Complete modern technological hardware will be
made available to these schools. This will include OHP, VCR
Projector, latest PA system etc. The schools shall also be
provided with a hall, playgrounds and all the three streams at
the +2 level.
8. Admission: In the first year i.e. 1997-98, admission will
be allowed only to class VIth to IXth and XIth. From the IInd
year, admission will be open to all the classes for children who
have studied for at least last two years in the Govt. or aided
schools. Children will be admitted strictly on the basis of
performance in the admission test which will be of the level of
class to which admission is desired and, for this purpose, these
schools shall be excluded from the Admission Plan. All the
aspirants for admission will be tested in English, Hindi, Maths
and Gen. Science. The enrolment in each section shall not
exceed 35 under any circumstances and each class shall not
have more than three sections. The pace setting schools shall
run in single shift.
To begin with, it is proposed to have one such pace-
setting school at the rate of one school in 3-4 zones from the
session 1997-98. No new school will be established but one
such existing school preferably located in a cluster of schools
will be selected for conversion into a pace setting school.
The proposal has no legal implications and does not
involve any additional financial liability. As such the same is
being placed before the Cabinet for consideration and approval
on the following counts:
1. To allow 9 schools at the rate of one each in 3-4 zones to
run on the above mentioned lines w.e.f. the academic session
1997-98;
2. To allow admission of students to classes VI to IX & XI
during 1997-98 and to all classes from VI onward from 1998-
99 onward, purely on merit to be determined through a suitable
admission test.
3. To give additional facilities to these schools as
mentioned in the above note.
This note has been seen and approved by the Minister of
Education and the Chief Minister."
3. It is the uncontroverted position that the intent and thought process
that had gone into establishing RPVVs bore fruit and the examination
results of the students of RPVVs vis-à-vis students of other Government
schools have been far superior.
4. However when the RPVVs published the admission notice for
Classes VI and IX for the Academic Session 2010-11, by holding entrance
test consisting of objective type questions to test numerical ability, mental
ability, general knowledge and language comprehension, the Member
Secretary of the National Commission for Protection of Child Rights
(NCPCR) [constituted under the Commissions for Protection of Child
Rights Act, 2005 (CPCR Act)] protested, averring the said procedure, of
admission by holding a selection test, to be violative of Section 13 of the
RTE Act and demanded withdrawal of the said admission notice.
5. The Director of Education of the GNCTD responded as under:
"In the year, 1997, it was realized that in Government
Schools, there are many students who have potential to excel
given right environment. It was also realized that such students
from low economic strata but having potential cannot afford to
attend public schools. It was proposed to shape their excellence
and provide a platform to cater to their higher needs of
academic excellence. Accordingly, Government proposed to
establish pace setting Government Schools of special category
to provide better conditions of teaching learning environment
and better infrastructure and thus Rajkiya Pratibha Vikas
Vidyalayas came into existence with the approval of the
Cabinet.
The entry level of admission in RPVVs is Class-VI. The
students are taken from the lot of students who are already
getting education in any Government / Government Aided
Schools as well as schools managed by Local Bodies to provide
them further excellence in education. In this way, the selection
of such students from above category of schools to the RPVVs
by the way of test is not an infringement to their Right to
Education. To admit them in RPVVs means to shape their
potential as the RPVVs were established with the view to cater
to those students who belong to low economic strata of the
society but have potential and excellence.
Therefore, such test is not violative of the provisions of
Section 13 of the Right of Children to Free and Compulsory
Education Act, 2009 as the test is just an internal arrangement
to select students who are already in Government / Government
Aided / MCD / NDMC / Cantonment Board Schools for
admission into these RPVVs. The test has already been
conducted on 09.04.2010."
6. NCPCR was however not satisfied with the response aforesaid and
exercising its powers under Section 13(1)(j) of the CPCR Act initiated
proceedings and issued notice to show cause to the GNCTD to show as to
how the process of holding of selection test for admission to RPVVs was
not in violation of the rights of children and the policies under the RTE Act
framed for their benefit. Ultimately the NCPCR being of the view that the
thrust of RTE Act was on free, compulsory and quality education for all
children and the selection process for admission to RPVVs was resulting in
discrimination and was violative of Section 13 of the RTE Act, vide order
dated 17.06.2010 directed cancellation of all admissions made to RPVVs in
the year 2010-11 and further directed RPVVs to follow only permissible
method of selection of children under Section 2(o) of the RTE Act, i.e. the
random method for admission.
7. In the meanwhile, upon the enactment of the RTE Act, the RPVVs
were vide Notification No. F.Addl.DE(Sch)609-623 dated 16.06.2010
notified as schools belonging to specified category within the meaning of
Section 2 (p) of the RTE Act. Even the said Notification records as under:-
"Whereas there are 932 Government Schools in
jurisdiction of Directorate of Education which include 19
Rajkiya Pratibha Vikas Vidyalayas.
And Whereas, in the year, 1997 it was realized that in
Government Schools, there are many students who have
potential to excel, given right environment. It was also
realized that such students from low economic strata but
having potential cannot afford to attend public schools. It was
proposed to shape their excellence and provide a platform to
cater to their higher needs of academic excellence.
Accordingly, it was proposed to allow to establish pace setting
Government Schools of special category having distinct
character to provide better conditions of teaching learning
environment and better infrastructure and the same, was
approved by Government and thus, Rajkiya Pratibha Vikas
Vidyalayas came into existence.
And Whereas, THE RIGHT OF CHILDREN TO FREE
AND COMPULSORY EDUCATION ACT, 2009 has been
notified to take effect from 01.04.2010. The provisions of the
Act are to provide for free and compulsory education to all
children of the age of 6-14 years. The Rajkiya Pratibha Vikas
Vidyalayas, are the schools like Kendriya Vidyalayas,
Navodaya Vidyalayas, Sainik Schools or any other school
having a distinct character which may be specified by
notification by the appropriate Government under Clause (p)
of Section 2 of the aforesaid Act.
And Whereas, students of Rajkiya Pratibha Vikas
Vidyalayas are admitted from amongst those studying in
Government / Government Aided / MCD / NDMC/
Cantonment Board schools, in order to cater to the needs of
their higher potential. They are selected from such students,
after a test at the entry level of Class - VI and thereafter to
Class-IX and XI subject to the condition of availability of
seats in the respective Rajkiya Pratibha Vikas Vidyalayas.
And Whereas, the Rajkiya Pratibha Vikas Vidyalayas,
have a distinct character, in terms of the objectives and
mission stated above.
Now, therefore, in pursuance of Clause (p) of Section 2
of the Right of Children to Free and Compulsory Education
Act, 2009, the Lt. Governor, NCT of Delhi is pleased to
declare Rajkiya Pratibha Vikas Vidyalayas as Specified
Category Schools like Kendriya Vidyalayas, Navodaya
Vidyalayas, Sainik Schools."
8. GNCTD filed W.P.(C) No. 4973/2010 in this Court impugning the
aforesaid order of NCPCR. Notice of the said petition was issued and vide
interim order dated 27.07.2010, the order of the NCPCR stayed. However,
vide a subsequent order dated 05.05.2011 in the said writ petition, it was
observed by a Single Judge of this Court that the RTE Act which was
subsequent to the Scheme of RPVVs formulated in the year 1997 would
prevail over the said Scheme and it was imperative for the GNCTD to
comply with Section 13 of the RTE Act even in the matter of admission to
RPVVs.
9. GNCTD filed a further affidavit in W.P.(C) No.4973/2010 stating as
under:
"2. The petitioner respectfully submits that the matter has
been considered by the Govt. of NCT of Delhi / petitioner, and it
has decided to maintain „school of specified category‟ status of
Rajkiya Pratibha Vikas Vidyalayas (hereinafter referred to as
„RPVV‟) as notified in terms of clause (p) of Section 2 of the
Right of Children to Free and Compulsory Education Act, 2009,
and shall continue with its internal arrangement to select
students from amongst those who are already studying in Govt. /
Govt. aided / MCD/ NDMC / Cantonment Board Schools for
transfer / switchover in "RPVV", considering the following:-
i. Transfer / switchover being made in "RPVV" is an
internal arrangement for selection of bright children
from amongst children already studying in
Government Schools mentioned ibid, belonging to
poor strata of the society, and to provide them with
facilities at par with Public Schools, free of cost,
and to help them nurture their talent and achieve
their career goals, for which they otherwise remain
deprived while studying in Government Schools.
Pertinent to add that the objective of the
Government is to convert each and every
Government School under its control in to „RPVV‟,
according to resources available.
ii. Re-conversion of these RPVVs, in to ordinary
schools, by switching to random selection method,
shall mean switching off the ray of hope for
brilliant children, who were earlier unable to access
quality education owing to their weaker economic
condition and render the basic purpose of
establishing "RPVVs" defunct.
iii. RPVVs are having a distinct character and have
been declared as specified category schools like
Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik
Schools by appropriate government.
iv. "RPVVs", in spite of being "specified Category",
schools under sub section (p) of Section 2 of RTE
Act, 2009, resort to transfer / switchover of students
to the extent of 100% by way of selection from
students of Government Schools demonstrating
academic brilliance; pertinent to add that a large
majority of students admitted in Government
Schools and thereby in RPVVs, belong to weaker
sections of the society."
10. However, the learned Single Judge before whom W.P.(C)
No.4973/2010 was pending, was not satisfied with the said affidavit and in
the light of observations made during the hearing, the GNCTD on
30.09.2011 took a policy decision to start education, admissions / transfers
in RPVVs from IX standard only and to utilize the space so gained by
curtailment of classes below that level to accommodate more students of
poor and down trodden strata of the society at the level class IX onwards in
the RPVVs. The said decision reads as under:
"We have to harmonize the objectives of setting up RPV
Vidyalayas with the provisions in the Right to Education
(RTE) Act. The RTE Act prohibits any selection of students
through screening process where students‟ intellectual skills
are tested. This has been mandated with the objective of
sending children to neighbourhood schools irrespective of their
intellectual acumen. This, in turn, is based on the assumption
that almost all children are endowed with intellectual potential
which has been realized in the education set up of the schools.
It also saves the children from going through the trauma
involved in the process of selection.
The RPV Vidyalayas were set up with the objective of
providing education to the gifted poor children studying in the
government schools at par with the best private schools. The
objective was to nurture and nourish the bright and gifted
children, mainly poor, in a academic environment which
cannot be provided in all the government schools.
There is no doubt that at some level, selection is
necessary to encourage diligence and hard work and reward
the deserving poor students a better academic environment.
The alternative would be to abolish the Pratibha schools and
treat all children in government schools equally. Since the
provision of Right to Education Act are applicable only for
children between 1st to 8th Class, it would be appropriate to
admit gifted children through a selection process in Class IX so
that they are able to pursue their studies in an enriched
environment from Class IX to Class XII. This will also have
the benefit of admitting more children in RPV Vidyalayas as
the space presently devoted to Class VI, VII and VIII would be
available to students of Class IXth and XIIth. This will also
enable us to harmonize the provisions of the Right to
Education Act with the objective of setting up of RPV
schools."
11. In pursuance thereto an affidavit was filed in W.P.(C) No.4973/2010
that admission of students in RPVVs in elementary classes shall be in
conformity with the RTE Act. In view of the said stand of the GNCTD, the
learned Single Judge vide order dated 14.10.2011 disposed of W.P.(C)
No.4973/2010 holding that nothing survived therein and directing that
admission of students in elementary classes in RPVVs schools shall be in
conformity with the RTE Act.
12. In view of the aforesaid developments, no admissions were made to
Class VI in RPVVs in the year 2011-12. That is when the present writ
petition being W.P.(C) No. 7796/2011 was filed as a Public Interest
Litigation contending that 1400 seats in Class VI in RPVVs were being
allowed to go waste by not making admissions thereto. Notice of this writ
petition was issued. The respondent GNCTD in its counter affidavit
pleaded that owing to the dispute aforesaid which was resolved only on
14.10.2011, admissions could not be made in the academic year 2011-12.
Satisfied with the said explanation, the writ petition was disposed of on
14.12.2011 with the direction to the GNCTD to consider the suggestion of
the petitioner that to ease out the over crowding in the other government
schools students therefrom be transferred to the RPVVs so that the 1400
seats therein in Class VI are not wasted. After the disposal of this writ
petition, CM No. 5202/2012 has been filed for directions contending that the
process for admission to RPVVs had not been started for the year 2012-13
also. Notice of the said application was issued and GNCTD in reply thereto
has disclosed the full history aforesaid to this Bench, particularly the
decision of the NCPCR and the proceedings in W.P.(C) No. 4973/2010
preferred by the GNCTD thereagainst, and the decision dated 30.09.2011 to
do away with the Classes VI to VIII earlier existing in the RPVVs and to
make admissions to the RPVVs in Class IX only. It is thus stated that the
occasion for the admission to RPVVs in Class VI does not arise.
13. After going through the facts aforesaid and being prima facie of the
view that the process of admission/transfer to RPVVs by selection was not
violative of Section 13 of the RTE Act and that the decision to do away with
Class VI to VIII in RPVVs is not in public interest, we called for the file of
W.P.(C) No.4973/2010 and also issued notice of these proceedings to Union
of India, NCPCR as well as Delhi Commission for Protection of Child
Rights (DPCR). NCPCR has filed its reply along with a report and DCPCR
has adopted the same. We have heard the counsels including on the aspect
of restoration of RPVVs from Class VI with the same admission procedure
as prevalent earlier.
14. Section 13 of the RTE Act, of which the procedure for selection to
RPVVs has been held to be in violation of, is as under:
"13. No capitation fee and screening procedure for admission
(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 contraventions.
„Screening procedure‟ has been defined in Section 2 (o) of the Act
which is as under:
"2. Definition
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."
Though the language of Section 13 is wide enough to include
admission to any class but since the RTE Act is concerned with elementary
education which is defined in Section 2(f) as education from first class to
eighth class only, the prohibition contained in Section 13 of the RTE Act
has to be read till Class VIII only. That is the basis on which the decision
dated 30.09.2011 of GNCTD has proceeded i.e. of confining RPVVs from
Class IX onwards, to obviate violation of Section 13 (supra). None of the
other counsels also have contended that the bar of Section 13 would apply to
admission beyond Class VIII also.
15. The argument which was raised by GNCTD before NCPCR as well
as before the learned Single Judge in W.P.(C) No.4973/2010 but which did
not find favour was:-
(i) that in tune with the decision/policy of establishing RPVVs
only bright children with 60% and above marks, studying in
government schools were allowed admission in RPVVs;
(ii) in order to select bright students studying in Government/
Government aided / MCD / NDMC / Cantonment Board
Schools without any bias and discrimination, procedure for
selection from amongst students studying in the said category
of schools for the previous two years and having scored at least
60% marks in previous class, via admission test was adopted;
(iii) that education imparted to the selected students in RPVVs is
totally free;
(iv) that on the basis of performance and maintenance, 14 out of 19
RPVVs had been provided ISO certification;
(v) that on the basis of performance of RPVVs, the poor
impression of government schools in the minds of people had
begun to change and even economically well to do parents
were coming forward to get their children admitted in
government schools in order to gain admission to RPVVs;
(vi) that to meet the increasing demand, the RPVVs had been
increased from the initial 3 to 19;
(vii) that the provisions of the RTE Act are applicable for initial
admission of children in schools; on the contrary, admission
made in RPVVs are not of the students who have to be
admitted at the initial stage but is of selection of bright children
from amongst children already studying in government
schools; there is thus no violation of Section 13 of the RTE
Act;
(viii) that RPVVs are a ray of hope for brilliant children who were
earlier unable to have quality education owing to their weak
economic condition;
(ix) that though RTE Act mandates admission of only 25% of
students from weaker strata of society and disadvantaged
group, 100% admission to RPVVs were of students from
government schools (who belong to weaker sections of the
society) showing academic brilliance;
(x) Transfer / switchover from other Government, Government
aided, Municipal, Cantonment Board schools to RPVVs is an
internal arrangement for selection of bright children belonging
to poor strata of the society to provide them the facilities at par
with public schools free of cost and to help them nurture their
talent and to achieve their career goals of which they would
otherwise remain deprived while studying in government
schools;
(xi) that the ultimate objective was to slowly bring other
government schools also to the level of RPVVs but which
could not be immediately done;
(xii) that re-conversion of RPVVs to ordinary school by switching
to random selection method would render the basic purpose of
establishing RPVVs defunct;
(xiii) RPVVs were admitting students from Class VI only and not
from Class I as being done in other Government, Government
Aided, Municipal, Cantonment Board schools.
16. The contention of the counsel for the petitioner is two fold. Firstly, it
is contended that about 1400 seats which earlier existed in RPVVs in Class
VI to VIII should be restored as the same would ease the over crowding in
the other government schools. Secondly, it is contended that the admission
process to RPVVs in Class VI has to be random as under the RTE Act and
cannot be by way of selection. It is argued that the government should strive
for upholding the standards of all the Government, Government Aided,
Municipal, Cantonment Board schools and not of one category of schools
only.
17. NCPCR in its counter affidavit / report has harped upon Section 13 of
the RTE Act. The counsel for the GNCTD has raised the same arguments
as already noted above; on instructions it is further stated that the
Government is willing to restore RPVVs from Class VI if the admission
procedure as prevalent earlier is permitted.
18. The government as aforesaid has now restricted the RPVVs from
Class IX onwards. We can however safely assume that the decision taken in
the year 1997 to make the selection in Class VI was on the premise that
talent should be nurtured from that early age. The decision to shift the same
to Class IX is under the compulsion in the judicial proceedings.
19. We are unable to accept the argument that the 1400 odd seats in
Classes VI to VIII (which are a part of elementary education) need to be
restored with admission thereto on random basis. If any and all, as distinct
from only bright and talented students were to be admitted to RPVVs,
RPVVs will cease to have the cutting edge environment and the advantage
they enjoy; also no purpose will be so served by transferring students, in
Class VI, from one school to another. The students admitted on random
selection in Class VI will necessarily have to be promoted to Class IX in
RPVVs thereby not leaving any vacant seats for admission by selection, as
proposed, in Class IX even. We are further of the view that confining
RPVVs from Class IX to XII, as proposed will also adversely affect the
functioning and result of RPVVs. As aforesaid, there must have been a
rationale in, while establishing RPVVs, providing for admission on
selection basis in Class VI and not in Class IX. A child by the time reaches
Class IX is generally found to have become set in his ways and difficult to
mould; the spark / talent in a child in Class V can be extinguished by the
time reaches Class IX, if not provided the right environment and may not be
capable of rekindling. Once the experts in the field of education had decided
to make admission on selection basis in Class VI, we are of the view that the
same should not be interfered with.
20. Though the petitioner and the petitioner‟s counsels have done
humungous service in the field of education, at least in the city of Delhi but
we are unable to accept their contention that the best, as RPVVs represent
should either be made available to all or to none. The Courts cannot shut
their eyes to the dependency, of providing the best education, on the
availability of resources financial as well as manpower. From the material
placed before us, it is apparent that the teachers and the principals appointed
to the RPVVs are the best from their respective stocks. The Supreme Court,
in State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, Delhi
Development Horticulture Employees' Union v. Delhi Administration
(1992) 4 SCC 99 and in Viklad Coal Merchant, Patiala v. Union of India
(1984) 1 SCC 619 has taken notice of the limited resources available with
the government and of the justifiability of optimum use thereof and the need
for distribution of the scarce resources to achieve and accomplish desired
results including by prioritization. What we have wondered is, whether a
wait for a utopian state of affairs (when all schools can be raised to the level
of RPVVs) should be allowed to come in the way of the small steps which
can be taken in the interregnum. Though the 19 RPVVs form a drop in the
sea of over 1000 Government, Government Aided, Municipal, Cantonment
Board schools in the city of Delhi but we at the same time cannot shut our
eyes to the difference which they have made. Though the Courts are unable
to issue general directions for raising the level of education in all the
Government, Government Aided, Municipal, Cantonment Board schools to
the best possible or as in RPVVs but the same would not prevent this Court
from, in the exercise of wide jurisdiction under Article 226 of the
Constitution of India, to come to the rescue of an illustrious institution as
the RPVVs represent, from being shut down.
21. The argument of discrimination also is not available. Though right to
elementary education cannot be denied by adopting a screening procedure
but providing better opportunities and education to those amongst the
elementary level students who show the potential and the spark cannot be
said to be discriminatory. Discrimination can be only amongst those equally
placed. However, when institutions of learning of superior quality are few
and the admission seekers thereto far in excess, nothing wrong can be found
in allowing those few only who are found capable of utilization thereof, to
avail of the best. Every march in the direction of excellence has its own
martyrs and such martyrdom cannot be allowed to thwart or scuttle a step
taken in public interest. The policy of effecting change in a phased manner
is a well accepted one. The Supreme Court as far back as in State of Jammu
& Kashmir v. Shri Triloki Nath Khosa (1974) 1 SCC 19 observed that in
this unequal world the proposition that all men are equal has working
limitations, since absolute equality leads to Procrustean cruelty or sanctions
indolent inefficiency and therefore an imaginative and constructive modus
vivendi between commonness and excellence must be forged to make the
equality clauses viable. It was further held that the social meaning of
Articles 14 to 16 is neither dull uniformity nor specious 'talentism'; it is a
process of producing quality out of larger areas of equality. Shortlisting of
candidates on some rational and reasonable basis, though in the context of
employment was upheld in Union of India v. T. Sundararaman (1997) 4
SCC 664. The State is permitted to treat unequals differently with the
objective of creating a level-playing field in the social, economic and
political spheres.
22. We will however still have to deal with the question whether the
procedure aforesaid, earlier prevalent of admission to RPVVs can be said to
be in violation of Section 13 of the RTE Act inasmuch as, howsoever
laudatory the concept of RPVV may be, if it is found to be in violation of
Section 13 of the RTE Act (as held by NCPCR), it is not in the domain of
this Court to allow the same.
23. The preamble to the RTE Act describes the same as an Act to provide
for free and compulsory education to all children of the age of six to
fourteen years. The same is not in conflict with RPVVs. Section 3 of the Act
vests in a child of the age of 6 to 14 years, a right to free and compulsory
education in a neighbourhood school till completion of elementary
education. Transfer by selection from a Government, Government Aided,
Municipal, Cantonment Board school to RPVVs does not affect that right.
Section 5 of the RTE Act is relevant and the relevant part thereof is as
under:
"5. Right of transfer to other school. − (1) Where in a school,
there is no provision for completion of elementary education, a
child shall have a right to seek transfer to any other school,
excluding the school specified in sub-clauses (iii) and (iv) of
clause (n) of section 2, for completing his or her elementary
education.
RPVVs as aforesaid are specified category schools within the meaning of
Section 2(p) and falling in sub-clause (iii) of Section 2(n) of the Act. The
right of a child already admitted to a school, under Section 5 (supra) to be
transferred to any other school for completing elementary education is only
where there is no provision for completion of elementary education in the
school to which the child stands admitted. Even where such right exists,
Section 5 excludes therefrom the right to be transferred inter alia to a
specified category school. The selection as aforesaid for admission to Class
VI in RPVVs was from Government, Government Aided, Municipal,
Cantonment Board schools, all of which have a provision for completion of
elementary education. The RTE Act has thus not vested any right in a child
already admitted to a school, to be transferred to RPVVs and that being the
position, transfer by way of selection to RPVVs cannot be said to be
prohibited by RTE Act.
24. The aforesaid position including that the bar under Section 13 supra
to admission by selection does not apply to admission by transfer from one
school to another at the level of Class VI becomes further clear from the
Delhi School Education (Free Seats for Students belonging to Economically
Weaker Sections and Disadvantaged Group) Order, 2011 issued under the
provisions of the RTE Act. While Clause 3 thereof mandates all schools to
admit children belonging to weaker sections and disadvantaged groups in
Class I or at preschool level if available in the school to the extent of 25% of
the strength of that class, Clause 4(b) thereof prescribes the total number of
seats at the entry level i.e. Nursery or Class I to be not less than the total
number of seats in any other class of the school. The transfer by selection at
the level of Class VI to RPVVs thus does not affect the right created under
the RTE Act. The Supreme Court in Indian Drugs & Pharmaceuticals Ltd.
v. Punjab Drugs Manufacturers Association (1999) 6 SCC 247 negatived
the challenge to the policy on the ground that the same did not affect the
right of others. It is thus clear that the prohibition in Section 13 of subjecting
a child to screening procedure during admission is applicable only to
admission at the entry level which is Nursery or Class I. Mention may be
made of Section 4 of the RTE Act providing for admission in a class
appropriate to the age of a child who has not been admitted in any school or
though admitted could not have completed elementary education. However,
RPVVs do not admit such children. Thus, the admission procedure by
selection in RPVVs is not in violation of Section 13 of the RTE Act and the
decision aforesaid of the NCPCR in this regard cannot be sustained and is
set aside.
25. Though, we are conscious that in the present proceedings, we are not
directly concerned with the challenge to the decision of NCPCR, the
government itself having given up the said challenge in W.P.(C)
No.4973/2010 but it will be a pity if inspite of the matter having been
brought before us and finding RPVVs to have become a victim of
circumstances aforesaid, we, on technicalities fail to interfere and allow the
RPVVs, unarguably established for public purpose, for good of the society,
to die. Even otherwise, the thrust of the establishment of RPVVs is
affirmative and reformatory and, therefore, should be scrutinized under
judicial principles sensitive to the nature of the State‟s efforts. The Supreme
Court in Union of India v. Rakesh Kumar (2010) 4 SCC 50 held that the
enquiry while examining the validity of affirmative action measures should
be governed by the standard of proportionality though ofcourse such
affirmative action measures should be periodically reviewed. The
establishment as aforesaid of RPVVs is one such affirmative action
measure. This Court is also empowered to suo moto take notice of the
situation which has arisen and to take remedial steps. We are emboldened in
our said endeavour by the recent dicta of the Apex Court in Dev Sharan v.
State of Uttar Pradesh (2011) 4 SCC 769. It was held that the courts,
especially the higher courts, cannot afford to act as mere umpires while
examining these questions of public importance; the Judges as
Constitutional invigilators and statutory interpreters are also one of the
trinity of the nation's appointed instrumentalities in the transformation of the
socio-economic order. It was yet further held that the judiciary in its sphere,
shares the revolutionary purpose of the Constitutional order, and when
called upon to decode social legislation must be animated by a goal-oriented
approach. Moreover, the present is not an inter-party dispute and has been
raised by way of PIL. The Apex Court in Rural Litigation and Entitlement
Kendra v. State of U. P. 1989 Supp (1) SCC 504 had approved a relook by
the Court of the matter not directly before it.
26. We therefore in exercise of our extraordinary jurisdiction:
(i) strike down the order dated 17.06.2010 (supra) of the NCPCR;
(ii) hold that RPVVs cannot be compelled to make admissions on
random basis in Class VI by transfer of children already
studying in Government, Government Aided, Municipal,
Cantonment Board schools to RPVVs;
(iii) hold that the procedure for admission to RPVVs in Class VI as
earlier existing is not violative of Section 13 of the RTE Act;
(iv) direct the GNCTD to restore the admission in Class VI through
selection to RPVVs from the next academic year onwards;
(v) as far as the present academic year is concerned, GNCTD to
within 15 days take a decision whether any admissions to the
current year can be made by holding of selection process and if
possible to hold the same, to avail of the existing infrastructure
in RPVVs and to prevent a gap year.
No costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JULY 13, 2012
„gsr‟
