Gujarat High Court
Shubhra Hiteshbhai Gupta vs State Of Gujarat on 11 August, 2023
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6181 of 2023
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FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHUBHRA HITESHBHAI GUPTA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Petitioner(s) No. 1
MR NAYAN L GUPTA & MR HITESH GUPTA for the Petitioner(s) No. 1 in
SCA No.6181 of 2023 and allied matter
MR DILIPKUMAR PRAJAPATI for petitioner in SCA No.7505/2023
MR AMIT CHAUDHARY for Petitioner in SCA No.10092/2023
MR SAMIR GOHEL for Petitioner in SCA No.10904/2023
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR KM ANTANI,
AGP assisted by MS ANKEETA RAJPUT, Advocate for Respondent No.1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 11/08/2023
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL)
1. Heard Mr. Hitesh Gupta, Mr. D.U. Prajapati, Mr. Amit
Chaudhary and Mr. Samir Gohel, learned counsels
appearing for the petitioners in their respective petitions
and Mr. Kamal Trivedi, learned Advocate General assisted
by Mr. K. M. Antani, learned Assistant Government Pleader
with Ms. Ankeeta Rajput, learned advocate for the
respondent State.
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2. In the instant group of writ petitions, parents of
children of the State of Gujarat, who were below 6 years
of age as on 1.6.2023 and have completed or would
complete 6 years of age during the Academic Year 2023-
24, seek to challenge the Notification dated 31.1.2020,
prescribing the age limit of 6 years of age as on 1 st June of
the academic year 2023-24 for admission of a child in 1 st
standard.
3. The petitioners (parents) contend that their children,
who are not above 6 years of age, have taken admission
in elementary schools in the Academic Session 2020-21
and have completed elementary education and, thus, are
entitled to admission in 1 st standard in the Academic
Session 2023-24. They have, however, been excluded
from the zone of consideration because of the Notification
dated 31.1.2020, whereby amendments have been
brought in the Right of Children to Free and Compulsory
Education Rules, 2012 ('the RTE Rules, 2012' for
short), framed by the Government of Gujarat in exercise
of powers conferred under sub-section (1) of Section 38
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of the Right of Children to Free and Compulsory
Education Act, 2009 ('the RTE Act, 2009' for short) to
give effect to the object of the said Act. With the
amendment of sub-rule (1) of Rule 3 of the RTE Rules,
2012, the elementary schools in the State of Gujarat have
been prohibited from taking admission of children in 1 st
standard who have not completed 6 th year of age on the
first day of the academic year. By another Notification
dated 4.8.2020, Joint Secretary, Education Department
directed for implementation of the amendments brought
by the Notification dated 31.1.2020, wherein it was
categorically stated that for the Academic Session 2023-
24, it shall be ensured that children who intend to take
admission in 1st standard must complete 6th year on 1st
June.
4. The challenge to the Notifications dated 31.1.2020
and 4.8.2020, insofar as they relate to the admission in 1 st
standard prescribing the cut-off date as 1 st June for the
academic year for attaining the age of 6 years, are on the
ground of being unjust, improper, illegal and
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unconstitutional. The prayer has been made for quashing
of both the above notifications issuing directions to the
concerned school to process and grant admission to the
children of the writ petitioners (parents) in 1st standard in
the Academic Session 2023-24 by granting relaxation in
the cut-off date.
5. It was argued by the learned counsel appearing for
the petitioners that the fixation of cut-off date prescribing
the age limit for admission in 1 st standard is hit by Article
21A of the Constitution, which mandates the State to
provide free and compulsory education to all children of
the age of 6 to 14 years. The provisions of Sections 4 and
15 of the RTE Act, 2009 have been pressed into service to
assert that the said provisions have been enacted by the
Parliament in order to fulfill the mandate of Article 21A of
the Constitution. Section 4 of the RTE Act, 2009
mandates that if a child above 6 years of age has not been
admitted in any school or though admitted could not
complete his or her elementary education, then, he or she
shall be admitted in a class appropriate to his or her age.
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Section 15 of the RTE Act, 2009 mandates that every
child above the age of 6 years shall be admitted in a
school at the commencement of the academic year or
within the extended period as may be prescribed. Proviso
to Section 15 prohibits the State from denying admission
to a child even if admission is sought subsequent to the
extended period. The word 'child' has been defined in
Section 2(c) of the RTE Act, 2009 to mean a male or
female child of the age of 6 to 14 years. The RTE Act,
2009, thus, casts obligation on the State to ensure that
every child, who is above 6 years of age, is admitted in a
school appropriate to his or her age and no child is
denied admission for the fact that he or she could not be
admitted in a school at the commencement of the
academic year. The contention is that no child, thus, can
be denied admission in a school on the ground that he or
she has not completed the age of 6 years at the
commencement of the academic year, in the instant case,
the Academic Session 2023-24 commenced from 1 st June,
2023.
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6. The provisions of the RTE Rules, 2012 framed by the
Government of Gujarat have been placed before us to
submit that even sub-rule (3) of Rule 3 of the RTE Rules,
2012 prescribes the extended period of six months from
the date of commencement of the academic year of a
school for admission of a child, in conformity with the
Proviso to Section 15 of the RTE Act, 2009. Sub-rule (3)
of Rule 3 further provides that a child who is admitted in
a school after extended period, he or she shall be eligible
to complete study with the help of special training as
determined by the head of the school.
7. The submission is that even the rules framed by the
Government of Gujarat provide for the extended period
for admission to ensure that all children in the State of
Gujarat receive education without any rider. Sub-rule 9(1)
of Rule 3 of the RTE Rules, 2012 has further been placed
before us to submit that in the unamended rules, the
criterion for completion of 6 years of age was with
reference to the 'date of admission'. The requirement
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therein was that a child who has completed 5 years of age
shall be admitted, provided he or she has completed the
said age as on 1st June of the year of admission. The
original Rule 3 of the RTE Act, 2010 was in conformity
with the mandate of the RTE Act framed in order to
achieve the object of Article 21A of the Constitution.
There was no occasion for the State to bring any
amendment in sub-rule (1) of Rule 3 of the RTE Rules,
2012 denying admission to those children who have
completed the age of 6 years during the Academic
Session 2023-24, after the commencement of the said
academic year.
8. It is further argued that all those children who are
before this Court, in this bunch of petitions, through their
parents, have completed their elementary education upto
the class Upper K. G. and are eligible for admission in 1 st
standard. In case, they are denied admission in the
current Academic Session 2023-24, their right to receive
education at an appropriate age, ensured by the
Constitution of India, would be infringed. More than 9
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lakhs children of the State who have completed or about
to complete age of 6 years during the Academic Year
2023-24 would be deprived of their right to receive
education because of the decision of the State
Government to implement National Education Policy,
2020, by bringing amendment in the Rules framed by it.
The attention of the Court is invited to the decisions
taken by the States of Jammu & Kashmir, Kerala,
Haryana, wherein the State Governments have decided to
gradually implement the National Education Policy and
relaxed the age criteria for admission to 1 st standard in
the Academic Session 2023-24, treating the current year
as the transition period. The submission is that in similar
line, the Government of Gujarat was also required to take
a decision to grant relaxation and the criteria for
admission in elementary schools as prescribed in sub-rule
(1) of Rule 3 of the RTE Rules, 2012 and the requirement
of completion of age of 6 years on 1 st June of the
academic year may be insisted after the year 2025 as has
been decided by the other States, such as State of
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Karnataka.
9. It was lastly argued that there was no justification
for implementation of the Notification dated 31.1.2020
bringing amendment in sub-rule (1) of Rule 3 of RTE
Rules, 2012 with effect from Academic Session 2023-24,
inasmuch as, the said notification has not been properly
circulated. The petitioners (parents), who are before this
Court and other similarly situated persons, had no
knowledge of the amendments in the age limit prescribed
in the sub-rule (1) of Rule 3 of the RTE Rules, 2012. The
notifications were actually issued after the Academic
Session 2020-21 had commenced and as such, the
implementation of the notifications cannot be made prior
to the Academic Session 2024-25. The Circulars dated
23.12.2020 and 16.3.2022 enclosed with the leading
petitions have been placed before us to assert that there
was no proper publication of the notifications by the
government offices. The result is that the children of the
present petitioner, who possess all requisite qualifications
including the age limit, have either to repeat the same
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class in the current academic session or drop one year.
The situation can be easily addressed with the relaxation
in the age limit for the current Academic Session 2023-
24.
10. It was further argued that the Rules framed by the
State have to align with the provisions of the RTE Act,
2009 framed by the Parliament, to achieve object of
Article 21A of the Constitution. There is no rationale for
cut-off date as in view of the language of Section 4 read
with Section 15 of the RTE Act, 2009, there can be no
cut-off date for admission of the child in 1 st standard. The
submission is that the cut-off date has rationale and can
be co-related only to the last date of admission in a
course, which is not prescribed in the RTE Act, 2009. The
mandate of the Act that no child can be denied admission
even after commencement of the academic session or
even beyond the extended period of admission, shows
that there is no last date of admission in the 1 st standard
in a school for a child who has completed 6 years of age.
The classification of prescribing completion of 6 years of
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age as on 1st June of the academic year has no rationale
with the laudable object of the RTE Act, 2009 and the
RTE Rules, 2012 framed in exercise of powers conferred
thereunder.
11. Reference has been made to the decision of the Apex
Court in the case of D. S. Nakara & Ors. vs. Union of
India, reported in AIR 1983 SC 130 to submit that
Article 14 forbids class legislation and a classification, if
any, must satisfy the twin tests of classification of being
found on an intelligible differentia which distinguishes
persons that are left out of the group and that differentia
must have a rational nexus to the object sought to be
achieved by the statute in question. It is argued that such
rationale cannot be found in the classification being made
by the RTE Rules, 2012.
12. The decision of the Apex Court in the case of
Society for Unaided Private Schools of Rajasthan vs.
Union of India & Anr., reported in (2012) 6 SCC 1 has
been placed to assert that challenge to the validity of the
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RTE Act, 2009 has been upheld by the Apex Court
therein. It is held therein that though the State has a
liberty to decide by law to provide free and compulsory
education to all children of the specified age through its
own schools or through government aided schools or
through unaided schools, to fulfill the obligation under
Article 21A of the Constitution, but the courts are
required to decide whether such law infringes a
fundamental right within the limits justified by the
directive principles or whether it goes beyond them to
provide for the right to access education, Article 21A was
enacted to give effect to Article 45. The RTE Act, 2009
enacted under Article 21A is child-centric and not
institution-centric. It has been enacted primarily to
remove all barriers (including financial barriers) which
impede access to education. The contention is that in
light of the above contentions, the insistence of the
Government of Gujarat to implement the amended sub-
rule (1) of Rule 3 of the RTE Rules, 2012 cannot be said
to be justified rather it is contrary to the mandate of the
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RTE Act, 2009.
13. A decision of the Division Bench of this Court in the
case of Prakash Kapadia vs. State of Gujarat, reported
in (2016) 3 GLR 2566 has been placed before us to
assert that it was mandatory for the State Government,
through the State Commission as well as local authorities,
to give wide publication of the amended provisions of the
RTE Rules, 2012 through all channels of communication,
more particularly during the end of and in the beginning
of the academic session. As this has not been done, the
cut-off date cannot be insisted for the current Academic
Session 2023-24 to exclude children from getting
admission in 1st standard, who are otherwise qualified.
14. Mr. Kamal Trivedi, learned Advocate General, in
rebuttal, would submit that the policy of prescribing 6
years of age for admission to 1 st standard in the
elementary schools in the State of Gujarat is in line with
the National Education Policy, 2020 approved by the
Ministry of Education, Government of India, which seeks
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to overhaul the framework of the education system in the
country by providing quality education which fosters
foundational capacities, cognitive capacities such as
thinking and problem solving as well as asethical, social
and emotional capacities. The ultimate object being
growth of children as well-rounded individuals whereby
educational institution would focus on nurturing unique
abilities of each and every student. With a view to achieve
the above object, the education structure was revamped
whereby the existing 10+12 structure was modified to
5+3+4 structure catering to children of ages 3 to 18. This
was with a view to cover children of ages 3 to 6 who were
not covered under 10+2 structure.
15. With a view to build a strong foundational base of
learning and development, the new 5+3+3+4 structure
also takes into account children of 3 years of age, in order
to promote the concept of 'Early Childhood Care and
Education'. The purpose is that with the overall
development and education, a child would be cared from
very beginning of his/her education. The relevant extract
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of the National Education Policy, 2020 narrating the
concept of 'Early Childhood Care and Education', which
has been placed before us, which is noted hereinunder:
"1. Early Childhood Care and Education: The
Foundation of Learning
1.1 Over 85% of a child's cumulative brain
development occurs prior to the age of 6, indicating
the critical importance of appropriate care and
stimulation of the brain in the early years in order to
ensure healthy brain development and growth.
Presently, quality ECCE is not available to crores of
young children, particularly children from socio-
economically disadvantaged backgrounds. Strong
investment in ECCE has the potential to give all
young children such access, enabling them to
participate and flourish in the educational system
throughout their lives. Universal provisioning of
quality early childhood development, care, and
education must thus be achieved as soon as possible,
and no later than 2030, to ensure that all students
entering Grade 1 are school ready.
1.2 ECCE ideally consists of flexible, multi-
faceted, multi-level, play-based, activity-based, and
inquiry-based learning, comprising of alphabets,
languages, numbers, counting, colours, shapes,
indoor and outdoor play, puzzles and logical
thinking, problem-solving, drawing, painting and
other visual art, craft, drama and puppetry, music
and movement. It also includes a focus on developing
social capacities, sensitivity, good behaviour,
courtesy, ethics, personal and public cleanliness,
teamwork, and cooperation. The overall aim of ECCE
will be to attain optimal outcomes in the domains of:
physical and motor development, cognitive
development, socio-emotional-ethical development,
cultural/artistic development, and the development
of communication and early language, literacy, and
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numeracy."
16. Keeping in mind the above object, the curricular
structure has been delineated as under:
"(i) 5 years of Foundational learning comprising
of 2 years of Anganwadi/Junior K.G. and Sr.
K.G. and 1 year of Balvatika, for ages 3 to 6
and thereafter, two years in Class 1 and 2 for
ages 6 to 8.
(ii) 3 years of Preparatory learning in classes 3 to
5 for children of ages 8 to 11.
(iii) 3 years of Middle school in classes 6 to 8 for
children of ages 11 to 14.
(iv) 4 years of Secondary education in classes 9 to
12 for children of ages 14 to 18."
17. Sections 3 and 4 of the RTE Act, 2009 have been
placed before us to submit that reading of these
provisions in juxtaposition to each other would bring the
object of RTE Act, 2009. The right to receive a formal
education of every child of the age of 6 to 14 begins after
completion of the age of 6 years. The mandate of the RTE
Act, 2009 is that every child, who has attained the age of
6 years, shall be admitted in a neighbourhood school till
the completion of his or her elementary education. The
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mandate of Section 4 prescribing special provisions, such
as right to receive special training for children, who are
not admitted or who have not completed elementary
education, is to be examined in this prospective. The
children below the age of 6 years would fall in the age of
early childhood development and hence classification of
the children who have attained the age of 6 years with
those who are about to complete 6 years, cannot be said
to be discriminatory or arbitrary.
18. As regards the implementation of the amended
policy prescribing a cut-off date for completion of age of 6
years for admission in 1st standard, it is submitted that
the Notification dated 31.1.2020 itself provided for a
grace period to accommodate children for the first 3
years with a view to not take the children and their
parents surprised. Various communications were
addressed to schools to getting the parents informed
about the change in the policy vide Notification dated
31.1.2020. The said notification was in public domain for
the last 3 years and hence the petitioners who are
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parents, cannot contend that the requirement of age
criteria has been enforced without notice. The policy was
implemented having regard to the interest of children so
as to ensure their foundational development.
19. The attention of the Court is invited to the circular
issued by the Ministry of Education, Department of
Schools and Literacy, New Delhi dated 31.3.2021,
wherein on the representations received from the parents
and media, reporting anomaly in age criteria prescribed
for admission in various classes in schools in different
States and UTs, it was insisted that in view of the
provisions of any National Education Policy, 2020 and the
RTE Act, 2009, all the States and UTs may align the age
of admission with the National Education Policy, 2020
and provide for admission to 1 st standard in age 6 +
years, in order to bring uniformity in the age of admission
throughout the country. The State wise road map to
ensure smooth transition over 2 to 3 years was requested.
20. Similar request was made by the Under Secretary,
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Government of India, Ministry of Education, Department
of School Education and Literacy in the communication
dated 8.6.2023, in reply to the demand raised by the
parents residing in the State of Gujarat. The previous
circular dated 31.3.2021 was reiterated therein with the
direction that in order to bring uniformity in the age of
admission throughout the country, the States and Union
Territories are the appropriate government, in relation to
a school established within the territory of a State or a
UT having legislature, they have been advised to prepare
State wise road map to ensure smooth transition over 2 to
3 years.
21. It was argued that the State of Gujarat has been pro-
active in bringing the amendments by Notification dated
31.1.2020 prescribing a grace period of three academic
years in implementation of the policy. The parents have
been duly informed through publication by different
modes that the policy of fixation cut-off date as 1 st June
for completion of 6th year of age to admit a child in 1st
standard would be implemented from the Academic Year
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2023-24. No plausible objection can be taken by the
petitioners (who are parents) on the premise that they
were unaware of the decision.
22. Various communications were issued by the Joint
Director of Education to District Primary Education
Officers, Administrative Officers and District Education
Officers of every district. The communications issued by
the District Education Officers to the Principals and
Administrators of all schools in the State of Gujarat have
been placed before us to assert that the prayer of the
petitioners to grant relaxation in age for the current
academic session for admission of their children in 1 st
standard cannot be accepted. The cut-off date of 1 st June
which has been fixed in line with the commencement of
the academic session in schools in the State of Gujarat
cannot be said to be whimsical or arbitrary or being hit
by Article 21A of the Constitution of India. It was argued
that the right to receive formal education as recognised
under Article 21A of the Constitution read with the RTE
Act, 2009 begins from the age of 6+ years and under the
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National Education Policy, 2020, the age below or upto 6
years is of early childhood development.
23. As regards the extended period for admission
prescribed in sub-rule (3) of Rule 3 of the RTE Rules,
2012, framed in line of Section 15 of the RTE Act, 2009, it
was argued by the learned Advocate General that the
extended period for admission of 6 months from the date
of commencement of the academic year of a school and
the requirement of providing a specialised training to the
children who are admitted late in the school, cannot be
read to mean that the children, who have not completed
6th year of age as on 1 st June of the academic year, can be
admitted within the extended period. This argument, if
accepted, would lead to absurdity, inasmuch as, the
admission in a school would continue throughout the
academic year as the children below the age of 6 years
would be completing the 6th year of age over the period of
12 months in an academic session which commenced on
1st June of that year. The rule cannot be read in a manner
which would lead to absurdity.
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24. Learned Advocate General relied on the decision of
the Division Bench of this Court in the case of Vyas
Abhisekh Prashantkumar & 88 Ors. vs. State of
Gujarat & Ors. in Special Civil Application No. 588
of 2014, wherein the challenge to the requirement of the
unamended rule of completion of 5 years of age as on 1 st
June of the year of admission, in a school in the State of
Gujarat, has been turned down. While dismissing the writ
petition, it was held by the Coordinate Bench of this
Court that Rule 8 of RTE Rules, 2012 which prescribes
the condition of admission in a pre-school of a child who
has not completed 3 years of age as on 1 st June of the
year, has been upheld by another Division Bench in
Special Civil Application No.9879 of 2013 by the
judgment and order dated 3.7.2013. The Constitution
Bench of the Apex Court in the case of Bihari Lal Batra
vs. Chief Settlement Commissioner, (Rural) Punjab,
Chandigarh & Ors., reported in AIR 1965 SC 134 was
noted therein to hold that the cut-off date prescribed in a
provision which seeks to change the law cannot be held
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invalid for the mere reason that it effects an alteration in
the law. The cut-off date of 1st June 2012 brought by Rules
2012 for admission to the 1 st standard of a child who has
completed 5 years of age has been upheld.
25. The decision of the Division Bench of this Court in
Special Civil Application No.9879 of 2013 has also been
placed before us, wherein it was noted that with the
publication of Rule 2 of Rules 2012, it was the duty of
those schools which admitted students in advance, to
return the admission fees to those students who had been
admitted in violation of the Rules. The schools which
admitted students below the prescribed age and the
guardians were to be blamed for sending their children to
pursue studies in Junior K.G. in clear violation of the new
restriction imposed.
26. The judgment of the High Court of Delhi in the case
of Aarin through her next friend and Natural father
Sh. Pawan Kumars & Ors. vs. Kendriya Vidyalaya
Sangathan & Ors., in W.P. (C) No.3667 of 2022
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dated 11.4.2022 challenging the guidelines for
admission to schools of Kendriya Vidyalaya Sangathan
enforced with effect from Academic Year 2022-23,
prescribing cut-off date of 31 st March of the academic
year for completion of 6 years of age in the relevant
academic year to apply for admission to Class-I, has been
placed to assert that the allegation of plea of prejudice
having been caused to the children of losing one full
academic year because of the change in the policy, was
turned down therein. It was noted that the petitioners
therein neither assailed the National Education Policy nor
its implementation thereof by the respondent but were
only restricting their challenge to the belated changes in
the admission criteria. The admission criteria of Kendriya
Vidyalaya Sangathan being in harmony with the RTE Act,
2009 in order to implement the National Education Policy
cannot be said to be belated, arbitrary or illegal. It was
held that in case 5 years old children are permitted to join
Class I, it would lead to huge imbalance in the class
making the situation almost unworkable, inasmuch as,
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the entire syllabus have to be re-worked and even
otherwise, admission of 5 years old child with the
children who could be almost 7 years old, would be a
highly undesirable situation. The aforesaid judgment of
the learned Single Judge of the High Court of Delhi had
been upheld in a Letters Patent Appeal and finally with
the dismissal of Special Leave to Appeal No. 7374 of 2022
arising out of the decision of the Division Bench in Letters
Patent Appeal, vide judgment and order dated 25.4.2022.
All the above noted decisions have been placed before us
to assert that the writ petitions deserves to be dismissed
being devoid of merits.
27. In rejoinder, the learned counsel appearing for the
petitioners reiterated the requirement of Sections 4 and
15 of the RTE Act, 2009 and the provisions of extended
period of admission so as to ensure that no child is denied
admission in a school.
28. Having heard learned counsels appearing for the
parties and perused the record, we may note that during
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the course of arguments, on a repeated query made by
the Court, the learned counsels appearing for the parties
admit that they cannot raise any challenge to the
requirement of completion of 6 th year of age for admission
to 1st standard. The challenge is to fixation of cut-off date
as 1st June of the academic year, for the current academic
year, i.e. 2023-24 only, that too on the premise that
approximately 9 lakhs children in the State (including the
children of the petitioners therein) would be deprived of
their right to education in the current academic session,
inasmuch as, they have been denied admission in 1 st
standard. The contention is that the children, who have
already been admitted in a pre-school in the Academic
Session 2020-21 and who have completed 3 years of pre-
schooling, are required to be accommodated for the
current academic session by granting relaxation this year
only. This submission is based on the assertion that since
the policy of prescribing age of 6+ years as on 1 st June of
the academic year, came into force only on 31.1.2020, the
parents who have already got admission of their children
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in a pre-school in the Academic Session 2020-21 were
taken by surprise. It was vehemently argued that denial
of admission in the 1 st standard in the current academic
session to such children who are otherwise qualified for
admission in a formal school in 1 st standard, would result
in infringement of their right to education recognised by
Article 21A of the Constitution and implemented and
enforced through RTE Act, 2009.
29. Dealing with this submission, we are required to
note that in view of the definition of child in Section 2(c)
of the RTE Act, 2009, a male or female child of the age of
6 years is eligible to admission in a neighbourhood school
to exercise his right to free and compulsory education till
the completion of his/her elementary education. The right
conferred upon a child by the constitutional provision of
Article 21A and Section 3 of the RTE Act, 2009 begins
after completion of age of 6 years. The provision of
extension of time in admission to ensure that no child of
6+ years of age is denied admission in a school is also to
be read and understood in that context.
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30. A conjoint reading of Sections 2(c), 3, 4, 14 and 15
of the RTE Act, 2009 makes it clear that a child above the
age of 6 years cannot be denied in a formal school and
the State is mandated to take all necessary measures that
such a child who falls within the definition of 'child' under
the RTE Act, 2009, completes his or her elementary
education without any rider.
31. As regards the age of education below 6 years, the
same has been recognised by the National Education
Policy, 2020, framed by the experts in the field of
elementary education, as the age of 'early childhood care
and education'. A perusal of the excerpts from the
National Education Policy, 2020 extracted hereinabove
shows the result of the studies that over 85% of a child's
cumulative brain development occurs prior to the age of
6, indicating the critical importance of appropriate care
and stimulation of the brain in the early years in order to
ensure healthy brain development and growth. It was
noted that quality of early childhood care and education
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is not available to crores of young children, particularly
children from socio-economically disadvantaged
backgrounds. Strong investment in early childhood care
and education has the potential to give all young children
such access, enabling them to participate and flourish in
the educational system throughout their lives. It was
resolved that universal provisioning of quality early
childhood development, care, and education must, thus,
be achieved as soon as possible, and no later than 2030,
to ensure that all students entering Grade 1 are school
ready. Rule 8 of the RTE Rules, 2012 which deals with
admission procedure in a pre-school prescribes as under:
"8. Admission Procedure:
(1) No pre-school shall admit a child who has not
completed 3 years of age as on 1 st June of the year.
The extended period of admission shall be six
months from the date of commencement of the
academic year of the school.
(2) No school shall take donations for admission,
or shall take interview of parents and/or take test
of the children."
32. A bare perusal of Rule 8 shows that there is a
prohibition for admission of a child in a pre-school who
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has not completed 3 years of age as on 1 st June of the
academic year. Three years' 'early childhood care and
education' in a pre-school prepares a child to take
admission in 1st standard in a formal school. The children
who are before us, have been admitted in a pre-school by
their parents before completion of age of 3 years,
prescribed minimum age for admission in a pre-school in
the RTE Rules, 2012, which has been enforced in the
State of Gujarat w.e.f. 18.2.2012. The challenge to Rule 8
of the Rules, 2012 has already been turned down by the
Coordinate Bench of this Court in Special Civil
Application No. 9879 of 2013, as noted above. The
petitioner - parents of children, who have not attained
the age of 6 years as on 1 st June of the year 2023, cannot
seek any leniency or indulgence, as they are guilty of
violation of the mandate of RTE Rules, 2012, which is in
line with the RTE Act, 2009. Forcing children to go to a
pre-school below the age of 3 years is an illegal act on the
part of the parents who are petitioners before us. The
contention that the children are school-ready as they have
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completed 3 years of elementary education in a pre-
school having been admitted in the Academic Session
2020-21, therefore, does not impress us at all.
33. As regards the cut-off date, there is no challenge to
the rule fixing 1st June of the academic year for
completion of 6th year of age to seek admission in 1 st
standard. The only argument is to grant leverage /
leniency to those children who were admitted in pre-
schools in the Academic Session 2020-21 and have
completed 3 years of elementary education to be school-
ready.
34. Moreover, the cut-off date for completion of 6 years
of age for admission in 1st standard has a rationale as it is
prescribed to achieve the object of RTE Act, 2009, which
is to provide education to children at an appropriate age.
Under the National Education Policy, 2020, the children
below the age of 6 years are not school ready as it is the
age of 'early childhood care and development'.
35. In State of Punjab & Ors. vs. Amar Nath Goyal &
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Ors., reported in (2005) 6 SCC 754, in the challenge to
the cut-off date on the alleged violation of Article 14 of
the Constitution placing reliance on the judgment of the
Apex Court in D.S. Nakara (supra), it was observed that
the refrain of D.S. Nakara (supra) has been played too
often to retain its initial charm, which has been worn thin
by subsequent dicta. It was noted that possible hardship
to be endured by a person as a result did not make the
cut-off dates violative of Article 14. It can neither be held
to be arbitrary or unreasonable for this reason.
36. For the above discussion, we do not find any merit in
the challenge to the Notifications dated 31.1.2020 and
4.8.2020. All the writ petitions, in this bunch, are found to
be devoid of merits and hence dismissed.
Sd/-
(SUNITA AGARWAL, CJ )
Sd/-
(N.V.ANJARIA, J)
Bharat
