Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1587/2011
th
% Judgment reserved on: 26 April, 2011
rd
Judgment delivered on: 23 May,2011
Master Mohd.Abdullah (Minor) ...... Petitioner.
Through: Ms.Deepali Gupta, Adv.
versus
Govt. of NCT of Delhi and Ors. ..... Respondents
Through: Ms.Ruchi Sindhwani with
Ms.Bandana Shukla, Adv. for
respondents 1 & 2 along with
Ms.Suman Passi, Education
Officer, in person.
Mr. Puneet Mittal, Adv. for the
respondent No.3.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
*
1. By this petition filed under Article 226 of the
Constitution of India, the petitioner seeks directions to direct
W.P.(C) 1587/2011 Page 1 of 19
the respondents to hold a fresh draw for admission to the
pre-school class for the academic session 2011-12 in the
respondent No.3-school.
2. The short controversy involved in the present
writ petition is as to whether the petitioner child who
belongs to the weaker section of the society (EWS) is
entitled to seek admission at the entry level class i.e. pre
school in terms of the notification dated 7.1.2011 issued by
the GNCT of Delhi even if the petitioner child was above
the age of four years on the cutoff date.
3. Counsel for the petitioner, Ms. Deepali Gupta
submitted that no upper limit has been fixed under the Delhi
School Education Act and in case the petitioner is not
considered then the child may remain without education as
the petitioner belongs to a very poor family but the parents
of the petitioner want to educate their child. Counsel further
submitted that the Government of NCT of Delhi has issued
a Notification dated 7.1.2011, in exercise of the powers
conferred by sub-section (1) of Section 3 of the Delhi School
W.P.(C) 1587/2011 Page 2 of 19
Education Act, 1973, read with Rule 43 of the Delhi School
Education Rules, 1973 and under the provisions of the Right
of Children to Free and Compulsory Education Act, 2009,
mandating all schools to admit the children belonging to
economically weaker sections and disadvantaged groups in
neighbourhood and provide free and compulsory elementary
education from class I to the extent of at least 25% strength
of their class and to provide free and compulsory
elementary education till completion. The contention of the
counsel for the petitioner was that the petitioner had applied
to seek admission in pre-school class which is the first class
of entry under the category of economically weaker sections
but the petitioner has been denied admission by the
respondent school on the ground that he was not eligible
for admission being over age as on the cut off date i.e.
31.3.2011. Counsel further submitted that although the
petitioner was never conveyed the reasons for rejection of
his admission in terms of clause 4(g) of the said notification
dated 7.1.2011 but since the only reason advanced by the
W.P.(C) 1587/2011 Page 3 of 19
respondent school is that of over age of the petitioner,
therefore, the petitioner confines his case to challenge the
said ground of overage raised by the respondent school.
Canvassing her arguments on the said limited issue, counsel
for the petitioner contended that the said scheme permits
admission at the entry level and once the petitioner is denied
admission at the entry level, then he would not be eligible to
seek admission to any higher class. Counsel further
submitted that under the said notification, no minimum or
maximum age has been laid down and even under the Delhi
School Education Act only minimum age of 3 years has been
laid down to seek admission at the level of pre-school and
therefore the respondent no.3 could not have denied the
admission to the petitioner merely on the ground that he
had exceeded the age of four years as on the cutoff date of
31.3.3011.
4. Mr. Puneet Mittal, counsel appearing for
respondent No.3 on the other hand submitted that
respondent No.3 has adopted a uniform criterion in granting
W.P.(C) 1587/2011 Page 4 of 19
admissions to EWS category as well as the general category
in the pre-school stage, i.e. those who are between the age
group of 3-4 years. Counsel further submitted that none of
the candidates who are above the age of 4 years have been
granted admission in either EWS category or general
category in the pre-school stage. Counsel also stated that
there are 9 vacancies at the pre-school level in the
respondent school so far EWS category is concerned for
which steps are under process so as to request the
Directorate of Education to start the process for filling those
9 seats. Counsel also stated that so far the case of petitioner
is concerned, he can be considered at the pre primary level
as he is above 4 years and below 5 years of age if any
vacancy arises in the EWS category.
5. Ms.Ruchi Sindhwani, counsel appearing for the
respondents No.1 & 2 submitted that the Directorate of
Education vide circular dated 06.01.2011 has prescribed the
st
minimum age of 3 years for pre-school admission as on 31
March of the relevant year in which the admission is being
W.P.(C) 1587/2011 Page 5 of 19
sought and so far the maximum age limit is concerned, the
same can be decided by the management of each school on
the basis of their own policy and wisdom. Counsel also
submitted that in the EWS category in pre-school classes, 9
seats are still lying vacant in the respondent-school and the
respondent-school can accommodate the petitioner-child
against the said unfilled seats.
6. I have heard the learned counsel for the parties at
considerable length and gone through the records.
7. The petitioner in the present case had applied to
seek admission at the level of pre-school for the academic
year 2011-12 in the respondent no.3 school. The date of birth
of the petitioner is 16.02.2007 and as on the cutoff date of
31.03.2011, the petitioner was more than 4 years of age. The
respondent No.3-school is an unaided private school affiliated
to Central Board of Secondary Education, Govt. of NCT of
Delhi. As per the stand taken by the respondent-school, the
petitioner was not eligible to seek admission in the pre-school
class, as he was over age as on the cutoff date of 31.03.2011.
W.P.(C) 1587/2011 Page 6 of 19
The respondent-school has also taken a stand that the age
criteria which was set by the school for admission in pre-
school was 3 years to 4 years and the said criteria adopted by
the school was duly communicated by them to the
Directorate of Education. The respondent-school has also
taken a stand that the age criteria is the same for admission
in the general category as well as in the EWS category. The
respondent-school has also taken a stand that none of the
students who were above four years of age were granted
admission by the respondent-school at the entry level of pre-
school either in the general category or in the EWS category.
Counsel has also invited attention of this Court to the
computerized statement placed on record to show that in the
EWS category 20 students were given admission by the
school who were between the age group of 3 to 4 years and
even a student who was born on 31.03.2007 was denied
admission by the respondent-school. As per the stand taken
by the respondent-school there was complete uniformity so
far the age criteria was concerned and none of the students
W.P.(C) 1587/2011 Page 7 of 19
were given admission by the school at the entry level of pre-
school who did not fulfill the said age criteria.
8. I have gone through the computerized statement
placed on record by the respondent No.3-school which clearly
shows that the respondent No.3-school has not granted
admission to any student who was above the age of 4 years as
on the cutoff date of 31.03.2011. The petitioner thus cannot
claim any discrimination or any kind of arbitrariness on the
part of the respondent-school in denying admission to the
petitioner at the pre-school level under the EWS category. I
also find merit in the contention raised by counsel No.3-
school that out of the nine unfilled seats the petitioner now
cannot be given any priority, as for filling the said 9 seats,
the respondent-school will have to undertake the whole
process again if the students above the age of 4 years are to
be considered for granting admission at the pre-school level.
9. The Directorate of Education through their circular
dated 06.01.2011 had given clarification in response to the
various representations received by them from the school
W.P.(C) 1587/2011 Page 8 of 19
management and the parents of the wards regarding the
minimum age of the child for admission in pre-primary
classes/pre-school in recognized unaided schools and it was
clarified by them that every child admitted in the pre-school
st
shall be of minimum 3 years age by 31 March of the year in
which admission is being sought. As far as age for the pre-
primary classes is concerned, the stand taken by the
Directorate of Education is that the same will be 4 years as
st
on 31 March of the year in which admission is being sought.
In the circular dated 22.02.2011 the Directorate of Education
st
has laid down the age of 5 years for Class-1 as on 31 March
of the year in which admission is being sought.
10. From the aforesaid various circulars issued by the
respondent, it is quite evident that although no maximum age
has been fixed by the Government but still for various classes
from pre-school level to Class-1, the minimum age criteria
has been fixed, meaning thereby that a student who is not
able to seek admission at the pre-school level between the
age of 3-4 years will become of upper age when he seeks
W.P.(C) 1587/2011 Page 9 of 19
admission at the pre-primary level and similarly when he
seeks admission in Class-1. In Clause 2(b) of Notification
dated 07.01.2011, the word ‘class’ has been defined to
include the entry level class such as pre-school and first class
as the case may be. The said notification neither defines the
minimum age nor the maximum age. Pre-school admission is
at the entry level and the petitioner has also sought his
admission at the entry level under the EWS category in terms
of the said Notification dated 07.01.2011. The Directorate of
Education in the letter dated 26.04.2011 placed on record
has also taken a stand that the maximum age can be decided
by the management of each school in terms of their own
policy and wisdom. So far the respondent No.3-school is
concerned, they had taken a decision to grant admission only
to those students who had completed 4 years of age as on
st
31 March, 2011 and, therefore, as per the policy of the
respondent No.3-school the petitioner was not found entitled
to get admission at the pre-school level.
W.P.(C) 1587/2011 Page 10 of 19
11. It would be thus quite manifest that as per the
criteria laid down by the respondent No.3-school, the
maximum age of the child as on 31.03.2011 has been set at 4
years and the minimum age as 3 years. The Directorate of
Education in their communication has also taken a stand that
the Directorate of Education has fixed only minimum age as 3
st
years for pre-school by 31 of the year in which admission is
sought and the maximum age has been left to the discretion
of the management of the concerned school. The aforesaid
stand of the Directorate of Education clearly shows that the
Government has not laid down any specific guidelines to fix
the maximum age criteria so far admissions at the pre-school
or pre-primary level are concerned and only the minimum
age has been prescribed.
12. From the computerized statement placed on
record by the respondent No.3-school, it is also evident that
the school has not given admission to any student either in
the general category or in the EWS category at the pre-
school level who was above the age of 4 years as on the
W.P.(C) 1587/2011 Page 11 of 19
cutoff date of 31.03.2011. Thus it is imperative for every
parent to be vigilant and watchful to seek timely admission of
their children either at the pre-school level or at the pre-
primary level on the fulfillment of the age criteria and any
discretion by the Court in favour of one student will not only
create an anomalous situation but will also disturb the entire
admission system. Hence, in view of the said stand taken by
the Directorate of Education, this Court does not find
anything wrong in the decision taken by the respondent No.3-
school in laying down the maximum age of 4 years for
granting admission at the pre-school level as on the cutoff
date of 31.03.2011 as the Directorate of Education has
granted autonomy to the schools to set the upper age limit
and thus the school cannot be said to be at fault. Hence, this
Court does not find any wrongdoing in the said decision of
the respondent school so as to interfere with the same in
exercise of its writ jurisdiction under Article 226 of the
Constitution of India.
W.P.(C) 1587/2011 Page 12 of 19
13. However, having said the above, it cannot also be
lost sight of the fact that none of the legislations and rules
governing the admission to pre school stipulate a maximum
age limit. The reliance placed by counsel for the petitioner on
the judgment of this Court in Kumari Uzma Bano & Anr.
Vs. Govt. of NCT of Delhi & Anr. 172(2010) DLT 344
where this Court fortified the same after referring to Section
4 of the RTE Act & Explanation to Rule 21 of the Recognized
Schools (Admission Procedure for Pre-Primary Class) Order,
2007. It would be pertinent to reproduce the relevant para of
the said judgment here:
“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
W.P.(C) 1587/2011 Page 13 of 19
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.”
For better appreciation of the above, Rule 21 is reproduced
as under:-
“21. There shall be one year of pre-primary class in every school. A
class of one year duration preceding this called pre-school may be set-
up as a neighboring pre-school and the Education Department shall
frame the guidelines in this regard, in consultation with experts. The
schools which are already running pre-school class may continue to do
so subject to the following conditions:
(a) Every child admitted to pre-school shall be of minimum three
st
years by 31 March of the year in which admission is being sought;
(b) The schools shall frame their own guidelines for admission to
pre-school class and the same criteria as for admission to the pre-
primary level shall be adopted, until such time as the guidelines for
pre-schools are framed;
(c) Any such school which has a pre-school class from the session
commencing in April 2008, shall move those students to the pre-
primary class for the session commencing in April 2009. After that,
the final norms to be notified for the pre-school class shall be
followed.
Explanation: - For the purposes of this clause, the ages
stipulated for entry into standard one, pre-primary class and pre
school class are the minimum ages and there is no bar to children
W.P.(C) 1587/2011 Page 14 of 19
older than the ages specified in this clause being given admission
to these classes.”
If we look at the aforesaid provision, it is discernable that the
st
child should have the minimum age of 3 years by 31 March
of the year in which admission is being sought for a child
seeking admission in the pre-school and in the explanation it
has been explicitly stated that there is no bar to the older
children specified in the aforesaid clause. No upper age limit
has been laid down even in the said explanation and it has
been merely stated that there would be no bar for the older
children to seek admission in the above classes. However,
how much older children can be permitted to seek admission
at the pre-school or pre-primary level is nowhere specified
and the Directorate of Education has also not laid down any
guidelines on this aspect.
14. Today, education is a right and not a luxury in this
country, but behind this landmark achievement is a long
historic struggle which started some 100 years ago by Gopal
Krishna Gokhle who in 1911 proposed to the Imperial
Legislative Council the right to education which was followed
W.P.(C) 1587/2011 Page 15 of 19
by Mahatma Gandhi’s call for universal education in 1937.
After independence, the framers of the Constitution of India
inculcated it in the Directive Principles of State Policy and it
was only in 1993 in Unni Krishnan vs. State of A.P
(1993)1SCC 645 that the Supreme Court held the right to
education as a fundamental right to be read into Article 21 of
the Constitution of India. But it was only in the year 2002
th
with the 86 Constitutional amendment that Article 21 A was
added which made free and compulsory education to all the
children from the age of 6 to 14 years a fundamental right.
The momentous event of enforcing The Right of Children to
Free and Compulsory Education Act was on 1 April 2010
th
which has made India the 136 nation in the world to give
right to education legal sanctity.
15. Basic education is a fundamental requirement of
all modern societies for social equity, economic functionality
and imbibing cultural values. Education is one of those
rights that enable the full realization of a person's potential
and inclusion in society by enabling citizenship and growth.
W.P.(C) 1587/2011 Page 16 of 19
Negative gaps in its realization are perceptible as teething
troubles in the long march for attaining the important
objective of universal education. One such would be as what
has arisen in the present case, which is the maximum age of
the child to be admitted at the pre school level which is
nowhere specified. Looking at the intendment and spirit of
the passing of the historic, even though belated welfare
legislation, no child can be deprived of education. India is
also a signatory to the United Nations Childs Right
Convention and has universally accepted the definition of
child which is upto the age of 18 years which by virtue of
Article 28 makes primary education free and compulsory for
all. Therefore, this court is of the considered view that for
attaining the non negotiable objectives of the RTE Act the
Directorate of Education is the right authority and is
henceforth directed to take steps to help the petitioner to see
if any seat at the pre-school level or pre-primary level is
available in any other aided or unaided school in the
neighbourhood of the residence of the petitioner where his
W.P.(C) 1587/2011 Page 17 of 19
case can be considered on fulfillment of laid down criteria of
admission. To mend out the confusion with regard to
maximum age of the child to be admitted to different classes,
the Directorate of Education is also directed to take
responsibility to frame specific and clear guidelines within a
period of three months from the date of this order so that the
object of RTE does not get mired in uncertainity.
16. At omega, this court would like to observe that in
the case of RTE, the legislation has become a tool for
enhancing the realization of the right but is not guaranteeing
instant realization and the weaker sections of the society are
approaching the courts for assuring the realization of the
right to education, but the costs involved in accomplishing
this right through the route of the courts are high and not
everyone can afford to indulge in it. Thus, even though the
country celebrates the first anniversary of the coming into
force of this act coupled with the literacy rate of India in
2011 census touching a 74.04% high, the wrinkles in this
legislation need to be ironed out with utmost urgency so that
W.P.(C) 1587/2011 Page 18 of 19
the chasm between achieving the dream of education for all
and reality is abridged swiftly. With the heightened
awareness and consciousness of the Indian citizenry, the
demand for inclusive education in the history of the country
has not been as fervent as it is today and to fulfill the
expectation of every common man to achieve a better
tomorrow through educating his child should be the ambition
of the Government of India, this world’s largest and most
high potential child populated country.
17. In the light of the above, the present petition is
disposed of.
May 23, 2011 KAILASH GAMBHIR, J
Bisht/mg/dc
W.P.(C) 1587/2011 Page 19 of 19
+ W.P.(C) No. 1587/2011
th
% Judgment reserved on: 26 April, 2011
rd
Judgment delivered on: 23 May,2011
Master Mohd.Abdullah (Minor) ...... Petitioner.
Through: Ms.Deepali Gupta, Adv.
versus
Govt. of NCT of Delhi and Ors. ..... Respondents
Through: Ms.Ruchi Sindhwani with
Ms.Bandana Shukla, Adv. for
respondents 1 & 2 along with
Ms.Suman Passi, Education
Officer, in person.
Mr. Puneet Mittal, Adv. for the
respondent No.3.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
*
1. By this petition filed under Article 226 of the
Constitution of India, the petitioner seeks directions to direct
W.P.(C) 1587/2011 Page 1 of 19
the respondents to hold a fresh draw for admission to the
pre-school class for the academic session 2011-12 in the
respondent No.3-school.
2. The short controversy involved in the present
writ petition is as to whether the petitioner child who
belongs to the weaker section of the society (EWS) is
entitled to seek admission at the entry level class i.e. pre
school in terms of the notification dated 7.1.2011 issued by
the GNCT of Delhi even if the petitioner child was above
the age of four years on the cutoff date.
3. Counsel for the petitioner, Ms. Deepali Gupta
submitted that no upper limit has been fixed under the Delhi
School Education Act and in case the petitioner is not
considered then the child may remain without education as
the petitioner belongs to a very poor family but the parents
of the petitioner want to educate their child. Counsel further
submitted that the Government of NCT of Delhi has issued
a Notification dated 7.1.2011, in exercise of the powers
conferred by sub-section (1) of Section 3 of the Delhi School
W.P.(C) 1587/2011 Page 2 of 19
Education Act, 1973, read with Rule 43 of the Delhi School
Education Rules, 1973 and under the provisions of the Right
of Children to Free and Compulsory Education Act, 2009,
mandating all schools to admit the children belonging to
economically weaker sections and disadvantaged groups in
neighbourhood and provide free and compulsory elementary
education from class I to the extent of at least 25% strength
of their class and to provide free and compulsory
elementary education till completion. The contention of the
counsel for the petitioner was that the petitioner had applied
to seek admission in pre-school class which is the first class
of entry under the category of economically weaker sections
but the petitioner has been denied admission by the
respondent school on the ground that he was not eligible
for admission being over age as on the cut off date i.e.
31.3.2011. Counsel further submitted that although the
petitioner was never conveyed the reasons for rejection of
his admission in terms of clause 4(g) of the said notification
dated 7.1.2011 but since the only reason advanced by the
W.P.(C) 1587/2011 Page 3 of 19
respondent school is that of over age of the petitioner,
therefore, the petitioner confines his case to challenge the
said ground of overage raised by the respondent school.
Canvassing her arguments on the said limited issue, counsel
for the petitioner contended that the said scheme permits
admission at the entry level and once the petitioner is denied
admission at the entry level, then he would not be eligible to
seek admission to any higher class. Counsel further
submitted that under the said notification, no minimum or
maximum age has been laid down and even under the Delhi
School Education Act only minimum age of 3 years has been
laid down to seek admission at the level of pre-school and
therefore the respondent no.3 could not have denied the
admission to the petitioner merely on the ground that he
had exceeded the age of four years as on the cutoff date of
31.3.3011.
4. Mr. Puneet Mittal, counsel appearing for
respondent No.3 on the other hand submitted that
respondent No.3 has adopted a uniform criterion in granting
W.P.(C) 1587/2011 Page 4 of 19
admissions to EWS category as well as the general category
in the pre-school stage, i.e. those who are between the age
group of 3-4 years. Counsel further submitted that none of
the candidates who are above the age of 4 years have been
granted admission in either EWS category or general
category in the pre-school stage. Counsel also stated that
there are 9 vacancies at the pre-school level in the
respondent school so far EWS category is concerned for
which steps are under process so as to request the
Directorate of Education to start the process for filling those
9 seats. Counsel also stated that so far the case of petitioner
is concerned, he can be considered at the pre primary level
as he is above 4 years and below 5 years of age if any
vacancy arises in the EWS category.
5. Ms.Ruchi Sindhwani, counsel appearing for the
respondents No.1 & 2 submitted that the Directorate of
Education vide circular dated 06.01.2011 has prescribed the
st
minimum age of 3 years for pre-school admission as on 31
March of the relevant year in which the admission is being
W.P.(C) 1587/2011 Page 5 of 19
sought and so far the maximum age limit is concerned, the
same can be decided by the management of each school on
the basis of their own policy and wisdom. Counsel also
submitted that in the EWS category in pre-school classes, 9
seats are still lying vacant in the respondent-school and the
respondent-school can accommodate the petitioner-child
against the said unfilled seats.
6. I have heard the learned counsel for the parties at
considerable length and gone through the records.
7. The petitioner in the present case had applied to
seek admission at the level of pre-school for the academic
year 2011-12 in the respondent no.3 school. The date of birth
of the petitioner is 16.02.2007 and as on the cutoff date of
31.03.2011, the petitioner was more than 4 years of age. The
respondent No.3-school is an unaided private school affiliated
to Central Board of Secondary Education, Govt. of NCT of
Delhi. As per the stand taken by the respondent-school, the
petitioner was not eligible to seek admission in the pre-school
class, as he was over age as on the cutoff date of 31.03.2011.
W.P.(C) 1587/2011 Page 6 of 19
The respondent-school has also taken a stand that the age
criteria which was set by the school for admission in pre-
school was 3 years to 4 years and the said criteria adopted by
the school was duly communicated by them to the
Directorate of Education. The respondent-school has also
taken a stand that the age criteria is the same for admission
in the general category as well as in the EWS category. The
respondent-school has also taken a stand that none of the
students who were above four years of age were granted
admission by the respondent-school at the entry level of pre-
school either in the general category or in the EWS category.
Counsel has also invited attention of this Court to the
computerized statement placed on record to show that in the
EWS category 20 students were given admission by the
school who were between the age group of 3 to 4 years and
even a student who was born on 31.03.2007 was denied
admission by the respondent-school. As per the stand taken
by the respondent-school there was complete uniformity so
far the age criteria was concerned and none of the students
W.P.(C) 1587/2011 Page 7 of 19
were given admission by the school at the entry level of pre-
school who did not fulfill the said age criteria.
8. I have gone through the computerized statement
placed on record by the respondent No.3-school which clearly
shows that the respondent No.3-school has not granted
admission to any student who was above the age of 4 years as
on the cutoff date of 31.03.2011. The petitioner thus cannot
claim any discrimination or any kind of arbitrariness on the
part of the respondent-school in denying admission to the
petitioner at the pre-school level under the EWS category. I
also find merit in the contention raised by counsel No.3-
school that out of the nine unfilled seats the petitioner now
cannot be given any priority, as for filling the said 9 seats,
the respondent-school will have to undertake the whole
process again if the students above the age of 4 years are to
be considered for granting admission at the pre-school level.
9. The Directorate of Education through their circular
dated 06.01.2011 had given clarification in response to the
various representations received by them from the school
W.P.(C) 1587/2011 Page 8 of 19
management and the parents of the wards regarding the
minimum age of the child for admission in pre-primary
classes/pre-school in recognized unaided schools and it was
clarified by them that every child admitted in the pre-school
st
shall be of minimum 3 years age by 31 March of the year in
which admission is being sought. As far as age for the pre-
primary classes is concerned, the stand taken by the
Directorate of Education is that the same will be 4 years as
st
on 31 March of the year in which admission is being sought.
In the circular dated 22.02.2011 the Directorate of Education
st
has laid down the age of 5 years for Class-1 as on 31 March
of the year in which admission is being sought.
10. From the aforesaid various circulars issued by the
respondent, it is quite evident that although no maximum age
has been fixed by the Government but still for various classes
from pre-school level to Class-1, the minimum age criteria
has been fixed, meaning thereby that a student who is not
able to seek admission at the pre-school level between the
age of 3-4 years will become of upper age when he seeks
W.P.(C) 1587/2011 Page 9 of 19
admission at the pre-primary level and similarly when he
seeks admission in Class-1. In Clause 2(b) of Notification
dated 07.01.2011, the word ‘class’ has been defined to
include the entry level class such as pre-school and first class
as the case may be. The said notification neither defines the
minimum age nor the maximum age. Pre-school admission is
at the entry level and the petitioner has also sought his
admission at the entry level under the EWS category in terms
of the said Notification dated 07.01.2011. The Directorate of
Education in the letter dated 26.04.2011 placed on record
has also taken a stand that the maximum age can be decided
by the management of each school in terms of their own
policy and wisdom. So far the respondent No.3-school is
concerned, they had taken a decision to grant admission only
to those students who had completed 4 years of age as on
st
31 March, 2011 and, therefore, as per the policy of the
respondent No.3-school the petitioner was not found entitled
to get admission at the pre-school level.
W.P.(C) 1587/2011 Page 10 of 19
11. It would be thus quite manifest that as per the
criteria laid down by the respondent No.3-school, the
maximum age of the child as on 31.03.2011 has been set at 4
years and the minimum age as 3 years. The Directorate of
Education in their communication has also taken a stand that
the Directorate of Education has fixed only minimum age as 3
st
years for pre-school by 31 of the year in which admission is
sought and the maximum age has been left to the discretion
of the management of the concerned school. The aforesaid
stand of the Directorate of Education clearly shows that the
Government has not laid down any specific guidelines to fix
the maximum age criteria so far admissions at the pre-school
or pre-primary level are concerned and only the minimum
age has been prescribed.
12. From the computerized statement placed on
record by the respondent No.3-school, it is also evident that
the school has not given admission to any student either in
the general category or in the EWS category at the pre-
school level who was above the age of 4 years as on the
W.P.(C) 1587/2011 Page 11 of 19
cutoff date of 31.03.2011. Thus it is imperative for every
parent to be vigilant and watchful to seek timely admission of
their children either at the pre-school level or at the pre-
primary level on the fulfillment of the age criteria and any
discretion by the Court in favour of one student will not only
create an anomalous situation but will also disturb the entire
admission system. Hence, in view of the said stand taken by
the Directorate of Education, this Court does not find
anything wrong in the decision taken by the respondent No.3-
school in laying down the maximum age of 4 years for
granting admission at the pre-school level as on the cutoff
date of 31.03.2011 as the Directorate of Education has
granted autonomy to the schools to set the upper age limit
and thus the school cannot be said to be at fault. Hence, this
Court does not find any wrongdoing in the said decision of
the respondent school so as to interfere with the same in
exercise of its writ jurisdiction under Article 226 of the
Constitution of India.
W.P.(C) 1587/2011 Page 12 of 19
13. However, having said the above, it cannot also be
lost sight of the fact that none of the legislations and rules
governing the admission to pre school stipulate a maximum
age limit. The reliance placed by counsel for the petitioner on
the judgment of this Court in Kumari Uzma Bano & Anr.
Vs. Govt. of NCT of Delhi & Anr. 172(2010) DLT 344
where this Court fortified the same after referring to Section
4 of the RTE Act & Explanation to Rule 21 of the Recognized
Schools (Admission Procedure for Pre-Primary Class) Order,
2007. It would be pertinent to reproduce the relevant para of
the said judgment here:
“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
W.P.(C) 1587/2011 Page 13 of 19
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.”
For better appreciation of the above, Rule 21 is reproduced
as under:-
“21. There shall be one year of pre-primary class in every school. A
class of one year duration preceding this called pre-school may be set-
up as a neighboring pre-school and the Education Department shall
frame the guidelines in this regard, in consultation with experts. The
schools which are already running pre-school class may continue to do
so subject to the following conditions:
(a) Every child admitted to pre-school shall be of minimum three
st
years by 31 March of the year in which admission is being sought;
(b) The schools shall frame their own guidelines for admission to
pre-school class and the same criteria as for admission to the pre-
primary level shall be adopted, until such time as the guidelines for
pre-schools are framed;
(c) Any such school which has a pre-school class from the session
commencing in April 2008, shall move those students to the pre-
primary class for the session commencing in April 2009. After that,
the final norms to be notified for the pre-school class shall be
followed.
Explanation: - For the purposes of this clause, the ages
stipulated for entry into standard one, pre-primary class and pre
school class are the minimum ages and there is no bar to children
W.P.(C) 1587/2011 Page 14 of 19
older than the ages specified in this clause being given admission
to these classes.”
If we look at the aforesaid provision, it is discernable that the
st
child should have the minimum age of 3 years by 31 March
of the year in which admission is being sought for a child
seeking admission in the pre-school and in the explanation it
has been explicitly stated that there is no bar to the older
children specified in the aforesaid clause. No upper age limit
has been laid down even in the said explanation and it has
been merely stated that there would be no bar for the older
children to seek admission in the above classes. However,
how much older children can be permitted to seek admission
at the pre-school or pre-primary level is nowhere specified
and the Directorate of Education has also not laid down any
guidelines on this aspect.
14. Today, education is a right and not a luxury in this
country, but behind this landmark achievement is a long
historic struggle which started some 100 years ago by Gopal
Krishna Gokhle who in 1911 proposed to the Imperial
Legislative Council the right to education which was followed
W.P.(C) 1587/2011 Page 15 of 19
by Mahatma Gandhi’s call for universal education in 1937.
After independence, the framers of the Constitution of India
inculcated it in the Directive Principles of State Policy and it
was only in 1993 in Unni Krishnan vs. State of A.P
(1993)1SCC 645 that the Supreme Court held the right to
education as a fundamental right to be read into Article 21 of
the Constitution of India. But it was only in the year 2002
th
with the 86 Constitutional amendment that Article 21 A was
added which made free and compulsory education to all the
children from the age of 6 to 14 years a fundamental right.
The momentous event of enforcing The Right of Children to
Free and Compulsory Education Act was on 1 April 2010
th
which has made India the 136 nation in the world to give
right to education legal sanctity.
15. Basic education is a fundamental requirement of
all modern societies for social equity, economic functionality
and imbibing cultural values. Education is one of those
rights that enable the full realization of a person's potential
and inclusion in society by enabling citizenship and growth.
W.P.(C) 1587/2011 Page 16 of 19
Negative gaps in its realization are perceptible as teething
troubles in the long march for attaining the important
objective of universal education. One such would be as what
has arisen in the present case, which is the maximum age of
the child to be admitted at the pre school level which is
nowhere specified. Looking at the intendment and spirit of
the passing of the historic, even though belated welfare
legislation, no child can be deprived of education. India is
also a signatory to the United Nations Childs Right
Convention and has universally accepted the definition of
child which is upto the age of 18 years which by virtue of
Article 28 makes primary education free and compulsory for
all. Therefore, this court is of the considered view that for
attaining the non negotiable objectives of the RTE Act the
Directorate of Education is the right authority and is
henceforth directed to take steps to help the petitioner to see
if any seat at the pre-school level or pre-primary level is
available in any other aided or unaided school in the
neighbourhood of the residence of the petitioner where his
W.P.(C) 1587/2011 Page 17 of 19
case can be considered on fulfillment of laid down criteria of
admission. To mend out the confusion with regard to
maximum age of the child to be admitted to different classes,
the Directorate of Education is also directed to take
responsibility to frame specific and clear guidelines within a
period of three months from the date of this order so that the
object of RTE does not get mired in uncertainity.
16. At omega, this court would like to observe that in
the case of RTE, the legislation has become a tool for
enhancing the realization of the right but is not guaranteeing
instant realization and the weaker sections of the society are
approaching the courts for assuring the realization of the
right to education, but the costs involved in accomplishing
this right through the route of the courts are high and not
everyone can afford to indulge in it. Thus, even though the
country celebrates the first anniversary of the coming into
force of this act coupled with the literacy rate of India in
2011 census touching a 74.04% high, the wrinkles in this
legislation need to be ironed out with utmost urgency so that
W.P.(C) 1587/2011 Page 18 of 19
the chasm between achieving the dream of education for all
and reality is abridged swiftly. With the heightened
awareness and consciousness of the Indian citizenry, the
demand for inclusive education in the history of the country
has not been as fervent as it is today and to fulfill the
expectation of every common man to achieve a better
tomorrow through educating his child should be the ambition
of the Government of India, this world’s largest and most
high potential child populated country.
17. In the light of the above, the present petition is
disposed of.
May 23, 2011 KAILASH GAMBHIR, J
Bisht/mg/dc
W.P.(C) 1587/2011 Page 19 of 19