BREAKING NEWS – DELHI GOVT AFFIDAVIT TAKING U-TURN IN NURSERY ADMISSION AGE CASE – HEARING ON 06.01.2012
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM NO. OF 2011
WP (C) NO. 7802 OF 2011
Social Jurist, A Civil Rights Group …..Petitioner
Government of NCT of Delhi & Ors. ….Respondent
REPLY AFFIDAVIT OF BEHALF OF THE RESPONDENT NO.1 TO THE APPLICATION FILED BY THE PETITIONER
Affidavit of Mrs. Shashi Kaushal D/o Sh. M. K. Kaushal, aged 48 years, posted as Additional Director (Act Branch), Directorate of Education, Govt. of NCT of Delhi, OLD Secretariat, Delhi-54.
I, the above deponent do hereby solemnly state and affirm as under:-
1. That I am working as Additional Director (Act Branch), Directorate of Education, Govt. of NCT of Delhi, Old Secretariat, Delhi-54. I am conversant with the facts of the case in my official duty and am therefore competent to swear this affidavit.
2. That at the outset I state that all averments made in the application, save and except matters of record or expressly admitted herein, are denied.
3. The Answering Respondent also craves leave to refer and rely upon the counter affidavit filed by the Respondent No.1 to the writ petition. The same may be read as part of the present affidavit.
4. That it is submitted that the interpretation sought to be given by the petitioner to the order dated 16.12.2011 as passed by the Directorate of Education is wrong.
The order dated 16.12.2011 has been passed with regard to Delhi School Education (Free seats for students belonging to economically Weaker Section & Disadvantaged Group) and lays down the admission schedule and guidelines for conducting admission to Pre-School/Pre Primary/Class I classes (entry level) for academic session 2012-13.
The object of the order is given in the order dated 16.12.2011. The order specifically states that
"Every school shall ensure that within the above admission schedule, the application forms in the prescribed proforma are made available free of cost to all applicants under EWS and disadvantaged Group, without any barrier/hindrance.
All schools shall ensure that no child under Economically Weaker Section & Disadvantaged Group is denied admission on neighborhood/distance basis so long as the locality of the child's residence falls within the distance criterion devised by the school for the General category children.
After the closure of admission process on 31.03.2012, each school shall send the details of the number of vacant seats under economically Weaker Section & Disadvantaged Group to the concerned District Dy. Director of Education by 16:00 hours on 06.04.2012. The concerned districts will compile the school-wise status of such vacant seats under EWS and Disadvantaged Group category and forward the same to the Act Branch at HQs latest by 10.04.2012 so that necessary steps to fill all the vacant seats can be taken".
5. That it has already been submitted by the answering respondent in its counter affidavit that the:
"………….Order dated 24-11-2007 along with the Judgments dated 26-11-2007 and 19-11-2007 passed by this Hon'ble Count in WP( C) NO. 12490 /2006 and LPA NO. 196/2004 have been challenged before the Hon'ble Apex Court. It is submitted that batch of 5 SLPs (SLP(C) NO. 2461718/2007, SLP( C) NO. 24622/2007, SLP(C ) NO. 24624/2007, SLP(C ) NO. 14833/2008 and SLP © No. 14839/2008) are still pending consideration before the Hon'ble Supreme Court.
9. The Section 11 of the RTE Act, 2009 which came into force w.e.f. 1-04-2010, provides that:-
"With a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate government may make necessary arrangement for providing free pre-school education for such children".
10. That the Guidelines/Rules regarding Pre-school can be worked out after detailed discussion and consultations with experts and stakeholder and in view of the provisions of RTE Act and challenge against the order dated 24/11/2007 in the Hon'ble Supreme Court."
6. Article 45 of the Constitution of India provides:
"45. Provision for early childhood care and education to children below the age of six years.
The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
It is submitted that section 11 of the Right Of Children to free & Compulsory Education Act 2009 is in consonance with Article 45 of Constitution of India.
7. That under Section 11 of the Right of Children to Free and Compulsory education Act 2009(RTE Act), children above the age of 3 years are to be prepared for elementary education and secondly the Government shall endeavour to provide education/care for such children.
8. Section-12 of RTE ACT, 2009, Provides that: - Extent of School's responsibility for free and compulsory education
(1)For the purposes of this Act, a school,-
(a)Specified in sub-Clause (i) of Clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b)Specified in sub-Clause (ii) of Clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to minimum of twenty-five per cent;
(c)Specified in sub-Clause (iii) and (iv) of Clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker Section and disadvantaged group in the neighborhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in Clause (n) of Section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.
Further Section 2(n) reads as under:-
In this Act, unless the context otherwise requires.-
(n) "school" means any recognized school imparting elementary education and includes-
(I) a school established, owned or controlled by the appropriate government or a local authority;
(II) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate government or the local authority;
(III) a school belonging to specified category; and
(IV) An unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;
Conjunct reading of Article 45 read with section 11 and proviso to section 12 (1) of RTE Act, 2009, shows there is need of pre-school education of children below 6 years of age. The RTE Act, 2009 nowhere bars schools from running pre-school classes. On the contrary, it provides for applicability of provisions of clauses (a) to (c) of Section 12 of RTE Act, 2009. Hence, Order dated 16-12-2011 has rightly incorporated Pre-school classes to admit 25% EWS and Disadvantaged Groups children at the academic session 2012-13. The RTE ACT, 2009, being Central legislation, would prevail over any State Legislation.
9. That in pursuance to the decision taken by the cabinet on the recommendation of the Ganguly Committee. The department had issued the Recognized Schools (Admission Procedure for Pre-primary Classes) Order 2007, wherein it is clearly mentioned that schools which are already providing Pre-school education may continue to do so till the framing of guidelines.
10. It is submitted that after the coming into force of the Right to Education Act, 2009, the matter regarding regulation of Pre-school education also needs to be looked into. The necessary guidelines/rules will be worked out by the Govt. after detailed discussions and consultations with experts and stake holders and subject to the final orders in respect of the challenge against order dated 24/11/2007 pending in the Hon'ble Supreme Court.
In view of facts set out hereinbefore it is submitted that the application be dismissed.
Verified at Delhi on this 04 th day of January, 2012 that the contents of my above affidavit are true and correct to my knowledge and belief, no part thereof is false and nothing material has been concealed there from.