SOCIAL JURIST MOVES DELHI H C QUESTIONING KVS ADMISSION GUIDELINES 2012-13 ON RESERVATION IN EWS IN RTE ACT, 2009
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) NO. ______________ OF 2012
(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
Public interest litigation
AND
IN THE MATTER OF:
Writ petition under Article 226 of the Constitution of India;
AND
IN THE MATTER OF:
Validity and legality of the impugned Admission Guidelines 2012-13 of Kendriya Vidyalaya Sangathan for admission to Kendriya Vidyalayas in the academic year 2012-13 in Class I whereby the Kendriya Vidyalaya Sangathan has introduced reservation within reservation in 25% reserved seats for the children belonging to disadvantaged group and economically weaker sections under Section 12(1) (c) of the Right of Children to Free and Compulsory Education Act, 2009 which is impermissible in law;
AND
IN THE MATTER OF:
Violation of fundamental right to education of large number of children as guaranteed to them under Articles 14, 15, 21, 21A and 38 of the Constitution of India read with the provisions of Right of Children to Free and Compulsory Education Act, 2009 and U.N. Convention on the Rights of the Child (1989);
AND
IN THE MATTER OF:
Writ Petition (C) No.4194/2011 entitled 'Master Jatin Singh v. Kendriya Vidyalaya Sangathan & Ors.' pending in this Hon'ble Court wherein constitutionality, validity and legality of the Admission Guidelines for admissions in Kendriya Vidyalayas (2011-12) in Class-I has been challenged and the same is pending in this Hon'ble Court and listed for hearing after notice for 22.02.2012;
AND
IN THE MATTER OF:
(1) Constitution of India;
(2) Right of Children to Free and Compulsory
Education Act, 2009
AND
IN THE MATTER OF:
Social Jurist, A Civil Rights Group,
Through Co-ordinator
Advocate M.N. Singh,
478-479, Lawyers' Chambers,
Western Wing, Tis Hazari Courts,
Delhi-110054
and having its Registered Office at
Registered Office at C-29, Janyug Apartments,
Sector-14 Extension,
Rohini, Delhi-110085 ..... Petitioner
Versus
1. Kendriya Vidyalaya Sangathan
Through its' Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
2. Union of India,
Through Secretary,
Ministry of Human Resources Development
Shastri Bhawan,
New Delhi - 110001.
3. Govt. of NCT of Delhi,
Through Director of Education,
Directorate of Education,
Old Secretariat Building,
Civil Lines,
Delhi-110054 …. Respondents
To
THE HON'BLE CHIEF JUSTICE OF HIGH COURT
OF DELHI AT NEW DELHI AND HIS COMPANION
JUSTICES OF THE SAID HIGH COURT
The humble petition of the petitioner above named
MOST RESPECTFULLY SHOWETH:
1. The petitioner submits that it has no personal interest in the litigation and that the petition is not guided by self gain or for gain of any other person/institution/body and that there is no motive other than of public interest in filing the present writ petition.
2. The petitioner submits that it is very much involved in the matter of implementation of Right of Children to Free and Compulsory Education Act, 2009 and has been frequently interacting with the education authorities of different Governments and the source of averments made in the present writ petition is his personal knowledge.
3. The petitioner submits that the present PIL is for the benefit of the children belonging to economically weaker section and disadvantaged groups and they are incapable of assessing the courts themselves.
4. The petitioner submits that the Kendriya Vidyalaya Sanngathan is likely to be affected by the Orders sought in the writ petition and which have been impleaded as Respondent No.1. The petitioner says that to its knowledge, no other persons/ bodies/institutions are likely to be affected by the Order sought in the writ petition.
5. Social Jurist, A Civil Rights Group, the petitioner herein, is an organization of lawyers and social activists dedicated to the cause of common man and particularly to the rights of the children relating to education and health. Advocate M.N. Singh is the Coordinator of the petitioner/organization and is authorized and competent to file and prosecute the present writ petition on behalf of the petitioner. The petitioner is an organization having Registered Office at C-29, Janyug Apartments, Sector-14 Extension, Rohini, Delhi-110085. It is submitted that Advocates Kusum Sharma, Advocate Anuj Aggarwal and Advocate Rohini Aggarwal are the President, Secretary and Treasurer respectively of the petitioner/organization. The petitioner submits that it has the means to pay costs, if any, imposed by this Hon'ble Court and submits it's undertaking to this Hon'ble Court in that regard.
6. The petitioner by the present PIL has challenged the constitutionality, validity and legality of the impugned Admission Guidelines 2012-13 of Kendriya Vidyalaya Sangathan, hereinafter referred as 'Respondent No.1' for admission to Kendriya Vidyayalas in Class I in the academic year 20212-13 whereby the Respondent No.1 has introduced reservation within reservation in 25% reserved seats for the children belonging to the disadvantaged group and economically weaker section under Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009, which is impermissible in law.
A true copy of the impugned Admission Guidelines 2012-13 of the Kendriya Vidyalaya Sanghan is enclosed hereto and marked as Annexure-A.
7. The petitioner by the present PIL has raised the following vital questions of law of general public importance for determination by this Hon'ble Court:-
(i) Whether the impugned Admission Guidelines 2012-13 (Annexure-A) of the Kendriya Vidyayala Sangathan for admission to Kendriya Vidyalayas in the academic year 2012-13 in Class I whereby the Kendriya Vidyayala Sangathan has introduced reservation of 22.5% of the total seats within the reservation in 25% of reserved seats for children belonging to disadvantaged group and economically weaker section under Section 12(1) (c) of the Right of Children to Free and Compulsory Education Act, 2009 is unconstitutional, illegal, invalid, violative of Articles 14, 15, 21, 21A and 38 of the Constitution of India, contrary to the provisions of Right of Children to Free and Compulsory Education Act, 2009, arbitrary, discriminatory, unjust and bad in law?
(ii) Whether there can legally be reservation within reservation for Scheduled Castes and Scheduled Tribes as has been done by the Respondent No.1 for the admission in 25% seats for the children belonging to disadvantaged group and economically weaker section under Section 12(1) (c) of the Right of Children to Free and Compulsory Education Act, 2009?
8. The facts of the case so far as relevant for the purpose of the present writ petition are given in brief, as under.
9. The petitioner submits that Kendriya Vidyayala
Sangathan is a body constituted by the Ministry of Human Resources Development, Govt. of India. It is submitted that the Respondent No.1 is fully financed and controlled by the Respondent No.2. It is also submitted that the Respondent No.1 has more than 1000 Kendriya Vidyalayas all over the country which cater around 10 Lakhs students and in Delhi alone it runs more than 50 Kendriya Vidyalayas which caters more than 1 Lakh students.
10. The petitioner submits that the Kendriya Vidyalayas are placed under "specified category" under Section 2(p) of Right of Children to Free and Compulsory Education Act, 2009. It is submitted that such schools are obliged to grant admission in Class I to the extent of at least 25% of the strength to the children belonging to disadvantaged group and economically weaker section in the neighbourhood and provide free and compulsory elementary education till its completion in terms of Section 12(1)(c) of The Right of Children to Free and Compulsory Education Act, 2009.
11. The petitioner invites attention of this Hon'ble Court to the relevant provisions of Section 2(d), 2(e), 2(n) and 2(p) and 12 of The Right of Children to Free and Compulsory Education Act, 2009 which are reproduced, as under:-
Section 2(d) "child belonging to disadvantaged group" means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;
Section 2(e) "child belonging weaker section" means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;
Section 2(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;
2(p) "specified category" in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government;
Section 12. 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 a 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:
(2) The school specified in sub-clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged form the child, whichever is less, in such manner as may be prescribed.
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:
Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be."
12. The petitioner submits that up to the academic year 2010-11, the Respondent No.1 was following the policy of 22.5 % reservation for SC/ST in all the 100 % admissions. However, after coming into force the provisions of Right of Children to Fee and Compulsory Education Act, 2009, the Respondent No.1 has formulated Admission Guidelines 2011-12. It is submitted that the Respondent No.1 has reserved 25% seats for the children belonging to disadvantaged group and economically weaker section but at the same time, introduced 22.5% reservation of the total seats for SC/ST in the said reserved category of 25% seats, resulting in unjust discrimination amongst the categories of students falling under the reserved categories of disadvantaged group and economically weaker section. As a matter of illustration, out of the total 10 seats reserved for the children belonging to disadvantaged group and weaker section under the 25% reserved seats, 9 seats would go to SC/ST and remaining 1 seat would be left for children belonging to OBC, children with disabilities, etc. etc. It is submitted that if 9 seats out of 10 seats are reserved for Scheduled Caste/Scheduled Tribes, percentage of reservation would not only be 22.5% but would be 90% which is otherwise also, not permissible in law.
13. The petitioner submits that the Admission Guidelines 2011-12 of the Kendriya Vidyalaya Sangathan is a subject matter of Writ Petition (C) No.4194/2011 entitled 'Master Jatin Singh vs. Kendriya Vidyalaya Sangathan & Ors." pending before this Hon'ble Court and is listed for 22.02.2012, after notice.
14. The petitioner submits that the Kendriya Vidyalaya Sangathan has now come up with Admission Guidelines 2012-13 (Annexure-A) and has again introduced a reservation of 22.5% of total seats for SC/ST within the reservation of 25% reserved seats for the children belonging to disadvantaged group and economically weaker section under Section 12(1)(c) of The Right of Children to Free and Compulsory Education Act, 2009 which has been challenged in the present Public Interest Litigation as the impugned decision of Kendriya Vidyalaya Sangathan is not only against the Constitution of India but also violates the provisions of The Right of Children to Free and Compulsory Education Act, 2009.
15. The petitioner invites attention of this Hon'ble Court to Clause 5 of the said Admission Guidelines 2012-13 (Annexure-A) which deals with the method of admission and are reproduced as under:-
"5. METHOD OF ADMISSION
A. In Class I (RTE Act 2009 - section 12(1) (c) (See Annexure-V)
To fulfill the constitutional mandate of reservation to SC/ST and also to implement the provisions of RTE Act under Rule 12(1) c following procedure shall be adopted for admission to class I (with class strength of 41).
1. In first phase 31 seats in Class I should be filled as per existing category system in KVS irrespective of reservation. (However, 01 seat may be granted to disabled child of any category under 3% horizontal reservation)
2. The children secured admission in 1st phase will not be included in 2nd phase (RTE system). However, the unsuccessful candidates in 1st phase, if otherwise, eligible in RTE quota will be included in 2nd phase (RTE Quota).
3. In 2nd phase, the remaining 10 seats will be filled as per RTE provisions (25% of seats)
(a) All applications of Scheduled Caste candidates will be subjected to random method (Lottery System) to select 6 candidates.
(b) All applications of (Scheduled Tribe) candidates will be subjected to random method (Lottery System) to select 3 candidates.
(c) All applications of Economically Weaker Section (EWS)/Below Poverty Line (BPL/OBC (Non Creamy Layer)/Disabled Chldren will be subjected to random method (Lottery System) to select 1 candidate.
Note: If adequate number of candidates are not available in (a), (b), & (c), the admission may be granted to inter changing the above three categories to fill all 10 seats in above sequence. In no case these seats will be de-reserved for General Category.
" If required numbers of candidates covered under RTE do not register in 1st spell of registration then a second notification may be given in the month of April itself.
" The definition/eligibility criteria of Economically Weaker Section/BPL/ OBC (Non creamy layer) may be verified from the notification of the concerned State Governments.
B. ENHANCED RESERVATION BASED
ON CENSUS
All such civil sector Kendriya Vidyalayas that are not notified for para-military forces shall have reservation equivalent to their population as given in Annexure IV of Admission Guidelines. In such cases the RTE Quota is restricted to 10 seats only (25%). The excess of 10 seats meant for SC/ST population in those states will be filled as per the existing system and will not be covered under RTE Act."
16. The petitioner submits that the categories mentioned in Section 2(d) and 2(e) of The Right of Children to Free and Compulsory Education Act, 2009 form one group/class for the purpose of 25% reservation of seats in unaided private schools for children belonging to disadvantaged group and economically weaker section in terms of Section 12(1)(c) of The Right of Children to Free and Compulsory Education Act, 2009 and cannot be sub-divided or sub-categorized as has been done by the Kendriya Vidyalaya Sangathan in the present case. It is respectfully submitted that such a sub-classification or micro classification of the categories mentioned in Section 2(d) and Section 2(e) of The Right of Children to Free and Compulsory Education Act, 2009 is impermissible under the Constitution, in view of the law laid down by the Constitution Bench of Hon'ble Supreme Court of India in case of 'E.V. Chinnaiah vs. State of Andhra Pradesh & Ors. 2005(1) SCC 394'.
17. The petitioner submits that the impugned reservation within reservation as has been done by the Kendriya Vidyalaya Sangathan, if permitted, the entire object and purpose of Section 12 of The Right of Children to Free and Compulsory Education Act, 2009 would be defeated. It is submitted that The Right of Children to Free and Compulsory Education Act, 2009 has already included the children belonging to Scheduled Caste and Scheduled Tribes in the definition of Children belonging to disadvantaged group, as given in Section 2(d) of The Right of Children to Free and Compulsory Education Act, 2009 and therefore, any further reservation for Scheduled Caste/Scheduled Tribe, as has been done by the Respondent No.1 would be hit by Article 14 of the Constitution of India.
18. The petitioner submits that they have made a representation dated 03.02.2012 to the Respondent No.1 thereby requesting them to modify the Admission Guidelines 2012-13 and put them in the tune of Article 14 of the Constitution of India read with Article 21A of the Constitution of India. It is submitted that till date, no response has been received from the Respondent No.1 in regard to the said representation.
A true copy of the said representation dated 03.02.2012 is enclosed hereto and marked as Annexure-B.
19. The petitioner therefore, begs to challenge the constitutionality, validity and legality of the impugned Admission Guidelines 2012-13 of the Kendriya Vidyalaya Sangathan (Annexure-A), on the following, amongst other,
GROUNDS
A. Because the impugned Admission Guidelines 2012-13 so far as the same provides 22.5% reservation of total seats for SC/ST in the 25% reserved category for the children belonging to disadvantaged group and children belonging to economically weaker section are unconstitutional, invalid, illegal, arbitrary, discriminatory, unjust, without authority of law, violative of Articles 14, 15, 21, 21A and 38 of the Constitution of India and contrary to the provisions of The Right of Children to Free and Compulsory Education Act, 2009.
B. Because the reservation within reservation is impermissible in law, as has been held by the Constitution Bench of Hon'ble Supreme Court in case of E.V. Chinnaiah vs. State of Andhra Pradesh & Ors. 2005(1) SCC 394.
C. Because all the children belonging to various categories mentioned in the definition of children belonging to disadvantaged group as given in Section 2(d) as well as children belonging to economically weaker section as given in Section 2(e) form a single class of students at the same footing and have equal rights in regard to 25% admissions and therefore, cannot be legally divided or sub-divided or can be discriminated on any accounts, whatsoever may be. By providing 22.5% reservation of total seats to SC/ST in 25% of the reserved seats tantamount to unjust discrimination of children falling within the definitions of children belonging to disadvantaged group as given in Section 2(d) and children belonging to economically weaker section as given in Section 2(d) of The Right of Children to Free and Compulsory Education Act, 2009.
D. Because The Right of Children to Free and Compulsory Education Act, 2009, as provided in Section 12(1)(c) of The Right of Children to Free and Compulsory Education Act, 2009 has a reservation and therefore, bringing further reservation within such reservation would be without authority of law, arbitrary, discriminatory and defeats the very objective and purpose of The Right of Children to Free and Compulsory Education Act, 2009.
E. Because neither the Constitution of India nor The Right of Children to Free and Compulsory Education Act, 2009 authorizes the Respondent No.1 to make such a reservation as has been done through the impugned Admission Guidelines.
F. Because the impugned Admission Guidelines 2012-13 is otherwise also bad in law.
20. The petitioner has not filed any similar petition either in the Hon'ble Supreme Court of India or in any Hon'ble High Courts in India.
21. The Petitioner submits that it has no other efficacious alternate remedy except to approach this Hon'ble Court by way of present Public Interest Litigation.
22. That the annexures annexed to the writ petition are true and correct copy of its originals.
PRAYER
In the premise aforesaid, the petitioner most respectfully prays that this Hon'ble Court may be pleased to:-
(a) declare that the Admission Guidelines 2012-13 of Kendriya Vidyalaya Sangathan for admission to Kendriya Vidyalayas in Class I in the academic year 2012-13 (Annexure-A) introducing reservation to the extent of 22.5% of total seats for SC/ST in 25% seats reserved for children belonging to disadvantaged group and children belonging to economically weaker section is unconstitutional, arbitrary, discriminatory, illegal, unjust, violative of Articles 14, 15, 21, 21A & 38 of the Constitution of India and contrary to the provisions of The Right of Children to Free and Compulsory Education Act, 2009 and quash the same to that extent:
(b) Issue an appropriate writ, order or direction thereby directing the Kendriya Vidyalayas to re-frame its Admission Guidelines 2012-13, in accordance with law;
(c) pass any such other or further order or direction as this Hon'ble Court may in the facts and circumstances of the present case deem fit and appropriate, in favour of the petitioner and against the respondent; and
(d) allow the present PIL with costs.
Ashok Agarwal & Khagesh B. Jha
Advocates for the Petitioner
483, Block-II, Lawyers Chambers,
Delhi High Court, New Delhi - 110003
Ph: 23384000, Mob-9811101923
Place: New Delhi
Dated: 06.02.2012
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