Delhi High Court: In a batch of 39 petitions been filed by the petitioners seeking the admission of students under the Economically Weaker Section category (“EWS category”) under Section 2(e) of Right to Education Act (RTE Act) in the respondent schools at the elementary level, Chandra Dhari Singh, J., issued a list of directions providing relief to the EWS students and their families. The Court directed all the schools to ensure that no student, belonging to “Weaker Sections” as defined in the RTE Act and recommended by the Department of Education (DoE) for being admitted in an Academic Session, shall be denied admission or treated with conduct that is unwelcoming of them on any pretext whatsoever including that of suspicion of credentials.
The students from the EWS category were given Letters by the Department of Education (“DOE”), Government of NCT of Delhi confirming their admission to the respective schools in Delhi under the Scheme of the RTE Act. These letters were issued pursuant to a draw of lots conducted by the DoE and the results were communicated to all the schools as well as the fortunate few children belonging to the EWS category who got selected by such a draw of lots. Despite the children possessing confirmed admission letters from the DOE, the schools refused to give them admission.
Counsel for petitioners submitted that the Court, as a custodian of the Constitution, cannot remain a mute spectator to the outright bulldozing of human rights by those in the noble service of imparting education, thus bringing bad names and repute to the same.
The Court noted that the present dispute is regarding the admissions of students belonging to economically disadvantaged strata of society and its ramifications on the career of young students seeking admission. The Court intends to settle the principles governing the EWS admissions in schools and the mechanism for dealing with non-compliance of the same. It is made clear that the question of facts that form case to case of individual petitioners has not been dealt with in this judgment.
Issue I: What is the rationale behind granting reservations for students belonging to the EWS category under the RTE Act?
The Court noted that the right to education has not only been declared a fundamental right of every child, but the State has also been obliged to provide free and compulsory education, and hence, no authority which falls within the ambit of definition of State as per Article 12 could renege on the constitutional covenant.
The Court further noted that the right of children to free and compulsory education guaranteed under Article 21-A and the RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. Thus, under Section 38 of the RTE Act, the Government shall frame rules for carrying out the purposes of this Act and in particular, the matters stated under sub-Section (2) of Section 38 of the RTE Act.
Issue II: What is the method of calculating the percentage of 25% for admission to students from weaker sections under the RTE Act?
The Court noted that the words used in the provisions are “shall” and “at least”, which on a plain reading itself suggest that the limit thus prescribed is not at all an upper limit rather it is a minimum figure decided by the parliament in its wisdom.
The Court remarked “The admissions actually carried out in an academic year is a matter that is within the realm of the school administration and the declared strength cannot be dynamically updated on the basis of the actual admissions being carried out and the poor children cannot be kept in limbo where on a daily basis, the portal reflects the number of admissions carried out in each school and accordingly vary the number of the EWS students that can be actually made”
The Court observed that even if it is presumed for a moment that fewer admissions are carried out, it still should not affect the number of admissions of EWS students since the object of imparting education is charitable and not to profiteer, therefore, no question arises to peg the number/percentage of the students admitted under the weaker section category and thus, the number of students to be admitted must be calculated on the basis of the strength as self-declared by the school.
Issue III: What are the measures that can be adopted to prevent violation of the provisions of the RTE Act and/other orders passed by the Directorate of Education (DoE) under the Act ?
The Court noted that on a bare reading of the bare provisions of the RTE Act and Rules framed thereunder establish that the applicant schools have willfully consented to abide by the provisions of the RTE Act, Delhi RTE Rules, as well as the directives/instructions of the appropriate authority. Thus, there is no iota of doubt that the DoE is empowered to pass orders for compliance of the provisions of the RTE Act as well as the Delhi RTE Rules; and that the schools are duty bound to implement the said orders issued for compliance of the RTE Act as well as the Delhi RTE Rules.
In order to ensure enforcement of the provisions of the RTE Act, the Court noted that the Act envisages the formation of a School Management Committee and the National Commission for Protection of Child Rights (NCPCR) is tasked with the duties and responsibilities to examine and review the safeguards for rights provided by or under this Act and recommend measure for their effective implementation and to inquire into complaints relating to child’s right to free and compulsory education.
The Court remarked it is high time that the judiciary reaches the people and not wait for the people to reach out to the judiciary, as the poor kids are being forced in the instant set of petitions to knock the doors of the Court for availing their Fundamental Right to Education.
Thus, the Court laid following directions
- All the schools within the meaning of Section 2(n) of the RTE Act shall ensure that the provisions of the Act as interpreted herein shall be given effect in letter as well as in spirit;All such schools as aforementioned shall also ensure that no student, belonging to “Weaker Sections” as defined in the RTE Act and recommended by the DoE for being admitted in an Academic Session, shall be denied admission or treated with conduct that is unwelcoming of them on any pretext whatsoever including that of suspicion of credentials;
- Any exemption/waiver if required by the schools under the provisions of the RTE Act, in the most exceptional and unforeseen circumstances, can be availed by making such request to the DoE as per the scheme as delineated below:
- The Application must be made within one week of recommendation and the notification of admission of a particular student under the “weaker section” quota to the neighborhood school.
- The said Application must state the reasons and circumstances under which the limited liberty or one-time limited exemption is being sought, or in any format as the DoE may deem fit including other details therein in addition to the reasons for the request.
- Upon receiving the said Application, the DoE shall give an opportunity of hearing to the concerned school within a week and decide the said application within a week thereafter, upon ascertaining that the prayers and reasons asserted therein are bona fide and stand the test of most exceptional circumstances and accordingly to its satisfaction, if deemed fit, grant a one-time limited exemption to the concerned school. iv. It is, however, made clear that no such exemption would be granted at the cost of causing prejudice to the admission of the child and shall only be passed after admitting the child, who would otherwise be aggrieved, to an alternate school that is in the closest neighborhood.
- The DoE shall exercise its powers under the Act and Rules to ensure that the provisions are duly complied with;
- The DoE shall ensure that all the students shortlisted and notified to be admitted in a neighborhood school shall be admitted at the earliest within one month or within the period prescribed by the appropriate authority subject to the provisions of the Act;
- In case of erring schools, the DoE shall issue strict directions as may be necessary to ensure the implementation of the RTE Act in a time-bound manner;
The DoE shall not hesitate in initiating the process of de-recognition of the schools which have been found to be indulging in any acts/omissions in contravention of the RTE Act and the Delhi RTE Rules.
On the schools contending regarding frauds being committed by the parents of the student’s seeking admission, misrepresenting themselves as belonging to a weaker section by forging documents and other scrupulous means, the Court stated that mere suspicion or doubt on the credentials of the candidate based on the fact-finding exercise carried out by the school, cannot be a ground to deny admission, otherwise, it will render a death knell to the spirit of the RTE Act. Rather, if despite the due process adopted by the DoE for screening, in case the school, after admitting the child, suspects fraud being committed by the ward or their parents, they can seek recourse to legal remedies as available.
The Court concludes in the words of Swami Vivekananda
“Education, education, education alone! Travelling through many cities of Europe and observing in them the comforts and education of even the poor people, there was brought to my mind the state of our own poor people, and I used to shed tears. What made the difference? Education was the answer I got. Through education comes faith in one’s own Self, and through faith in one’s own Self the inherent Brahman is waking up in them, while the Brahman in us is gradually becoming dormant.” [Extracts from The Complete Works of Swami Vivekananda: Volume IV – “Our Duty to the Masses” & “The Education that India needs”]
[Rameshwar Jha v. The Principal Richmond Global School, 2022 SCC OnLine Del 4438, decided on 16-12-2022]
Judgment by: Justice Chandra Dhari Singh
Advocates who appeared in this case :
Mr. Devendra Kumar, Mr. Sunil K. Jha, Ms. Priti and Mr. N. K. Upadhyay, Advocates for the Petitioner;
Ms. Akanksha Kaul, Ms. Apoorva Pandey and Mr. G. G. Kashyap, Advocates for R-1 Mr. Rishikesh Kumar, ASC, GNCTD with Mr. Muhammad Zaid and Mr. Aditya Raj, Advocates for GNCTD Mr. Zahid Hanief, Advocate for the R-3.
*Arunima Bose, Editorial Assistant has reported this brief.