Supreme Court (H.L.Dattu & Dipak Misra JJ) today (12.07.2013) issued notices to HRD Ministry GOI and Govt. of NCT of Delhi on a special leave petition filed by Social Jurist, A Civil Rights Group through Advocate Ashok Agarwal challenging Delhi High Court Judgment holding that the Right of Children to Free and Compulsory Education Act, 2009 applies only to the children between 6 to 14 years and not to children below 6 years of age and therefore, Section 13 of the Act which prohibits screening procedure does not apply to the admissions made to the nursery classes of unaided private schools.
Mr. Ashok Agarwal, Advocate appearing for the petitioner, Social Jurist argued that it is totally illogical to say that if a child is admitted in Class I or at the age of 6 years, Section 13 of RTE Act will apply and if a child is admitted in Nursery or at the age of 3+years, Section 13 of the Act will not apply. It is also illogical to say that S.13 will apply to admission of 3+ age in Nursery under EWS category but will not apply to the same child if admitted in Nursery in General Category.
“Section 13 of the Act not only postulates non-discrimination amongst children in the matter of admission in Nursery Class but it also meant for prevention of commercialization of education as much as it will prevent unaided private schools from forcing hapless parents to pay illegal donations at the time of admission” Mr. Agarwal further argued.
SLP and List of dates are pasted below.
Ashok Agarwal, Advocate
IN THE SUPREME COURT OF INDIA
[Under Article 136 of the Constitution of India]
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
Special Leave Petition (C) NO. 19887 OF 2013
[From the final judgment and order dated 19th February 2013 passed by a Division Bench of the Hon’ble Delhi High Court in Writ Petition (C) No.8533/2010]
POSITION OF PARTIES
IN THE HIGH COURT
IN THIS HON’BLE COURT
Social Jurist, A Civil Rights Group
Through its President
Advocate Ms.Kusum Sharma
478-479, Lawyers Chambers,
Western Wing, Tis Hazari Courts,
1. Govt. of National Capital Territory of Delhi,
Through its Secretary, Delhi Secretariat,
RESPONDENT NO. 1 RESPONDENT NO.1
2. Union of India,
Through its Secretary,
Ministry of Human Resources Development,
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUDGES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
MOST RESPECTFULLY SHOWETH:
1. The present petition for special leave to appeal under Article 136 of the Constitution of India is from the final Judgment and Order dated 19.02.2013 passed by a Division Bench of the Hon’ble Delhi High Court in Writ Petition (C) No. 8533 of 2010 reported in AIR 2013 Delhi 52. The Hon’ble High Court by the impugned Judgment has held that the provisions of Right of Children to Free and Compulsory Education Act, 2009 are applicable only in respect of admissions to elementary classes, or of children of the age of 6 years to 14 years and are not applicable to admissions to pre-primary classes, for the children below 6 years of age. Holding thus, the Hon’ble High Court disposed of the writ petition of the petitioner without granting any relief to it. The respectful submission of the petitioner is that the Hon’ble High Court was not justified in taking the afore-mentioned view and on the other hand, the Hon’ble High Court ought to have taken the view that the provisions of Right of Children to Free and Compulsory Education Act, 2009 also cover admission of children in pre-primary/nursery level as well of children below 6 years of age, since in effect, most of the private unaided schools admit children at the pre-primary stage itself, from where they are promoted to elementary classes. The further respectful submission of the petitioner is that although the impugned judgment observes that there cannot be any different yardstick to be adopted for education up to the age of 14 years, but in effect it has rendered the provisions of Sections 13 & 2(o) of the RTE Act, 2009 redundant, by holding that the provisions of RTE Act, 2009 do not apply to children below 6 yrs of age.
2. QUESTIONS OF LAW:
The present petition for special leave, inter alia, raises the following questions of law of general public importance for consideration by this Hon’ble Court:
A. Whether the Hon’ble High Court was justified in holding that the provisions of the Right of Children to Free & Compulsory Education Act, 2009 are only applicable to admissions to elementary classes of the children at the age of 6 years to 14 years and are not applicable in the matter of admission to pre-primary education i.e. Nursery, for the children below the age of 6 years, even where admissions at the pre-primary stage are meant to cater to elementary classes in the subsequent years?
B. Whether Section 13 of the RTE Act, 2009 would also apply to the admissions of 75% fee paying students (below six years age) in pre-primary/nursery classes in unaided private schools?
C. Whether the Hon’ble High Court was justified in severing the case of 25% EWS/disadvantaged group seats from the rest of the 75% seats in Nursery/pre-primary classes and selectively applying the provisions of Section 13 of RTE Act, 2009 regarding prohibition upon screening procedure to 25% seats only?
3. DECLARATION IN TERMS OF RULE 4(2)
The petitioner states that no other petition seeking special leave to appeal has been filed by it from the impugned judgment and order.
4. DECLARATION IN TERMS OF RULE 6
The Annexures P-___ to P-__ produced along with the SLP are true copies of the pleadings/ documents which formed part of the records in the case in the court below against whose order the leave to appeal is sought for in this petition.
5. GROUNDS OF APPEAL
The Special Leave Petition has been filed on the following grounds which are taken without prejudice to one another:
A. Because the Hon’ble Division Bench of Delhi High Court has clearly erred in law in holding that the provisions of Section 13 of the Right of Children to Free & Compulsory Education Act, 2009 apply only in the matter of admission of the children between the age of 6 years to 14 years and are not applicable to the admission of children below 6 years in unaided private schools.
B. Because the Hon’ble Division Bench of the Delhi High Court has erred in law in not appreciating the fact that the unaided private schools start admission of children at the stage of nursery/pre-primary classes, of children of the age 2+ and above and thereafter promote them to higher classes. Thus, in case Section 13 of the RTE Act, 2009 is not made applicable in the matter of admission to pre-primary/nursery classes, the objective and purpose of Section 13 would be completely defeated.
C. Because the Hon’ble Division Bench of the Delhi High Court has erred in law in not appreciating the fact that since admittedly, the provisions of RTE Act, 2009 are extended to the admissions under Section 12(1)(c) of the RTE Act, 2009 for the children belonging to disadvantaged group and economically weaker sections in the matter of their admission even to nursery/pre-primary classes where the unaided schools starts its school from nursery/pre-primary level, if the same principle is not applied to the admission to the remaining 75% seats, the same would result in arbitrary discrimination.
D. Because the Hon’ble High Court has erred in law in limiting the scope of the Right of Children to Free and Compulsory Education Act, strictly in terms of Article 21-A of the Constitution of India, and not appreciating that while certain provisions of the RTE Act, including Section 13 relating to norms governing admission and Section 15 banning corporal punishment do not necessary flow from the Article 21-A, they rather go beyond the scope of Article 21-A in protecting children from malpractices of screening, capitation fee and corporal punishment. These benevolent provisions must be applied to children below 6 as well since they are protective in nature.
E. Because the Hon’ble High Court has erred in not appreciating that the reasons for not bringing the age-group 0-6 under Article 21-A and keeping the same under Directive Principles under Article 45 was the financial incapacity of the state to provide care and education to children below six as a matter of Fundamental Right. Therefore, not all the provisions of the Act, particularly those that do not entail any expenditure, such as Section 13, need to be restricted in application to the age-group 6-14.
F. Because the Hon’ble Delhi High Court has failed to appreciate that an interpretation that the protection from screening is available only to children from 6-14 years age and not children below six, who are in fact more tender, and at the same time, the same protection is available to EWS/disadvantaged group children below six years and not to general children of the same age in the same class, leads to absurdity and it is a settled principle of statutory interpretation that an interpretation that leads to absurdity deserves to be avoided.
G. Because the Hon’ble Delhi High Court has failed to appreciate that in view of the facts that the schools are actually making most of the admissions at pre-primary/nursery stage and the seats in elementary classes are filled through promotion, while very few children are admitted at the elementary level, the provisions of Section 13 would be rendered meaningless if the interpretation made by the Hon’ble Delhi High Court is accepted. It is another important canon of statutory interpretation that an interpretation that renders a statutory provision redundant or meaningless must be avoided, contained in the maxim“ut res magis valeat quam pareat”
H. Because the Hon’ble High Court has erred in law in not appreciating that Section 2 of the Act which contains the definition of child in Section 2(c) begins with the stipulation “unless the context otherwise requires”, and Section 13 of the Act operates in the context of admission, wherein uniform norms need to be adopted by a school for pre-primary as well as primary classes, and the definition under Section 2 (c) does not apply here. The clause “unless the context otherwise requires” has been interpreted and invoked by this Hon’ble Court in various decisions including State of Maharashtra Vs. Indian Medical Association [(2002) 1 SCC 589].
I. Because the Hon’ble Delhi High Court has erred in law in not appreciating that Section 13 of the Right to Education Act, 2009 was formulated in the context of rampant screening practices being adopted by the private unaided schools in nursery admissions which had resulted in a comprehensive round of litigation in the Delhi High Court. It was to correct this mischief that the said provision was incorporated. The mischief was not in the context of admissions to class I by private unaided schools which are insignificant in number, nor limited to admissions of EWS children. The mischief rule of interpretation evolved in Heydon case and accepted by the Courts in India requires that a provision must be read in the context of the mischief that was prevailing at the relevant time and which the provision sought to correct.
J. Because the Hon’ble Delhi High Court has failed to appreciate that another Bench of co-equal strength of the same High Court in Social Jurist vs.GNCTD and anr, reported in 190 (2012) DLT 406 (DB) has held on the strength of the provisions of Section 11 and 12 that the Right of Children to Free and Compulsory Education Act, 2009 deals with pre-primary education as well, not only with respect to the 25% EWS/disadvantaged children, but with respect to all the children.
K. Because the Hon’ble Delhi High court has failed to appreciate that another Bench of co-equal strength of the same High Court has categorically held in Social Jurist vs. GNCTD and anr. W.P. (C) No.7796/2011that “the prohibition in Section 13 of subjecting a child to screening procedure during admission is applicable only to admission at the entry level which is Nursery or Class I”.
L. Because the Hon’ble High Court has failed to appreciate that the Right of Children to Free and Compulsory Education Act, 2009 has been enacted for the benefit of children and it is a settled principle of interpretation that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, the meaning which preserves the benefit should be adopted, as has been accepted by this Hon’ble Court in Mahadeolal Kanodia Vs. The Administrator General (AIR 1960 SC 936) and many other cases.
6. GROUNDS FOR INTERIM RELIEF
No interim relief is sought, at this stage.
7. MAIN PRAYER
In the facts and circumstances above mentioned, this Hon’ble Court may be pleased to:
(a) grant Special leave to Appeal from the final judgment and order dated 19th February 2013 passed by the Division Bench of the High Court of Delhi at New Delhi in W.P.(C) No. 8533 of 2010 reported in AIR 2013 Delhi 52;
(b) pass any other or further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.
8. INTERIM PRAYER
No interim prayer is sought, at this stage.
AND FOR THIS ACT OF KINDNESS THIS PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
Advocate for the Petitioner
DRAWN ON: / / 2013
FILED ON : / /2013
SYNOPSIS & LIST OF DATES
|An important legal issue of general public importance has arisen in the present Special Leave Petition i.e. whether the Section 13 of the Right of Children to Free and Compulsory Education Act, 2009 is applicable in the matter of admissions to the children below 6 years of age to pre-primary/nursery classes in private unaided schools in respect of general seats other than the 25% seats reserved for EWS/disadvantaged group as well. A Division Bench of the Hon’ble Delhi High Court has taken a view that the provisions of Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act, 2009”) apply to the children in the age group of 6 to 14 years only and do not apply to the children below 6 years of age. In the respectful submission of the petitioner, it has resulted in a great anomaly and injustice in as much as the provisions of Section 13 of RTE Act, 2009 stand defeated. Section 13 of the RTE Act, 2009 not only prohibits screening procedure but also makes it punishable with fine. Section 2(o) of RTE Act, 2009 defines screening procedure as a method of selection for admission of a child in preference over another, other than a random method.|
|There was literally no check on unaided recognized private schools of Delhi in the matter of admission of children in nursery classes and the schools were unlawfully and unethically not only resorting to subjecting children of 3+ years and 4+ years of age and their parents to written tests and interviews but also adopting totally arbitrary, discriminatory, unsustainable and unaccountable method of selection of children for admission.|
|The aforesaid issue of subjecting tiny tots to tests and interviews by unaided recognized private schools for admission in nursery came up before a Division Bench of Hon’ble Delhi High Court in LPA No.196/04 entitled: Rakesh Goyal & Others vs. Montfort School & Others. It is submitted that the Hon’ble Delhi High Court vide its Order dated 06.05.2004, keeping in mind the important question of larger public interest i.e. the question as to what criteria should be followed for admission of children of 3+ age in Nursery and LKG, children of 4+ in KG and the children of 5+ in Class-I, treated the said Appeal as a Public Interest Litigation. It is submitted that the Hon’ble Delhi High Court vide its Order dated 10.05.2006 directed that no school shall call children or their parents for interviews without the permission of the High Court. It is submitted that the Hon’ble High Court vide its Order dated 04.09.2006 constituted a Committee of experts headed by Shri Ashok Ganguly, Chairman, CBSE to go into the gamut of issues relating to nursery admissions in the private schools of Delhi and evolve appropriate criteria for admission of children to Nursery Classes. The Order of the Court enumerated 3 basic principles for evolving a common admission procedure, (i) transparency, (ii) elimination of interview and (iii) minimizing the discretion of the Management/Principal. It is submitted that the said Committee formulated a 100 point-formula as a uniform admission procedure.|
The said Expert Committee submitted its report of recommendations to the Hon’ble High Court in the month of October, 2006 and the Hon’ble High Court vide its Order dated 07.10.2006 directed the schools to follow the procedure having been laid down by the said Committee for admissions to the academic year 2006-07 on an experimental basis. It is submitted that thereafter, the Hon’ble High Court vide its Order dated 08.03.2007 asked the same Committee to fine-tune the earlier procedure in view of the experience gathered while implementing the said procedure. Thereafter, the Committee submitted its another Report to the Hon’ble High Court, thereby suggesting some changes in the earlier 100 points criteria. It is submitted that the Hon’ble High Court asked the Respondent No.1, the Government of NCT of Delhi to examine the report and take a decision thereupon. It is submitted that the Respondent No.1 in its Cabinet meeting of 03.09.2007 took a decision on the report of the Committee and placed a draft-regulation relating to the admission procedure and criteria before the Hon’ble High Court and the Hon’ble High Court in view of the same, disposed off the petition vide its Order dated 19.11.2007 with a liberty to the parties to file appropriate applications, if required.
A compilation of the relevant Orders of the Hon’ble High Court passed in the LPA No.196/2004 are annexed herewith as Annexure P-1 (Page No. ____ to ____)