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TMI Blog2013 (2) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... oversy, constituted a Committee by the name of Ganguly Committee whose recommendations were accepted by the Director of Education and NCERT, Delhi. Held that:- Provisions of R.T.E. Act do not contemplate the pegging of the age of a child at the admission to elementary school as 6 years and in the absence of any prejudice, the decision seems irrational and sans any foundation - Private schools certainly have a right to fix the norms and adopt a criteria for admission to their schools and if they do so, there is no illegality, provided such a decision satisfies the tests of fairness, reasonableness, transparency and being non exploitative but the reason given by them for doing so, does not seem to be rational – Providing any cut of date is likely to have the impact of inclusion and exclusion both, so therefore any such date which is provided should have a sustainable logic based on serious inputs in this regard – It is not the case that any serious inputs have gone into such a decision making, which inputs have been derived on a sound study of the issue. In the given circumstances of the case, Court directed the followings:- (1) It is desirable and in the interest of the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, Advocate for the petitioners (in CWPs 2104,2349 of 2011) Shri Gaurav Chopra, Advocate for the petitioners (in CWP2343 of 2011). Shri O.P.Hoshiarpuri, Advocate for the petitioners (in CWP 2374 of 2011) Shri Kanwaljit Singh, Senior Advocate with Ms.Sukhwinder Kaur, Advocate for the petitioners (in CWP 2397 of 2011). Shri Sanjay Kaushal, Senior Standing Counsel for U.T. with Shri Sameer Sachdeva, Advocate for respondents 1 to 3. Shri M.L.Sarin, Senior Advocate with Ms.Alka Sarin, Advocate for respondents 4,5 and 7. Shri Amar Vivek, Advocate for respondent-8. MAHESH GROVER, J. This order will dispose of C.W.P. Nos.2104, 2343,2349,2374 and 2397 of 2011. It is with some anguish that this Court proceeds to decide the matter which effects the small children who, before seeing the face of the class-room, are seeing the face of the court room and have invoked the jurisdiction of this Court under Article 226 of the Constitution of India albeit (through their parents), even before they have learnt the first alphabet. The process of initiation into education should have been a solemn and a joyous affair for those involved, rather it has assumed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he admission process being carried out by these schools. It is pertinent to mention here that the grievance has been made qua a change of criteria adopted by these four private schools alone as in government schools there has been no break from the previous practice. The petitioners in order to demonstrate their grievance, have produced charts to establish their grievance which are extracted below :- CHART I S.No. Carmel Convent School and Sacred Heart (Age upto 31st March of year of admission) 1. Session LKG(yr)(entry class) Born between KG(YR) Ist(YR) 2. 2008-09 3-1/2 - 4-1/2 1.1.03 to 30.9.04 4-1/2 - 5-1/2 5-1/2 - 6-1/2 2. 2009-10 3-1/2 - 4-1/2 1.10.04 to 30.9.05 4-1/2 - 5-1/2 5-1/2 - 6-1/2 3. 2010-11 3-1/2 - 4-1/2 1.10.05 to 30.9.06 4-1/2 - 5-1/2 5-1/2 - 6-1/2 4. 2011-12 as per form 4-5 1.4.06 to 31.3.07 5-6 6 - 7 5. Past practice. 3-1/2 - 4-1/2 1.10.06 to 30.9.07 4-1/2 - 5-1/2 5-1/2 - 6-1/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who have been born between this period. The contention of the learned counsel for the petitioners is twofold, (1) that all the schools ought to have followed a uniform policy and to substantiate this contention, reference has been made to a judgment of the Delhi High Court which while considering an almost similar controversy, constituted a Committee by the name of Ganguly Committee whose recommendations were accepted by the Director of Education and NCERT, Delhi and which are extracted below:- (i) That there should be uniformity in nomenclature and duration of pre-primary education across all private, government and local bodies. The cabinet further approved that in all schools of Delhi the pre-primary education should uniformly be of one year duration and the same should be the class immediately prior to Class I, which will be uniformity known as pre-primary. (ii) That the cut off date for the calculation of age should be 31st March of the year of admission. A child should have completed four years on or before 31st March of the year of admission to be considered eligible for gaining admission to pre-primary class. A child should have completed a minimum of five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emic year because it will enable those students to get admission in the beginning of the session who become eligible for the same during the session for their smooth completion of school curriculum. It was stated further that by fixing the age criteria as mentioned above, the children complete the elementary education by the time he or she completes the age of 14 years. This criteria was specifically approved and before doing so, in the very same communication, it has been noticed by the authorities concerned that as per the existing age criteria for admission, a child of the age of 5+ years on Ist April of the academic session is eligible to get admission in Class I in any government school and almost all private schools shall follow the same criteria which criteria is being followed in the States of Punjab and Haryana and that similarly, a child of the age of 3+ years as on Ist April of the academic year is eligible to get admission in the Pre-Nursery Class in government schools of U.T. Chandgiarh and that further, some of the private schools have increased the minimum age to get admission in primary classes from 3 to 4 years and consequently in Class I from 5 to 6 years and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission in the initial class, i.e Pre-nursery/L.K.G. In this manner child of the age of 5+ years on Ist of April of academic session should be eligible to get admission in Class-I in any Government school . It was further submitted in the affidavit that the private schools of Chandigarh had been following their own criteria with regard to the age for admission and the Chandigarh Administration had not issued any circular/direction in this regard. However, after coming into force of the Right of Children to Free and Compulsory Education Act, 2009, (hereinafter known as R.T.E.Act also) there was confusion in the minds of parents as well as certain private institutions. Various querries were being addressed to the Administration by the parents and schools for clarification in this regard. In pursuance to these querries the Chandigarh Administration issued clarificatory circular dated 14.1.2011 in which it was informed that the age criteria would be 3+ years for Pre-Nursery and 5+ years for Class-I respectively. It was conceded in the affidavit that by coming into force the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the Act ), the elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra and others (2005) 6 S.C.C. 537, wherein in para-133, 137 and 138 the Hon'ble Supreme Court while dealing with the rights of the minority institutions, made the following observations :- 133. So far as the minority unaided institutions are concerned to admit students being one of the components of the right to establish and administer an institution , the State cannot interfere therewith. Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. ... .... ... 137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits as may be prescribed : Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years. This clause to provide for children above six years, who have either not been admitted to any school, or admitted but could not complete elementary education, the right to be admitted to a class appropriate to his or her age for completing elementary education and also special training to enable such children to be at par with other children and also making said children entitled for free education till completion of their elementary education, even after fourteen years. ... ... ... 11. Appropriate Government to provide for pre-school education.- 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 approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to enable the State to achieve the objective enshrined in the Directive Principles of the State Policy and to achieve this, the State has also been required to provide the necessary infrastructure. The further objective is to provide universal elementary education keeping in view the disadvantaged groups and weaker sections who drop out of the school before completing the elementary education, apart from providing them quality of learning achievement and to achieve this objective, the appropriate government is required to provide and ensure admission, attendance and completion of elementary education. The Act further provides the definition of a child to mean to be of 6 to 14 years and that every child shall have the right of free and compulsory education and in the eventuality of a child over 6 years being not admitted to any school or though admitted, is unable to complete his elementary education, then he be admitted to a class appropriate to his of her age and in such a situation, to bring him at par with the other children. He shall be afforded a special training in such a manner as may be prescribed. Section 11 of the Act obliges the appropriate Government with a resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir own norms of admission to regulate them in the manner they so desire. There is indeed no doubt that they have a right to follow their own procedure in the matters of admission and regulation thereof if such a decision satisfies the tests of fairness, transparency and being non exploitative . Such a decision which is to sub-serve the interest of children and society thus should also be reasonable, as fairness would also include reasonableness and the interests of the children in general would require a desirable situation where a uniform policy of admission is adhered to in the region where such schools are located. It is also not in dispute that prior to this year, a uniform policy was being followed by the government schools, as also the private schools where a child of Pre-Nursery would enter the Class at the age of 3+ years and enter Class-I at the age of 5+. But now with the change of criteria, a child entering Class-I would be 6 years. Much of the confusion has been created by the Chandigarh Administration who have been doing a flip-flop of sorts. The plea of the Administration that they have nothing to do with the process of admission being followed by the private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed for the next session. In this way the parents would have been on due notice and would have been prepared for such an eventuality. To conclude, it is held that the private schools certainly have a right to fix the norms and adopt a criteria for admission to their schools and if they do so, there is no illegality, provided such a decision satisfies the tests of fairness, reasonableness, transparency and being non exploitative but the reason given by them for doing so, does not seem to be rational. Providing any cut of date is likely to have the impact of inclusion and exclusion both, so therefore any such date which is provided should have a sustainable logic based on serious inputs in this regard. It is not the case that any serious inputs have gone into such a decision making, which inputs have been derived on a sound study of the issue. The Court thus, feels that the following directions are necessitated in the given circumstances of the case :- (1) It is desirable and in the interest of the children and their parents that a somewhat uniform policy is adopted so as to create a harmonious process of regulated admissions. (2) Such a process would obviate the chance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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