Except for the admission of 25 per cent from the weaker sections the Act is not applicable, says Delhi High Court

In a landmark verdict, the Delhi High Court has held that the Right to Education (RTE) Act and subsequent government notifications are not applicable for nursery admissions in unaided private schools.

The verdict, which does not affect the ongoing nursery admission process in the national capital, however, clarified that the RTE Act would deal with 25 per cent reservation for toddlers of weaker sections in admissions to “pre-elementary” classes including the nursery.

“Considering the provisions contained in Article 21-A (Right to Education) of the Constitution and the scheme of the Right of Children to Free and Compulsory Education Act, ... there is no escape from the conclusion that as far as the private unaided schools referred in... the said Act are concerned, the provisions of the Act, except the admission to the extent of 25 per cent of the strength of the class, to the children belonging to the weaker sections and disadvantaged group, do not apply to admissions made to the pre-elementary (pre-school and pre-primary) classes of such schools,” a bench of Chief Justice D. Murugesan and Justice V.K. Jain said.

Disposing PILs filed by NGO Social Jurist and Delhi Commission for Protection of Child Rights, the court refused to quash notifications of Union Human Resources Development Ministry and Directorate of Education, saying that like RTE, they also do not apply to nursery admissions.

The court, in its 33-page verdict, allowed the plea of the Centre that the RTE Act is applicable to children between the age group of 6 to 14 only and that the states were free to formulate policies to govern nursery admissions.

‘Amend the Act’

It, however, asked the Centre to consider amending the Act to include nursery education as well, saying that the schools cannot be allowed to run as “teaching shops” as it would be “detrimental to equal opportunity to children.”

The court said, “We hold that the guidelines issued by government of India and the order issued by government of NCT of Delhi under the RTE Act do not apply to 75 per cent of the admission made to pre-elementary (pre-primary and pre-school) classes by private unaided schools, though they do apply to the remaining 25 per cent admissions made by such schools to such classes ...”

Though the bench allowed Centre’s plea that the RTE Act does not apply, it sought an amendment to bring the nursery admission also under the ambit of the legislation to ensure equal opportunity for toddlers.

“Though we have held that Right to Education Act is not applicable to nursery schools, in our opinion there cannot be any different yardstick to be adopted for education to children up to the age of 14 years irrespective of the fact that it applies to only elementary education.

“It is the right time for the government to consider the applicability of Right to Education Act to the nursery classes as well, as in many of the states admissions are made right from the nursery classes and the children so admitted are automatically allowed to continue from Class I.

“In that sense, the provisions of Section 13 would be rendered meaningless insofar as it prohibits screening procedure at the time of selection,” it said.

Parting with the judgment, the bench said, “It is common knowledge that though there is obligation on the state to provide free and compulsory education to children and the corresponding responsibility of the institution to afford the same, educational institution cannot be allowed to run as ’teaching shops’ as the same would be detrimental to equal opportunity to children.”

The bench said it hoped that the government would take its observations in “right spirit” and “act” to amend the law to bring nursery education under the ambit of RTE Act.

The court refused to examine the guidelines, issued by the Centre and the DoE.

“We need not go into the question as to whether the impugned guidelines issued by government of India ... and the order of government of NCT of Delhi contravene the provisions contained in the RTE Act, in their applicability to admissions made by the private unaided schools to the elementary classes, by permitting categorisation in terms of objectives of the school and applying the criterion, such as sibling, transfer case, single parent and alumni, or not,” it said.

The bench rejected the plea of Ashok Agarwal, the counsel for NGO, that an “anomalous situation” would emerge as kids would be subjected to screening procedure if RTE Act is not made applicable to nursery admissions.

It, however, said the NGO may make a representation to the Delhi’s Lt Governor seeking “amendments” in an earlier order of DoE “to rule out any possible misuse of liberty given to the private unaided school” in laying down criterion for admission to pre-primary and nursery classes.

The NGO, in its PIL, had challenged the notifications issued by the HRD Ministry and the Delhi government.

On November 23, 2010, the ministry had issued guidelines under the RTE Act that had allowed the schools to frame their own admission criteria, the NGO had submitted.

Later, the DoE of the Delhi government had also issued similar guidelines, it had said.

The PIL alleged the notifications gave free hand to unaided recognised private schools to formulate their own nursery admission criteria based on categorisation of children on the grounds of religion, alumni and sibling despite the same being against the RTE Act.