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Fight to Education

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Recently, the Delhi High Court observed that the principle of carry-forward of unfilled economically weaker section category vacancies in a particular class in one year to the next class in the next year in the same school is legal and valid. The judgment brings out differences in standards adopted by the Department of Education

The Delhi High Court judgment was delivered by a single bench of Justice C Hari Shankar who was hearing a petition filed by the mother of a five-year-old girl who was denied admission in KG (pre-primary class) under the Economically Weaker Section (EWS)/Disadvantaged Group (DG) category thrice for the academic sessions 2021-2022, 2022-2023 and 2023-2024.

The Court said that it is a matter of considerable regret that, almost on a daily basis, this Court is encountering cases in which schools and the Directorate of Education (DOE) are at odds on the aspect of admission of students belonging to the EWS. In most such cases, the school is unwilling to admit EWS students against “carry forward vacancies” of previous years, which remain unfilled.

The student, whose future is in dispute, is five years of age and an EWS student. She applied to the DOE for admission to a school as an EWS candidate, in 2021-2022. In a computerised draw of lots, she was found eligible for admission to nursery/pre-school in the school on June 15, 2021. The school denied her admission. She again applied and was found eligible for admission to the KG/Pre-Primary class in the school for the academic session 2022-2023, but was again denied admission by the school. She again applied in 2023-2024 and was once again found eligible for admission to the school, this time in Class I, consequent to the computerised draw of lots conducted by the DOE. On her being denied admission a third time by the school, with no reasons provided whatsoever, the candidate, through her mother, finally petitioned the Court.

The Court noted that Section 12(1)(c) of the RTE Act requires a school, falling under Section 2(n)(iv), to admit in Class I at least 25% of the strength of that class. The provision to the clause extends its operation to pre-school classes, where the school provides pre-school education. The Court said that unaided schools function on fees and the Court cannot in its zeal to protect the interests of the student compromise on the fees which the unaided school can legitimately earn as such fees would be its sole source of sustenance. It is for this reason that the RTE Act envisages 25% as the minimum quota of EWS/DG students which an unaided school would have to admit in a year, reckoned as a percentage of the number of general category students that it admits for that year.

Undoubtedly, this is a statutory mandatory imperative, and if a school falls short of fulfilling this imperative in a particular area, it can legitimately be directed to fill up the backlog in the next year in the next higher class. Where, however, there is in fact no shortage in the number of EWS/DG candidates which the school was required to admit, to fulfil the 25% limit in a particular year, it would be not only unfair, but also illegal to regard the school as having unfilled vacancies, which can be carried forward to the next year. The carry forward principle can apply, therefore, only where there is a shortage in feeling of EWS/DG vacancies in earlier years, reckoned as a percentage of the number of general category students that the school has admitted.

There is, however, another side to the proverbial coin. The DOE, each year, invites data from schools and works out the number of EWS/DG students which the school would have to admit to remain in compliance with the mandate of the RTE Act. The schools are given time to verify the data and report any errors to the DOE. If any school desires exemption, it can also apply to the DOE in this regard as per the procedure envisaged, setting out the reasons for its request. If, however, a school has neither chosen to seek exemption, nor reported any error to the DOE in respect of the computation of EWS/DG vacancies in a particular year within the time provided by the DOE in this regard, it would be bound to admit the student(s) who, as per the computerized draw of lot that follows, are allocated to its rolls. It cannot, then, turn round and question the computation, by the DOE, of the number of EWS students that it would have to admit that year.

The Court observed that the principle of carry-forward of unfilled EWS/DG category vacancies in a particular class in one year to the next class in the next year in the same school is legal and valid as has already been held by the division bench in the Siddharth International Public School case. The Court ruled that it did not appear that the carry-forward of unfilled EWS/DG vacancies to the next class in the subsequent year infringes the RTE Act or any other legal provision. Admitting EWS/DG students to the extent of at least 25% of the strength of its entry level class is the statutory obligation of every school which falls within Section 2(n)(iv) of the RTE Act. If a school defaults, there is nothing illegal in directing it to make up the deficit in the next higher class in the next year. By order dated September 13, 2023, the Court directed the school to provisionally admit a candidate in Class I in the 2023-2024 academic session as an EWS student, subject to the final outcome of the petition.

The Court noted that as per Section 12(1)(c) of RTE Act, 2009, all private unaided recognized schools are under obligation to admit, at the entry level classes, to the extent of at least 25% of the strength of that class, children belonging to the EWS and DG in the neighbourhood and provide free and compulsory elementary education till its completion. Section 13(2) exempts every child from the requirement of paying any fee or charges which may prevent her from pursuing and completing his/her elementary education.

“Child” is defined, in Section 2(c) as a male or female child of the age six to fourteen and “elementary education” is defined, in Section 2(f), as education from the I to the VIII class. Section 4 requires every child, above the age of six years, who is not admitted in any school or has not been able to complete his elementary education though admitted, to be admitted in an age-appropriate class. Section 7 of the RTE Act deals with the sharing of financial responsibilities, for education of the child, by the central and state governments. Section 7(1) requires the central and state government to share concurrent responsibility for providing funds for carrying out the purposes of the RTE Act.

For this purpose, sub sections (2) and (3) of Section 7 require the central government to prepare estimates of capital and recurring expenditure required for carrying out the purposes of the RTE Act and to provide to the state governments as grants-in-aid, a percentage thereof, to be fixed by consultation between the central and state governments. Notwithstanding this, the state government is made responsible, by Section 7(4), to provide funds for implementation of the provisions of the RTE Act, taking into consideration the grants-in-aid provided by the central government and other resources.

Section 8(a) requires the GNCTD to provide free and compulsory elementary education to every child. The explanation to the clause defines “compulsory education” as encompassing the obligation of the GNCTD to provide free elementary education to every child of the age of 6 to 14 and also to ensure compulsory admission, attendance and completion of elementary education by every child of the age of 6 to 14. Section 15 requires every child to be admitted in a school at the commencement of the academic year; the first provision to the Section, however, proscribes denial to any child of admission, even if admission is sought beyond that period.

Last year, the Delhi High Court held that schools in the national capital cannot deny admissions to students under the EWS or DG category once there is a valid allotment by the DOE. Justice Mini Pushkarna made the observation while directing GD Goenka Public School to grant admission to three students under the EWS category. The order was passed on a contempt petition filed by the parents of the three children, seeking compliance with the High Court’s December 2021 order directing the private school to grant admission to three children under the EWS quota. The bench said that every vacant quota seat signifies a denial of quality education to a child belonging to poor strata of society. The bench further said that denying admission to a child under the EWS category violates their right under Article 21A of the Constitution and the Right to Education (RTE) Act, 2009. 

—By Adarsh Kumar and India Legal Bureau

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