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Nursery admission: Delhi govt to seek review of High Court stay order | Ind Exp |19 Jan

Nursery admission: Delhi govt to seek review of High Court stay order

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Utkarsh Anand : New Delhi, Thu Jan 19 2012, 03:33 hrs
The schools did not favour a change in neighbourhood criterion for students
Even as a single-judge court stayed the Education department’s December 16 order on nursery admissions, the Delhi government on Wednesday submitted before a larger bench that it would seek a clarification or review of the order.

Arguing before a division bench headed by Acting Chief Justice A K Sikri, government counsel Ruchi Sindhwani said a clarification or review of the order would be required, considering that it did not mention which part of the December 16 notification by the Directorate of Education (DoE) was being stayed.

The order in question read: “Till the next date of hearing, the operation of the impugned order, dated December 16, shall remain stayed.”

To this, Justice Rajiv Sahai Endlaw remarked: “...otherwise schools, under this order, can choose not to follow other directives of the December 16 notification as well.”

Sindhwani agreed to the apprehension raised by the court and said they would move the court of Justice Hima Kohli to seek a review of the impugned interim order. Justice Kohli had passed the order on a petition by a group of schools, which were aggrieved by a change in the “neighbourhood” criterion, asking private schools to give admission to EWS category students on a par with general category students.

Under the RTE Act, “neighbourhood” is defined as a distance of one kilometre from the school concerned. According to the government counsel, the change in criterion was altered so that EWS students, irrespective of the distance from schools, could get admission like others. The schools, however, said that the DoE was not empowered to pass the order.

On Wednesday, Sindhwani and Ashok Agarwal, counsel for NGO Social Jurist, produced Justice Kohli’s order and sought the Bench’s indulgence. But Justice Sikri turned down Agarwal’s request that the other matter be called to the court, stating that the bench was concerned only with deciding whether nursery could be treated as the feeder class for promotion to KG. “We are adjudicating on a very short point, whether nursery could be treated as a part of formal schooling or not, and whether promotion to KG is valid. Let the other court decide the petition on the EWS ‘neighbourhood’ criterion,” the bench said.

The court reserved its judgement on the matter.

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Permalink Reply by Sakshi (Moderator) on January 19, 2012 at 9:14am

IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 40/2012 and CM 89/2012 (stay)
FEDRATION OF PUBLIC SCHOOL ..... Petitioner
Through: Mr. Maninder Singh, Senior Advocate with Mr. P.D. Gupta and Kamal Gupta, Advs.
versus
DIRECTOR (EDUCATION) . .... Respondent

Through: Ms. Zubeda Begum, Advocate

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

O R D E R

06.01.2012

1. The petitioner Federation is a society comprising of 326 private
unaided schools functioning in Delhi and has filed the present petition for quashing of the order dated 16.12.2011 passed by the
respondent/Director of Education, Govt.of NCT of Delhi, whereby
directions have been issued to all schools to ?ensure that no child under Economically Weaker Section and Disadvantaged Group is denied admission on neighbourhood/distance basis so long as the locality of the child?s residence falls within the distance criterion devised by the schools for the General category children?.

2. Counsel for the respondent states that though notice has not been issued in the present petition and on the last date of hearing, she had sought time to obtain instructions from the Department, a brief
W.P.(C) No.40/2012 Page 1 of
4. affidavit has been prepared on behalf of the respondent and the same is handed over with a copy thereof furnished to the counsel for the petitioner.

3. As per the aforesaid affidavit, the respondent relies upon Rule 26 of the Delhi Right of Children to Free and Compulsory Education Rules, 2011 (in short ?the Rules?) to state that the Director of Education is empowered to issue such instructions as deemed fit in order to implement the provisions of the Delhi Right of Children to Free and Compulsory Education Act, 2009 (in short ?the Act?) and it is in furtherance of the said powers that the impugned order dated 16.12.2011 (Annexure A) has been issued by the respondent, whereunder all schools have been directed
to ensure that no child under Economically Weaker Section and Disadvantaged Group is denied admission on neighbourhood /distance basis so long as the locality of the child?s residence falls within the distance criterion devised by the school for the General category children.
4. Learned Senior Advocate appearing for the petitioner states that
reliance placed by the respondent on Rule 26 of the Rules is misplaced inasmuch as the said rule specifically empowers the Director of Education to issue such instructions in relation to any matter, not covered under the Rules in order to implement the provisions of the

W.P.(C) No.40/2012 Page 2 of
4. Act and that in the present case, Rule 6, which prescribes the area or limits of neighbourhood within which a school has to be established in the National Capital Territory of Delhi, read with Rule 10(3), which stipulates that the area or limits of neighbourhood specified in sub-rule (1) of Rule 6 shall apply to admissions made in accordance with clause (c) of sub section (1) of Section 12, clearly set out the manner in which the admissions to children under EWS category is to be made within the limits of the neighbourhood.
5. In response, counsel for the respondent refers to the proviso to
Rule 10(3) to state that for the purpose of filling up of the requisite
percentage of seats for the children referred to in clause (c) of sub
section (1) of Section 12, the Government is empowered to extend these limits of neighbourhood from time to time and it is in exercise of the powers vested in the said rule that the impugned order dated 16.12.2011 has been issued by the respondent.
6. Prima facie it appears that while the spirit of the impugned order dated 16.12.2011 is in consonance with the aims and object of the Act and the Rules framed therein, however, the Government of NCT of Delhi having framed the Rules in terms of Section 38 of the Act and having stipulated and specifically set out the area or limits of neighbourhood under Rule 6 r/w Rule 10(3) of the Rules, issuance of

W.P.(C) No.40/2012 Page 3 of
4. the impugned order dated 16.12.2011 by the Director of Education by relying on Rule 26 read with the proviso to Rule 10 (3) of the Rules, which is an executive order, would result in amending the extant Rules in this regard.
7. Issue notice. Counsel for the respondent is directed to file a
counter affidavit within three weeks with a copy to the counsel for the petitioner, who may file a rejoinder, if necessary, before the next date of hearing.
8. Till the next date of hearing, the operation of the impugned order dated 16.12.2011 shall remain stayed.
9. List on 10th February, 2012.
DASTI to the parties.
HIMA KOHLI,J
JANUARY 06, 2012

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Permalink Reply by Sakshi (Moderator) on January 19, 2012 at 9:16am

CAN ANYONE COMPREHEND WHAT DOES THIS LINE MEANS ?

8. Till the next date of hearing, the operation of the impugned order dated 16.12.2011 shall remain stayed

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Permalink Reply by Lathaa Manavalan on January 19, 2012 at 9:48am

Schools can't go ahead with admission process and an impugned order (order which is challenged in court) cannot be implemented and we have to wait for final order for implementation.

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Permalink Reply by Sakshi (Moderator) on January 19, 2012 at 9:54am

so does it means whatever happened is stalled?

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Permalink Reply by Lathaa Manavalan on January 19, 2012 at 10:05am

Mam I am not legally aware of anything but I'm saying what I understand if wrong somebody should correct me. Whatever happened won't we stalled but in whatever happened for for eg. Heritage Rohini who kept distance criteria for EWS if judged fault then in that case it would be stalled otherwise admission can't be done in any schools for any category. Hope Mr.Khagesh ji should inform us in detail.

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Permalink Reply by Sakshi (Moderator) on January 19, 2012 at 10:09am

We don't want to create panic .let some legal expert comment here

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Permalink Reply by Anand on January 19, 2012 at 12:18pm

"Till the next date of hearing, the operation of the impugned order dated 16.12.2011 shall remain stayed"
- means act as if there was no notification on the 16th regarding the on-going "formal education age criteria". Ideally as Lathaa pointed out what this would mean is the Govt has not oked the Pre-Nursery admissions - any admissions are at your own risk till the Courts clarify (after admissions are over and fees has been paid) :)!

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Permalink Reply by Sakshi (Moderator) on January 19, 2012 at 12:38pm

Anand you are right but here the issue is not of age and indirectly
it means that 16 dec notification is stayed including the schedule..will school refund prospectus charges of Rs 500.
Fee will be refunded by schools anyway.

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Permalink Reply by Lathaa Manavalan on January 19, 2012 at 10:20am

The Delhi high court on Wednesday wrapped up its hearing on the contentious nursery admission issue, where it has refused to stay the ongoing admission process.
The bench also referred to a January 6 interim stay order by a single judge and said it was a "separate issue" as it only dealt with nursery norms to the extent of distance criteria for admission of children under the EWS category in schools.