IN THE HIGH COURT OF DELHI AT NEW DELHI
C.M. NO.______ OF 2011
IN
W.P. (CIVIL) No. 7802/2011
(Public Interest Litigation)
IN THE MATTER OF:
Social Jurist, A Civil Rights Group …… Petitioner
Versus
Govt. of NCT of Delhi & Anr. …… Respondents
APPLICATION ON BEHALF OF THE PETITIONER
UNDER SECTION 151 OF CPC FOR DIRECTIONS
MOST RESPECTFULLY SHOWETH:
1. The petitioner by the present application is seeking stay of the Order dated 16.12.2011 of the Govt. of NCT of Delhi to the extent it permits unaided recognized private schools of Delhi to conduct admission to pre-school as entry level class in the academic session 2012-13.
2. The petitioner by the above PIL has highlighted the failure on the part of the Govt. of NCT of Delhi to prevent the unaided recognized private schools of Delhi from admitting children below 4 years age in formal school. The petitioner has also highlighted the failure on the part of the Govt. of NCT of Delhi to ensure that the unaided recognized schools of Delhi have only one year pre-primary class in formal schools where children of 4+ age are admitted directly and are not promoted from Nursery/Pre-school. The petitioner has further highlighted the failure on the part of the Govt. of NCT of Delhi to ensure that the children admitted in pre-primary class are not burdened with bags and books. The petitioner has further more highlighted the failure on the part of the Govt. of NCT of Delhi to start pre-primary class in all its schools. The petitioner has also highlighted the failure on the part of the Govt. of NCT of Delhi to frame guidelines with regard to pre-schools in terms of Clause 21 of the Recognized Schools (Admission Procedure for Pre-Primary Class) Order, 2007. It was further submitted that the impugned failure on the part of the Govt. of NCT of Delhi violates the fundamental rights of the children as guaranteed to them under Articles 14, 15, 21, 21-A, 38 and 39 of the Constitution of India read with the provisions of with the provisions of Delhi School Education Act, 1973 and Right of Children to Free and Compulsory Education Act, 2009 and U.N. Convention on the rights of the Children (1989).
3. The petitioner submits that the above writ petition came up for hearing on 02.11.2011 before this Hon'ble Court and the Hon'ble Judges while issuing notice to the Respondents returnable on 23.11.2011 were pleased to note :-
"It is pointed out by the Ld. Counsel for the petitioner that despite of Division Bench Judgments of this Hon'ble Court and the directions issued by the Directorate of Education to the effect that there would not be admission of children below the age of 4 years, many schools are violating these directions giving admissions to students of lesser age. Such students are to be put in pre-school and detached from main school. This has not been done so. There are certain other grievances also raised in this petition."
4. The petitioner submits that on the last date of hearing i.e. 14.12.2011, the respondent/Govt. of NCT of Delhi filed its Counter Affidavit in response to the above PIL, amongst other, stating :
"5. That the Government at its meeting dated 03.09.2007 considered the recommendations of the Ganguly Committee and accepted and approved that minimum age for admission in pre-primary and Class-I will be 4+_ and 5 + respectively. The cut off date for determining the age was fixed 31st March of the year in which admission is sought. For pre-school, the schools which have infrastructure facilities are allowed to open pre-school class of children below the age of 4 years. However, the pre-schools shall not be a part of the main school nor shall be treated as feeder class to pre-primary class of the school. The children in pre-school should be from immediate neighbourhood and there should be no school bag for carrying any prescribed books in all such pre- pre-school class (es). Further, it was also approved that the Directorate of Education will introduce one year pre-primary in Government Schools.
6. The decision of the Government regarding acceptance of the Ganguly Committee recommendations was placed before the Hon'ble High Court through an Affidavit. The draft order of the decision of GNCT of Delhi with regard to the procedures and criteria for admission to a pre-primary class in recognized schools of Delhi was also placed before the Hon'ble Court. The Hon'ble High Court took the draft Order on record and permitted the Government to issue the Notification in terms of the same. Thereafter, the Director of Education issued Order dated 24.11.2007 and the Recognized Schools (Admission Procedure for Pre-Primary Class) Order, 2007 wherein procedure and criteria for pre-primary admissions were laid."
5. The petitioner submits that on the last date of hearing i.e. 14.12.2011, as the Counter Affidavit on behalf of the Respondent/Government of NCT of Delhi was not on the record of this Hon'ble Court and also considering the urgency of the matter, this Hon'ble Court adjourned the matter for hearing to 21.12.2011.
6. The grievance of the petitioner in the present application is that the Respondent/Govt. of NCT of Delhi without waiting for the outcome of the hearing of the present PIL on 21.12.2011, in haste and in great disregard to the Orders having been passed by this Hon'ble Court in the above PIL and also with a view to frustrate the present proceedings, issued an Order dated 16.12.2011 permitting the unaided private schools to conduct admission to pre-school class as entry level class for the academic session 2012-13, meaning thereby that the unaided private schools would continue with the pernicious practice of admitting children of 3+ (below 4 years) in pre-school treating it as an entry level for the academic session 2012-13 and thereafter promoting them to next class i.e. Pre-primary class and in the next academic year of 2013-14.
A copy of the Order dated 16.12.2011 is enclosed herewith and marked asAnnexure-A.
7. The petitioner submits that the Respondent/Govt. of NCT of Delhi has yet not framed guidelines for pre-schools in terms of Class 21 of the Recognized Schools (Admission Procedure for Pre-Primary Class) Order, 2007 though it was obliged to do it in 2007 itself in order to give effect to the Orders of this Hon'ble Court having been passed in the Writ Petition (C) No.12490/2006 and also in terms of the recommendations of the Ganguly Committee which were not only approved but also accepted by the Cabinet Committee in its meeting dated 03.09.2007 and formed part of the Orders of this Hon'ble Court in the said Writ Petition (C) No.12490/2006. It is respectfully submitted that the failure on the part of the Respondent/Govt. of NCT of Delhi to do so has resulted in violation of the basic human and fundamental rights of the tiny tots. It is submitted that said illegal actions on the part of the Govt. of N.C.T. of Delhi is simply protecting the commercial interest of the unaided recognized private schools. It is needless to say that commercialization and profiteering in education is unconstitutional and legally prohibited and impermissible.
8. The petitioner submits that the Respondent's Order dated 16.12.2011 permitting the schools to admit children in pre-school treating it as an entry level in 2012-13 tantamount to overreaching the Orders and directions having been passed by this Hon'ble Court in Writ Petition (C) No.12490/2006. It is respectfully submitted that the said Order dated 16.12.2011 has taken away the effect of the Orders and Directions having been passed by this Hon'ble Court in the Writ Petition (C) No.12490/2006 wherein it was held that the Ganguly Committee recommendations would be implemented from the academic year 2008-09. It is respectfully submitted that the said directions of this Hon'ble Court have stood completely wiped out by the Order dated 16.12.2011 of the Respondent/GNCT of Delhi.
9. The petitioner submits that the Respondent/GNCT of Delhi is not competent in law to over rule the judicial decision of this Hon'ble Court or take away its effect completely. It is therefore, submitted that the Order dated 16.12.2011 of the Respondent/GNCT of Delhi to the extent it permits the admissions in pre-school as entry class is liable to be stayed. It is also submitted that the Govt. of NCT of Delhi by their Order dated 16.12.2011 have sought to achieve indirectly what could not be achieved directly as it was prevented from doing so in view of the Orders and Directions having been passed by this Hon'ble Court in Writ Petition (C) No.12490/2006. The attention of this Hon'ble Court to a recent judgment of the Hon'ble Supreme Court in case of "State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. 2011 (8) SCC 737 where their Lordships observed :-
"43. "21. It is settled proposition of law that what cannot be done directly , is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot be legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. An authority can not be permitted to evade a law by 'shift or contrivance'."
10. The petitioner respectfully submits that the Ganguly Committee recommendations on minimum entry age of child in formal school system was required to be implemented from the academic year 2008-09. In terms of the Affidavit having been filed by the Govt. of NCT of Delhi before this Hon'ble Court on 26.09.2007 which was taken on record and the said Writ Petition No. 12490/2006 was disposed of but the same has not been implemented till date and now the Govt. of NCT of Delhi has come up with the said Order dated 16.12.2011 to continue the said pernicious practice of admitting children below four years in Pre-school Class treating it as entry level class in the coming academic year of 2012-13.
11. The petitioner submits that the tiny tots have already suffered a lot in the past because of the aforesaid pernicious practice of admitting the children below four years in formal education and in case the Order dated 16.12.2011 of the Respondent/GNCT of Delhi to the extent it permits the unaided recognized Private Schools to conduct admissions to pre-school as entry level for the academic session 2012-13 is not stayed by this Hon'ble Court, the tiny tots will further suffer as the entry age of 3+ (below 4 years) in the school is prejudicial to their interests.
PRAYER
It is therefore, most humbly prayed that this Hon'ble Court, pending decision in the above PIL, may be pleased to :
(a) stay the Order dated 16.12.2011 (Annexure-A to the present C.M. ) of the Govt. of N.C.T. of Delhi to the extent it permits the unaided recognized Private Schools to conduct admission to pre-school treating it as an entry level class in the academic session 2012-13; and
(b) pass any such other or further order or direction as this Hon'ble Court may in the facts and circumstances of the present case deem fit and appropriate, in favour of the petitioner and against the respondents.
Ashok Agarwal & Khagesh B. Jha
Advocates for the Petitioner
483, Block-II, Lawyers Chambers,
Delhi High Court, New Delhi – 110003
Ph: 23384000, Mob-9811101923
Place: New Delhi
Dated: 19.12.2011
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