POINTS-BASED NURSERY ADMISSION CRITERIA HIT BY RTE ACT, 2009

POINTS BASED NURSERY ADMISSION CRITERIA VIOLATES THE MANDATE OF THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 – DELHI GOVT MUST RE-LOOK SUCH CRITERIA

Nursery admissions in unaided recognized private schools in Delhi for the academic session 2010-2011 are practically over before the coming into force of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009) from 01.04.2010. These admissions were regulated by a Delhi Government’s Order namely, “the Recognized Schools (Admission Procedure for Pre-primary Class) Order, 2007” (In short, Nursery Admissions Order, 2007) having been issued under the provisions of Delhi Schools Education Act, 1973 after the intervention of Hon’ble Delhi High Court in a public interest litigation filed by the aggrieved parents challenging the then prevailing nursery admission criteria which included test and interview not only of the 3+ or 4+ years child but also of his/her parents. After coming into force the RTE Act, 2009, the points based nursery admission criteria has come in clear conflict with the provisions of the RTE Act, 2009 and therefore, the Government of Delhi needs to re-frame the same so to bring it in conformity with the provisions of RTE Act, 2009.

The Clause 14 of the Nursery Admissions Order, 2009 is reproduced below:-

“14. The school shall develop and adopt criteria for admission which shall be clear, well defined, equitable, non-discriminatory and unambiguous. The school shall adopt those parameters which are in the best interests of children and are in line with its own philosophy, and these shall include the following:-

(i) Neighbourhood.---- It is in the interest of children that they are provided admission in a school nearest to their residence. The schools shall, therefore, give preference to children living in nearby areas. If the school is satisfied that a good and safe transport is available for a child, then, it may consider giving admission to such a child even if he/she lives at a place quite far off from the school. This is also important as distribution of schools is not uniform in the city.
(ii) Background of the child. – Children from all social and economic backgrounds shall be equally considered for admission. The school shall make a conscious effort to admit children with special needs or from vulnerable backgrounds.
(iii) Sibling – Generally, parent(s) or guardian(s) prefer that their children study in the same school. Therefore, the school may give preference to a child of such parents or guardians.
(iv) Single Parent i.e.divorced/widow/widower/unmarried.-- The school may give preference to admit child of such single parent.
(v) Management Quota.—School may have a management quota which shall not exceed twenty per cent of the total seats available for admission in the class.
(vi) Minority – All minority schools can keep the minority status of the child seeking admission as a criterion.
Schools can also fix additional parameters but are required to stipulate a point system for each criteria/parameter.”

The relevant provisions of Section 2 (o) and Section 13 of the RTE Act, 2009 are reproduced below:-
“Section 2(o) “screening procedure” means the method of selection for admission of a child, in preference over another, other than a random method;

Section 13 (1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.
(2) Any school or person, if in contravention of the provision of sub-section (1),-
(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;
(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.”

It is true that the RTE Act, 2009 is primarily for the children in the age group six to fourteen years. However, by implications it also applies to admission of a child in the pre-primary classes (where ever the same exists as a part of an elementary school). It is submitted that Section 13 read with Section 2 (o) of RTE Act, 2009 applies to every school whether aided or unaided or government run or of specified category. It is also submitted that the RTE Act, 2009 being a Central law would prevail over the State laws.

It is submitted that the above ‘points-based procedure’ for admission of students in nursery classes in unaided private schools as contemplated in Clause 14 of the Recognized Schools (Admission Procedure for Pre-primary Class) Order, 2007 tantamount to “screening procedure” and is, therefore, prohibited by Section 13 of The Right of Children to Free and Compulsory Education Act, 2009. It is further submitted that under Clause (b) of Sub-Section (2) of Section 13 of the RTE Act, 2009 such screening procedure is an offence punishable with fine which may extend to twenty five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contravention. It is submitted that the Government is certainly entitled to mandate the unaided schools to give preference to the children living within a radius of 5 kilometers of the school. In nutshell, the criteria based on the neighborhood and the draw of lot would be the only valid criteria which shall stand the test of constitutional philosophy of right to equality (Art. 14), right to life with dignity (Art. 21), right to quality elementary education (Art. 21-A) and right to social justice (Art. 38) and also of RTE Act, 2009.

(written by Advocate Ashok Agarwal, contact at ashokagarwal1952@hotmail.com M-09811101923 dated 04.04.2010)