ARTICLE ON IMPLICATIONS OF DELHI HC JUDGMENT ON KVS ADMISSION POLICY FOR PUBLICATION & CIRCULATION

IMPLICATIONS OF DELHI HIGH COURT JUDGMENT ON KVS ADMISSION POLICY BY ASHOK AGARWAL, ADVOCATE & SOCIAL ACTIVIST The impact of the Hon’ble Delhi High Court decision of 09.11.12 (W.P.(C) No. 4194 of 2011 & W.P. (C) No. 801 of 2012) declaring that Kendriya Vidyalaya Sangthan (KVS) Admission Policy 2011-12 & 2012-13 for admission in Class I introducing reservation to the extent of 22.5% for SC/ST in the total 25% seats reserved under Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009) for the children belonging to Disadvantaged Group (DG) & Economically Weaker Section (EWS) is illegal and contrary to RTE Act, 2009 and directing KVS to reframe its Admission Policy in the ensuing Academic Year 2013-14, is not limited to the KVS Admission Policy only. It is also bound to have serious impact on most of States RTE Rules framed in regard to the admission of the children belonging to DG/EWS against 25% reserved seats in unaided non-minority schools in their respective Stated under RTE Act, 2009 and also on the nursery admission criteria guidelines dated 23.11.2010 framed by the Central Government (adopted by Delhi Government on 15.12.2010) in regard to admission of children against 75% seats (General) in unaided non-minority schools. It is submitted that most of the States through State RTE Rules or Regulations have one way or the other have applied the rule of reservation/ order of preference/ allotment of specified number of seats amongst the candidates out of 25% of seats reserved for children belonging to economically weaker section and disadvantaged group under Section 12 (1) (C) of the RTE Act, 2009. Let us take few illustrations. Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010 has laid down the order of preference as well as allotted specified seats to different categories of the candidates within the categories of the candidates falling in DG/EWS. The order of preference and allotment of seats are: (i) Orphan, HIV affected and disabled – 5%, (ii) SC – 10%, (iii) ST – 4% and (iv) Weaker Section – 6% (Total 25%). Karnataka Right of Children to Free and Compulsory Education Rules, 2012 has laid down that the percentage of allocation across various categories shall be notified by the Government. It is submitted that the Hon’ble Delhi High Court in the above decision has observed, “No case law needs to be referred to hold that guidelines cannot either override the provisions of the Act or a right conferred under the Act for the matter.” The Hon’ble Court has also observed, “Section 12(1)(c) of the Act does not contemplate any classification among the children belonging to weaker section and disadvantaged group.” The Hon’ble Court further observed, “ A combined reading of the definition of child belonging to disadvantaged group and a child belonging to weaker section and a child with disability as defined under Disabilities Act, 1995 does not permit a further classification from among the children falling under those categories.” It is very clear from the observations of the Hon’ble Court referred above that the States cannot frame rules and regulation contrary to the provisions of RTE Act, 2009. Therefore, the States which have made any kind of categorization or classification or introduced preference or reservation through framing of Rules or Regulations among the categories embodied in the definitions of child belonging to the Disadvantaged Group or child belonging to the Economically Weaker Section for the purpose of 25% seats reserved for the children belonging to DG/EWS in unaided non-minority schools have to amend the same in the light of the above decision. There is one more important aspect. The Central Government by its Guidelines dated 23.11.2010 purported to have been framed under Section 35 of the RTE Act, 2009 gives a free hand to all the unaided private schools to frame their own admission criteria based on categorization of the students for admission of children in pre-school (Nursery) or Class I against 75% seats (General). The Government of Delhi has simply adopted the said Guidelines vide order dated 15.12.2010. Pursuant to these Guidelines, the Unaided Schools have framed the nursery admission criteria based on categorizing the children as suiting to the business interest of these schools. It is submitted that the Social Jurist has challenged the validity of the aforesaid Guidelines before the Hon’ble Delhi High Court on the ground that the same are contrary to the provisions of Section 13 read with Section 2 (o) of the RTE Act, 2009 as much as the same tantamount to “Screening Procedure” which is not only prohibited but is also an offence under RTE Act, 2009. Our contention in the case is that in terms of RTE Act, 2009, all the children have the equal right to be considered for admission in the school and no child can be given preference over the other child on any ground. The case is pending for disposal. It is submitted that though the above decision is in the context of admission of children against 25% seats reserved for children belonging to DG/EWS but the observations made by the Hon’ble Judges in the decision, in my view, are equally applicable to the admission of children in nursery classes in all unaided non minority private schools against 75% seats (General). It is submitted that the Hon’ble Court in the above decision while examining the scope of Section 35 of the RTE Act, 2009 observed, “Section 35 can be pressed into service only for the purpose of implementation of the provisions of the Act and not to dilute the right conferred thereunder. Hence, the contention of the school that the classification made pursuant to the guidelines issued under Section 35 of the Act is only liable to be rejected.” It is submitted that nursery admission criteria being presently followed by the unaided non minority schools would also be hit by the above decision of the Hon’ble Delhi High. It may also be stated here that since the Hon’ble Delhi High Court has interpreted the provisions of a Central Act, the law laid down therein is legally applicable to the entire country. Email: juristashok@gmail.com