MOCKERY OF RTE - SARVODAYA KANYA VIDYALAYA, BADLI, DELHI DENIES ADMISSION TO 5 YRS OLD HIMANSHU TO NURSERY CLASS ON ILLEGAL & FRIVOLOUS GROUNDS

ALL FEMALE EMPLOYEES WHETHER ON CONTRACT, AD-HOC, PERMANENT AND TEMPORARY ARE ENTITLED TO MATERNITY LEAVE AT PAR WITH REGULAR EMPLOYEES

In Law, there is no difference between a female regular employee and a contractual employee/ad hoc employee because and a female employee whether regular, temporary or ad hoc, is a female for all intents and purposes and she has a matrimonial home, matrimonial life, and after conception, she has to undergo the entire maternity period, same treatment, pains and other difficulties which a regular employee has to undergo. Thus, there is no occasion for making discrimination and if, less period of maternity leave is granted to a contractual employee, it will amount to discrimination, in terms of Article 14 of the Constitution of India.

The claim of maternity leave is founded on the grounds of fair play and social justice. There cannot be discrimination and if any discrimination is made. It is in breach of Articles 14 and 15 of the Constitution.

2015 Lab.I.C. 1717 State of H.P. and others v. Sudesh Kumari (DB) Himachal Pradesh High Court (D/- 18.11.2014)

JOIN US FOR CHANGE

Lawyers plus Team led by Advocate Ashok Agarwal will visit Wazir Pur J.J. Colony on Sunday 21 June 2015 from 7:30 am to 09:30 am to interact with the inhabitants (door to door) thereof on right to education, right to health and labour rights etc. Those interested to join us may please reach Wazir Pur J.J. Colony Bus stand, opposite Maharaja Agarsen Public School, at 7:30 am sharp. Contact Person – Mr. Rizwaan M.09250509999

SALIENT FEATURES OF THE AIPA COMMENTS UPON THE DRAFT AMENDMENTS TO THE DELHI SCHOOL EDUCATION ACT & RULES, 1973

1.     The proposed amendment regulating admission at nursery level is vague and open to abuse. The Govt. simply needs to lift the provisions of Section 13 and Section 2(o) of RTE Act, 2009 and incorporate the same in Delhi School Education Act, 1973 making it applicable to the Nursery admissions. Such amendment would also be in consonance with the observations of Hon’ble Delhi High Court in WP(C) No. 8533/2010 titles Social Jurist Vs GNCTD and Ors.

2.     The proposed provisions regarding regulating fee in unaided private schools fail to cater to the mischief of exorbitant and unjustified fee-hike. The provisions ought to be even better than that of Tamil Nadu (Regulation of collection of fee) Act 2009 but the proposed amendments fall way short of even what Tamil Nadu has already achieved. The unaided schools may be allowed to increase any kind of fee only with the prior approval of the fee committee.

3.     The fee committee must be headed by a retired High Court Judge and not by Additional Director of Education.

4.     There must be minimum 50% representation of parents in the Managing Committee of an unaided private school. This would not only check commercialization in education but also enhance the overall quality of education in private schools.

5.     It is a well known fact that once a school charges fee from the parents, it becomes next to impossible to get it refunded.

6.     It would be a better option to enact an independent legislation on fee regulation on the lines of Tamil Nadu, even more robust and effective than Tamil Nadu. 

PARENTS'S COMMENTS UPON THE DRAFT AMENDMENTS TO THE DELHI SCHOOL EDUCATION ACT & RULES, 1973

 ALL INDIA PARENTS ASSOCIATION

To

The Additional Director of Education (Act-I)

Government of NCT of Delhi

Old Secretariat Building

Civil Lines, Delhi-54

June 13, 2015

Re: Public Circular dated 11.06.2015

Subject: Comments upon the draft amendments to the Delhi School Education Act & Rules, 1973

Dear Sir/Madam

The proposed Delhi School Education (Amendment) Rules 2015 are an improvement over the previous draft in so far as the new Rule 145 clearly empowers and mandates the Director to regulate admission in private unaided schools and uses the term “fair” along with “transparent”. However, it is still very vague and amenable to misinterpretations and abuse. I therefore propose that this Rule should prohibit screening at entry level on the lines of Section 13 of the Right of Children to Free and Compulsory Education Act, 2009, which would leave no scope for ambiguity and settle the controversy for good. Also, there would not be much left to executive instructions if the Rule itself is worded clearly and explicitly. There is no need for further delegation of power if the Rule can itself be made specific. This Amendment would also be in consonance with the observations of the Hon’ble Delhi High Court in W.P. (C) No.8533/2010 titled Social Jurist vs. GNCTD & ors.

As far as the Delhi School Education (Amendment) Bill, 2015 is concerned,  it fails to cater to the mischief of exorbitant and unjustified fee-hike for reasons that I have already communicated to the Government vide my letter dated 01.06.2015. The said reasons are reproduced as under:

Firstly, it presupposes that fee-hike by the private schools is per-se legal and valid, unless the same is challenged through a complaint and is set aside by the committee. If we look at the existing Acts on private unaided school-fee regulation, particularly the Tamil Nadu (Regulation of Collection of Fee) Act, 2009, there is a stipulation of prior approval by the Committee before fee-hike and the said hiked fee, once approved, cannot be further hiked upto three years. While here, this Bill has put the entire burden upon the complainant. It is expected that the Delhi’s Act should be advancement over Tamil Nadu Act and should surpass the benchmark set by Tamil Nadu, but this Bill falls way short of even what Tamil Nadu has already achieved.

Secondly, this Bill suffers from various practical anomalies. The burden has been cast upon the aggrieved parent to move in complaint. This onerous task would make the parent, and ultimately the child, amenable to be subjected to victimization. Further, once a complaint is made, no time-limit has been stipulated for disposal of the same by the committee, making it liable to be reduced to futility by sheer lapse of time. Even after a complaint has been decided, there is enough room for delay as the school can file objections, and even after consideration of the same and final decision by the committee, there is a provision of appeal to the Director, for disposal of which, no time-limit has been stipulated. The school shall thus continue to enjoy its free hand at least throughout the process which has enough scope for inordinate delays. The committee itself is a rather weak one compared to the Tamil Nadu model where a retired judge of the High Court heads the Committee.

It is needless to mention here that the Hon’ble Delhi High Court in its decision dated 12.08.2011 in Delhi Abhibhavak Mahasangh & ors. vs. GNCTD & ors. [W.P. (C) No.7777/2009] had constituted Justice Anil Dev Singh Committee to look into the accounts of each school and find out whether the fee-hike by private unaided schools on the pretext of 6^th Central Pay Commission was justified. The High Court had further directed that if the fee-hike was found to be unjustified, it would be refunded by the school to parents along with 9% interest. Justice Anil Dev Singh Committee has so far indicted more than 450 schools and the refundable amounts cumulatively come to more than Rs.250 crores. However, till date, not a single school has refunded the due amounts to the parents.

Even in 1997, when the parents had approached High Court against fee-hike on the pretext of implementation of 5^th CPC, the High Court vide an interim Order had permitted the schools to increase fee by upto 40%, resulting in recovery of over Rs.400 crores from the parents of Delhi, which was to be subject to the findings of Justice Santosh Duggal Committee and liable to be refunded if found unjustified. However, the working of the Committee was deliberately stifled by the Directorate of Education and the private schools, with the result that till date no amount has been refunded to the hapless parents. Thus, it is our experience that once a school charges fee from the parents, it becomes next to impossible to get it refunded.

It must also be borne in mind that monitoring and regulation of fee-hike is only one aspect of checking commercialization of education in private schools. In order to effectively check commercialization as a whole, it is necessary that the parents should have an effective say in the Managing Committee of private unaided schools. The RTE Act, 2009 provides for at least 75% representation of parents in the School-Management Committees of schools other than private unaided schools. However, in private unaided schools, there is only one parent-representative in the Managing Committee, who is often a crony of the Management.

Since education is a charitable activity and profiteering is impermissible in education, and moreover, since it is the parents’ money which runs the school and they are prime stakeholders in the functioning of the school, including its financial aspects, the parents in private unaided schools deserve a minimum 50% representation in the Managing Committee. This would not only check commercialization in education but also enhance the overall quality of education in private schools. Thus, Rule 59 of the Delhi School Education Rules also needs to be amended to provide for at least 50% representation of parents in the Managing Committee in order to ensure effective check upon fee-hike and commercialization of education by private unaided schools.

The Bill needs to be thoroughly reworked in the light of the above. However, I personally feel that it would be a rather better option to enact an independent legislation on fee–regulation on the lines of Tamil Nadu, even more robust and effective than Tamil Nadu.

With regards

Ashok Agarwal, Advocate

National President, AIPA

M: 9811101923

Lawyer-Activist’s comments to Delhi Govt. on the proposed Delhi School Education Act & Rules 1973 (Amendment) Bill, 2015

I have gone through the Draft-Bill at length. This Bill may be seen as comprising of two separate parts: The first part dealing with fee-regulation and the second part dealing with admission criteria. As regards the first part, the basic premise of the proposed Bill is itself faulty. It presupposes that fee-hike by the private schools is per-se legal and valid, unless the same is challenged through a complaint and is set aside by the committee. If we look at the existing Acts on private unaided school-fee regulation, particularly the Tamil Nadu (Regulation of Collection of Fee) Act, 2009, there is a stipulation of prior approval by the Committee before fee-hike and the said hiked fee, once approved, cannot be further hiked upto three years. While here, this Bill has put the entire burden upon the complainant. It is expected that the Delhi’s Act should be advancement over Tamil Nadu Act and should surpass the benchmark set by Tamil Nadu, but this Bill falls way short of even what Tamil Nadu has already achieved.

Besides being premised on a faulty presupposition, this Bill, so far as it seeks to regulate fee, suffers from various practical anomalies. Firstly, the burden has been cast upon the aggrieved parent to move in complaint. This onerous task would make the parent, and ultimately the child, liable to be subjected to victimization. Further, once a complaint is made, no time-limit has been stipulated for disposal of the same by the committee, making it liable to be reduced to futility by sheer lapse of time. Even after a complaint has been decided, there is enough room for delay as the school can file objections, and even after consideration of the same and final decision by the committee, there is a provision of appeal to the Director, for disposal of which, no time-limit has been stipulated. The school shall thus continue to enjoy its free hand at least throughout the process which has enough scope for inordinate delays. The committee itself is a rather weak one compared to the Tamil Nadu model where a retired judge of the High Court heads the Committee.

It is needless to mention here that the Hon’ble Delhi High Court in its decision dated 12.08.2011 in Delhi Abhibhavak Mahasangh & ors. vs. GNCTD & ors. [W.P. (C) No.7777/2009] had constituted Justice Anil Dev Singh Committee to look into the accounts of each school and find out whether the fee-hike by private unaided schools on the pretext of 6^th Central Pay Commission was justified. The High Court had further directed that if the fee-hike was found to be unjustified, it would be refunded by the school to parents along with 9% interest. Justice Anil Dev Singh Committee has so far indicted more than 450 schools and the refundable amounts cumulatively come to more than Rs.250 crores. However, till date, not a single school has refunded the due amounts to the parents. Thus, it is our experience that once a school charges fee from the parents, it becomes next to impossible to get it refunded.

It has been held by the Delhi High Court in Delhi Abhibhavak Mahasangh & ors. vs. GNCTD & ors that it is not only within the powers but also a legal duty of the Delhi Government to check commercialization of education by private unaided schools.  The proposed Bill in regard to fee-regulation fails to address the issue, ignores ground realities and is rather counter-productive as it revives certain irrelevant criteria such as location of the school and available infrastructure, which have already been dismissed under the existing jurisprudence on fee-regulation. It is relevant to mention here that it is already a settled legal position that no fee can be charged by the school on account of capital expenditure.

In my view, at the time of drafting of Delhi School Education Act, 1973 (DSEA, 1973) there was not enough foresight regarding the dangers of arbitrary fee hike by private unaided schools.  The said Act thus does not render any effective assistance in this regard and amending the same may not serve the purpose well. We need an independent legislation on fee–regulation, on the lines of Tamil Nadu, even more robust and effective than Tamil Nadu.

As far as the admission criteria part is concerned, the Bill again fails to meet the need of the hour. It merely proposes to empower the Director to issue instructions to make the process “transparent” and “inclusive”. Firstly, mere transparency would not serve the purpose. The greater mischief is the discrimination prevalent in the admission criteria. Moreover, the term “inclusive”, being vague, is liable to be misused to rather permit discrimination. It is thus, counter-productive.

As far as the admission criteria part is concerned, an amendment to DSEA, 1973 would serve the purpose, provided it incorporates Section 13 read with Section 2 (o) of the RTE Act, 2009 and makes it applicable below Class I, i.e., to the pre-primary classes. In other words, it should prohibit screening as defined in Section 2 (o) of the RTE Act, 2009 in the matter of admission to pre-primary classes.

I strongly feel that we need to hold extensive consultations on the issue and re-think the proposed Bill in the light of the above. Delhi, being the Capital, should set an example for other States to emulate.

Ashok Agarwal, Advocate

M: 9811101923

01.06.2015

HIGH COURT DIRECTS DHARAMSHILA HOSPITAL NOT TO DISCHARGE CANCER PATIENT TILL COMPLETION OF TREATMENT

The Delhi High Court (Dr. Justice S. Muralidhar) today directed Dharamshila hospital not to discharge a 17 year old EWS Cancer patient till competition of treatment.

Delhi High Court earlier on 03.06.2015 had issued notices to ESIC, Govt. of India, Ministry of Labour and Dharamshila Hospital on denial of free treatment to Soumaya Ranjan suffering from Anaplastic Large CellLymphoma, a form of Cancer. Soumaya’s father, an ESIC-insured person, Basant Kumar (M-8587983741), had filed petition through Advocate Ashok Agarwal in the High Court against ESIC for its refusal to make referral to empanelled Dharamshila Hospital for treatment of his son and also against Dharamshila Hospital for arbitrary denial of treatment.

Since Soumaya was critical, he had been discharged by ESI Hospital, Basai Darapur, on 23.05.2015 and referred to AIIMS/ESIC empanelled Hospital. Basant Kumar on 25.05.2015 had approached Dharamshila Hospital, which is empanelled with ESIC, but in the absence of a specific referral letter from ESIC addressed to Dharamshila Hospital, Dharamshila Hospital had denied treatment. The ESIC, on the other hand, had refused to issue the requisite referral letter. The patient had been lying outside Dharamshila Hospital since 25.05.2015, awaiting treatment. It continued till 30.05.2015 when upon intervention by EWS Beds Monitoring Committee Members Advocate Ashok Agarwal and Dr. R.N Das, the patient was admitted by Dharamshila Hospital under EWS category. Moreover, on 02 June 2015, while the patient was in the ICU of Dharamshila Hospital and his removal therefrom could have endangered his life, against all medical norms and professional ethics, Dharamshila Hospital had taken the patient to ESIC Hospital at Noida in its Ambulance just to obtain the referral-letter from the ESIC.

The next date of hearing is 22.07.2015.

ASHOK AGARWAL, ADVOCATE         
M: 9811101923  
10.06.2015