Giving a clear warning to the schools across the nation that the collection of capitation fees is not permissible, the Delhi High Court on Tuesday allowed category based admissions in nursery to continue.
Accepting the Centre’s stand that nursery is not covered by the Right to Education (RTE) Act, the High Court has held, “There is no escape from the conclusion that as far as the private unaided schools are concerned, the provisions of the Act, except the admission to the extent of 25 per cent of the strength of the class, to the children belonging to the weaker sections and disadvantaged group, do not apply to the admissions made to the pre-elementary (preschool and pre-primary) classes of such schools.”
Thus private unaided schools will continue to have the autonomy to admit children based on categories such as alumni and sibling in nursery.
However, the court in its judgment has observed that, “During the course of arguments, we were informed that charging capitation fee is prohibited not only in Right to Education Act, 2009, but also in Delhi School Education Act and the rules framed thereunder. Therefore, it cannot be said that if the RTE Act does not apply to the 75 per cent of the admissions made by private unaided schools to pre-elementary classes, they can charge capitation fee for such admissions.”
Making a second reference to the commercialization of education, the High Court observed that “It is common knowledge that though the there is obligation on the State to provide free and compulsory education to children and the corresponding responsibility of the institution to afford the same, educational institution cannot be allowed to run as ‘Teaching Shops’ as the same would be detrimental to equal opportunity to children. This reality must not be ignored by the State while considering the observations made in this judgment”
In conclusion, the court observed, “Though we have held that Right to Education Act is not applicable to nursery schools, in our opinion there cannot be any difference in yardstick to be adopted for education to children up to the age of 14 years irrespective of the fact that it applies to only elementary education. It is the right time for the Government to consider the applicability of Right to
Education Act to the nursery classes as well, as in many of the States admissions are made right from the nursery classes and the children so admitted are automatically allowed to continue from Class-I.”
The High Court passed its judgment on a petition by NGO Social Jurist which had challenged the notifications by the Centre and the Delhi Government issued in 2010 that allowed private unaided schools to formulate their own criteria for nursery admissions. The petition had argued that the resulting admission process adopted by private unaided schools – the category-based admission – amounts to discrimination between children and is a violation of the RTE Act.
Reacting to the judgment, Ashok Agarwal, representing NGO Social Jurist said, “I have no doubt that all children from 0-14 are covered under the Right to Education Act. This part of the judgment I don’t agree with. We will move to the Supreme Court. Perhaps, by first week of March.”
RTE Forum expressed disappointment over the Delhi High Court ruling in relation to criteria for nursery admissions. The ruling is a dilution of constitutional right to education of children under six and is against the spirit of the Article 21 (A) and Article 45 of the constitution.
Ambarish Rai, Convenor, RTE Forum said that civil society has been demanding the right to education for children under six years of age children from a long time. In the present RTE Act, section 11 has advised the state governments to make necessary arrangements for pre-schooling of children in the age group of 3-6 years through which the level of discrimination could have been addressed.
"As a civil society we will move a petition in Supreme Court for interpretation of the Act as it may lead to serious implication to admissions of 25% children under EWS quota in private unaided schools and towards ensuring protection of the rights of children under six”, Rai said.