Nursery Admission and Law

Introduction

Toddlers who are preparing to walk into corridors of school, are not even aware the battle that is being waged for their admissions. However, with growing population in metros, the nursery admissions in Delhi always remain in eye of storm. The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21A to provide free and compulsory education of all children in the age group of six to fourteen years, as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation, envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school, which satisfies certain essential norms and standards. However, the fulfillment of the Fundamental Right is at stake with growing pressure of population at pre-school stage in metros and their fight for admission in best school is a symbol to deliberate both in terms of need to expand the existing infrastructure of quality education as well to strike a balance to respect the ‘autonomy’ granted by law to such schools without denying any child his right to good education at any level.

Recently, debate has been triggered with many news regarding nursery admission and consequential legal battle. The article brings update and legal developments on the subject for our readers.

A. Admission Procedures

The Ganguly Committee Report found that the admission procedures for these very young children between the ages of 3.5 and 5 years often consist of written/oral selection test for children, interview of children, and interview of/interaction with parents. Criteria such as siblings, neighbourhood concept, alumni, profession and educational qualifications of parents are also included by some schools in their admission criteria for short listing of candidates.   As there is no common admission procedure for all the private schools of Delhi, each school has been using its own discretion in formulating a procedure and implementing it for selecting children for admission to nursery classes. In doing so, there have often been complaints that procedures used are not transparent and equitable and as a result, many parents felt unfairly treated. Since so much of the future of their children was at stake, these feelings have a legitimacy of their own.

B. Admission Debate

In a writ petition, filed by the Directorate of Education vs. Action Committee Unaided Recognized Private Schools[1] the appeal was filed against the order of the single judge wherein the order of the Department of Education dated 06.12.2015 was stayed till disposal of the main petition. The dispute arose when the Delhi Government, Directorate of Education, released a circular dated 08.12.2015 for entry-level classes regarding private seats in unaided recognized schools of Delhi for 2016-17 sessions. The writ petition was filed by the Respondent Action Committee for quashing of two orders of the DoE dated 31.12.2015 (admission criteria modification order) and 06.01.2016 (Order found criteria uploaded on websites to be unreasonable). As per the circular dated December 8, 2015 all schools directed under the circular were required to develop and adopt a criteria for admission which is clear, well-defined equitable, non-discriminatory unambiguous and transparent. The admission was to be by draw of lots, conducted in transparent manner in front of the parents. By an order dated January 6, 2016 the Directorate of Education brought to the notice of the schools that they were being unfair in terms of 11 criteria out of 62 in number asking them to withdraw the same and float the transparent criteria. The learned single judge hearing the matter found the impugned order issued by Directorate of Education in direct conflict with Recognized Schools (Admission Procedure for Pre-Primary Class) Order 2007 (“Admission Order”) issued by Lieutenant Governor of National Capital Territory of Delhi issued under Section 3(1) of the Delhi School Education Act, 1973. Placing reliance on Forum for Promotion of Quality Education vs. LG[2] wherein it was held that private unaided schools are full autonomy in administration including right to admit students. So far the learned single judge found that the administrative order without the advice of the advisory board is bad in eyes of law and further no material evidence the criteria for preferring the petition were unreasonable in any manner. Regarding the issue of management quota, the court observed the Hon’ble Supreme Court in P.A Inamdar and Christian Medical College case recognized the same.

The Lieutenant Governor under the DSE Act, a Parliamentary legislation, issued the Admission Order. Rule 43 under the aforesaid Act prescribes issuance of necessary instructions under which the LG of the NCT issued necessary directions of which clause 14 prescribed parameters to be adopted by schools in best interest of children. Clause 14 (vi) prescribed the schools to have management quota upto 20% of the admissions seats. On 18.12.2013 a fresh Admission Order 2013 was issued by virtue of which such quota was deleted. It was directed that the admission seats would be categorized into four parts. The said amendment order was challenged in writ petition and was quashed. The court ruled that the autonomy provided under the DSE Act empowered them to make rules to that effect. An appeal against the said judgment was moved and the contest for transparency on rest of the 75% seats begins.

The court in appeal held that the admission for pre-primary classes can be held by way of 2007 order alone and Lt. Governor alone is competent authority to make any amendment in view of the DSE Act read with Rule 43 thereunder. The court held that learned single judge order was without any infirmity. The main petition is yet to be decided.

C. Fixing the Age Limit for Education

Recent developments include the upper age limit for Nursery admissions in Delhi schools have been fixed at four years. Earlier, the minimum age limit for admissions in pre-school, pre-primary and class 1 was prescribed as 3 years, 4 years and 5 years, respectively as on March 31, of the year in which admission is being sought. Now, the competent authority has fixed the upper age limit for admissions in entry level classes as 4 years for pre-school, 5 years for pre-primary and 6 years for class 1. The heads of the schools are directed to note that the relaxation in upper age limit to children with mental disabilities shall be allowed as a rule and that rejection of an application for admission should be based on valid grounds and a speaking order shall be passed by the principal. The lower limit for admission was already fixed at three years, but there was no upper age limit for admission.

Delhi High Court has stayed its notification fixing four years as the upper age limit for nursery admission in private unaided schools of the National Capital. A bench of Justice Manmohan stayed the AAP government’s decision fixing the upper age limit saying the parents of the wards did not get enough time to plan the future as the notification was issued on December 18 last year, just on the eve of start of the admission process. The court also directed that all children above the age of four years desirous of seeking admission in pre-school/nursery can apply for admissions for the academic year 2016-17 on or before February 9 by 4 PM. It asked the Director of Education of Delhi government to ensure that applications of economically weaker section (EWS) children are accepted online. The schools are also directed to accept the admission forms by February 9 and applications already filed shall be considered. The bench posted the matter for April 18 for further hearing. The court had asked the government from where did it get the power to fix an upper age limit for admission. It had also observed that the notification, by which the upper age limit was fixed, did not appear to have a legal sanctity as it was not issued by the LG or under any statute.

D. Management Quota Debate

Delhi High Court has also rejected Delhi Government’s plea to scrap the management quota in nursery admission. The management quota had been recommended by expert Ganguly Committee formed by a division bench of Delhi High Court and accepted, approved and implemented by the Delhi government in its order of 2007. It is worth mentioning here the Delhi high court on November 28, 2014 upheld the Ganguly committee recommendations on nursery admissions and said that private unaided schools should have administrative autonomy to decide on admissions.

 E. Other Important Developments

The proposed legislation of Delhi Government includes bills that have been passed on December 1, 2015 are amongst the other important developments:

  • The Right of Children to Free and Compulsory Education (Delhi Amendment) Bill. It will scrap the no-detention policy till Class 8 by amending sections of the Right to Education Act. The students will be detained from class 1 itself. The Bill was introduced referring to the argument that the no-detention policy was affecting the quality of education.
  • Delhi School Education (Amendment) Bill (DSEAA): It will do away with the screening process at nursery and offenders will be levied with a penalty of Rs 5 lakh to Rs 10 lakh, if found indulged in taking interviews at the entry levels including the nursery admission and charging capitation fees.
  • Delhi School (Verification of Accounts and Refund of Excess Fee): It will regulate and refund excess fees in private institutions and is aimed at ensuring that private schools show greater accountability in fees accepted and money spent.

Conclusions

The following are important take away of above discussions:

  • 20% of the seat is under management quota generally and 25% seat for economically weaker section while the remaining is for general category.
  • The management quota had been recommended by expert Ganguly Committee formed by a division bench of Delhi High Court and accepted, approved and implemented by the Delhi government in its order of 2007.
  • Delhi government had issued a notice for scrapping management quota in nursery admission, which triggered a legal battle, which was rejected by Court.
  • It is important to highlight the fight for admission is for private schools, which despite being costly is serving as first choice of parents for admission.
  • ‘Neighborhood Schools’ was enunciated by the Education Commission (1964-66), which recommended adoption of the ‘Neighborhood School Concept’ first at the lower primary stage and then at the higher primary. The National Policy on Education 1986 reiterated this view.
  • Fixing the age limit for education also did not survive the legal battle. The court also directed that all children above the age of four years desirous of seeking admission in pre-school/nursery can apply for admissions for the academic year 2016-17 on or before February 9 by 4 PM. It asked the Director of Education of Delhi government to ensure that applications of economically weaker section (EWS) children are accepted online.

[1] LPA 89/2016
[2] 216 (2015) DLT 80

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