Delhi High Court
Social Jurist, A Civil Rights Group vs Govt. Of Nct Of Delhi & Anr on 27 January, 2012
Author: A.K.Sikri
Bench: Rajiv Sahai Endlaw, A.K.Sikri
* THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO. 7802 OF 2011 & CM No.20148/2011
RESERVED ON: 18th January, 2012
% PRONOUNCED On: 27th January, 2012
SOCIAL JURIST, A CIVIL RIGHTS GROUP ...PETITIONER
through : Mr. Ashok Agarwal, Ms. Kusum
Agarwal, Mr. Khagesh B. Jha,
Advocates
VERSUS
GOVT. OF NCT OF DELHI & ANR ...RESPONDENTS
through: Ms. Ruchi Sindhwani, Adv. for
Respondent No.1
Ms. Shobha Gupta with Ms.Hema
Shekhawat, Advs. for Respondent No.2
CORAM :-
HON‟BLE THE ACTING CHIEF JUSTICE
HON‟BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE:
1. In this petition filed by the petitioner, categorizing the same as
Public Interest Litigation, the petitioner complains about the
following purported failures on the part of Respondent No.1,
Government of NCT of Delhi:
(i) Failure to prevent unaided recognized private schools of Delhi
from admitting children below 4 years age in formal schools.
(ii) Failure to ensure that all unaided recognized private schools
in Delhi have only one year of pre primary class in formal
WP(C)No. 7802 of 2011 Page 1 of 71
schools where children of 4+ age are admitted directly and are
not promoted from nursery / pre-school.
(iii) Failure to ensure that children admitted in pre primary classes
are not burdened with bags and books.
(iv) Failure to start pre primary classes in all schools.
(v) Failure to frame guidelines in regard to pre-school in terms of
Clause 21 of the Recognized Schools (Admission Procedure
for Pre Primary Class) Order - 2007.
It is the submission of petitioner that the aforesaid failures and
inaction on the part of Respondent No.1 violates the fundamental
right of the children as guaranteed to them under Articles 14, 15, 21
and 21A of the Constitution of India. It is also termed as violative
of Articles 38 and 39 of the Constitution as well as provisions of
Delhi School Education Act, 1973 and The Right of Children to Free
and Compulsory Education Act, 2009 (hereinafter referred to as the
RTE Act) and UN Convention Rights of Child, 1989.
2. The genesis of the controversy raised in this writ petition can
be traced to the exercise which started pursuant to earlier writ
petition being W.P. No. 12490/2006 filed by this very petitioner,
exercise done by the Government pursuant to orders passed therein
culminating in the final orders dated 26 th September, 2007 and
certain events which have taken place thereafter. It is now time to
recapitulate all these events in brief to appreciate the cause of
aforesaid grievances.
WP(C)No. 7802 of 2011 Page 2 of 71
3. Writ Petition No.12490/2006 was filed by the petitioner
highlighting the fact that different unrecognized private schools in
Delhi were applying different age criteria for admission of children
in nursery class and sought directions from this Court to the
Government to ensure that all the schools follow uniform age
criteria in accordance with Section 16 of the Delhi School Education
Act, 1973 which provides that a child who has not attained the age
of 5 years shall not be admitted in class 1 in a recognized school.
Taking cognizance of the vital issue raised by the petitioner in the
said writ petition, this Court constituted Ashok Ganguly Committee
to look into the matter and submit its report, inter alia, ascertaining
as to what should be the suitable age for a child for the purpose of
admission in pre-primary. The Ashok Ganguly Committee
undertook the job with alacrity and after in-depth analysis of all the
facets of the issue raised on the basis of various inputs provided by
experts from different fields, submitted its report dated 31st march,
2007 with certain recommendations to the Respondent No.1.
Copy of the Ashok Ganguly Report is annexed with this
petition. This report is in five chapters with following headings:
(i) Chapter I - Introduction.
(ii) Chapter II - Present Position and some Policy Perspective.
(iii) Chapter III - Feedback from stakeholders.
(iv) Chapter IV - The Rationale.
(v) Chapter V - Recommendations.
Along with the Report, there is one annexure also which
stipulates ―Some Guidelines for Pre Primary and Pre School
WP(C)No. 7802 of 2011 Page 3 of 71
Education‖. Some of the portions of the said report which were
highlighted by the counsel for the parties are reproduced at this stage
itself:
"REPORT OF THE COMMITTEE ON PRE-
PRIMARY AND PRE SCHOOL
EDUCATION IN DELHI
Chapter - I
Introduction
1.1 Early Childhood Care and Education has globally
been recognized as critical for human resource
development. The first 8 years of a child's life are the
most crucial years because during this period of early
childhood the pace of development is extremely rapid,
determining the cognitive and physical growth and
laying the foundation for shaping the social and
personal habits and values. There is a growing body
of research evidence to prove that the synoptic
connections in the brain that are critical for the full
development of the brain's potential take place during
the early phase of childhood.
1.2 Early Childhood Development includes two main
aspects, i.e., care and education. Care is a
comprehensive term that includes proper nutrition,
medical attention particularly in regard to
immunization, security and safety and emotional
support. The ‗education' component includes pre-
school education programmes aimed at 3-6 year olds
and extends to Class I and II to cover children upto
the age of 8 under the Early Childhood Care and
Education (ECCE). However it is to be clearly
understood that ECCE is an integrated programme
that takes into account the synergistic and
interdependent relationship between health, nutrition,
intellectual, social and emotional development and
WP(C)No. 7802 of 2011 Page 4 of 71
education, addressing the imperative of holistic and
all round development of the child.
Thus it can be seen that any discussion on pre-primary
education cannot exclude other aspects of early
childhood development. On the contrary an
examination of issues relating to pre-primary
education should necessarily focus on the
developmental paradigm so that the cognitive,
affective and psychomotor issues are
comprehensively addressed in the context of
education.
1.3 Changing socio-economic conditions have also
thrown up new challenges. The changes in family
structure brought about by transition from joint
families to nuclear families coupled with the
increasing propensity of both parents going to jobs
have put greater pressure on Early Childhood
Education especially in urban and semi-urban areas.
As parents face the compulsion of keeping their
children in ‗safe custody' when they are out on work,
they invariably turn to crèches, Kindergarten and Play
Schools. Parents are taking their children out of the
home environment much earlier than ever before.
While sending children to ‗creches' by parents who
are both employed with no elders to take care of their
children cannot be faulted, the growing tendency on
the part of overenthusiastic parents to initiate their
children into ‗education' much before the children are
ready for it is a cause of great concern. So the first
question that is to be answered is: What is the suitable
age for a child to begin pre-schooling? The other
important question is about what is going on in the
name of pre-schooling in a majority of schools in
Delhi.
1.4 The enormous demand for pre schooling facilities has
led to a mushrooming of play-schools, nursery
schools, Kindergarten, Preparatory Schools etc.
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indicative of a veritable boom in the ‗Alphabet
Industry'. A majority of ‗big schools' (schools which
have classes upto XII) run not only nursery and
Kindergarten or preparatory classes before class I,
some of these schools also have pre-nursery. Thus a
child of 2-2½ years of age enters into a system which
also has adolescents of 17-18 years of age. Parents'
wish is to put their children early on into such a
system so that they need not worry about their
children's future schooling upto class XII. It defies
all logic of ‗child-centric' education. Instead the
prevalent system has become either ‗parent-centric' or
‗school-centric'. It is seen that, barring a few
exceptions, these schools are nothing more than mere
downward extension of the formal and structured
education at the level of Class I and above. The
unrealistic expectations of parents for early
stimulation of their children and the inappropriate
learning environment offered by schools staffed by
either untrained or unsuitably trained teachers have
resulted in a confusing and often chaotic situation. To
compound the matters further, pre-schooling by
whatever name, does not come under any regulation.
xxx xxx xxx xxx
1.6 Subsequently, in disposing of an application vide Writ
Petition (C) No. 12490/2006 on the subject of the
minimum age for admission to pre-primary school and
related issues, the Hon'ble High Court of Delhi
requested Ganguly Committee ‗to try and find out a
viable and all comprehensive policy for pre-primary
education in Delhi so that admission to the pre-
primary education class/classes as the case may be is
made homogeneous and uniform.
The main issues figuring in the court's directive are as
follows:
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1. What should be the minimum age for a child to be
eligible for admission to pre-primary class at the entry
level?
2. What should be the cut off date for determining the
age of a child for the purpose of admission to pre-
primary class keeping Section 16 of Delhi School
Education Act in view?
3. What should be the duration of pre-primary class?
xxx xxx xxx xxx
2.17 The provisions under the Constitution of India for
Early Childhood Education are included in the
Constitution (Eighty Sixth Amendment) Act, 2002.
Article 21 A has been introduced as a Fundamental
Right after Article 21 to read: ―The State shall provide
Free and Compulsory education to all children of the
age of six to fourteen years in such manner as the state
may, by law, determine‖. The needs of Early
Childhood Care and Development are addressed by
Article 45 under Directive Principles of State Policy.
The article reads: ―The State shall endeavour to
provide early childhood care and education for all
children until they complete the age of six years‖.
Read together, though free and compulsory education
covers children in the age group of 6-14 years, there is
no stipulation that prescribes that formal schooling of
children would begin at the age of six. The
dichotomy between free and compulsory education
beginning at the age of six and the general practice
and in some cases as in the Delhi School Education
Act of treating 5+ as the minimum age for children to
be eligible for admission to class I, has to be resolved.
xxx xxx xxx xxx
2.20 The National Policy on Education (NPE), 1986 states
that ―Early Childhood Care and Education is a crucial
WP(C)No. 7802 of 2011 Page 7 of 71
input in the strategy of human resource development
as a feeder and support programme for primary
education and also as a support service for working
women‖. The other policy perspectives provided by
NPE in this regard include the following:
The National Policy on Children specially
emphasizes investment in the development of the
young child, particularly children from sections of
the population in which first generation learners
predominate.
Recognizing the holistic nature of child
development, viz., nutrition, health and social,
mental, physical, moral and emotional
development, Early Childhood Care and Education
(ECCE) must receive high priority and be suitably
integrated with the Integrated Child Development
Service Programme.
Programmes of ECCE will be child-oriented,
focused around play and the individuality of the
child. Formal methods and introduction of the 3
R's will be discouraged at this stage. The local
community will be fully involved in these
programmes.
A full integration of child care and pre-primary
education will be brought about, both as a feeder
and a strengthening factor for primary education
and for human resource development in general.
In continuation of this stage, the School Health
Programme will be strengthened.
2.21 Yashpal Committee, in its report titled „Learning
without Burden‟ observes that „deeply harmful
practices in pre-schools and primary schools such
as early emphasis on shapely drawing, writing and
memorizing information‟ result in a lot of stress
and anxiety for the children. "A curriculum policy
WP(C)No. 7802 of 2011 Page 8 of 71
that takes away the elements of joy and inquiry
from learning obviously contributes to the rate at
which children leave school in the early years",
states the report.
2.22 The committee recommends that appropriate
legislative and administrative measures be adopted to
regulate the opening and functioning of early
childhood education institutions (pre-schools). Norms
regarding accommodation, staff, apparatuses, play
materials be laid down for the recognition of these
schools. It should be ensured that these institutions do
not perpetrate violence on young children by inflicting
a heavy dose of ‗over-education' in the form of formal
teaching of Reading, Writing and Numbers. The
practice of holding tests and interviews for admission
to nursery class be abolished.
xxx xxx xxx xxx
3.03 The views of Dr. Veena Kalra are summarized below:
Taking the process of child's development into
account we should provide for at least two years of
pre-primary/pre-school education.
It is a crucial period in a child's growth when
children begin to explore the world, get to know
and communicate with others, learn to self-feed
and learn to train themselves in toilet habits. The
home environment may not always provide all the
opportunities for the child, particularly in respect
of developing social skills and community
language. In such a context, one year of pre-
schooling would not be adequate.
Further, in the present scenario of increasing
number of working parents, the home may not
provide an effective learning environment for a
three year old child. Parents do not have enough
WP(C)No. 7802 of 2011 Page 9 of 71
time to develop the child's faculties in a holistic
manner.
Lack of adequate pre-school facilities is one of the
main causes for early school drop out. Poor and
inadequate acclimatization to out-of-home-
environment is one of the reasons for some
children dropping out of school at an early stage.
The two years of pre-primary could be part of
main school or it could be divided between a main
school and an exclusive play school.
If pre-school is part of a main school, the space
and facilities should be defined and provided
completely separately. Since small children can
feel thwarted in the presence of bigger children,
care should be taken to provide a safe, secure and
conducive learning environment to them.
3.04 In order to formulate clear-cut guidelines for the age
criteria for admission to pre-primary classes and to
obtain views on the admission procedure based on
Ganguly Committee recommendations a meeting of
Delhi School Advisory Board, a statutory body under
section 22 of the Delhi School Education Act - 1973,
was held on 12th February, 2007. The meeting was
attended amongst others by educationists, principals
of various recognized aided and unaided schools of
Delhi, representatives of parents etc.
3.05 The consensus opinion that emerged in the meeting
was that three years is too early for a child to start pre-
primary education. Most of the members and invitees
felt that the minimum age should be 3½ years for
nursery, 4½ years for preparatory and 5½ years for
class I to be calculated as per the earlier system, i.e. as
on 30th September of the year preceding the year of
admission. However many schools had interpreted
the provision as denoting 30th September of the year
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of admission and consequently a child who had not
attained 5 years as on 1st April of the year of
admission also was admitted to class I. Similarly
children who had not attained 4 years were admitted
to the second year of pre-primary i.e. the class
immediately prior to class I. Be that as it may, the
consensus that emerged from the meeting was that the
minimum age for class I admission must be 5+ which
is in consonance with Section 16 of Delhi School
Education Act - 1973.
3.06 Shri Ashok Agarwal, Senior Counsel and a petitioner
in the case was also invited to give his views. The
main points of his submission are as follows:
Pre-school and pre-primary should be
differentiated. Pre-school classes may be
conducted by separate and exclusive play schools
but pre-primary should be part of the main school.
Pre-primary should be for one year prior to class I
and children who are 4 years and above should be
eligible for admission to pre-primary class.
The common admission procedure and norms
should come into operation at the pre-primary
class.
The provisions in the Constitution (Article 21A),
165th Law Commission Report and the CABE
Report (2005) specify 6 years as the minimum age
for a child to begin formal education, i.e., class I.
Though it is an ideal situation, it is necessary to
take into account the increase in number of years
of schooling from 11 years to 12 years after the
introduction of 10+2 system uniformly in the
country. There is also a binding imposed by the
Delhi School Education Act (1973) that has fixed
5+ as the minimum age for children to be admitted
WP(C)No. 7802 of 2011 Page 11 of 71
in class I. This dichotomy has to be resolved by
the committee.
Also the Article 21A of the Constitution stipulates
that free and compulsory education to all children
of the age of six to fourteen is the state's
responsibility. Does it mean there will be no
education before the age of six? What will happen
to children of underprivileged sections with regard
to their pre-school and pre-primary education?
As regards the cut off date to determine the age of
a child for the purpose of admission to schools,
there is much divergence and variation. As per the
Delhi Primary Education Act (1960) the age was to
be calculated as on 1st April of the year of
admission and the minimum age was fixed as 6
years. But the Delhi School Education Act (1973)
reduced it to 5+ years and the subsequent circular
dated 09.04.1997 sent by Delhi Education
Directorate had asked schools to calculate age as
on 30th September. This has caused much
confusion. Since the academic year commences
on 1st April in all the recognized schools in Delhi
it would be logical to consider 31st March of the
year of admission as the cut-off date for
calculating the age of child.
xxx xxx xxx xxx
4.8 Pre-primary and Pre-school
As mentioned in the first chapter of this report there is
much divergence and variation in the name given to
pre-school facilities provided by both the government
and private sectors in Delhi. At present pre-school
classes are variously called Nursery, Montessori,
Kindergarten, Pre-primary, Play-school, Prep-school
etc. It is relevant here to point out that the
committee's earlier report had followed the court's
directive and used the nomenclature of ‗Nursery'
while making recommendations for a common
WP(C)No. 7802 of 2011 Page 12 of 71
admission procedure and criteria for admission to the
pre-primary class. Some schools had created a little
confusion with reference to the connotation of the
term ‗nursery'. There is also some ground for
suspecting willful misinterpretation by a few
institutions so as to exempt themselves from
implementing the Committee's recommendation in
this regard. So it is necessary to agree upon a name to
be applied to the pre-school classes for which this
committee has been entrusted with the responsibility
to make recommendations. Another aspect that
emerges from the Court's order also deserves
attention. The Court seems to make a distinction
between pre-primary and pre-school in its order.
While dwelling on the issue of duration of pre-
primary class, the Court's order observes: ―Therefore,
there may not be any objection if it is decided that
pre-primary section will be of one year duration only
and a child completing the age of four years on or
before 31st of March of the said academic year will be
eligible for admission into the said pre-primary class.
In that event, if any child is admitted to the class prior
to the said age, the same could be in the nature of pre-
school class and would not be considered as pre-
primary class‖.
4.9 In a sense the court's order has spelt out the
distinction between ‗Pre-school class' and ‗Pre-
primary Class'. Pre-primary class is the one year of
schooling of a child immediately before the child
enters Class-I and pre-school class/classes constitute
that section of schooling which precedes the pre-
primary class. The committee would adhere to this
nomenclature and the rationale is that the one year of
schooling before primary education in Class I does
become pre-primary and will be part of a regular
school. What precedes pre-primary class will not be
part of a school and hence it will be treated as pre-
school. Though pre-primary would be part of a regular
school, it would still be in an informal setting,
WP(C)No. 7802 of 2011 Page 13 of 71
differentiated from the classroom organization that
begins at Class-I.
4.10 There cannot be any prescription of a standard
nomenclature for pre-school classes because such
facilities would, to a large extent, derive their names
from the system they follow such as Montessori,
Kindergarten etc and also from their purpose and
function, such as crèche, nursery and day care centre.
etc. What is important is that pre-primary education as
described above will be called only by the name, ‗Pre-
primary class.' The recommendations of the
committee, accordingly, would specify whether they
are applicable to pre-primary class or pre-school
classes, though most of them would be dealing with
the former with some guidelines for the latter.
xxx xxx xxx xxx
Recommendations
... Keeping the suggestions of all the stakeholders and the
directive of the Hon'ble High Court of Delhi in view, the
Committee makes the following recommendations:
5.01 Duration of Pre-primary Education
Pre-primary Education shall uniformly be of one year
duration in all the schools of Delhi and it shall be the class
immediately prior to Class I. The Committee recommends
that this class be uniformly known as Pre-primary
Education.
5.02 Minimum Age and Cut-off date for Admission
A child should have attained four years on or before 31st
March of the year of admission to be considered eligible for
gaining admission to pre-primary class. Consequently
children completing five years on or before 31st March of
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the year of admission would progress to Class I. Thus the
cut-off date for determining the age of children for the
purpose of admission shall be 31st March of the year of
admission for the academic session starting from 1st April.
5.03 Time and Space for Pre-primary Class
One year of Pre-primary education shall become part of all
recognized, full-fledged schools, whether upto primary,
middle, secondary or senior secondary level. However the
section/sections of pre-primary class shall have separate
designated space and ambience even though they may be
located in the same campus. Such a provision would ensure
that small children feel secure and have their own identity
and play space and are not overawed by older children. The
school hours will also be different and the Committee feels
that three to four hours of duration daily for five days a
week would be adequate. The Committee also recommends
that the pre-primary class may start at a later time according
to the convenience of the schools, parents and children.
xxx xxx xxx xxx
5.05 Facilities for Children below Four ( Pre-school
Class/Classes)
As mentioned earlier, the one year class of early childhood
education that is offered by all recognized schools
immediately prior to Class I shall be known as Pre-primary
class. Facilities such as Child Day Care Centre, Nursery,
Kindergarten, Crèche etc that parents avail of, depending on
their needs, shall come under the term: ‗Pre-school
Class/Classes'. The Committee recognizes the need for such
facilities for the children who are below the age of four.
However, such Pre-school classes shall not be part of main
schools. Such facilities should be provided by the residents
of the community as neighbourhood play-schools/day care
centres so that children below the age of 4 are not forced to
commute long distances. Presently exclusive play-schools,
WP(C)No. 7802 of 2011 Page 15 of 71
nurseries, day care centres and crèches are functioning
without any regulation and supervision by the government.
It has also been observed that the infrastructural facilities
offered by these establishments vary depending on the fee
structure, the management, the locality and other factors.
Besides the appropriateness and adequacy of physical
facilities, what is transacted in terms of activities for the
children is also a matter of grave concern. Many of these
nursery schools are teaching the curriculum of Class I and
even Class II in an effort to get a head start leading to a
flourishing ‗Alphabet industry'. This is a very unhealthy
trend. Hence, efforts should be made to correct it. The
Committee recommends that there shall be no school bag for
carrying any prescribed books in all such pre-school
class(es). The children will carry only tiffin box and play
materials etc. from home to school and back home.
To effectively implement this, the Committee recommends
the setting up of a monitoring mechanism that may be
evolved by the Government of Delhi to regulate the
establishment and supervision of such play-schools for
children below the age of four.
xxx xxx xxx xxx
5.10 The Road Ahead
The unprecedented expansion of Early Childhood
Education facilities in the country in general and urban
areas like Delhi in particular has neither been uniform
nor quality-driven. Care and education of young
children at this critical stage can not be merely custodial
but must be developmental in nature. In order to
streamline this critical stage in a child's education,
reliable information and data about the pre school
facilities available in Delhi have to be collected. The
Directorate of Education, Delhi may take the initiative
and conduct a survey of schools of Delhi to ascertain the
position with reference to both pre-primary and pre
school facilities available to the children of Delhi. After
WP(C)No. 7802 of 2011 Page 16 of 71
collecting the data, the unserved habitations can be
identified and appropriate measures can be taken to
provide the requisite facilities.
Experts in ECCE could be involved in developing the
necessary guidelines with regard to the infrastructure,
trained teachers and supporting staff, content and
methodology within a fixed time frame. Apex national
organizations like National Council for Educational
Research and Training (NCERT) may be involved who
may develop the appropriate content for pre-primary as
well as pre school class.
Availability of trained teachers for pre school and pre-
primary education should receive the attention it
deserves. So training of teachers, both pre service and
in-service, must receive greater focus. Apex national
institutions like National Council for Teacher Education
(NCTE) and other organizations providing quality
Kindergarten and Montessori education, may be
requested to evolve a module of teacher training
specially meant for this stage of education for children.
It may be necessary to even revise the existing
curriculum of pre service teacher training courses in
different institutions.
Maintaining a good adult-child ratio at this stage is very
important. So while changing over to one year of pre-
primary education in future, redeployment of teachers
should be made in such a manner that a good adult-child
ratio is maintained.
While expanding the facility of pre-primary education to
all the government and government aided schools,
attention should be paid to quality parameters. The pre-
primary education offered in the government schools
should be of comparable quality so that the children
coming from the sections of society that these schools
are serving get a solid foundation for all round
development.
WP(C)No. 7802 of 2011 Page 17 of 71
Drawing up norms and standards for pre-primary and pre
school education, evolving a responsive and responsible
monitoring mechanism and providing appropriate curricular
inputs with teacher training facilities are the main areas that
deserve immediate attention. A good beginning can be
made in Delhi if all the educational institutions including
schools come together and make a concerted effort to raise
the standards of Early Childhood Care and Education. Our
young children deserve the best and Delhi has the potential
to deliver. If this vision could be realized in a fixed time
frame, it will set in motion a change process in other parts of
the country that will lead to a total transformation of Early
Childhood Care and Education for the children of our
nation.‖
4. After the aforesaid Report was submitted, this Court passed
orders dated 4th April, 2007 directing the Respondent No.1 to
consider the Report and take its conscious decision thereupon. The
Respondent No.1 considered the material and filed affidavit dated 5 th
September, 2007 in the writ petition, inter alia, stating that it had
accepted the entire recommendations of the Ashok Ganguly
Committee and undertook to implement the same from the academic
year 2008-09. On the basis of this stance which was taken by the
Respondent No.1 in its affidavit, writ petition was disposed of on
26th September, 2007 in terms of the affidavit of the Government.
5. Thereafter, in order to implement recommendations of the
said Committee report, Respondent No.1 issued Recognized Schools
(Admission Procedure for Pre Primary School) Order, 2007. This
Order has been issued in exercise of powers under Section 3(1) of
the Delhi School Education Act, 1973 read with Rule 43 of the
WP(C)No. 7802 of 2011 Page 18 of 71
Delhi School Education Rules, 1973. It, thus, has statutory flavour.
Some of the clauses of this Order, 2007 which are material for us,
are reproduced below:
―3. Within a period of three years from the date of
coming into force of this Order, every school shall
introduce a pre-primary class for the admission of
children, who have completed the age of minimum four
years as on the 31st March of the year in which admission
is being sought:
Provided that no admission shall be made in standard one
unless the child has completed the age of minimum five
years as on the 31st March of the year in which
admission is being sought.
4. With effect from the date of coming into force of
this Order, all admissions, in the pre-primary class shall
be made in the manner provided in this Order.
xxx xxx xxx xxx
20. Special Provision for the session commencing
April 2008:-
(i) In case the Management of any school finds that
the school does not have any vacancy for pre-
primary class for academic session starting from
April, 2008, then, it shall notify the same on its
website, prospectus and notice board, respectively
and shall also inform the Deputy Director of the
District concerned, in writing, by 15th December,
2007.
(ii) All children who have been given admission for
academic year 2007-08 in a class lower to pre-
primary class shall move to the pre-primary class
for the academic session starting from April 2008.
WP(C)No. 7802 of 2011 Page 19 of 71
21. There shall be one year of pre-primary class in
every school. A class of one year duration proceeding
this called pre-school may be set-up as a neighbouring
pre-school and the Education Department shall frame the
guidelines in this regard, in consultation with experts.
The schools which are already running pre-school class
may continue to do so subject to the following
conditions:-
(a) Every child admitted to pre-school shall be of
minimum three years by 31st March of the year in
which admission is being sought.
(b) The schools shall frame their own guidelines for
admission to pre-school class and the same criteria
as for admission to the pre-primary level may be
adopted, until such time as the guidelines for pre-
schools are framed.
(c) Any such school which has a pre-school class from
the session commencing in April 2008, shall move
those students to the pre-primary class for the
session commencing in April 2009. After that, the
final norms to be notified for the pre-school class
shall be followed.
Explanation. - For the purpose of this clause, the ages
stipulated for entry into standard one, pre-primary class
and pre-school class are the minimum ages and there is
no bar to children older than the ages specified in this
clause being given admission to these classes.‖
6. Though not stated in the present writ petition, we may
mention that schools have filed Special Leave Petition(s)
challenging the aforesaid orders of this Court in the Supreme Court.
The schools have also challenged validity of the aforesaid Order,
2007. These matters are still pending in the Supreme Court.
WP(C)No. 7802 of 2011 Page 20 of 71
7. It is the case of the petitioner that all the unaided recognized
private schools are going ahead with the admission of 3+ year
children in nursery class, i.e. children below 4 years of age, and the
same is wrongly treated as part and parcel of the formal school.
This has given cause to the petitioner to present the instant petition
alleging inactions/failures on the part of the Government which have
been mentioned in the beginning of this judgment. We may
summarize the position by stating that in the earlier proceedings,
two aspects were dealt with on the basis of which, Order, 2007 was
also passed. These are (i) age criteria for admission to class 1, Pre
Primary Class and Pre School; and (ii) admission criteria. Clause 3
of Order, 2007 deals with admission criteria in respect of Pre
Primary Class. In so far as age consideration is concerned, this
Court had mentioned that a child seeking admission to class 1 must
have attained the age of five years on the 30th September of
academic session in which admission is sought. This is also the
mandate of Section 16 of the Delhi School Education Act, 1973. As
per the Ganguly Committee Report, which was accepted by Delhi
Government and was made the basis of the orders of this Court, a
child can be admitted to Pre Primary Class (Primary Class starts
from Class 1) at the age of 4+. Prior to Pre Primary Class is Pre
School and for admission to Pre School, minimum age should be 3
years by 31st March of the year in which admission is being sought.
8. What follows from the above is that concept of Pre School has
been recognized and accepted judicially as well as legislatively. The
controversy, however, is as to whether Pre School is to be treated as
part of formal education or it would be only an informal education.
WP(C)No. 7802 of 2011 Page 21 of 71
Mr. Ashok Agarwal, learned counsel appearing for the petitioner
took pains to refer to various legal provisions from certain
enactments as well as Ganguly Committee Report and Order, 2007
to buttress his submission that Pre School is only ‗Play way' and is
not to be treated as part of formal schooling which according to him
starts only from Pre Primary Class. He, thus, argued that when the
minimum age for admission to Pre Primary Class is at the age of 4+
and the admission criteria which is to be followed as per Order,
2007 applies to Pre Primary Class, for the purpose of formal
education, the schools should admit the children of the age 4+ years
and not below that age. His submission was that while there could
not be any objection for those schools to give admission to children
in Pre Schools as well, if they have such facilities, such admission
should be standalone; not part of formal admission process and has
to be segregated from the admission to Pre Primary Class. In other
words, submission was that there should not be any admission
criteria for Pre School which admission could be given to whosoever
approaches and as a necessary corollary, there cannot be any
promotion from Pre School to Pre Primary. According to
Mr.Agarwal, since Pre School is not compulsory and part of formal
education, it should be left to the choice and discretion of parents to
send their children at Pre School level or not. Those parents who do
not want their children to get admission at Pre School level and find
their home environment better for the purpose of ‗care' of the
children of that age, should not be prejudiced when they want to
admit their children in Pre Primary at the age of 4+. If promotion is
WP(C)No. 7802 of 2011 Page 22 of 71
made from Pre School to Pre Nursery, then such parents would
suffer great prejudice.
9. To bolster his submission that Pre School is not a part of
formal education, Mr.Agarwal articulated his thoughts as under:
(i) If Pre School is made as part of formal education, then it
becomes necessary to admit the child at 3+ age. However,
such a compulsion cannot be thrust upon the children as that
would not only be contrary to the earlier judgment of this
Court but the Order, 2007 as well.
(ii) Definition of ‗school' in Section 2(u) of the Delhi School
Education Act does not recognize Pre School, implying
thereby that the school starts only from Pre Primary. This
definition reads as under:
"school" includes a pre-primary, primary, middle and
higher secondary school, and also includes any other
institution which imparts education or training below the
degree level, but does-not include an institution which
imparts technical education.‖
Likewise, Rule 4 of Delhi School Education Rules is to the
same effect which would be clear from a reading of this Rule.
It reads:
―4. Classification of Schools
The schools in Delhi shall be classified by the Director
into any of the following categories, namely :--
(a) (i) pre-primary schools, that is to say, schools
imparting education below the primary stage,
WP(C)No. 7802 of 2011 Page 23 of 71
(ii) primary schools, that is to say, schools imparting
primary stage of education, whether or not in
addition to any education below the primary stage,
(iii) middle schools, that is to say, schools
imparting middle stage of education, whether or not
in addition to any education below the middle stage,
(iv) secondary schools, that is to say, schools
imparting secondary stage of education, whether or
not in addition to any education below the secondary
stage.
(v) senior secondary schools, that is to say,
schools imparting senior secondary stage of
education, whether or not in addition to education
below the senior secondary stage.] whether any
such school is run by:
(A) any individual, group of individuals, trust or
society either with aid, or without aid, from the
Administration or any local authority, or
(B) any local authority or the Director;
(b) Government Teachers Training Institute;
(c) Government Industrial Schools;
(d) Government Social Education and Community
Centre in rural areas;
(e) institutions which prepare candidates for such
examinations in Arabic, Persian or Sanskrit as are
recognised by the Central Government or which
prepare candidates for examinations in such other
languages as may be recognised by the Central
Government;
(f) Government schools or aided private schools for
fine arts, music, crafts or physical culture.
WP(C)No. 7802 of 2011 Page 24 of 71
(2) where the Director is of opinion that as a result of:--
(a) the change in the policy of Government with regard
to school education, or
(b) a school, falling in one category, ceasing to fall in
that category or the acquisition by a school of a
status justifying its re-classification to a higher or
lower category, it is necessary so to do, he may
reclassify such school into such category as he may
think fit.‖
It is for this purpose, even para 2.17 of the Ganguly
Committee Report read with para 4.15 thereof talks of only
admission to Pre Primary Class.
(iii) In the same vein is Clause 3 of Order, 2007 which deals with
admission to Pre Primary Class and reads as under:
3. Within a period of three years from the date of coming
into force of this Order, every school shall introduce a
pre-primary class for the admission of children, who have
completed the age of minimum four years as on the 31st
March of the year in which admission is being sought.
Provided that no admission shall be made in standard one
unless the child has completed the age of minimum five
years as on the 31st March of the year in which
admission is being sought.‖
He also referred to Section 2(c), Section 2(e), Section 2(i),
Sections 8, 9, 16, 18 and 20 of Delhi School Education Act,
1973 in support of his above plea.
WP(C)No. 7802 of 2011 Page 25 of 71
(iv) According to Mr. Agarwal, the child is not mature enough to
be a part of formal schooling at the age of 3+ and, therefore,
Pre School cannot be treated as part of formal education.
10. We may mention here that in the separate counter affidavits
filed by respondents No.1 and 2, they have taken the position that
The Right of Children to Free and Compulsory Education Act, 2009,
which is a Central Legislation and enacted after the judgment of this
Court in earlier case, recommendation of the Ganguly Committee
Report and Order, 2007, had materially altered the position.
According to these respondents, the case was to be examined in the
light of the provisions contained in the statute which has given
statutory recognition to Pre School making it a part of formal
schooling. Though their detailed contentions would be noted
afterwards at the appropriate stage, we should point out that
Mr.Agarwal had argued that the RTE Act had not made any
difference. His alternate submission is that the provisions of
Constitution, particularly Articles 21A, 45 and 51A(k) should be
allowed to prevail.
11. Ms. Ruchi Sindhwani, learned counsel appearing for
Government of NCT of Delhi countered the aforesaid submissions.
She argued that even the Ganguly Committee recognized that Early
Childhood Care and Education (ECCE) had been globally
recognized as critical for human resource development and first
eight years of child in life are the most crucial. Early childhood
development includes two main aspects, i.e., care and education.
Therefore the pace of development at the early childhood was of
WP(C)No. 7802 of 2011 Page 26 of 71
paramount importance. Her submission was that due care needs to
be given to the children at this age and that is a component of
‗education'. It includes Pre School education programmes aimed at
3-6 year olds. Thus, the Pre School education can start from the age
of 3 years, was her submission. Her argument was that Delhi School
Education Act does not prescribe any minimum age for pre
schooling. On the other hand, RTE Act had changed the entire
complexion as it was the duty of the Government now to take care
of children of this age as well. She further submitted that at Pre
School level, children get accustomed to that particular school and
therefore it was in the interest of the children themselves that they
are treated as part of the same school where they are admitted at Pre
School as changing their environment within one year and putting
them in different schools would be counter-productive. She also
argued that the spirit behind the provisions of Section 12 of the RTE
Act was also that Pre School is to be treated as part of the main
school. Therefore, those parents who do not want to send their
children at the age of 3+ and want their admission only when their
children are 4+ years of age, they can get their children admitted in
those schools who take admission at 4+ level at their own risk but
the children who go to Pre School at the 3+ should not be allowed to
suffer. Explaining the Government's stand on Ganguly Commission
in the earlier round of litigation, she argued that such a position was
taken at the time when RTE Act had not come into place and since
statutory provisions are available now, it is the duty of the
Government to follow the same. She further submitted that even
Order, 2007 recognizes need for Pre-school. She further justified
WP(C)No. 7802 of 2011 Page 27 of 71
not taking action on Clause 25 by setting the norms as the said
Order, 2007 was challenged and matter was pending in the Supreme
Court and in the meantime, RTE Act had appeared on the statute
book. She further submitted that the Government had issued
Notification dated 7.6.2011 on the basis of RTE Act which still
holds the field as validity thereof has not been questioned by the
petitioner. She also referred extensively to the other material to
support her submission that there was no distinction between Pre
School and Pre Primary and Pre School also should be treated as
entry level.
12. Ms. Shobha Gupta, learned counsel appeared on behalf of
respondent No.2. She pointed out that there are 1000 recognized
schools with Pre School system. Referring to certain material
placed on record, she argued that this early childhood care and
education which is commonly known as Montessori level recognizes
child needs and care at the age of 3+. She referred to the Education
Policy of 1968 as well as 1986 in this behalf. Her emphasis was that
there were sufficient factors in favour of making age 3+ as part of
the schooling system. Not only it ensures continuous process
(which was emphasized by Ms. Sindhwani as well), it gives chance
for preparedness for Pre Primary in same environment and familiar
atmosphere. There was a need for trained teachers even at that level
to give the kind of education which the child requires at this age and
also to take care of the early childhood care and education.
13. She further argued that in Miss Mohini Jain v. State of
Karnataka & Ors., (1992) 3 SCC 666 and Unni Krishnan, J.P. and
WP(C)No. 7802 of 2011 Page 28 of 71
Ors. v. The State of Andhra Pradesh and Ors., (1993) 1 SCC 645,
mandate was given not only to the Government but even to private
schools for providing education at primary level, i.e. up to the age of
14 years. She traced out the historical facts leading to compulsory
education in India and also referred to Law Commission Report in
this behalf. She made a passionate plea that even Pre School where
the child is admitted at the age of 3+ is to be treated as part of
Primary School education system as it ensures continuous process
and preparedness for Pre Primary in same environment with familiar
atmosphere.
14. She also argued that when the petitioner concedes that Pre
School system can be adopted by the normal schools without
segregation and it can even be in the same premises, there was no
rationale in admitting the students at the age of 3+ in Pre School and
thereafter forcing such children to undergo the admission process
afresh at Pre Primary level in the next year at the age of 4+. Her
argument was that for integration of the child, two things which
were emphasized in all the studies were (i) retention of children with
emphasis on brining Pre School in Pre Primary and linkage between
Pre School and Pre Primary to make the bonding more effective; and
(ii) to check drop outs.
15. Her further submission was that even the Statement of Objects
and Reasons of the RTE Act highlights this. She also submitted that
when proviso to Section12(c) of the RTE Act provides for continuity
of persons belonging to economically weaker section (EWS) to the
extent of 25% and, therefore, such students were entitled to be
WP(C)No. 7802 of 2011 Page 29 of 71
promoted to Pre Primary from Pre School, there was no reason to
deny this treatment to remaining 75% students. Much material was
referred to in support of the aforesaid submissions including
provisions of the Delhi School Education Act, 1973, RTE Act as
well as the Order, 2007 and Notification dated 7 th January, 2011
which would be referred to at the appropriate stage.
16. We have given our due consideration to the submissions of
learned counsel for the parties as noted above. Before we embark
on the journey of analyzing the arguments with our observations, we
would like to study the constitutional as well as statutory provisions
that are required to be kept in mind.
CONSTITUTIONAL PROVISIONS
21A. Right to Education - The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by
law, determine.
xxx xxx xxx
38. State to secure a social order for the promotion of
welfare of the people. - [(1)] The State shall strive to
promote the welfare of the people by securing and
protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the
institutions of the national life.
[(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.]
WP(C)No. 7802 of 2011 Page 30 of 71
39. Certain principles of policy to be followed by the
State. -
(a) to (e) xxx xxx xxx
(f) that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment.
xxx xxx xxx
41. Right to work, to education and to public
assistance in certain cases. - The State shall, within the
limits of its economic capacity and development, make
effective provision for securing the right to work, to
education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
xxx xxx xxx
45. Provision for early childhood care and
education to children below the age of six years.- The
State shall endeavour to provide early childhood care and
education for all children until they complete the age of
six years.
xxx xxx xxx
47. Duty of the State to raise the level of nutrition
and the standard of living and to improve public
health. - The State shall regard the raising of the level of
nutrition and the standard of living of its people and the
improvement of public health as among its primary
duties and, in particular, the State shall endeavour to
bring about prohibition of the consumption except for
WP(C)No. 7802 of 2011 Page 31 of 71
medicinal purposes of intoxicating drinks and of drugs
which are injurious to health.
xxx xxx xxx
51A. Fundamental duties. -
to (j) xxx xxx xxx
(k) who is a parent or guardian to provide opportunities
for education to his child or, as the case may be, ward
between the age of six and fourteen years.
STATUTORY PROVISIONS
Delhi School Education Act, 1973
2. Definitions. - In this Act, unless the context otherwise
requires, -
(a) to (t) xxx xxx xxx
(u) "school" includes a pre-primary, primary, middle and
higher secondary school, and also includes any other
institution which imparts education or training below the
degree level, but does-not include an institution which
imparts technical education.‖
xxx xxx xxx
16. Admission to recognised schools. - (1) A child
who has not attained the age of five years, shall not be
admitted to class I, or an equivalent class or any class
higher than class I, in a recognised school.
(2) A student seeking admission for the first time in a
recognised school in a class higher than class I, shall not
be admitted to that class if his age reduced by the number
of years of normal school study between that class and
class I or an equivalent class, falls short of five years.
WP(C)No. 7802 of 2011 Page 32 of 71
(3) Admission to a recognised school or to any class
thereof shall be regulated by rules made in this behalf.
Delhi School Education Rules, 1973
2. Definitions. - In these rules, unless the context
otherwise requires, -
(a) to (g) xxx xxx xxx
(h) ―Pre-primary stage‖ means a stage of school
education previous to the primary stage;
(i) ―Primary stage‖ means a stage of education from
classes I to V (both inclusive);
xxx xxx xxx
4. Classification of schools. - The schools in Delhi shall
be classified by the Director into any of the following
categories, namely:-
(i) pre-primary schools, that is to say, schools
imparting primary stage.
xxx xxx xxx
5. Free Education. - (1) The Administrator shall make
suitable arrangements for imparting free education for all
children until they complete the VIIIth class or until they
attain the age of fourteen years, whichever is earlier.
(2) Save as otherwise provided in rule 149, no school
maintained or aided by Government or any local
authority shall levy any fee or other charge in relation to
the education of the children studying up to the VIIIth
class or until they attain the age of fourteen years,
whichever is earlier.
xxx xxx xxx
WP(C)No. 7802 of 2011 Page 33 of 71
13. Provisions of other facilities. - The Administrator
shall also provide for the following facilities, namely -
(a) Adult Education Centres;
(b) Bal Kendras;
(c) Badwadies;
(d) Education of children who have discontinued studies;
(e) Literacy centres.
(emphasis supplied)
The Right of Children to Free and Compulsory
Education Act, 2009
INTRODUCTION
For strengthening the social fabric of democracy through
provision of equal opportunities to all has been accepted
since inception of our Republic. The Directive Principles
of the State Policy enumerated in our Constitution lays
down that the State shall provide free and compulsory
education to all children up to the age of fourteen years.
With the insertion of article 21A in the Constitution by
the Constitution (Eighty-sixth Amendment) Act, 2002
wherein it is provided that the State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State, by law,
provides, it became imperative to enact a law to
implement the provision of article 21A of the
Constitution. Accordingly the Right of Children to Free
and Compulsory Education Bill was introduced in the
Parliament.
STATEMENT OF OBJECTS AND REASONS
The crucial role of universal elementary education for
strengthening the social fabric of democracy through
provision of equal opportunities to all has been accepted
since inception of our Republic. The Directive Principles
of State Policy enumerated in our Constitution lays down
that the State shall provide free and compulsory
education to all children up to the age of fourteen years.
Over the years there has been significant spatial and
WP(C)No. 7802 of 2011 Page 34 of 71
numerical expansion of elementary schools in the
country, yet the goal of university elementary education
continues to elude us. The number of children,
particularly children from disadvantaged groups and
weaker sections, who drop out of school before
completing elementary education, remains very large.
Moreover, the quality of learning achievement is not
always entirely satisfactory even in the case of children
who complete elementary education.
2. Article 21A, as inserted by the Constitution (Eighty-
sixth Amendment) Act, 2002, provides for free and
compulsory education of all children in the age group of
six to fourteen years as a Fundamental Right in such
manner as the State may, by law, determine.
3. Consequently, the Right of Children to Free and
Compulsory Education Bill, 2008, is proposed to be
enacted which seeks to provide, -
(a) that every child has a right to be provided full time
elementary education of satisfactory and equitable
quality in a formal school which satisfies certain essential
norms and standards;
(b) ‗compulsory education' casts an obligation on the
appropriate Government to provide and ensure
admission, attendance and completion of elementary
education;
(c) ‗free education' means that no child, other than a child
who has been admitted by his or her parents to a school
which is not supported by the appropriate Government,
shall be liable to pay any kind of fee or charges or
expenses which may prevent him or her from pursuing
and completing elementary education;
(d) the duties and responsibilities of the appropriate
Government, local authorities, parents, schools and
teachers in providing free and compulsory education; and
(e) a system for protection of the right of children and a
decentralized grievance Redressal mechanism.
WP(C)No. 7802 of 2011 Page 35 of 71
4. The proposed legislation is anchored in the belief that
the values of equality, social justice and democracy and
the creation of a just and humane society can be achieved
only through provision of inclusive elementary education
to all. Provision of free and compulsory education of
satisfactory quality to children from disadvantaged and
weaker sections is, therefore, not merely the
responsibility of schools run or supported by the
appropriate Governments, but also of schools which are
not dependent on Government funds.
5. It is, therefore, expedient and necessary to enact a
suitable legislation as envisaged in Article 21A of the
Constitution.
6. The Bill seeks to achieve this objective.
2. Definitions. - In this Act, unless the context otherwise
requires, -
(a) & (b) xxx xxx xxx
(c) "child" means a male or female child of the age of six
to fourteen years;
xxx xxx xxx
(f) "elementary education" means the education from first
class to eighth class;
xxx xxx xxx
(n) "school" means any recognised school imparting
elementary education and includes--
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
WP(C)No. 7802 of 2011 Page 36 of 71
(ii) an aided school receiving aid or grants to meet whole
or part of its expenses from the appropriate Government
or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or
grants to meet its expenses from the appropriate
Government or the local authority;
3. Right of child to free and compulsory education. -
(1) Every child of the age of six to fourteen years shall
have a right to free and compulsory education in a
neighbourhood school till completion of elementary
education.
(2) For the purpose of sub-section (1), no child shall be
liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing and
completing the elementary education:
Provided that a child suffering from disability, as defined
in clause (i) of section 2 of the Persons with Disabilities
(Equal Opportunities, Protection and Full Participation)
Act, 1996 (1 of 1996), shall have the right to pursue free
and compulsory elementary education in accordance with
the provisions of Chapter V of the said Act.
xxx xxx xxx
6. Duty of appropriate Government and local
authority to establish school. - For carrying out the
provisions of this Act, the appropriate Government and
the local authority shall establish, within such area or
limits of neighbourhood, as may be prescribed, a school,
where it is not so established, within a period of three
years from the commencement of this Act.
xxx xxx xxx
WP(C)No. 7802 of 2011 Page 37 of 71
11. Appropriate Government to provide for pre-
school education. - With a view to prepare children
above the age of three years for elementary education and
to provide early childhood care and education for all
children until they complete the age of six years, the
appropriate Government may make necessary
arrangement for providing free pre-school education for
such children.
12. Extent of school's responsibility for free and
compulsory education. - (1) For the purposes of this
Act, a school,--
(a) specified in sub-clause (i) of clause (n) of section 2
shall provide free and compulsory elementary education
to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2
shall provide free and compulsory elementary education
to such proportion of children admitted therein as its
annual recurring aid or grants so received bears to its
annual recurring expenses, subject to a minimum of
twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of
section 2 shall admit in class I, to the extent of at least
twenty-five per cent. of the strength of that class, children
belonging to weaker section and disadvantaged group in
the neighbourhood and provide free and compulsory
elementary education till its completion:
Provided further that where a school specified in clause
(n) of section 2 imparts pre-school education, the
provisions of clauses (a) to (c) shall apply for admission
to such pre-school education.
(2) The school specified in sub-clause (iv) of clause (n)
of section 2 providing free and compulsory elementary
education as specified in clause (c) of sub-section (1)
shall be reimbursed expenditure so incurred by it to the
WP(C)No. 7802 of 2011 Page 38 of 71
extent of per-child-expenditure incurred by the State, or
the actual amount charged from the child, whichever is
less, in such manner as may be prescribed:
Provided that such reimbursement shall not exceed per-
child-expenditure incurred by a school specified in sub-
clause (i) of clause (n) of section 2:
Provided further that where such school is already under
obligation to provide free education to a specified
number of children on account of it having received any
land, building, equipment or other facilities, either free of
cost or at a concessional rate, such school shall not be
entitled for reimbursement to the extent of such
obligation.
(3) Every school shall provide such information as may
be required by the appropriate Government or the local
authority, as the case may be.
xxx xxx xxx
14. Proof of age for admission. - (1) For the purposes of
admission to elementary education, the age of a child
shall be determined on the basis of the birth certificate
issued in accordance with the provisions of the Births,
Deaths and Marriages Registration Act, 1886 (6 of 1886)
or on the basis of such other document, as may be
prescribed.
(2) No child shall be denied admission in a school for
lack of age proof.
The Right of Children to Free and Compulsory
Education Rules, 2009
2. Definitions. - In these Rules, unless the context
otherwise requires, -
(a) xxx xxx xxx
WP(C)No. 7802 of 2011 Page 39 of 71
(b) "anganwadi" means an Anganwadi Centre established
under the Integrated Child Development Service Scheme
of the Ministry of Women and Child Development of the
Government of India
xxx xxx xxx
5. Special Training. - (1) The School Management
Committee of a school owned and managed by the
appropriate Government or local authority shall identify
children requiring special training and organise such
training in the following manner, namely:-
(a) the special training shall be based on specially
designed, age appropriate learning material, approved by
the academic authority specified in sub-section (1) of
section 29;
(b) the said training shall be provided in classes held
on the premises of the school, or in classes organised in
safe residential facilities;
(c) the said training shall be provided by teachers
working in the school, or by teachers specially appointed
for the purpose;
(d) the duration of the said training shall be for a
minimum period of three months which may be
extended, based on periodical assessment of learning
progress, for a maximum period not exceeding two years.
(2) The child shall, upon induction into the age
appropriate class, after special training, continue to
receive special attention by the teacher to enable him to
successfully integrate with the rest of the class,
academically and emotionally.
xxx xxx xxx
WP(C)No. 7802 of 2011 Page 40 of 71
10. Maintenance of records of children by the local
authority. - (1) The local authority shall maintain a
record of all children in its jurisdiction, through a
household survey, from their birth till they attain the age
of 14 years.
xxx xxx xxx
11. Admission of children belonging to weaker section
and disadvantaged group. - (1) The school referred to
in clauses (iii) and (iv) of clause (n) of section2 shall
ensure that children admitted in accordance with clause
(c) of sub-section (1) of section 12 shall not be
segregated from the other children in the classrooms nor
shall their classes be held at places and timings different
from the classes held for the other children.
Notification No.(172)/DE/Act/2010 Dated 7th January,
2011
No.15 (172)/DE/Act/2010____: In exercise of the
powers conferred by sub-section (1) of section 3 of the
Delhi School Education Act, 1973 (18 of 1973) read
with rule 43 of the Delhi School Education Rules, 1973
and under the provisions of the Right of Children to
Free and Compulsory Education Act, 2009 and in
supersession of Order No.F/DE/15/ACT/2006/424 dated
25.1.2007 or any other order issued in this regard, except
as respects things done or omitted to be done before such
suppression, the Lt. Governor of the National Capital
Territory of Delhi, hereby makes the following order,
namely:-
1. Short Title and Commencement - (1) This Order may
be called the Delhi School Education (Free seats for
students belonging to Economically Weaker Sections
and Disadvantage Group) Order, 2011.
(2) This order shall come into force with immediate
effect.
WP(C)No. 7802 of 2011 Page 41 of 71
2. Definitions - In this order, unless the context otherwise
requires:-
(a) ―Act‖ means the Delhi School Education Act, 1973 (18
of 1973)
(b) ―Class‖ includes the entry level class such as pre-school
or first class as the case may be.
xxx xxx xxx
(g) ―school‖ means a school as defined under section
2(n)(iii) and (iv) of RTE Act-2009.
3. Free seats for students belonging to weaker section
and disadvantaged group:
(a) All schools shall admit children in class one to the extent
of at least twenty-five per cent of the strength of that
class, children belonging to weaker sections and
disadvantaged groups in neighbourhood and provide free
and compulsory elementary education till its completion:
Provided that where such school imparts pre-school
education, the provisions shall apply for admission to
such pre-school education.
(b) No separate or exclusive class or shift shall be arranged
for imparting education to the students admitted against
free seats mentioned in sub-paragraph (a)
(c) No tuition fee or any other charges or fee or fund shall be
charged from the student admitted against the free seat.
4. Manner of admission against free seats - (a) The
school shall display the total number of seats, the free
seats available at entry level, the date of submission of
applications for admissions against free seats in entry
level, the date(s) of display of list of eligible candidates
for draw, date(s) of draw, date(s) of display of list of
successful candidates, date(s) of display of waiting list,
WP(C)No. 7802 of 2011 Page 42 of 71
date(s) of deposition of fees, last date of admission as per
prescribed proforma (Annexure-I enclosed) on the notice
board in the school and shall also notify the same to be
concerned Dy. Director of Education by the 10th January
2011 and thereafter by 31st December of the year
proceeding the academic year for which such admissions
are being made.
(b) Total number of seats at the entry level i.e. nursery or
Ist Class as the case may be shall not be less than the
total number of seats in any other class of the school.‖
The Issue
17. As pointed out above, the petitioner does not question either
the system or rationale of Pre-Schooling and also that a children can
be admitted to Pre-School at the age of 3+. The exclusive focus of
the petitioner is that Pre-School, as the name suggests, is a step
before the formal schooling and at this stage, it should exclusively
be a play school and be not part of the main school which should
start from Pre Primary at the age of 4+. As a fortiorari, learned
counsel for the petitioner has argued that in so far as school starting
from Pre Primary is concerned, admission to the school system
should be at the age of 4+ and Pre-School children should not be
part of the main system and at Pre-School level, there is no need to
undergo the admission process. It is this issue which needs to be
addressed by us.
Our Analysis
18. Though necessity of having a Pre-School is not questioned by
the petitioner, in order to have a proper insight into the issue and
WP(C)No. 7802 of 2011 Page 43 of 71
take an overall view keeping in mind all its parameters, it still
becomes necessary to understand the conceptualization of Pre-
School as well as its necessity and importance. That is the first step
to be taken and thereafter we need to examine the issue in the
context of legal provisions to arrive at the our conclusion. We
accordingly propose to proceed step by step in the manner suggested
above.
A. Pre-School, its necessity and importance:
19. Since the Ganguly Committee Report has remained pivotal
throughout the hearing and the petitioner has placed strong reliance
upon the said Report on the basis of which earlier writ petition filed
by the petitioner was decided, we may first peep into this report to
find out what Ganguly Committee had to say on Pre-Schooling.
Relevant portions of this Report have already been extracted by us.
We may first remind ourselves that it was a report on ‗Pre Primary
and Pre-School Education in Delhi'. In the opening remarks of this
report itself, the Committee emphasized the importance of early
education. It is emphasized by the Committee that Early Childhood
Care and Education (ECCE) has globally been recognized as critical
for human resource development. It is also highlighted that first 8
years of a child's life are the most crucial years because during this
period of early childhood, the pace of development is extremely
rapid, determining the cognitive and physical growth and laying the
foundation for shaping the social and personal habits and values.
The report also mentions that the early childhood development
WP(C)No. 7802 of 2011 Page 44 of 71
includes two main aspects, i.e., care and education. It is specifically
mentioned that in so far as ‗education' component is concerned, it
includes pre-school education program which is to start at the age of
three. At this stage, when ECCE is understood as an integrated
programme, the focus is to be on developmental paradigms so that
the cognitive, affective and psychomotor issues are comprehensively
addressed in the context of education. Necessity of kindergarten and
play schools is noticed also because of the reason that transitions
from joint family to nuclear family have resulted in compulsion of
keeping children in ‗safe custody'. Though it is mentioned that Pre-
schooling can be at the age of 3+, at the same time, Ganguly
Committee has not accepted that children at this age are put into a
school system going up to class 12. This aspect would be discussed
at a later stage. What is noted at this juncture is the importance of
Pre-School and ECCE even by the Ganguly Committee. The
Ganguly Committee had also taken views of various experts which
included Dr. Veena Kalra, a psychologist, whose opinion was that
Pre-Schooling is a crucial period in child's growth when children
begin to explore the world and get to know and communicate with
others. Home environment may not provide all the opportunities for
child, particularly in respect of developing social skills and
community language. She suggested that even one year of Pre-
Schooling is not adequate and lack of adequate Pre-School facilities
was one of the main causes for early school dropout.
20. Ms. Shobha Gupta, learned counsel appearing for respondent
No.2, during her submissions, had referred to and handed over copy
of ‗National Curriculum Framework : 2005' prepared by National
WP(C)No. 7802 of 2011 Page 45 of 71
Council of Educational Research and Training. It is the product of
flurry of ideas generated through a series of intensive deliberations
by eminent scholars from different disciplines, principals, teachers
and parents, representatives of NGOs, NCERT faculty and several
other stakeholders at various levels. Contributions were also made
by the State Secretaries of Education and Directors of SCERTs as
well as inputs provided in the regional seminars organized in this
behalf, amongst others. Preamble to this document stipulates that
members of National Focus Group of ECE had unequivocally
agreed that this Group be renamed as National Focus Group on
ECCE instead of ECE. Obviously, for early childhood development,
the emphasis is not to be on Early Child Education (ECE), but care
as well as education, i.e. ECCE. Reasons given for replacing ECE
by ECCE in the Preamble of the said document read as under:
―Early childhood is the period from conception to age 8,
a period that presents a developmental continuum,
according to the theoretical framework of developmental
psychology and learning theories. The other reason for
extending the span of early childhood from 6 to 8 years is
to ensure a gradual and smooth transition from
preprimary to primary education, which is a structured
and formal learning system requiring effective interface.
The term ‗Care' has been added in recognition of the fact
that young children need care and nurturing. In addition
to their health and nutritional needs, their psychosocial
and emotional needs also have to be met adequately for
their holistic development. The term Education covers
learning, a process of acquiring knowledge, skills, habits,
attitudes, etc. It also indicates an important focus, viz., to
prepare the young child to enter the formal educational
stream/system.
WP(C)No. 7802 of 2011 Page 46 of 71
Thus, the term ECCE refers to a philosophy of providing
opportunities/experiences to young children up to 8 years
of age in order to promote their holistic development, as
well as arranging and providing services and support
systems to communities and families to meet the needs of
their young children. For the sake of convenience and
for purposes of programming and institutional location,
ECCE can be divided into three substages: birth to 2+, 3
to 5+, and 6 to 8+. Each substage can be located in a
different institutional setting.‖
In the Executive Summary, global perspective of early
childhood is given in the following manner:
―A Global Perspective on Early Childhood
The first 6 to 8 years of a child's life are globally
acknowledged to be the most critical years for lifelong
development since the pace of development in these
years is extremely rapid. Recent research in the field of
neuroscience, particularly on the brain, has provided
convincing evidence of the ‗critical periods' located
within these early years for the forming of synaptic
connections in the brain and for the full development of
the brain's potential. Research has also indicated that if
these early years are not supported by, or embedded in, a
stimulating and enriching physical and psychological
environment, the chances of the child's brain developing
to its full potential are considerably, and often
irreversibly, reduced. This stage in life is also important
as a foundation for the inculcation of social values and
personal habits, which are known to last a lifetime. What
follows logically is the crucial importance of investing in
these early years to ensure an enabling environment for
every child, and thereby a sound foundation for life,
which is not only the right of every child but which will
also impact, in the long term, the quality of human
capital available to a country. Early Childhood Care and
WP(C)No. 7802 of 2011 Page 47 of 71
Education (ECCE) derives its importance from this
rationale.‖
This Executive Summary also emphasise major policy shifts
before curricular reforms are discussed. In respect of ECCE, the
policy paradigm which needs to be changed is stated as under:
―Value of ECCE: The first step is the recognition and
acceptance that ECCE is a vital developmental need of
all children, and that every child has a right to ECCE of
equitable quality. ECCE must be the first step in the
educational ladder and should be a part of Education for
All (EFA). DEE & L must take responsibility for all
programmes for children 3+, and DWCD for all
programmes for children below 3 years.‖
Curriculum framework for ECCE is mentioned as under:
―Curriculum Framework for ECCE:
The three broad objectives of ECCE are:
holistic development of the child to enable him/her to
realize his/her maximum potential;
preparation for schooling; and
providing support services for women and girls.
The curriculum is defined as age appropriate, all round,
play based, integrated, experiential, flexible and
contextual. The guiding principles of the ECCE
curriculum are:
Play as the basis of learning
Art as the basic of education
Recognition of the special features of children's
thinking.
Primacy of experience rather than expertise
Experience of familiarity and challenge in everyday
routines
WP(C)No. 7802 of 2011 Page 48 of 71
Mix of formal and informal interaction
Blend of the textual (basic literacy and numeracy) and
the cultural
Use of local materials, arts, and knowledge
Developmentally appropriate practice, flexibility, and
plurality
Health, well-being, and healthy habits.‖
The curriculum, therefore, has to be activity based, child
centered, age appropriate, aiming at all round development, adopted
to context and flexible. It is also of utmost importance that the
teachers who have to deal with these children at Pre-School level are
sufficiently motivated and appropriately trained to work with young
children through experiential ‗hands on' training, recognized with
status of teacher and rewarded with appropriate pay. In this context,
ideal teacher-child relationship is reflected as follows:
"Teacher-Child Relationship
Allow children to express their feelings.
Share their trials and triumphs.
Be responsive and reach out to children.
Ultimately, even the best curriculum can be transacted
only by a trained and sensitive teacher. To make a
success story of ECCE from 0 to 8 years, a new type of
teacher is required, one who is professionally trained and
specifically sensitised to the perspectives of child
development. The professional preparation of teachers
for this stage, hitherto unplanned and uncared for, calls
for thoughtful planning of training sequences relevant to
the developmental needs of early childhood.‖
It is necessary to undertake capacity building of trainers to
evolve a process-based methodology of teaching. It is also
WP(C)No. 7802 of 2011 Page 49 of 71
emphasized that curriculum should be such that it is able to help the
child to adjust to the routines of Primary School as well as to the
demands of more formal teaching. The report outlines the various
domains of developmental characteristics of each subgroup within
the period of ‗birth to 8 years', and the needs of the child in terms of
experiences that help the child attain the goals of development. The
age-specific curricular frameworks for each of the subgroups, 0-2+,
3-5+, and 6-8, are then spelled out in the light of the basic
principles. Inclusive education and language policy are also dealt
with. The developmental characteristics of children at different ages
are spelled out in the Report. We would like to reproduce the
portion which relates to 0 to 2+ and 3 to 5 year olds:
―Development characteristics of children at different
ages
Infants and toddlers (0 - 2+)
Infants and toddlers learn by experiencing the
environment through their senses (seeing, hearing,
tasting, smelling, and feeling), by physically moving
around, and by being in the midst of socially responsive
adults. Infants who are not mobile also absorb and
organize a great deal of information about the world
around them, and benefit from caregivers who carry them
around and show them interesting events and people.
Mobile infants and toddlers increasingly use toys
language and other learning materials in their play.
Adults play a vital socialisation role with infants and
toddlers. Warm and positive relationship with adults
help infants develop a sense of trust in the world around
them and endanger feeling of competence in them.
These interactions are critical for the development of the
child's healthy self-esteem. The trusted adult becomes
the secure base from which the mobile infant or toddler
explores the environment. Solitary play (0-2 years) in
WP(C)No. 7802 of 2011 Page 50 of 71
the norm at this age. Children enjoy playing with an
adult or older child but cannot interact much with peers.
Important skills are being acquired during these
years, including personal-care habits such as toileting,
feeding, and dressing, all of which serve as key life skills.
The most appropriate teaching technique for this age
group is to give ample opportunities to the child to use
self-initiated repetition, to practice newly acquired skills,
and to experience feeling of autonomy and success.
Infants will bat at, grasp, bang, or drop their toys.
Patience is essential as a toddler struggles to put on a
sweater. Imitation, hiding, and naming games are also
important for learning at this age. Realistic toys will
enable children to engage in increasingly complex types
of play.
Two-year-olds are learning to produce language
rapidly. They need simple books, pictures, puzzles,
music, and time and space for active play such as
jumping, running, and dancing. Toddlers are beginning
to acquire social skills, but in groups there should be
several of the same toy because egocentric toddlers are
not yet able to understand the concept of sharing.
3 to 5 year-olds
Three-year-olds love to talk and listen but they also need
activity and movements, with major emphasis on large-
muscle activity. They enjoy dramatic play, wheel toys
and climbers, puzzles and blocks, and opportunities to
talk and listen to simple stories.
Four-year-olds enjoy a greater variety of
experiences and more small-motor activities such as
using a pair of scissors, doing art work, playing with
manipulative objects like puzzles, and cooking. They are
more able to concentrate and remember as well as
recognize objects by shape, colour, or size. Four-year-
olds are developing an understanding of basic
mathematical concepts and problem-solving skills. At 3+
WP(C)No. 7802 of 2011 Page 51 of 71
children like to play with two or three others; by 4+ they
can readily participate and cooperate in activities
involving five to eight children in a group, and are also
ready to manage and handle group play independently.
Some 4-year-olds and most 5-year-olds combine
ideas into more complex relations (for example, number
concepts such as one-to-one correspondence) and have
growing memory capacity and fine motor physical skills.
Some 4-year-olds and most 5-year-olds display a
growing interest in the functional aspects of written
language, such as recognising meaningful words and
trying to write their own names. Activities designed
solely to teach the alphabet, phonics, and penmanship are
much less appropriate for this age group than providing a
print-rich environment that stimulates the development of
language and literacy skills in a meaningful context.
Most 4-and 5-year-olds can go beyond the child's
immediate experience of self, home, and family. Five-
year-olds are developing an interest in the community
and the world outside their own, and enjoy special events
and trips.‖
21. What follows from the above discussion is that not only 0 to 8
years of age is most crucial and significant part of the development,
it needs special kind of attention in so far as child care and education
is concerned. For our purposes, following salient features are to be
kept in mind:
(i) ECCE, i.e. development of a child up to the age of 8 years is
an integrated process where interface between ‗care' and
‗education' has to be recognized.
(ii) Entire period from 0 to age 8 presents a developmental
continuum which is divided into three sub-stages, namely,
WP(C)No. 7802 of 2011 Page 52 of 71
birth to 2+, 3 to 5+ and 6 to 8 +. Thus, 3 to 5+ is one stage
before child enters class 1 at the age of 6. Thus, sub-stage of
3 to 5+ includes Pre-School as well as Pre Primary.
(iii) The pedagogical process of ECCE includes a significant step,
namely, at Pre-School level, preparing the child for entry and
success in Primary school. In this process, the curriculum has
to be such that it is able to help the child to adjust to the
routines of primary schools as well as to the demands of
formal teaching.
(iv) It is to be ensured that at Pre-School level, not only proper
‗care' is given but ‗education' curriculum (which has to be
more geared towards play way system of learning
encompassing right kind of activity and movements including
dramatic play, wheel toys and climbers, puzzles and blocks
and opportunities to talk and listen to simple stories) is such
that child gets interested in education when he is to take next
step at Pre Primary and thereafter formal education from class
1.
(v) The challenge at this stage is that there are no drop outs when
formal learning starts. That is why there is need to have
trained teachers.
(vi) This also necessitates emphasis on the school environment to
which the child at Pre-School level is to be exposed to.
WP(C)No. 7802 of 2011 Page 53 of 71
Constitutional vision, Constitutional mandate and concerned
statutes
22. We have already extracted all relevant provisions of the
Constitution as well as statutes on the subject. In fact, when one
looks into the historical perspective, the undivided opinion is that
India is a wealth of traditional practices in ECCE that date back
almost 5000 years. The early pioneers of the movement were
Gijubhai Badheka, Tarabai Modalk, Maria Montessori and several
others. We also have writings of Mahatma Gandhi, Rabindra Nath
Tagore and Zakir Hussain drawing attention to this important aspect
of education on the formative years of child's life. At the time of
independence, the need for Pre-School education was primarily
fulfilled by voluntary organisations and/or private institutions.
23. The Constitution of India, through its several provisions, put
obligation even on the State for providing education to young
children. There are several provisions in the Constitution of India,
either as Fundamental Rights or as Directive Principles of State
Policy, that have been used to promote ECCE services in the
country. As a Fundamental Right, Article 15(3) of the Constitution
of India empowers the State to practice positive discrimination
favouring economically and educationally weaker groups, which
allows for special provisions for girls and children of disadvantaged
social groups, and in difficult situations not to discriminate against
any citizen. Article 15(3) asserts, ―Nothing in this article shall
prevent the State from making special provisions for women and
children‖. Specific Articles under the Directive Principles of State
Policy of the Constitution of India that provide a supportive
WP(C)No. 7802 of 2011 Page 54 of 71
framework for ECCE in the country are Article 39(f), Article 42,
Article 45 and Article 47. Keeping in view the aforesaid directives
of good governance, there have been plethora of policies on
education from time to time. First policy known as the National
Policy on Education (NPE) was declared in 1968 which was
replaced by the NPE of 1986. The aim was to bring about a full
integration of child care and pre-primary education to both feed and
strengthen primary education.
24. The Government also came out with National Policy for the
Child, 1974 which declared that ―it shall be the policy of the State to
provide adequate services to children, both before and after birth
and throughout the period of growth......‖. Then, we have National
Plan of Action (NPA), 1992. It was followed by the formulation of
the State Plan of Action for Children (SPAC) aimed at protection,
survival, development and growth of children. National Nutrition
Policy of 1993, National Population Policy of 2000, National Policy
for the Empowerment of Women, 2001 and National Health Policy,
2002 are some of the other policies which deal with child care and
education. Another significant move of the Government was to
ratify Convention on the Rights of the Child (CRC), 1992 and affirm
the country's commitment to children which resulted in formulation
of a policy framework to prepare a National Charter for Children
that ensures that no child remains illiterate, hungry or lacks medical
care.
25. A significant paradigm shift has taken place with the
Constitution (86 Amendment) Act, 2001 which has divided 0 to 14
WP(C)No. 7802 of 2011 Page 55 of 71
year old children into two clear categories to cover their interests
under separate Articles of the Constitution. Article 21A has been
introduced as a Fundamental Right after Article 21 to read: ―The
State shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may, by
law, determine." Articulating the intent to cater to the needs of 0-6
year-old children, the Constitution (Eighty-sixth Amendment) Act
has altered Article 45 (Directive Principles of State Policy) to read:
―The State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years".
It is clear from the above that while education to children of the age
of 6 to 14 years is now a fundamental right of such children, Early
Childhood Care and Education (ECCE) which is now
constitutionally recognized term, has remained in the chapter
‗Directive Principles of State Policy'. The objects and reasons
attached to the aforesaid 86th Amendment to the Constitution gives a
glimpse of the rationale for this shift in approach and making
education for the children in the age group of 6 to 14 years as
Fundamental Right. We reproduce the same to ascertain the said
rationale:
Objects and Reasons
The Constitution of India in a Directive Principle
contained in article 45, made a provision for free and
compulsory education for all children up to the age of
fourteen years within ten years of promulgation of the
Constitution. We could not achieve this goal even after
50 years of adoption of this provision. The task of
providing education to all children in this age group
gained momentum after the National Policy of Education
WP(C)No. 7802 of 2011 Page 56 of 71
(NPE) was announced in 1986. The Government of
India, in partnership with the State Governments, made
strenuous efforts to fulfil this mandate and, though
significant, improvements were seen in various
educational indicators, the ultimate goal of providing
universal and quality education still remained unfulfilled.
In order to fulfil this goal, it was felt that an explicit
provision should be made in the Part relating to
Fundamental Rights of the Constitution.
2. With a view to making right to free and
compulsory education a fundamental right, the
Constitution (Eighty-third Amendment) Bill, 1997 was
introduced in Parliament to insert a new article, namely,
article 21A conferring on all children in the age group of
6 to 14 years the right to free and compulsory education.
The said Bill was scrutinised by the Parliamentary
Standing Committee on Human Resource Development
and the subject was also dealt with in its 165 th Report by
the Law Commission of India.
3. After taking into consideration the report of the
Law Commission of India and the recommendations of
the Standing Committee of Parliament, the proposed
amendments in Part III, Part IV and Part IVA of the
Constitution were made. These are as follows:
(a) to provide for free and compulsory education to
children in the age group of 6 and 14 years and for this
purpose, a legislation would be introduced in Parliament
after the Constitution Amendment Bill was enacted;
(b) to provide in article 45 of the Constitution that the
State shall endeavour to provide early childhood care and
education to children below the age of six years and
(c) to amend article 51A of the Constitution with a
view to providing that it shall be the obligation of the
parents to provide opportunities for education to their
children between the age of 6 and 14 years.‖
WP(C)No. 7802 of 2011 Page 57 of 71
26. Still the importance of these Directive Principles cannot be
undermined particularly when we keep in mind the importance of
this phase of life in a human being, i.e. 0 - 8 years, as discussed in
detail above. Such importance has been emphasised by the Supreme
Court in various cases. Our purpose can be served by reproducing,
illuminating an erudite discussion contained in Unni Krishnan
(supra) where interplay of Fundamental Rights and Directive
Principles is revisited, after taking stock of various earlier
judgments, in the following manner:
―Interplay of Parts III and IV:
153. This Court has also been consistently adopting the
approach that the fundamental rights and directive
principles are supplementary and complementary to each
other and that the provisions in Part-Ill should be
interpreted having regard to the Preamble and the
directive principles of the State policy. The initial
hesitation to recognise the profound significance of part '
has been given up long ago. We may explain.
154. While moving for consideration the interim report
on fundamental rights, Sardar Vallabhai Patel described
both the rights mentioned in Parts III and IV as
'fundamental rights' - one justiciable and other non-
justiciable. In his supplemental report, he stated:
―There were two parts of the report; one contains
fundamental rights which were justiciable and the
other part of the report refers to fundamental rights
which were not justifiable but were directives.
155. This statement indicates the significance attached to
directive principles by the founding fathers. It is true that
in State of Madras v. Champakam Dorairajan,
fundamental rights were held permanent vis-a-vis
Directive Principles but since then there has been a
WP(C)No. 7802 of 2011 Page 58 of 71
perceptible shift in this Court's approach to the inter-play
of Fundamental Rights and Directive Principles.
156. As far back as in 1958, in the Kerala Education Bill
a Special Bench of this Court speaking through S.R. Das,
C.J., while affirming the primacy of Fundamental Rights,
qualified the same with the following observations:
―Nevertheless, in determining the scope and ambit of
the fundamental rights relied upon by or on behalf of
any person or body, the court may not entirely ignore
these directive principles of State policy laid down in
Part-IV of the Constitution but should adopt the
principle of harmonious construction and should
attempt to give effect to both as much as possible.
157. This is also the view taken in Hanif v. State of
Bihar 1959 SCR 629.
158. In Keshavananda Bharati v. State of Kerala more
than one learned Judge adverted to this aspect. In the
words of Hegde and Mukherjee, JJ.:
―The Fundamental Rights and Directive Principles constitute the conscience' of the Constitution.... To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built.... There is no anti-thesis between the Fundamental Rules and the Directive Principles.... One Supplements the other.‖
159. Shelat and Grover, JJ. in their judgment observed:
(SCC pp.427 and 459, paras 533 and 596) ―Both Parts III and IV have to be balanced and harmonized - then alone the dignity of the individual can be achieved.... They (Fundamental Rights and Directive Principles) were meant to supplement each other.‖ WP(C)No. 7802 of 2011 Page 59 of 71
160. Mathew, J. while adopting the same approach remarked:
―The object of the people in establishing the Constitution was to promote justice, social and economic liberty and equality. The modus operandi to achieve these objectives is set out in Parts III and IV of the Constitution. Both Parts III and IV enumerate certain moral rights. Each of these parts represents in the main the statements in one sense of certain aspirations whose fulfillment was regarded as essential to the kind of society which the Constitution makers wanted to build. Many of the articles, whether in Part iii or Part IV, represent moral rights which they have recognised as inherent in every human being in his country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think not. Free and compulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation...‖
161. Y.V. Chandrachud, J. (as he then was) put the same idea in the following words:
―As I look at the provisions of Parts III and IV, I feel no doubt, that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part-IV. May I say that the directive principles of State policy should not be permitted to become "a mere rope of sand.' If the State fails to create conditions in which the fundamental freedoms WP(C)No. 7802 of 2011 Page 60 of 71 can be enjoyed by all, the freedoms can be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish.‖
162. In State of Karnataka v. Ranganatha Reddy, Krishna Iyer, J. stated:
―Our thesis is that the dialectics of social justice should not be missed if the synthesis of Part III and Part IV is to influence State action and Court pronouncements.‖
163. In U.P.S.C. Board v. Harishankar A.I.R. 1979 S.C. 65 it was observed:
"Addressed to courts, what the injunction (Article 37) means is that while courts are not free to direct the making of legislation, courts are bound to evolve, affirm and adopt principle of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of the Judges while interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy." This is on the view that the "State' in Article 36 read with Article 12 includes the judiciary as well.
164. In Minerva Mills v. Union of India, Chandrachud, C.J. quoted with approval the similier of Granvlle Austin that Parts III and IV are like two wheels of a chariot and observed that "to give absolute primacy to one over the other is to disturb the harmony of the Constitution." The learned Chief Justice observed further:
―Those rights (Fundamental Rights) are not an end in themselves but are the means to an end. The end is specified in Part-IV.‖
165. It is thus well established by the decisions of this Court that the provisions of Parts III and IV are supplementary and complementary to each other and that WP(C)No. 7802 of 2011 Page 61 of 71 Fundamental Rights are but a means to achieve the goal indicated in Part-IV. It is also held that the fundamental Rights must be construed in the light of the Directive Principles. It is from the above stand-point that Question No. 1 has to be approached.‖
27. It is in this context we proceed to discuss the provisions of RTE Act. Introduction to this Act categorically exemplify that this Act was introduced in the Parliament to fulfil the mandate of Article 21A of the Constitution as inserted by 86th Amendment Act, 2001.
In the Statement of Objects and Reasons, it is stated that the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of Indian Republic. This hard fact is also recognized that though State was obligated to provide free and compulsory education to all children up to the age of 14 years, the goal of universal elementary education continues to elude the nation. More importantly, this fact is recognized that number of children, particularly children from disadvantaged groups and weaker sections, drop out of schools before completing elementary education and this number remains very large. The Act seeks to provide the following:
(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;
(b) ‗compulsory education' casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;WP(C)No. 7802 of 2011 Page 62 of 71
(c) ‗free education' means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;
(d) the duties and responsibilities of the appropriate Government, local authorities, parents, schools and teachers in providing free and compulsory education; and
(e) a system for protection of the right of children and a decentralized grievance Redressal mechanism.‖
28. Another important statement which is made is that the legislation is anchored in the belief that the values of quality, social justice and democracy and the creation of just and humane society can be achieved only through provision of inclusive elementary education to all. No doubt, in the definition of ‗child' contained in Section 2(c) of the Act, age of 6 to 14 years is stipulated. Likewise, ‗elementary education' defined in Section 2(f) of the Act means the education from first class to eighth class. Even compulsory education which is the obligation of the appropriate Government is to provide free and elementary education to every child of the age of 6 to 14 years. However, for our purpose, Section11 becomes important. This provision deals with Pre-School education and casts an obligation upon the appropriate Government to make necessary arrangements for providing Pre-School education for such children.
Therefore, it cannot be said that RTE Act does not deal with Pre- school education at all. In order to answer the issue at hand, the provision of Section 11 has to be read in conjunction with Section WP(C)No. 7802 of 2011 Page 63 of 71 12 thereof. Clause (c) of sub-section (1) of Section 12 puts an obligation on the schools to admit atleast to the extent of 25% of the strength of the class, children belonging to weaker sections and disadvantaged groups in the neighbourhood and provide free and elementary education till its completion. Proviso thereto is a very significant provision. It states that wherever a school imparts Pre- School education, provisions of clause (a) to (c) are applied for admission even to Pre-School education. The effect of this proviso is that 25% children belonging to weaker sections and disadvantaged groups are to be admitted even at Pre-School stage by those schools which are having Pre-school education. What follows from this provision? It means that 25% of the children belonging to weaker sections and disadvantaged groups are to be admitted to Pre-school and they are to continue for further studies as well at Pre Primary level and when they attain the age of six years and are admitted to class 1. This continuum has to be maintained. There cannot be a situation where different children belonging to weaker sections and disadvantaged groups are admitted at Pre-School stage and those children are replaced by some other children belonging to same section of society when it comes to primary school, or for that matter class 1 at the age of six. That was not even suggested by learned counsel for the petitioner as this kind of a situation would amount to negating the entire concept of free and compulsory education coupled with obligations on the schools to provide such education to 25% children belonging to weaker sections and disadvantaged groups. When this position is accepted and 25% children admitted at Pre-school level and allowed to be promoted to WP(C)No. 7802 of 2011 Page 64 of 71 Pre Primary class, can there be a different treatment for the remaining 75% children? The answer has to be in the negative, as otherwise such a situation would be fraught with many dangers and not conducive to the education of those children.
29. Keeping in view the aforesaid directive in mind contained in RTE Act, the Right of Children to Free and Compulsory Education Rules, 2009 have been framed. Rule 11 thereof is of great significance which provides that children admitted in accordance with clause (c) of sub-section (1) of Section 12 of the RTE Act (which would include Pre-School children) ―shall not be segregated from the other children in the class room.....‖. Likewise, in order to implement the objective of RTE Act in its true spirit, Government of Delhi has issued Notification dated 7.1.2011. ‗Class' in para 2(b) of this Order is defined as under:
―Class‖ includes the entry level class such as pre-school or first class as the case may be.‖
30. It is thus clear that Pre-school, wherever a school imparts such education at that level, is treated as entry level class. How free seats for children belonging to weaker sections and disadvantaged groups are to be allocated and manner of admission against free seats is provided in para 3 and 4 of the said Order, 2011 which inter alia stipulates that where such school imparts Pre-school education, the provision shall apply for admission to such Pre-school education. Thus this Notification dated 7.1.2011 makes it clear that in so far as children belonging to weaker sections and disadvantaged groups are WP(C)No. 7802 of 2011 Page 65 of 71 concerned, for them entry level is Pre-school. We state at the cost of repetition that while examining the issue as to what should be the entry level, once it is found that it is Pre-school education for 25% of strength in a class belonging to weaker sections and disadvantaged groups, it cannot be different for remaining 75%. Reason is obvious. In determining the entry level education, there cannot be two different yardsticks, one for weaker sections and other for children belonging to general class.
Conclusion
31. The aforesaid discussion leads to the conclusion that in those schools where Pre-school education is imparted, it has to be treated as entry level and entry level would not start from Pre Primary in respect of such schools. As a fortiorari, children admitted at Pre- school at the age of 3+ will get promotion to Pre Primary in the next year and for that, they will not have to undergo the admission process all over again. However, in those schools where there is no Pre-school level, it would be the Pre Primary which would be treated as entry level where admission is to be given to the children at the age of 4+. This conclusion which is arrived at on the basis of aforesaid detailed discussion is summed up in the following manner:
(i) Early Childhood Care and Education (ECCE) which has been globally recognized as critical for human resource development starts from the period of conception to age 8.
This entire period presents a developmental continuum and WP(C)No. 7802 of 2011 Page 66 of 71 the Pre-school care and education has to be treated as part of this developmental continuum. It, thus, becomes an integrated process.
(ii) Every child has a right to ECCE of equitable quality and when ECCE is treated as first step in educational ladder and as a part of Education For All (EFA), the Government as well as schools have responsibility for all programmes for children of 3+ age as well, which is integral part of ECCE.
(iii) Entire period from 0 to age 8 presents a developmental continuum which is divided into three sub-stages, namely, birth to 2+, 3 to 5+ and 6 to 8 +. Thus, 3 to 5+ is one stage before child enters class 1 at the age of 6. This sub-stage of 3 to 5+ includes Pre-School as well as Pre Primary and is clubbed together.
(iv) The pedagogical process of ECCE includes a significant step, namely, at Pre-School level, preparing the child for entry and success in Primary school. In this process, the curriculum has to be such that it is able to help the child to adjust to the routines of primary schools as well as to the demands of formal teaching.
(v) At the level of Pre-school, curriculum has to be such which should ensure that child gets interested in education when he is to take next step at Pre Primary level and thereafter, formal education from class 1. This can be ensured only when the child who gets admission in Pre-school remains in the same WP(C)No. 7802 of 2011 Page 67 of 71 milieu and environment. Therefore, those schools which have Pre-school level as well, this Pre-school level cannot be totally segregated as standalone basis. Such a situation will be derogatory to and prejudicial to the interest of children.
(vi) It is in the interest of a child who is admitted to Pre-school that he remains in the same environment to which he is admitted to at Pre-school level and continuity is maintained.
(vii) When need of healthy teacher-child relationship at ECCE level is recognized and the role of teachers at the stage of Pre-
school becomes important, it would be in the interest of these children to remain in touch with those teachers at Pre Primary school level as well. It is more so when at Pre-school as well as Pre Primary, the system needs trained teachers who understand the psychology and needs of the children and are able to give due emphasis to the kind of care and education which the children need at that stage.
(viii) Even for ensuring that there are no drop outs when the formal learning starts, the continuum from Pre-school to Pre Primary and higher level becomes essential. This is recognized by the Right to Education Act as well as mandate is particularly WP(C)No. 7802 of 2011 Page 68 of 71 incorporated in section 11 and Section 12 thereof which lay emphasis on ―inclusive elementary education to all‖.
(ix) Providing integrated system for 25% children belonging to weaker sections and disadvantaged groups which is the mandate of the RTE Act and denying the same to remaining 75% children not only be unhealthy for the system and may create many other logistic problems, it would be discriminatory as well.
(x) This is even sought to be achieved by the Government vide Notification dated 7.1.2011 to which no challenge is laid by the petitioners.
(xi) Subjecting the parents and children to double admission test, first at Pre-school level and again at Pre Primary level would not only work against the welfare of the children, it would be counter-productive and may have serious psychological and other repercussions on the children. Though the petitioner has suggested that at Pre-school level, there should not be any admission criterion and all those who approach be given admission, this suggestion may be relevant for those institutions having only nursery/kindergarten/Montessori etc. but is totally impractical for the schools which have primary and/or senior level education as well.
32. It is to be kept in mind that for proper and effective implementation of ECCE, the private schools have equal role and WP(C)No. 7802 of 2011 Page 69 of 71 duty to play as the Government schools which was highlighted in the case of Mohini Jain (supra) and Unni Krishnan (supra).
33. Thus, we do not find any proper reason or rationale to keep Pre-school apart and segregated by those regular schools where Pre- school facilities exist and admission starts from that stage. It is in the interest of all stakeholders that in such schools, Pre-school is treated as entry level. Therefore, on this specific aspect, we may not entirely agree with the observations contained in Ganguly Committee Report and in any case, as noted above, the position has changed after the introduction of RTE Act.
34. Having said so, we want to make it clear that the focus on ‗care' and ‗education' at Pre-school level has to be altogether different. The children are not to be burdened with any textbooks or home works. This part of school may be treated as nursery, Montessori, kindergarten, play school, etc. Schools also have to keep in mind the specific curriculum framework for ECCE which keeps in mind the guiding principles like play as basis of learning, art as the basis of education, recognition of specific features of children thinking, etc. The ideal teacher-child relationship which is required at this age allowing the children to express their feelings, sharing their trials and triumphs and teachers being responsive, reaching out to children, is to be given due attention. To achieve this, professionally trained and specifically sensitized teachers are required. We make it clear that by no means we are attaching any less importance to these aspects which have to apply with all vigour, sincerity and sensibilities. Therefore, to that extent, Pre-school is WP(C)No. 7802 of 2011 Page 70 of 71 not to be treated as part of formal education and at that stage, education has to be only informal.
35. We answer the issue accordingly and dispose of the writ petition in the aforesaid manner.
ACTING CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE JANUARY 27, 2012 Pk WP(C)No. 7802 of 2011 Page 71 of 71