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TMI Blog2016 (8) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... ral category seats. According to him, MACT could not have directed the petitioner-school to admit the child, as the petitionerschool had no vacant EWS seats. 3. He further submitted that the impugned orders violated the maximum autonomy conferred upon the school management in admission matters. In support of his submission, he relied upon the judgment of the Supreme Court in TMA Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481. 4. Mr. Sinha contended that petitioner-school had not been heard by MACT before passing the direction to admit the child. He submitted that the impugned order is in violation of the principles of natural justice. 5. Learned counsel for petitioner pointed out that Master Priyanshu had two aadhar cards and one birth certificate which show different dates of birth. He submitted that in accordance with Section 14(2) of the Right of Children to Free and Compulsory Education Act, 2009 [for short "RTE Act, 2009"] as well as Rule 13 of the Right of Children to Free and Compulsory Education Rules, 2010 [for short "RTE Rules, 2010"], the birth certificate has to be deemed to be proof of age of a child. He stated that as in the present case the Master Priyan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts completion: Provided that where such school imparts pre-school education, the provisions shall apply for admission to such pre-school education. xxxx xxxx xxxx xxxx 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, 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 the 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......" (emphasis supplied) 12. Mr. Farasat stated that his submission was fortified by Clause 2(d) of the Guidelines for Admission to Entry Level Classes in Private Unaided Recognized Schools of Delhi for the Session 2016-17 which reads as under:- "(d) 25% admissions to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent or guardian" is one of the accepted modes of proof of age. He stated that if this age is taken, then Master Priyanshu is fully eligible to be admitted in Class 1. He submitted that as per Clause 2(g) of the Circular of the GNCTD dated 29th December, 2015, relaxation of one year is permissible in the upper age limit for disabled children. According to him, with this relaxation Master Priyanshu is further eligible to be admitted in Class 1, even if his age is assumed to be seven years as on 1st April, 2016. 16. Mr. Ashok Aggarwal, learned amicus curiae submitted that in view of Sections 2(ee), 3(3) of RTE Act, 2009 and Section 26(a) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [for short "Act, 1995"] a disabled child is entitled to free and compulsory education in an appropriate environment till he attains the age of eighteen years instead of fourteen years as prescribed for ablebodied students. The said sections are reproduced hereinbelow:- a) Sections 2(ee) and 3(3) of the RTE Act, 2009 "2[(ee) "child with disability" includes,- (A) a child with "disability" as defined in clause (i) of section 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INFORMATION IN R/O ENQUIRY Madam With reference to your personal visit on 03.05.2016 in r/o enquiry, I am submitting the following as detailed below pointwise: ENTRY LEVEL Ist Pre-Sch 1. Total No. of Students in class Entry Level, Ist in session 2016-17 : 34 18 2. Total No. of Students General admitted in class Entry Level, Ist in session 2016-17 : 27 13+1 (Repeater/ transfer from K.G.) 3. Total No. of Students EWS admitted in Entry Level, Ist in session 2016-17 : 07 04 4. Vacant Seats in General and EWS Category session 2016-17 in class Ist and Entry Level in session 2016-17. NIL NIL Submitted for information. Thanking you, Yours faithfully, Vice Principal" 19. Clauses 3 and 4 of the Order of the Govt. of NCT of Delhi dated 7th January, 2011 and Clause 2(d) of the Guidelines for Admission to Entry Level Classes in Private Unaided Recognized Schools of Delhi for the Session 2016-17 leave no room for doubt that number of EWS seats are to be calculated not on the strength of General category seats, but on the total strength of the class i.e. the overall number of seats in that class. 20. Twenty-five percen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs to the DG Category, but is also a person with disability and in accordance with Section 2(d) read with Section 2(ee) of the RTE Act, 2009, he is entitled to free education till he attains the age of eighteen years instead of fourteen years as mandated under the RTE Act, 2009 for able bodied students. 26. This Court is not required to return a final finding on a child‟s date of birth as Section 14(2) of the RTE Act, 2009 states that "No child shall be denied admission in a school for lack of age proof". Sections 8(c) and 12 clearly show that the RTE Act, 2009 is for the benefit of the child and meant to ensure he/she gets access to elementary education, despite any technical difficulties. 27. Further, Section 4 of the RTE Act, 2009 permits admission of child in an appropriate class, irrespective of age. Section 4 of the RTE Act, 2009 provides that "Where a child above six years of age has not been admitted in any school..... he or she shall be admitted to a class appropriate to his or her age." 28. In Kumari Uzma Bano Vs. GNCTD & Anr., 172 (2010) DLT 34 it has been held by this Court that Section 4 of RTE Act, 2009 does not prescribe a mandatory rule connecting a class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether any children with disability are admitted therein or not, recognized unaided private schools as well as aided schools are also required to employ minimum of two Special Educators in each school and appointment of such Special Educators cannot be made dependent on admission of children needing Special Educators. Similarly, each of such schools has to have provision for special aids for such children and is required to provide a barrier free movement. Absence today of any such children in the school cannot be an excuse for not providing such facilities. xxxx xxxx xxxx xxxx 15. We find merit in the contention of the counsel for the GNCTD that the deployment of Special Educators cannot be deferred till the admission of children with special needs and the schools have to be in a state of readiness and preparedness to receive children with special needs. 18. Reference at this stage may be made to the National Policy for Persons with Disabilities of the year 2006 of the Government of India. With respect to education for persons with disabilities the said Policy inter alia states:- II. B. Education for Persons with Disabilities. 20. Education is the most effective v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree." The policy sets a goal of providing access to appropriate pre-school, primary and secondary level education to every child with disability by the year 2020 and emphasizes on an inclusive education system i.e. education of children with disability along with children without disability, as far as possible." 33. Though, this Court is in agreement with the submission of learned counsel for the petitioner-school that the MACT had no jurisdiction to direct the petitioner-school to grant admission to a victim and the said direction could not have been passed without giving an opportunity of hearing to the petitioner-school, yet it is of the opinion that the impugned direction to admit Master Priyanshu is warranted in the facts and circumstances of the present case. 34. This Court finds that Master Priyanshu lost his left leg below the knee, when he met with an accident with a bus. Below the left leg, Master Priyanshu now has a prosthetic leg. 35. Father of Master Priyanshu died a few months after Master Priyanshu's accident on account of cancer. 36. The mother of Master Priyanshu, Ms. Babli works in a local factory/workshop that manufactures plastic spoons. Her job is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is within its jurisdiction, unless expressly shown otherwise." 43. Further, the judgment in T.M.A. Pai (supra) has no relevance as the present case pertains to admission in EWS/DG Category. In any event, the said judgment does not restrain the power of Constitutional Courts to issue orders and directions in the facts of a case to do complete justice. 44. Consequently, though this Court is of the opinion that the impugned orders have been passed by the President Officer, MACT, with intent to do substantial justice and to give the victim of motor accident real succour, yet as they are without jurisdiction, they are set aside. However, as Master Priyanshu belongs both to EWS/DG as well as a person with Disability Category and a seat under EWS/DG Category is available in one of the better educational institutions in the immediate neighbourhood, this Court in Article 226 jurisdiction and in accordance with Section 12(c) of the RTE Act, 2009, adopts the impugned orders and disposes of the present writ petition and pending application by directing the petitioner-school to grant admission to him in Class 1. 45. This Court places on record its appreciation for the empathy and sensitivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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