TMI Blog2016 (8) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by the Field Officer and co-counsel for respondent no.2-DOE, Master Priyanshu speaks conversational Hindi and can understand and answer all questions in Hindi. He can also count in Hindi from numeral 1 till numeral 30 and he remembers the English alphabets A to Z. According to respondent no.2-DOE's Field Officer the child will pick up education quite quickly, if he is admitted in Class 1 - Since the petitioner-school did not grant Master Priyanshu admission, as an interim measure, he was admitted in Class 1 in a local municipal school. Master Priyanshu informed the Field Officer and co-counsel for respondent no.2-DOE that he enjoys attending classes in Grade 1 and is comfortable with his fellow students and what is being taught. This Court is of the view that as Master Priyanshu has not had any prior formal education, Class 1 which is the first class for formal education is the ideal class for him to begin his education. This view is also in consonance with the reports filed by the Field Officer and co-counsel for the respondent no.2-DOE - It is settled law that this Court has extremely broad jurisdiction under Article 226 of the Constitution and under the said Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Priyanshu‟s date of birth, as reflected in the birth certificate, was 15th June, 2006, he has to be admitted in accordance with Section 4 of RTE Act, 2009 in a class appropriate to his age, i.e., Class IV and not Class 1. 6. Mr. Sinha relied upon the Office Order dated 18th December, 2015 passed by the GNCTD under Section 16(1) of the Delhi School Education Act and Rules, 1973 whereby the upper age limit for admission to preschool, pre-pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isplay 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 children belonging to Economically Weaker Section Disadvantaged Group category at entry level classes i.e. pre-school, pre-primary and Class-I, wherever fresh admissions are made, shall be granted by the Private Unaided Recognized Schools of Delhi. They shall ensure the admissions of 25% children belonging to EWS/DG Category at all entry level classes on the existing strength of students in respect of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 (1 of 1996); (B) a child, being a person with disability as defined in clause (j) of Section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999); (C) a child with severe disability as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 percent of the total streng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belongs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have Special Educators irrespective of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible, buildings/places/transportation system for public use will be made barrier free. 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlike a inferior court, in respect of a High Court, which is also a Court of Record, it is assumed that every action 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-sch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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