To
The Secretary
Education
Govt. of NCT
of Delhi
Old
Secretariat Building
Civil Lines,
Delhi- 110054
Sub-
Suggestion for Policy decisions for EWS admission as per Land allotment
obligation.
Date
27.09.2012
Sir
You
are well aware with the fact that Hon’ble Delhi high court has passed a
landmark order interpreting the provisions of RTE ACT 2009 and ruled that the
2009 act does not take away the right under land allotment clause. It is
expected from your office to take the policy decisions within eight week from
the day order passed by Hon’ble division bench. It is important to mention that
the above said order categorically mentions that if some school has higher
obligation under allotment clause then your office have to take policy
decisions about discharge of that higher obligation. It is also mentioned in
the order that your office have to take policy decisions for discharge of
obligation by minority schools which is out of ambit of RTE ACT 2009 after the supreme
court judgment in W.P.(C) 95 of 2010.
Undersign is associated with this issue for a long time and procured
several documents including allotment letters of the schools and want to submit
this representation for your kind consideration.
It is important to understand the history of
EWS admission in the private recognized school in the city as the same has been
highly appreciated by the parliament during discussion on the bill which later
taken the shape of RTE Act 2009. In the GNCT of Delhi Nazul land was allotted
to the unaided private school at throw away price to discharge govt. duty to
educate the children and as per terms of allotment schools have to provide
specific percentage of admission for children whose parents belongs to weaker
section. There is diversity in allotment letters where majority of allotment
letter creates obligation varying from 20 to 25 percent for weaker section but
a few schools whom the land was allotted by other land owing agencies prior to
the constitution of DDA mentions that director of education will fix the
percentage of free ship. It has been
observed by the Hon’ble Delhi High Court in Social Jurist PIL W.P (c) 3156 of
2002 that none of the school complied with their terms of allotment and Hon’ble
court has passed an order on 20th of January 2004 directing Govt. of
NCT of Delhi to frame rule through which admission of 1 out of 5 should be
ensured for EWS in all classes whether the school at public land or not and it
has been directed to take a policy decisions in this regard. Later two
committees Prof. Janki Raman Cometee and Prof. Krishna Kumar Committee was
constituted and a meeting was called by Hon’ble chief minister having
representation from DDA and all other agencies which was involved in the process
of utilization of Nazul Land and a policy decision was taken to provide 25% of
admission under EWS category in all classes and later a notification dated
25.01.2007 was issued on the basis of above said policy decisions.
It is important to mention that the policy decisions was having
consonance with professor Krishna Kumar Committee except the classes as the committee suggested the admission at
junior level classes but the Govt. did not agreed due to various reasons
including the seats structure
in private schools and it has been notified that
admission will be in all classes up to class XIIth. It is not difficult to
understand the reason as the document I procured under RTI Act and affidavit
filed by directorate in W.P.(c) 8434 in a social jurist PIL categorically
mentions it impossible to fix the seats uniform from entry level to exit level.
You will appreciate the fact that as per Delhi school education and rules there
is not any manner for fixation of seats in each and every class of school and
it will create a big administrative problem to monitor increase in seats in
classes above class I. A chart annexed with this letter which is procured on
the basis of projection of seats in next 14 years taking the enrolment
submitted in annual return in the year 2011 as base year shows that 25% at
entry point will never fulfill the contractual liability even after 14 yrs or
later when the students presently admitted in class pre school will be in class
XIIth. It will be clear to you after having a look on chart that if we allot
100% seats at entry class in some of the schools then also contractual
liability will not be fulfilled. For illustration please have a look on the annexed
projection chart of Ryan International School Rohini where if we presume that
all the seats at class I is allotted to EWS then also it will never meet 25%
obligation under allotment clause for weaker section mentioned in allotment
letter of the school. The annexed chart illustrates that in the Ryan
International Rohini there will be only 3.06 % EWS student after 12 year when
student admitted in class I in session 2011-12 will reach in class-XII and not
a single EWS student will be dropped out. It will be stable after 12 year at
3.06 percent. It is disappointing that if we fix higher percentage even 100%
then also maximum possible occupancy from EWS will be 12% after 12 year and
then will be stable at 12% even after hundred years from now. It is important
to mention that contractual liability is 25% + 5% of the strength. Similar
situation will be at sachdeva public school Rohini
where maximum occupancy after 14 yrs. Will be
3.96% as per present notification and with presumption of 100% admission at entry
level also it will reach at a maximum of 12% after 14 yrs. In the case of Max
Fort school Rohini if the present
situation prevails as per there enrolment shown in annual return then the
highest no of EWS enrolment will be in the year 2024-25 when the total EWS
occupancy will be 210 against total enrolment of 3168 of the school i.e. 6.62
percent. If we presume that 100% seat at entry level will be allotted to EWS
then also total occupancy at saturation point in session 2024-25 will be 840
against total 2939 enrolment in the school i.e. 28.58% which is less then
contractual liability. This school is also under obligation of 25% for weaker
section and 5% for economically weaker students. You will appreciate the similar
situation in charts annexed for Presedium Ashok Vihar and Sachdeva Public
School Pitampura which is also showing similar situation where sachdeva Rohini
and Pitampura Has 25% obligation but presidium ashok vihar is one of the school
having 25% plus addition 5% incorporated in their allotment letters. In a large no of other schools it will be
needed to fix 70- 80 % reservation to meet the overall contractual liability even
after 12 or 14 yrs.which is practically impossible. The school has additional
liability of 5% which is related with economic constraint and in different
clause which I will discuss in a later stage in this letter. I think krishan
Kumar committee did not had idea about this diversity but Hon’ble CM had the
idea and that was reason that while accepting almost all the recommendation of
Prof. Krishna Kumar committee the Hon’ble CM decided EWS admission in all
classes and the same was incorporated in the notification dated 25.01.2007 . It is important to mention here that the
concept of 15% was only an interim arrangement limited to such school which
submitted the affidavit to comply with notification dated 25.01.2007 and
presently none of the school is legally entitled for claim
such exemption as schools inter alia refused to
obey the undertaking during session 2011-12 and 2012-13 which technically
tantamount to contempt of Hon’ble High Court order dated 30.05.2007 in W.P. (c)
3156 of 2002.
I
think it important to mention about 5% clause and distinguish it from the
existing clause discussed in length. I will request please to see the both
clauses incorporated in allotment letter. It is clear that if intention was to
club this 5% with another 25% then it was proper to write 30% once instead of
5% in beginning and another 25% in the end of contract. The beneficiary for
both is also different as the 25% mentions weaker section which can be defined
by state in what so ever manner like one defined under RTE Act or another
defined under 25th January notification but the 5% clause mentions
economic constraints which is beyond domain of state to interpret in any way
other then economic basis. It was the reason that both clauses incorporated at
diff. places in the allotment letter. It is also important to mention here that
this 5% was never discussed in any of the meeting, report or literature and it
came in my knowledge first time when I procured some allotment letter under
provisions of RTI applications. It is requested for kind perusal of various
court order where the liability has been discussed 20 to 25 percent and never
word 30% has been used in any of the order or even in any argument of parties
also. In modern school case where sample allotment letter was re-produced by
Hon’ble Supreme Court also mentions clause for weaker section in the last part
of allotment letter only and the sample allotment letter was from Delhi Public
School which had not any obligation under 5% clause. I have earlier written
your office and during various discussions you assured to consider it. I
believe the present order from the Hon’ble division bench is wide enough to
consider this 5% while making policy decision. It is important to mention that
this liability
is independent from one meant for weaker section
and this is over and above 25% under RTE Also hence this liability is not even
overlapped by the provisions of RTE hence this obligation just starts from
entry level class and remains in operation until the another liability under
allotment letter exists.
Suggestions –
A.
Notification dated 07.01.2011 should
be re-drafted special the introduction part where it should be clarified that
the notification is for non-minority unaided private schools only and a
parallel obligation runs under allotment clause for schools at public land and
which will operate immediately after the operation of 7th January
notification in non minority school. In the above said notification entry level
class will be replaced by entry level classes which include all the class up to
class I. It is requested to ensure the operation of clause 4(b) (amended)
should operate for all the classes up to class I. It is also suggested to fix
the year instead of last 3 year as the present form makes the violation legal
after violating the prevision in three consecutive years. It should be
mentioned that minority schools will be covered by another notification.
B.
It is suggested that obligation under
allotment letter should extend for all classes after class I in non minority
school and the same should be started from entry level class to exit class of
the minority schools which are out from the ambit of RTE Act 2009. In the case
of schools which starts from class VI like New State Academy Sr. Sec. School
and other schools the same regime should apply which applies on minority
schools out from the ambit of RTE Act 2009.
C.
Percentage of obligation for weaker
section which does not include the 5% clause can be fixed at 20% irrespective
of terms of allotment as the above mentioned meeting with CM had representation
of Land owing agency and the same has been accepted by Hon’ble High court in
W.P.(C) 3156 of 2002 hence it will not create any technical problem.
Alternatively the percentage in allotment letter whether 20 or 25 will prevail
and for such school where it is discretion of director to fix percentage it can
be fixed at least 20% as the same has very strong technical base in the terms
of representation from school representatives and the participants of meeting
discussed under leadership of CM Govt. of NCT of Delhi. It should be mentioned
that this is for weaker section only and 5% condition is not included in this
fixation.
D. The
schools should be identified having 5% obligation and it should be notified
that the students from EWS category will be eligible for this 5% seats. It
should be also clarified that application in 5% category does not forfeits the
right to apply in weaker section category and similarly application of
Disadvantage group category does not forfeits the right to apply in general
category in the school. The method used by Kendirya Vidyalaya can be adopted
for this purpose where the students in first round become later eligible under
EWS round.
E.
The manner of admission in land allotment
clause whether in 20% category or 5% category will be fixed as per RTE ACT 2009
and 7th January notification up to class VIII where RTE operates and
after that the provisions of DSER will be operational. After class I the
admission will be on the basis of admission test but there must be provision of
appeal against any arbitrary refusal and Education officer or DDE can be
authorized for this purpose.
F.
It should be incorporated in
notification under allotment clause and provisions of RTE that no student can
be expelled for whatever reason without prior permission of an officer not
below the rank of DDE as the same is necessary to defeat the intention of undue
expulsion as the EWS admission will be up to a fixed percentage of new
admission. Alternatively it can be considered that EWS student will replace EWS
and General can replace general category but I personally it will be difficult
to monitor under limited resource directorate having for monitoring at ground
level.
G. Provision
of re-imbursement for students admitted under RTE Act should be extended to
admission under allotment clause also as it will encourage the school to admit
more then 25% also and EWS students will also feel themselves at par with
EWS/DG under provisions of RTE Act 2009. Provision of neighborhood should be
continued as it will need further amendment in rule and by extending the
neighborhood the liability of state will be transportation also which will
create another problem. If the state is ready to provide transportation then it
is not a problem otherwise it will be difficult to decide that which is big
school or small school otherwise Delhi school education act defines all the
school of the same level.
Therefore it is requested to consider
all the discussions and suggestion made while taking any policy decision as
directed by Hon’ble High Court in the matter. I personally believe that it will
be helpful to protect the provisions of RTE Act 2009 regarding EWS admission
from devices of reducing the number of seats at entry level class as well as it
will activate the EWS admission in MCD recognized more then 800 schools which
are un-utilized as there is
no option for
those students under EWS category to get admission under EWS category in DOE
recognized schools. I voluntarily assure you to provide all the documentary
support and assistance to clarify the above contentions and want to clarify
that this suggestion I am making is in personal capacity and there is nothing
related with my official position as the counsel for petitioner in the above
said writ petition pending with this Hon’ble court. It is also mentioned that I
have already raised these issues prior to this order from Hon’ble High court. Thank you.
With Regards
Khagesh B Jha,
Adv.
M- 9350456565
Copy
to
1.
Director Education Govt. of NCT of
Delhi with request to consider the suggestion while framing policy for EWS
admission under land allotment clause.
2.
Hon’ble Minister Education Govt. of
NCT of Delhi with request to consider the suggestion while framing policy for
EWS admission under land allotment clause.
3.
Hon’ble Chief Minister Govt. of NCT of
Delhi with request to consider the suggestion. While framing policy for EWS
admission under land allotment clause.
Annexure
1)
Chart showing projection of enrolments
in Ryan International Rohini, Sachdeva Public School Rohini, Max Fort school
Rohini, Sachdeva Public School Rohini and presidium school Ashok vihar showing
projection from the years 2011-12 to 2024-25 as per present notification and
based on enrolment shown in annual return of the school.
2)
A copy of Prof. Yashpal Comitee
Report.
3)
Delhi High court orders in W.P. (c)
3156 of 2002 and W.P. (c) 8434 of 2011 in social jurist PIL.
4)
A copy of Division bench-II order
dated 24.09.2012 in W.P. (c) 3715 of 2011 titled as Ashok Kumar Thakur Vs BAL
Bharti Public School.
5)
A copy of affidavit filed by DOE in
W.P. (c) 8434 of 2011 justifying amendment in clause 4(b) of DOE circuler.
