D. Murugesan, Chief Justice

Brief facts in WP(C) 8533/2010

1. This pro bono publico petition is filed by Social Jurist, a civil rights group, through its President. The petitioner questions the guidelines dated 23.11.2010 framed by the Government of India through Ministry of Human Resources Development, Department of School Education and Literacy and the order dated 15.12.2010 passed by the Director, Department of Education, Government of National Capital Territory of Delhi.

Facts from WP(C) No.263/2011

2. This is also a pro bono publico petition filed by Delhi Commission for Protection of Child Rights challenging the guidelines passed by the Government of India dated 10.12.2010 and order passed by the Director, Department of Education dated 15.12.2010. The petitioner has also sought for a direction under Section 15(ii) of the Commission for Protection of Child Rights Act, 2005 for violation under Section 12(1) and 13(1) of the Act and further to adopt the neighbourhood and proximity of child to the school coupled with the system of random selection or draw of lots as the sole criteria for admission in nursery classes in all schools in Delhi.

3. Both the writ petitions concern about the admission of children in nursery classes. The challenge to the impugned guidelines and the order limited to 75% seats, is basically made on the ground that in exercise of the power under Sections 35(1) and (2) of the Act, the respective appropriate Governments have let unguided and arbitrary powers on the schools falling under clause (iv) of sub-section (n) of Section 2 of the Act, namely, unaided schools not receiving any kind of aid or grants to meet their expenses from the appropriate Government or the local authority, to formulate their own criteria for admission of children for 75% of seats. By the impugned guidelines and order, the screening procedure defined under Section 2(o) of the Act is almost diluted. Though the appropriate Government would be entitled to issue directions, it could be exercised only for the purpose of implementation of the provisions of the Act and not to dilute the same.

4. Before we proceed to discuss the issue involved in this petition, we would like to mention that the validity of Section 12(1)(c) of the Act came up for consideration before the Supreme Court in the Society of Unaided Private Schools of Rajasthan Vs. Union of India (2012) 6 SCC 1, insofar as it contemplates the schools defined in Section 2(d) and 2(e) of the Act to admit in Class I at least 25% of strength of that class and the said provision was upheld and made applicable to the private un-aided non-minority schools covered under clause (iv) of sub-Section (n) of Section 2. In both the above writ petitions, the challenge relates to the remaining 75% of the seats. In view of the limited challenge and that too in respect of the admissions to nursery classes, the following basic issues are hence for our consideration:-

i. Whether Right to Education Act applies to pre-school including nursery schools and for education of children below six years of age? and;

ii. Whether Right to Education Act applies to admission of children in respect of 75% of the seats apart from 25% of the seats for children covered under the definition given in Section 2(d) and 2(e) of the Act?

5. Both the guidelines of the Government of India and the order of the Government of NCT of Delhi issued under Section 35 of the Act read as under: “F.No.1-15/2010-EE-4 Government of India Ministry of Human Resource Development Department of School Education & Literacy **** Room No.429-A, ‘C’ Wing, Shastri Bhavan, New Delhi, dated 23rd November, 2010 Subject: Guidelines under section 35(1) of the Right of Children to Free and Compulsory Education Act, 2009 regarding procedure for admission in schools under section 13(1) and section 12(1)(c) of the RTE Act - regarding.

Section 13(1) of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 provides, in