The paramount purpose of the Right of Children to Free and Compulsory Education Act, 2009 is to provide access to education, and the distance for access is secondary. The court established admission criteria based on distance to ensure access for children belonging to Economically Weaker Sections and disadvantaged groups.

A.K. Sikri, ACJ.-

W.P.(C) No. 636/2012 is preferred on behalf of approximately 326 private unaided recognized schools functioning in Delhi impugning the Notification No. F.15(l72)/DE/ACT/2011/7290-7304 dated 27.01.2012 issued by the Lieutenant Governor of Delhi in exercise of powers conferred under Sections 35 and 38 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) read with sub-rule 3 of Rule 10 of Delhi Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter called Delhi RTE Rules). The petition also impugns Rule 10(3) of the Delhi RTE Rules. The petitioner alternatively has claimed that this Court should lay down Guidelines and pre-conditions for exercise of power under Rule 10(3) of the Delhi RTE Rules for extending the limits/area of "neighbourhood" as defined under the RTE Act and the Delhi RTE Rules.

2. The RTE Act was enacted in implementation of the mandate and spirit of Article 21-A of the Constitution of India inserted vide 86th Amendment Act, 2002. Article 21-A provides for free and compulsory education of all children in the age group of 6 to 14 years as a Fundamental Right. To achieve this goal, Section 12(1)(c) requires private unaided schools, some of which in Delhi are represented by the petitioner to admit in Class-I, to the extent of at least 25% of the strength of that class, children belonging to Economically Weaker Sections (EWS) and disadvantaged groups in the neighbourhood and provide free and compulsory elementary education till its completion. Such Schools, under Section 12(2) of the RTE Act shall be reimbursed expenditure so incurred by them to the extent of per child expenditure incurred by the State or the actual amount charged from the child whichever is less. Since some schools were already under obligation (as per the term of allotment of land to them) to provide free education to a specified number of children, the second proviso to Section 12 (2) provides that the schools shall be not entitled to reimburse to the ex-tent of the said obligation.

3. Though the RTE Act in Section 12 (supra) and also elsewhere uses the word "neighbourhood" but does not define the same. Such definition is however to be found in the Right of Children to Free and Compulsory Education Rules, 2010 (RTE Rules) which prescribe the limit of neighbourhood in respect of children in Classes-I to V as within walking distance of 1 Km. and in respect of children in Classes VI to VIII as within 3 Kms. The Delhi RTE Rules also similarly prescribe the limits of neighbourhood as radial distance of 1 Km. from the residence of child in Classes I to V and radial distance of 3 Kms. from the residence of the child in Classes VI to VIII. Thus the private unaided schools members of the petitioner under the Act and the Rules aforesaid are required to admit children belonging to the EWS and disadvantaged groups in Class I to the extent of 25% of the strength and resident of withiI1 the limits of neighbourhood aforesaid.

4. The respondent through Director of Education, however vide order dated 16.12.2011 directed as follows :

"All schools shall ensure that no child under economically weaker sections and disadvantaged group is denied admission on neighbourhood/distance basis so long as the locality of the child's residence falls within the distance criteria devised by the schools for the general category children."

It being a common ground that the private unaided schools while admitting general category children does not follow the limits of neighbourhood as prescribed for the children from EWS and disadvantaged groups, the aforesaid order mandated extending the limits of neighbourhood for the children belonging to EWS and disadvantaged groups.

5. The petitioner filed W.P.(C) 40/2012 impugning the said order and the learned Single Judge of this Court while issuing notice of the said writ petition, on the contention of the petitioner that the Director of Education could not have vide order afo