[eebill] FW: HC NOTICE TO DELHI GOVERNMENT (Ashok Agarwal's - re NIOS)




From: "Ashok" <[email protected]>
To: "huright" <[email protected]>, "Hind Mazdoor Sabha HQ" <[email protected]>, "Gurcharan Das" <[email protected]>, "GOOGLE" <[email protected]>, "Gita Diwan Verma TownPlanner" <[email protected]>
Subject: HC NOTICE TO DELHI GOVERNMENT
Date: Fri, 3 Sep 2004 17:35:27 +0530

Delhi High Court (Hon'ble Mr. Justice C.K. Mahajan) today asked the government of delhi to reply by 21.09.2004 to the writ petition challenging the validity of the circular dated 19.08.2004 of delhi government laying down arbitrary conditions for admission of class X passed students from NIOS in class XI in government schools. That more than Ten Thousands students who have passed class X from NIOS and have secured marks less than 55% aggregate are denied admission in government schools because of the arbitrary conditions of the circular. The case in now listed for 21.09.2004 for hearing. Copy of writ petition is attached.

Ashok Agarwal
Advocate
03.09.2004
9811101923


IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) NO. 14544 OF 2004




IN THE MATTER OF :

Writ petition under Article 226 of the Constitution of India.



And

IN THE MATTER OF:

Failure on the part of the National Capital Territory of Delhi to provide admission to the petitioner in class X in Govt. Boys Senior Secondary School No.1, Sagarpur, New Delhi-110046 or Govt. Boys Senior Secondary School No. 2, Sagarpur, New Delhi-110045 or in any other govt. school nearby the residence of the petitioner.



And

IN THE MATTER OF:

Impugned circular dated 19.08.2004 of the respondents whereby the respondents have laid down the conditions for the admission of N.I.O.S. students in class X government schools in Delhi which are absolutely arbitrary, illegal and unconstitutional and tentamounts to violation of right to education as guaranteed to petitioner and other like students under Articles 14, 21, 21A , 39 (f) 41, 51A of the Constitution of India read with Delhi School Education Act, 1973, UN Convention on Rights of the Child (1989) and National Charter for Children 2003 .



And



IN THE MATTER OF:

(i) Constitution of India

(ii) Delhi School Education Act,

1973.

(iii) UN Convention on Rights of

Child (1989)

(iv) National Charter for

Children 2003.

(v) National Policy on Education

1986 as modified in 1992.



And

IN THE MATTER OF:

Master Vikas Kumar Bhadoriya (minor),

through his father Sh. Rishi Raj Bhadoriya,

r/o RZ-46C, Gali No 6B,

West Sagarpur,

New Delhi-110045 .. Petitioner



Versus



1. Government of National Capital Territory of Delhi

through its Chief Secretary,

Delhi Secretariat,

I.P. Estate,

Delhi-110006.



2. The Director of Education,

Govt. of National Capital Territory of Delhi,

Old Secretariat Building,

Delhi- 110054.



3. The Principal ,

Govt. Boys Senior Secondary School No. 1

Sagarpur, New Delhi-110046





4. The Principal ,

Govt. Boys Senior Secondary School No. 2

Sagarpur, New Delhi-110045. ..Respondents





To,



THE HON'BLE CHIEF JUSTICE OF HIGH COURT OF DELHI AT NEW DELHI AND HIS COMPANION JUSTICES OF THE SAID HIGH COURT__________________________





The humble petition of the petitioner above named: -





MOST RESPECTFULLY SHOWETH:





1. The present writ petition is directed against the failure on the part of the Govt. of National Capital Territory of Delhi, hereinafter referred as respondent Nos 1 & 2, to provide admission to the petitioner in class XI in Govt. Boys Senior Secondary School No. 1 Sagarpur, New Delhi-110046 or Govt. Boys Senior Secondary School No. 2 Sagarpur, New Delhi-110045 or in any other govt. school nearby the residence of the petitioner. The present writ petition is also directed against the impugned circular dated 19.8.2004 of the respondents 1 &2 whereby the respondents have laid down conditions for admission for N.I.O.S. students in class XI in the Govt. Schools in Delhi which are arbitrary, discriminatory, unconstitutional, violative of the fundamental right to education of the petitioner and other like students guaranteed to them under Articles 14, 21, 21A, 39 (f), 41 & 51A of the Constitution of India read with Delhi School Education Act, 1973, UN Convention on Rights of the Child (1989) National Charter for Children 2003, National Policy on Education 1986 as modified in 1992.



A true copy of the said impugned circular dated 19.08.2004 is enclosed hereto as ANNEXURE-A.



2. The petitioner by this writ petition has raised the following vital questions of law of general and public importance for determination by this Hon'ble Court:-





i) Whether the conditions of admission for N.I.O.S. students in class XI in the govt. schools of Delhi as laid down in the impugned circular dated 19.08.2004 are arbitrary, discriminatory, unconstitutional, opposed to public policy, against public interest, violative of Articles 14, 21, 21A, 39 (f), 41 & 51A of the Constitution of India?







ii). Whether the respondents are obliged in law to provide admission to the petitioner in class XI in Govt. Boys Senior Secondary School No. 1 Sagarpur, New Delhi-110046 or Govt. Boys Senior Secondary School No. 2 Sagarpur, New Delhi-110045 or in any other govt. school nearby the residence of the petitioner?









3. The facts of the case as so far as relevant for the purpose of the present writ petition are given as under.







4. That Master Vikas Kumar Bhadoriya, petitioner herein, has studied class I to V in M.C.D. Primary School No. 2, Sagarpur, New Delhi. Thereafter he got admission in class VI in Govt. Boys Senior Secondary School No. 2, Sagarpur, New Delhi and continued his studies in the said school till academic session 2002-2003 when he appeared in class IX school examination and failed.







5. The petitioner has appeared in the Secondary examination 2003-2004 conducted by National Institute of Open Schooling, Govt. of India and passed class X. The results were declared on 11.08.2004.





6. That after having passed class X examination, the petitioner obtained marks statements and migration certificate from the National Institute of Open Schooling and thereafter, approached the Principal, Govt. Boys Senior Secondary School No. 1, Sagarpur, New Delhi-110046 on 18.08.2004 and requested for his admission in class XI. The Principal initially agreed to admit him but immediately thereafter refused to give admission without assigning any valid reason thereof. However, the said Principal asked the petitioner to approach the Deputy Director, South-West to get his approval for admission.



True copies of the marks-statement and migration certificate issued by NIOS are enclosed here to as ANNEXURE- B & C Respectively.





7. That the petitioner on 18.08.2004 itself approached the Deputy Director of Education, South-West and requested him to direct the Principal of said school No. 1 or No. 2 at Sagarpur, New Delhi to admit him in class XI. The Education Officer made an endorsement on the application requesting the Principal of G. B.S.S. School No. 2 to consider the case of the petitioner for admission, which was refused. Thereafter, the petitioner also approached to the Principal of G. B.S.S. School No. 1, Sagarpur, New Delhi for admission but the said principal also refused to give admission to him.





A true copy of the application with endorsement dated 18.08.2004 is enclosed hereto as ANNEXURE- D and English translation of the application is also enclosed hereto as ANNEXURE-D1.







8. That the petitioner has been denied admission in class XI by both G.B.S.S. School No. 1 and G.B.S.S. School No. 2 at Sagarpur, New Delhi without any justification inspite of repeated requests. The petitioner is legally entitled to the admission in class XI either in G.B.S.S. School No. 2 or in G.B.S.S. School No. 1 or in ay other government school nearby his residence in the current academic year 2004-2005.







9. The petitioner in the aforesaid facts and circumstances served the respondents with a legal notice dated 24.08.2004 thereby demanding admission in any of the aforesaid govt. schools in class XI.





A true copy of the said legal notice dated 24.08.2004 is enclosed hereto ANNEXURE-E.







10. The petitioner submits that he met the Deputy Director, South-West on 24.08.2004 and personally handed him over a copy of the aforesaid legal notice dated 24.08.2004 and again requested him to ensure his admission in G.B.S.S. School No. 1 or No.2, Sagarpur or in any other Govt. school nearby his residence. The Deputy Director after going through the contents of said legal notice again denied admission in the school saying that in view of the impugned circular dated 19.08.2004 (Annexure-A) the petitioner could not be granted admission as the petitioner was not fulfilling all the conditions including condition that he should have acquired at least 55% marks in aggregate in class X examination as laid down in the said circular.





11. The petitioner submits that it would be useful to reproduce herein the impugned circular dated 19.08.2004:





"GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

DIRECTORATE OF EDUCATION

OFFICE OF ADDL. DIRECTOR OF EDUCATION (SCHOOL)

OLD SECTT: DELHI



No.F.DE.23(28)Sch.Br./2004/12757-13756 dated: 19.8.2004



CIRCULAR



In continuation to Department Circular No. F.DE.23(28)Sch.Br./2004/9824-9904 dated 19.05.04 and in view of late declaration of NIOS, results, the competent authority is pleased to extend the date of admission for NIOS students only, as a special case upto 31/08/2004. It is to be ensured that our own school students passing Compartmental Examination-2004 are given first preference and not denied admission. Grant of admission to NIOS students will be subject to the condition that they have studied relevant subjects in Class Xth and have acquired at least 55% in aggregate. The admission will be further subject to availability of seats. Class strength should not go beyond 40. It is also to be ensured that the age of the applicant is not more than 17 years as on 30th September 2004.



Power of admission has already been delegated to concerned RDEs by the competent authority.

Sd/-

( Dr. M.C. MATHUR )

ADDL. DIRECTOR OF EDUCATION (SCHOOL)

All the Heads of Govt. Schools

(Through DDEs), for strict compliance



No.F.DE.23(28)/Sch.Br./2004/12757-13756 Dated 19-08-2004



Copy for information to ;



1. All RDEs/Addl Des of Dte. Of Education, Delhi.

2. All Distt. DDE's to ensure compliance

3. All E.O.s/D.E.O.s

4. PS to Minister of Education/Secretary (Edn)/Director(Edn).

5. Incharge, Computer Cell.

Sd/-

(O.P.NAUTIYAL)

ASSTT. DIRECTOR OF EDUCATION (SCHOOL)"







12. The petitioner submits that the aforesaid impugned circular lays down as many as following 5 conditions for grant of admission for N.I.O.S. students in class XI in Govt. Schools in Delhi :-



i). They have studied relevant subjects in class X.



ii). They have acquired at least 55% marks in aggregate.



iii). The admission will be further subject to availability of seats.



iv). The class strength should not be beyond 40.



v). The applicant is not more than 17 years as on 30th September 2004.





12-A. The petitioner submits that he is fulfilling the condition No. 1 as he has studied the relevant subjects in class X. He is not fulfilling the condition No. 2 as he has acquired 45% in aggregate in class X examination. He is not aware if he is fulfilling the conditions No. 3 & 4 because he does not have the details of the availability of seats and the number of the students in the class. He is not fulfilling the condition No. 5 as on 30.09.2004 he would be 28 days above 17 years in age.





13. The petitioner submits that the conditions as laid down in the above impugned circular dated 19.08.2004 for admission of N.I.O.S. students in class XI in govt. schools in Delhi are arbitrary, discriminatory, unconstitutional, contrary to the provisions of Delhi School Education Act, 1973, violative of human and fundamental right to education of the petitioner and other like students as guaranteed to them under Article 14, 21 & 21A, 39 (f), 41 and 51A of the Constitution of India read with UN Convention on the Rights of the Child (1989) and National Charter for Children, 2003 (adopted by the Parliament of India on 9th February 2004). It is also submitted that the respondents have no justification to deny admission to the petitioner in class XI in G.B.S.S. School No. 1 & 2, Sagarpur, Delhi or in any other govt. school nearby his residence.

14. The petitioner submits that he belongs to a family a weaker section of the society. His father is working as a auto driver by hiring a autorikshaw and his average monthly income is not more than Rs. 3000/-. There are 4 members in the family which included parents of the petitioner, petitioner and petitioner's sister. The petitioner's sister is studying in class IX in govt. school at Sagarpur. It is submitted that the parents of the petitioner are so economically poor that they can not afford the expenses for private coaching for education of the petitioner. Their only hope is the govt. school where the petitioner can get free education. In case the petitioner is denied admission in govt. school, he will not be able to pursue his studies further and his future would be ruined. It is submitted that masses cannot afford to send their children to fee charging private schools and their only hope is government school system.





15. The petitioner submits that the class X pass certificate from N.I.O.S., Govt. of India is equivalent class X pass certificate from Central Board Secondary Examination. It is submitted that pass percentage in both C.B.S.E. certificate and N.I.O.S. certificate for class X examination is 33%. It is submitted that a student acquiring pass percentage in class X C.B.S.E. examination is considered eligible for admission in class XI in govt. schools. Therefore, laying down higher percentage of marks for the students holding class X pass certificate from N.I.O.S. is absolutely arbitrary, illegal, irrational, discriminatory, unconstitutional, opposed the public policy, against the public interest, defeats the human and fundamental right to education as guaranteed under Articles 14, 21, 21A, 39 (f) 41, 51A of the Constitution of India read with the National Policy on Education 1986 as modified in 1992.







16. The petitioner submits that the conditions No. 3 & 4 to the effect that the admission will be subject to availability of seats and class strength should not go beyond 40% are totally absurd, unjust, arbitrary, discriminatory, violative Articles 14, 21, 21A , 39 (f), 41, & 51A of the Constitution of India. It is submitted that the concept of availability of seats in govt. schools for providing school education to the children is totally absurd, unfounded, illogical, arbitrary, discriminatory, violative of human and fundamental right of children as guaranteed to them under Articles 14, 21, 21A, 39(f), 41 & 51A of the Constitution of India. In case such conditions is enforced in the State run schools, the right to education (particularly, free and compulsory education) as envisage in the Articles 14, 21, 21A, 39 (f), 41 & 51A of the Constitution of India read with UN Convention on the Rights of the Child (1989) and National Charter for Children 2003, would became totally meaningless. The restricted concept to seats in the govt. schools is totally irrelevant and have no legal or rational basis. It is submitted that the admission to the children can not be denied merely on the ground so called non availability of seats and/or school and strength of children in class rooms is 40. Such conditions are unreasonable restrictions on the rights of the child to receive education in the State runs schools. It is submitted that it is duty of the State to provide schools education up to class XII to the children of this country and the same could not be denied whimsically or by adopting measurers which are anti national and anti human. It is submitted that the respondents have deliberately laid down the aforesaid arbitrary, discriminatory conditions in the impugned circular dated 19.08.2004 with definite intention to keep thousands of students out of govt. schools system and leave them to mercy of the God. It is submitted that the arbitrary, conditions have been laid down in the impugned circular without any authority in law.







17. It is submitted that it is a well known fact that class rooms in the govt. schools in Delhi are over crowded and in some classes the number of students even goes up to 200. This is happened or is happening because of in action or failure on the part of the respondents to providing educational facilities to the children. It is submitted that it is the constitutional duty of the State to make necessary arrangements for providing school education to the children of this country. This is more so after the incorporation of Article 21A in the Constitution of India which makes a right to education of every child a fundamental right. It is submitted that to their own failures, the respondent No. 1& 2 can not deny admission to the children on totally irrelevant and illegal excuses. It is interesting to note that the respondents 1 & 2 in the said circular on one hand permitted students of NIOS to get admission in govt. schools and on the other hand have put so many absurd condition for admission which would virtually have the effect of denying admissions to students from NIOS.





18. The petitioner submits that the condition No. 5 that the applicant should not be more than 17 years as 31.09.2004 is also absurd, illogical and unconstitutional. Had the petitioner not resorted to X class examination from N.I.O.S., he would have continued in the G.B.S.S. School No. 2, Sagarpur, and he could not be thrown out of school on the ground that he has become over 17 years of age as on 30.09.2004. It is submitted that in the govt. school and particularly G.B.S.S. School No. 2, Sagarpur a large number of student who are presently studying in class XI are more then 17 years as on 30.09.2004. As a matter of illustration Mohinder of class Xi is more than 18 years and another Shakti Singh of class XI is more than 19 years. If other students of above 17 years of age are presently studying in the govt. schools, it would not be unconstitutional and arbitrary to deny admission to the children who are of similar age. In the present case, the petitioner would be 17 years 28 days as on 30.09.2004. It is submitted that such condition has no nexus with the object under lying therein.







19. The petitioner submits that commercialization in education is unconstitutionally impermissible in our country. It is submitted that thousands of students have passed X from N.I.O.S. this year and are seeking admission in class XI in govt. schools in Delhi. It is submitted that by this impugned circular the govt. is denying admission of all these thousands of students on the one pretext or another by lying down arbitrary conditions in the impugned circular dated 19.08.2004 which have no nexus with the object underlying therein. It is submitted that almost all the students who have passed class X examination N.I.O.S. this year and seeking admission in class XI in the govt. schools are belonging to weaker sections of society. Their parents by virtually working as bounded labourers are hardly capable to sustain their family in meager incomes they earn. If their children are denied admission in govt. schools which are their only hope where their children can get education without spending on fee etc., they would be compelled to send their children to the fee charging private coaching centers or to send their children for work instead of school if they are totally unable to meet the education expenses of fee charging private coaching centers. It is submitted that the private coaching centers are known for exploiting hapless parents/students. The action of the respondents in denying admission to the children in the govt. schools and compelling them to go to the private teaching shops/centers would be nothing but encouraging commercialization of education. In other words by circular 19.08.2004 (Annexure-A), the respondents instead of curbing the evil the commercialization of education are themselves creating conditions to flourish commercialization of education. It is submitted that the respondents are totally insensitive to the educational needs of the children of masses of this country.





20. The petitioner invites attention of this Hon'ble Court to the judgment of Hon'ble Supreme Court in case of J.P. Unnikrishanan vs. State of Andhra Pradesh 1993 (1) SCC 645 wherein their lordships declared that children of this country have a fundamental right to education which flows from Article 21 ( right to life) of the Constitution of India.





21. The petitioner submits that respondent by lying down the aforementioned arbitrary conditions for admission are virtually closing the doors for education all such children. Such conditions are horrible as its only effect is absolute denial of admission to the students belonging to the weaker sections in the govt. schools. It is unfortunate that the United Progressive Alliance (UPA) the govt. in power in its common Minimum Programme (CMP) has given lot of emphasis on the education of the children but in reality all excuses are found to deny even basic education to the children. It is submitted that the respondents are hypocrites as they are making false promises to the masses of this country.





22. The petitioner submits that the respondents by lying down the aforementioned arbitrary conditions have virtually deprived the petitioner and the other like students of their right to education as guaranteed to them under Article 14, 21 and 21A of the Constitution of India.





23. The petitioner submits that the Government of India has rectified the UN Convention on the Rights of Child (1989) to which Government of India is also a signatory. It is also submitted that in February 2004 the Parliament of India has unanimously adopted National Charter for Children, 2003. It is submitted that the Government of India by rectifying the Convention on rights of the Child and by adopting the National Charter for Children, 2003 have promised to provide good quality education to every child of this country. It is submitted that the impugned circular dated 19.08.2004 goes against the letters and spirits of the aforementioned promises.



A true copy of the National Charter for Children, 2003 is enclosed hereto as ANNEXURE -F.

24. The petitioner has not filed any similar petition either in Hon'ble Supreme court or in any Hon'ble High Court in India.





25. The petitioner has no other efficacious alternative remedy except to approach this Hon'ble Court by way of present case.





26. In the premises aforesaid, the petitioner most humbly prays that this Hon'ble court may be pleased to:-



(a) declare that the conditions laid down in the impugned circular dated 19.08.2004 (Annexure-A) are arbitrary, discriminatory, absurd, irrational, opposed to the public policy, against the public interest, violative of Article 14, 21, 21A, 39 (f), 41 & 51A of the Constitution of India contrary to the provisions of Delhi School Education Act, 1973 readwith UN Convention on the Rights of the Child (1989) National Charter for children, 2003 and National Policy on Education 1986 as modified in 1992;.



(b) issue writ of certiorari or in nature of certiorari calling for the records of the respondents leading to the issuance of impugned circular dated 19.08.2004 (Annexure-A) and after examination thereof, strike down the conditions as laid down in the impugned circular dated 19.08.2004 (Annexure-A);



(c) issue writ of mandamus or in nature of mandamus directing the respondents to consider the case of the petitioner and other like students for admission in class XI in G.B.S.S. School No. 1, Sagarpur or G.B.S.S. School, No. 2, Sagarpur or in any other govt. school nearby the residence of the petitioner in the current academic session 2004-2005;



(d) pass any such further order or direction as this Hon'ble Court may in the facts and circumstances of the present case deem fit and proper in favour of the petitioner and against the respondents; and





DELHI: (ASHOK AGARWAL & CO.)

DATED: 28.08.2004 ADVOCATES FOR THE PETITIONER
















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