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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