9. The counsel for the petitioners has contended that in some of the cases the petitioners have not studied in any recognized or Govt. School. The provision with respect thereto is made in Rule 141 of the Delhi School Education Rules, 1973. In such case the parent or guardian is required to give full history of the previous education of the child and to furnish an affidavit on non-judicial stamp paper duly attested to the effect that the child had not attended any recognized school till then. Though Sub Rule (2) of Rule 141 provides for the Head of the school to which admission is sought, to in consultation with the Zonal Education Officer arrange for a test in such cases to determine the suitability of the student for admission to the class in which the admission is sought, the counsel for the petitioner contends that Section 4 of RTE Act is contrary thereto and thereunder admission has to be granted to the child in a class appropriate to his/her age. The contention of the counsel for the petitioner is thus that even if the child aged about 13 years has not previously studied in any recognized school and seeks admission to say, Class-VII in which others of his/her age are studying, the School is obliged to admit the student to Class-VII only and not to any lower class. He further invites attention to the proviso to Section 4 of the RTE Act which provides for special training to be given to such students on admission in such class. The counsel further invites attention to Section 2(o) of the RTE Act defining “screening procedure” to contend that the holding of a test as provided for in Rule 141(2) (supra) would be a screening procedure which is prohibited under Section 13 of the RTE Act.
10. Section 2(o) defines the screening procedure as the method of selection for admission of a child, in preference over another. I am unable to accept the contention of the counsel for the petitioners that the holding of a test as prescribed in Rule 141 (2) would be a screening procedure which is prohibited under the RTE Act. The test under Rule 141(2) is intended only to determine the class in which the student is fit to be admitted, depending upon his past learning and capacity to learn. The student while participating in the said test is only giving a test of his own ability and is not competing with any other child or for admission in preference over another. Rule 132 of the Delhi School Education Rules, 1973 also, while prohibiting test for admission, permits a test as in Rule 141(2).
11. In my view, admitting a child as aforesaid in Class-VII merely because others of his age are studying in that class even though he may not have the acumen or capacity to cope with course or curriculum of Class-VII would be contrary to spirit of the RTE Act of ensuring completion of at least elementary education for each child and rather detrimental thereto. If a child is unable to cope with the demands of a class to which he is admitted he is more likely to abandon his education.
12. The counsel for the petitioners however has rightly pointed out that if such a child is admitted to say Class-I, the same would also be equally detrimental inasmuch as a child of 13 years would be embarrassed in attending Class-I along with students much below his age.
13. The procedure provided in Rule 141(2) of the Head of the School to which admission is sought in consultation with the Zonal Education Officer to assessing the class to which a child should be admitted is found to be appropriate. They will in such a test assess that the child is able to cope with the demands of the class to which he is admitted and is not embarrassed in front of his peers and remains interested in pursuing the education further; may be such a child can be admitted, if not to Class-VII, to Class-VI or Class-V.
14. The counsel for the petitioners however contends that if such an interpretation is taken, the first proviso to Section 4 of RTE Act will become redundant. In my opinion, no. Even though the child may be admitted to class below that in which others of his age are studying, the child is still likely to require the special training mentioned in the said proviso. I may also add that there does not appear to be any maximum age limit for admission to any particular class and the School Act or the Rules do not provide any class in relation to age. The counsel for the petitioners has rather shown the explanation to Rule 21 of the Recognized Schools (Admission Procedure for Pre-Primary Class) Order, 2007 which only provides the minimum age for admission and expressly provides that there is no bar for older children to getting admission for Pre-school Class or Pre-primary Class or Class-I. For this reason also it cannot be said that there is any law or Rule connecting a class to age. The expression “in a class appropriate to his or her age” in Section 4 of RTE ACT cannot be read as “in a class to which others of his age are studying” and it shall remain open to the head of the School to which admission is sought to, in consultation with the Zonal Education Officer determine the Class to which such student should be admitted.
15. It is thus directed that qua the petitioners who are seeking admission to the respondent Schools without previously attending any recognized Schools, the Head of Schools, in exercise of powers under Rule 141 (2) and in consultation with the Zonal Education Officer shall assess the child to determine the suitability for admission in a particular class and in the light of what has been laid down hereinabove.
16. The counsel for the respondents has also contended that several of the petitioners instead of choosing the school in the proximity of their residence are seeking admission to distant schools. The counsel for the petitioners though controverts the same but states that if any other school closer in proximity is pointed out, admission thereto will be accepted.
17. The counsel for the petitioners has also stated that besides the petitioners herein, there are about 1000 other children who are also being similarly denied admissions. To prevent this Court from being inundated with similar petitions, the Deputy Director of Education present in the Court is directed to, upon being approached by such children, deal with them also on the same lines as discussed hereinabove. The counsel for the petitioners further states that out of the aforesaid number, about 400 are children with disabilities. He further points out the judgment dated 16th September, 2009 of the Division Bench of this Court in W.P. (C) No.6771/2008 titled Social Jurist, A Civil Rights Group Vs. GNCTD wherein it was held “It is made clear that no disabled child shall be refused admission in any of the schools either run by the State Govt. or the local bodies”. The Deputy Director of Education states that such students shall also be dealt with in accordance with the said judgment of the Division Bench. I may also draw attention to the proviso to Section 3(2) of the RTE Act in this regard.