Justice V K Jain on Monday set aside a notification issued by the lieutenant governor holding that migrants can't be deprived of the benefits of the Right to Education Act by way of sub-classification. The notification, issued by the government in January this year, had imposed an additional condition of continuous residence of last three years for the parents in Delhi for getting admission under EWS category in a private school.
HC passed the order on the petition of one Himangi, a five-year-old daughter of a street vendor who had challenged the criteria. Examining the power of the department of education to issue such rules, HC said even if the Delhi School Education Act and Delhi School Education Rules empower the department, it can't go against the provisions "contained in Section 12(1)(c) read with Section 2(a) of Right to Education Act and which would have the effect of taking away a benefit which every child belonging to a weaker section, irrespective of the period of his stay in Delhi, gets by virtue of the said statutory enactment."
Justice Jain rejected the government's argument that this is not a case of sub-classification and they are only regulating admission in the 25% quota so as to have optimal utilization of such seats. HC held that by insisting on proof of residence in Delhi for at least three years, the government is certainly sub-classifying children falling in the category "child belonging to weaker sections" by creating two sub-classes of such children, one belonging to those who have been staying in Delhi for more than three years and one of those who have been staying in Delhi for less than three years.
HC made it clear such a restriction cannot be allowed to continue and pointed out the RTE Act itself gives benefit of being considered for admission against EWS seats to all children who belong to weaker sections i.e. those whose parents or guardians have income below the limit specified by the State Government in this regard.