Saturday, March 5, 2011

Fwd: [Right to Education] In response to a letter of Social Jurist seeking...



---------- Forwarded message ----------
From: Ashok Agarwal <notification+kr4marbae4mn@facebookmail.com>
Date: Sat, Mar 5, 2011 at 9:35 PM
Subject: [Right to Education] In response to a letter of Social Jurist seeking...
To: Palash Biswas <palashbiswaskl@gmail.com>


In response to a letter of Social Jurist seeking clarification on Section 8 of RTE Act, 2009 relating to prohibition of reimbursement of school fees, the Union HRD Ministry has issued the following clarification F. NO.1-9/2011 - EE4 Government of India Ministry of Human Resource Development Department of school Education and Literacy Room No. 429-A, C Wing Shastri Bhawan, New Delhi Dated: 1st February, 2011 Subject: Clarification on Right to Education Act – reg. 1. The undersigned is directed to refer to O.M. vide No. 12011/09.2010 – Estt. (AL) dated 20th December, 2011 of the Department of Personal and Training, Ministry of Personnel, Public Grievances and Pension, Government of India on the above subject and to state as under. 2. The Children Education Allowance (CEA) facility provided under DOP & T's Instructions to Government servants and the provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 have to be viewed separately. The CEA provided to Government servants for children's education is a facility provided by the Government as an employer, in the same manner as other benefits are provided, such as medical facilities, etc. The facility is not given as a right of the Government servant, but as a benefit bestowed on an employee of the Government, which the government servant can avail of in accordance with the terms and conditions attached thereto. 3. The proviso to clause (a) of section 8 of the RTE Act (and proviso to clause (a) of section 9) has to be viewed from the perspective of the rights of the child to receive free and compulsory elementary education under that Act. As mentioned in sub-section (1) of section 3 of the RTE Act, this right is available to the child in a neighborhood school. A neighborhood school is to be established by the appropriate Government and local authority (refer section 6 of the RTE Act). 4. The proviso to the above referred clause of sections 8 to 9 of the RTE Act clarifies that if the child or his/her parent, instead of seeking admission for elementary education in a school not established, owned, controlled or substantially funded by the Government, takes admission in his own volition in an unaided school, he/she or his/her parent foregoes the right to free education and therefore, cannot claim as a right under the RTE Act, reimbursement of expenditure incurred in such school. The crux here is that the right to free education is not available to such children/parent under the RTE Act and accordingly, under that Act, the child/parent cannot claim reimbursement of expenditure on elementary education. 5. The above position of law is in contra-distinction to the benefit provided by the government to its employees as CEA. This facility is not in pursuance of any law/Regulation on school education but on the basis a Government decision to provide certain benefits to its employees. Accordingly, such benefit would not get constrained or restricted by virtue of the provisions of the RTE Act. There is no implication of the RTI Act constraining the Government to provide any benefit to its employees for the purpose of education of their children, which is outside the purview of the Act. 6. The Ministry is accordingly of the view that there is no necessity for the DOP&T to review its instructions on CEA specifically from the viewpoint of the RTE Act. (Vikram Sahay) Director Telefax: 2338 1470 Ms Simmi R Nakra Director Department of Personnel and Training, Ministry of Personnel, Public Grievances Pension, Government of India
Ashok Agarwal 9:35pm Mar 5
In response to a letter of Social Jurist seeking clarification on Section 8 of RTE Act, 2009 relating to prohibition of reimbursement of school fees, the Union HRD Ministry has issued the following clarification

F. NO.1-9/2011 - EE4
Government of India
Ministry of Human Resource Development
Department of school Education and Literacy
Room No. 429-A, C Wing
Shastri Bhawan, New Delhi
Dated: 1st February, 2011
Subject: Clarification on Right to Education Act – reg.

1. The undersigned is directed to refer to O.M. vide No. 12011/09.2010 – Estt. (AL) dated 20th December, 2011 of the Department of Personal and Training, Ministry of Personnel, Public Grievances and Pension, Government of India on the above subject and to state as under.

2. The Children Education Allowance (CEA) facility provided under DOP & T's Instructions to Government servants and the provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 have to be viewed separately. The CEA provided to Government servants for children's education is a facility provided by the Government as an employer, in the same manner as other benefits are provided, such as medical facilities, etc. The facility is not given as a right of the Government servant, but as a benefit bestowed on an employee of the Government, which the government servant can avail of in accordance with the terms and conditions attached thereto.

3. The proviso to clause (a) of section 8 of the RTE Act (and proviso to clause (a) of section 9) has to be viewed from the perspective of the rights of the child to receive free and compulsory elementary education under that Act. As mentioned in sub-section (1) of section 3 of the RTE Act, this right is available to the child in a neighborhood school. A neighborhood school is to be established by the appropriate Government and local authority (refer section 6 of the RTE Act).

4. The proviso to the above referred clause of sections 8 to 9 of the RTE Act clarifies that if the child or his/her parent, instead of seeking admission for elementary education in a school not established, owned, controlled or substantially funded by the Government, takes admission in his own volition in an unaided school, he/she or his/her parent foregoes the right to free education and therefore, cannot claim as a right under the RTE Act, reimbursement of expenditure incurred in such school. The crux here is that the right to free education is not available to such children/parent under the RTE Act and accordingly, under that Act, the child/parent cannot claim reimbursement of expenditure on elementary education.

5. The above position of law is in contra-distinction to the benefit provided by the government to its employees as CEA. This facility is not in pursuance of any law/Regulation on school education but on the basis a Government decision to provide certain benefits to its employees. Accordingly, such benefit would not get constrained or restricted by virtue of the provisions of the RTE Act. There is no implication of the RTI Act constraining the Government to provide any benefit to its employees for the purpose of education of their children, which is outside the purview of the Act.

6. The Ministry is accordingly of the view that there is no necessity for the DOP&T to review its instructions on CEA specifically from the viewpoint of the RTE Act.
(Vikram Sahay)
Director
Telefax: 2338 1470

Ms Simmi R Nakra
Director
Department of Personnel and Training,
Ministry of Personnel, Public Grievances Pension,
Government of India

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