MUKUNDAKAM SHARMA, C. J. ( 1 ) AT what age should an infant be sent to a pre-primary school, has generated some debate. This is not without reason as there is divergence of opinions. Schools want to admit infants at the age of three years and six months and put them to one and half years of pre-primary schooling. Government of NCT of Delhi has been osciilating. For government schools have only one year of pre-primary education. However for other recognised schools the government feels two years of pre-primary education is mandatory and necessary. ( 2 ) MR. K. T. S. Tulsi, Sr. Advocate has filed minutes of the meeting of the Delhi school Education Advisory Board held on 12th February, 2007. In the said meeting some members have expressed apprehension that children who are three years old as on 31st March may not be able to attend school as they lack required maturity and have not developed motor and learning skills. ( 3 ) ATTENTION of Mr. K. T. S. Tulsi, Sr. Advocate was drawn to Section 16 of the delhi School Education Act. He could not dispute that as per the said Section a child who has not attained the age of five years on the date of admission cannot be admitted to class-I. As per Section 16, a child should have completed five years of age on the date of taking admission to class-I. Section 16 does not state that a child after admission in the academic year may attain age of five years. By Order dated 8th December, 2006, this Court had permitted children to submit their forms for admission to nursery, K. G. and Class 1 provided they had completed three, four or five years of age respectively as on 1st April, 2007. It was clarified that this is a stop-gap arrangement to tide over immediate difficulties and will be subject to final outcome of the writ petition. We had to pass such order as there was apparently a lot of confusion as to the cut off date for admission of children into schools as different schools were adopting diverse criteria for admissions into the pre-primary school and no action was taken by the State Government to take corrective measures. In our Order dated 17th January, 2007 we clarified the reason for making Order dated 8th December, 2006 as under :- ". . . . In our Order dated 17th January, 2007 we clarified the reason for making Order dated 8th December, 2006 as under :- ". . . . . When we passed the said order, we took notice of the provisions of section 16 of the Delhi School Education Act, which clearly provides that a child who has not attained the age of five years, would not be admitted to class-I or any equivalent class or any class higher than class-I in a recognised school. Bare perusal of the provision would make it clear that a child who has attained the age of five years can be admitted to Class-I or equivalent class. It, therefore, follows that a child who has not attained age of four years on the date of admission cannot be admitted to KG class and for admission to a nursery Class, a child must have attained on the date of admission the age of three years. This statutory requirement was only given effect to by this Court by passing the last order. The stand being taken that students who have not completed three years of age are also being admitted to Nursery class, is totally incorrect as no such order could be passed over looking the provisions of Section 16 (1) of the said Act. No such stand can be taken without challenging the provisions of Section 16 (1) of the Delhi School Education Act. Whether or not a child could begin his education at the age of three in the Nursery class is a policy matter and is an argument against the statutory provision. " ( 4 ) MR. K. T. S. Tulsi, Sr. Advocate admitted that admissions start from 1st April and academic session each year starts from the said date. He, however, states that in some schools the process continues till 30th September of the said academic year. For getting admission to class-I, a child should have completed the age of five years on the date of admission. We are bound by the statutory intent provided in Section 16 of the Act. The use of the word "admitted" by the legislature would justify our stand that the cut-off date should be the date on which the admission process starts and not a date till which the admission process continues. We are bound by the statutory intent provided in Section 16 of the Act. The use of the word "admitted" by the legislature would justify our stand that the cut-off date should be the date on which the admission process starts and not a date till which the admission process continues. Further just because in some schools admission process is delayed and continues for some months beyond April, it would be in our view inappropriate to have a cut off date for admissions beyond the 1st of April of the academic year in which the said admission is sought. Such artificial extension would not only run counter to the spirit of the Act but also lead to inconsistency and unpredictability. This cannot be permitted. There must be standardisation and uniformity in the interest of one and all. ( 5 ) AS things stand today, there seems to be different set of dates followed by different schools. This is clear from the set of admission notices enclosed by the Petitioner. The State Government seems to have done very little to ensure that all Schools maintain some homogeneity with regard to the cut off date for admissions. ( 6 ) IT was also submitted by Mr. K. T. S. Tulsi, Sr. Advocate that the stand of the Government in the matter is reflected in the circulars issued by the directorate of Education. A lot of emphasis has been laid on the Circular dated 9th April, 1997 the relevant portion of which reads as under:- "vide Directorate of Education (Act Branch), No. 1052-2061, 9. 4. 1997 Admission of Students, Fees, Service Conditions and Management of Affairs of Schools. It has come to the notice of the Directorate of Education that the number of managing committees of the recognised unaided schools in Delhi are not functioning in accordance with the provisions of the Delhi School Education Act and Rules, 1973. All the managing committees of unaided schools in N. C. T. Of Delhi are, therefore, hereby asked to act strictly in accordance with the provisions of the delhi School Education Act and Rules, 1973. The attention of such managing committees and Principals of these schools is hereby drawn in particular to the following aspects. 1. All the managing committees of unaided schools in N. C. T. Of Delhi are, therefore, hereby asked to act strictly in accordance with the provisions of the delhi School Education Act and Rules, 1973. The attention of such managing committees and Principals of these schools is hereby drawn in particular to the following aspects. 1. Admission of Students (Section 16 read with Rule 145 of the Delhi Public education Act and Rules, 1973) (c) In an unaided school, the admission in the higher class will be automatic after passing out the lower class. There shall be no fresh admission of same student in the same school in any class, i. e. , in class VI, IX or XI [as per supreme Court judgment (1955) 5 SCC 512] (d) A child who has not attained the age of 5 years as on 30. 9. 1997 shall not be admitted to class I or any student seeking admission for the first time in a recognised school in a class higher than class I shall not be admitted to that class if this age reduced by the number of years of normal school study between that class and class I or any equivalent class falls short of 5 years. (e) A child who has not attained the age of 4 years as on 30. 9. 1997 shall not be admitted to pre-primary classes. " ( 7 ) THUS in other words, a child seeking admission to Class I must have attained the age of five year on the 30th September of the academic session in which admission is sought. It may however be mentioned that in the proposed Circular which was sought to be issued by the State Government (but could not be notified in view of our order dated 8th December, 2006) extracted in the modification application dated 15th January, 2007 specified that "a child who completes 5 years by 31st of August of the concerned academic year would be eligible for admission in Class I of that year". Thus, in the said proposed Circular the state Government deemed it fit to change the cut off date from 30th of September to 31st of August of the academic session in which admission is sought. Thus, in the said proposed Circular the state Government deemed it fit to change the cut off date from 30th of September to 31st of August of the academic session in which admission is sought. ( 8 ) THE said Circulars thus seek to extend the cut off date for admission to Class i from date of admission which is the 1st of April of the academic session in which admission is sought to 30th September or 31st August of the academic session in which admission is sought, which as we have stated earlier would not be in consonance with the provisions of Section 16 of the Act and to that extent they may be said to be in conflict with the provisions of the Act. ( 9 ) TODAY, the argument of the State Government is that the age for admission to primary and pre-primary class should be raised. The Circulars of the State government as we have mentioned earlier states that "a child seeking admission to Class I must have attained the age of five year on the 30th of September of the academic session in which admission is sought". Thus, if one goes by the very Circulars issued by the State Government, then on the 1st of April, (i. e. the day on which the admission process starts) of the academic session in which admission is sought a child would be eligible to be admitted to Class I even though he or she is only 4-1/2 years old which is clearly much lower than the criteria of 5 years provided under Section 16 of the Act. The State Government is now seeking to take a stand, which was contrary to its own Circulars. Thus, any reliance on the circulars is misplaced. ( 10 ) AS we mentioned in our earlier orders, 30th September or 31st August cannot be taken as the cut off date even for pre-primary class. This will be contrary to the statutory provision and also contrary to the own circular of the government dated 20th July, 2001 which states that the academic year starts from 1st April and the last date of admission is fixed as 31st July. This will be contrary to the statutory provision and also contrary to the own circular of the government dated 20th July, 2001 which states that the academic year starts from 1st April and the last date of admission is fixed as 31st July. Besides, the aforesaid dates whether it is 30th September, 31st August or 31st July, the said dates have no nexus with the start of academic session nor the same in any manner is relatable to the start of admission process. ( 11 ) IT has also been mentioned before us that so far as the Government Schools are concerned a different circular operates. Government of NCT of Delhi has issued Circular dated 20th March, 2006 to all Sarvodaya, Bal, Kanya and Co-ed Vidyalayas for admission to Class I or K. G. Children who have completed five years of age as per the Circular will be admitted/placed in Class I and for admission to K. G. class, a child should be four years of age. In these schools there is no pre-nursery class and the pre-primary school consists of only one year and not two years. However, it is noted in the said Circular that the child should have completed the age as required for admission on 31st August, 2006, which as already pointed out by us is incorrect. ( 12 ) THERE is yet another aspect that needs to be addressed. We passed the Order dated 8th December, 2006, interpreting the provision of Section 16 of the Act. The Government of NCT of Delhi filed an application seeking modification of the said Order, which was withdrawn by the State on 2nd February, 2007, without seeking any liberty to file fresh application. But yet this application was filed after a lapse of one month on 15th February, 2007 by which date process of admission in most of the schools was over. This indicates the callous manner in which the State Government has dealt with an important issue. Be that as it may, the modification application dated 15th February, 2007 filed by the Respondent no. 3 prays a modification of our "orders dated 17th January, 2007 and 14th february, 2007 to the effect that this Hon'ble Court may prescribe attaining the minimum age of 3-1/2 years, by 31st March of the year admission, for the admission to any pre-primary class. 3 prays a modification of our "orders dated 17th January, 2007 and 14th february, 2007 to the effect that this Hon'ble Court may prescribe attaining the minimum age of 3-1/2 years, by 31st March of the year admission, for the admission to any pre-primary class. " It, therefore, follows that the stand of the State Government today is that (a) the pre-primary class should be of a period of two years before the Child can be eligible for Class- I, inasmuch as he or she would not complete the minimum requirement of 5 years on 31st March of the academic session in which admission is sought if pre-primary class is for a period of only one year. (b) the child should attain the minimum age of 4-1/2 year, by 31st of March of the year, for the admission to the second year of pre-primary class and (c) the child should attain the minimum age of 5-1/2 year, by 31st of March of the year, for admission to Class I. Again another vascilitating stand was taken that a pre-primary class would be only 1-1/2 years. Confusion, therefore, still persists. ( 13 ) IN effect, the directions that the respondent no. 3 seeks from this Court is to read the words 5-1/2 years instead of the words 5 years in Section 16 of the act as the minimum age for being eligible to be admitted to Class I. This in our view cannot be done. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court can not go to its aid to correct or make up for the deficiency. The power to legislate has not been conferred on the courts. Courts decide what the law is and not what it should be. We cannot either enlarge or restrict the scope of the legislation. Reference in this regard could be made to para 14 of union of India versus Deoki Nandan Aggarwal reported in 1992 Supp (1) SCC 32. In that view of the matter the prayer as sought for by the respondent no. 3 in its modification application is not possible to be granted. Reference in this regard could be made to para 14 of union of India versus Deoki Nandan Aggarwal reported in 1992 Supp (1) SCC 32. In that view of the matter the prayer as sought for by the respondent no. 3 in its modification application is not possible to be granted. ( 14 ) HOWEVER, what is uniform to all the Circulars is the fact that all circulars stipulate that a child should be of four years for being eligible to seek admission to a Class by whatever name so called prior to Class I. This also clearly shows that the actual intent, object and purpose of the Act as also circulars is to restrict the pre-primary class to one year and not two years as it is being done in most of the private and non-government schools. We have also been informed during arguments that in some schools a child has to undergo three years of pre-primary education. From the circulars prescribing age of four years and read with provision of Section 16 of the Act it appears, intention, object and purpose is apparent that pre-primary class will be of only one year and not two years, whereas almost all the private and non-governmental schools in Delhi are having two years pre-primary classes as of today i. e. Nursery and kindergarten. ( 15 ) IF pre-primary class is for one year only, there will be no difficulty as only children who are four years as on 31st March of the academic year and above, will be admitted to the said class. In fact, if this is done all the arguments made by Mr. Tulsi with vehemence would also be addressed. The problem however seems to be that some schools want to have two or more years of pre-primary education. The reasons for the same are not difficult to comprehend. This however cannot be permitted at the cost of the child's interest whose interest even according to the State and the Schools is paramount and necessitates a modification of our earlier order. If that be so " why not have a only one year of pre-primary schooling before being eligible to Class I wherein the child can be admitted provided he or she has completed the age of four years as on 31st of March of the academic year in which the said admission is sought. If that be so " why not have a only one year of pre-primary schooling before being eligible to Class I wherein the child can be admitted provided he or she has completed the age of four years as on 31st of March of the academic year in which the said admission is sought. ( 16 ) IN Kothari Commission's Report, it was noticed that there are three stages in the development of a child " infancy, childhood and adolescence. After considering the need and requirement and the prevalent educational system in india, schooling was divided into the following sub-stages, namely, pre-primary, primary (lower and higher) and secondary (lower and higher ). ( 17 ) THE object of pre-primary education is to develop good healthy habits and basic skills necessary for personal grooming like dressing, toilet habits, eating, washing and cleaning, develop social attitude and manners, emotional maturity, intellectual curiosity, encourage independence, etc. It was submitted that modern research has shown that pre-primary education was important for a child's emotional and intellectual development. The Kothari Commission in its report had suggested establishment of children play centres in close association with the primary schools. It was suggested that the play-centres should be comparatively less costly to run and would serve useful purpose by reducing wastage and stagnation. ( 18 ) WE feel that the role of the play centres is very important and vital in the development of the child. Play centres for small children between the age of 3-5 years should be situated at a walking distance as children invariably at this stage attend play-centres for 2-3 hours and sending them to far off places keeping in view the traffic congestion would hardly be conducive. Commuting time itself in some cases will be equal or marginally lower than the total time spent by a child in the play-school. Infact it is not uncommon to see even pre-primary children taking heavy school bags with books to schools. Therefore there is need to have early childhood pre-schools in neighborhood and to protect infants from dose of over-education. Moreover, we all know that there is shortage of good primary schools. These schools have not been able to expand because of space constraints and thus several deserving students/children are deprived of quality education. With middle-class expanding, extra space for primary and secondary schools is required. Moreover, we all know that there is shortage of good primary schools. These schools have not been able to expand because of space constraints and thus several deserving students/children are deprived of quality education. With middle-class expanding, extra space for primary and secondary schools is required. It is obligatory on the part of the State Government to take all possible steps to ensure that an equilibrium and balance between the demand and supply is maintained so that every child gets quality pre-primary education and higher education. ( 19 ) PROF. Yaspal Committee in his report has observed. "despite official stipulations that no textbooks be used at this stage, pre-school teachers and parents in the urban centre are feeling 'compelled' to burden the young child with textbooks and the formal learning they represent. The sense of compulsion comes from a widespread feeling that unless academic training of a child starts early, he or she cannot cope with the fast-paced pedagogy and the competitive ethos of the later school years. The pernicious grip of this false argument manifests itself in absurd, and of course deeply harmful, practices in pre-schools and primary schools, such as early emphasis on shapely drawing, writing and memorising information. Intrinsic motivation and the child"s natural abilities are being smothered at a scale so fast that it cannot be correctly estimated. Our national commitment to the development of human resource is daily challenged in our nurseries and primary schools. " ( 20 ) INSPITE of the above observations nothing tackling the problem has been done. Status quo continues and the problem persists without any attempt to cure and rectify. ( 21 ) ANOTHER recommendation of the Yashpal Committee was "5 (a) Appropriate legislative and administrative measures be adopted to regulate the opening and functioning of early childhood education institutions (pre-schools ). Norms regarding accommodation, staff, apparatuses, play materials be laid down for the recognition of these schools. " ( 22 ) THE recommendations of the Yashpal Committee were again reiterated in the group Report by observing: "comments [5 (a) and (b)] : The Group is in agreement with the recommendations. While the NCERT has prepared some norms for the staff, nature of curriculum and educational material for pre-primary stage, this sector of education in the country is largely unsupervised and unregulated. While the NCERT has prepared some norms for the staff, nature of curriculum and educational material for pre-primary stage, this sector of education in the country is largely unsupervised and unregulated. It is also a known fact that most of these schools are loading the students with the burden of formal teaching of various subjects. The Group advised that an appropriate regulatory mechanism should be urgently set up in the country to ensure that learning at this stage is by playway method and formal teaching of subjects is scrupulously prevented. Similarly, the Group agrees that recognition and affiliation of both private and government schools should be made more stringent so that schools lacking in minimum essential facilities are not allowed to function because it really means punishment to the students. Although there is a well set arrangement for recognition and affiliation of schools but due to extraneous pressures the standards sometimes are not observed. The Group would like to suggest that the possibility of having a legislation to specify norms of facilities in schools and providing for powers to prevent opening of schools which do not have facilities should be seriously considered. " ( 23 ) THE Group noticed that due to extraneous pressures the standards are not observed. Commercialization and profiteering from education has taken roots and not unknown. In P. A. Inamdar versus State of Maharashtra, reported in (2005) 6 scc 537 , the Supreme Court was constrained to note: 20. "140. Capitation fee cannot be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee. "profession" has to be distinguished from "business" or a mere "occupation". While in business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once qualified as a professional, is likely to aim more at earning rather than serving and that becomes a bane to society. The charging of capitation fee by unaided minority and non-minority institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialisation of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. The charging of capitation fee by unaided minority and non-minority institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialisation of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated. " ( 24 ) IN view of the above position, it is stated before us that the Government would consider restricting pre-primary class to one year duration, so as to have consistency and a uniformity in the policy of admission in the pre-primary class. This, in our considered opinion, is in consonance with the opinion expressed by the Professor Yashpal Commission and also Professor Kothari commission. Therefore, there may not be any objection if it is decided that pre-primary section will be of one year duration only and a child completing the age of four years on or before 31st of March of the said academic year will be eligible for admission into the said pre-primary class. In that event, if any child is admitted to the class prior to the said age, the same could be in the nature of pre-school class and would not be considered as pre-primary class. Admission to the school shall take place at the age of four years and above, to the pre-primary class. ( 25 ) THESE are, of course, tentative opinions, which are derived upon going through the records placed before us including the circulars of the Delhi government. However, in our considered opinion, no decision of this nature should be taken in haste. As we are dealing with the issue of young children, care and caution has to be exercised. It is the interest of the children which is paramount. We have a number of play schools in Delhi which are not imparting any formal education and only impart skills for personal adjustment, basic motor skills and physical muscular coordination. As we are dealing with the issue of young children, care and caution has to be exercised. It is the interest of the children which is paramount. We have a number of play schools in Delhi which are not imparting any formal education and only impart skills for personal adjustment, basic motor skills and physical muscular coordination. Reports of Kothari Commission and professor Yashpal Committee have stated in clear terms that pre-primary education cannot be and should not be considered and treated as a part of formal education. ( 26 ) CONSIDERING the gravity of the matter and since the Government has now shown its awareness to the problem, we feel that the issue as to whether the pre-primary school should be of duration of one year only and what would be the proper cut off age for admission in the pre-primary class should be referred to a Committee. We feel in the facts and circumstances of the case, the Ganguli committee would be most appropriate to consider these questions as they are also involved in similar other issues pertaining to admissions of children to schools. We are also of the considered view that Ganguli Committee while giving its recommendation (s) to the issues raised by us would also take the opinion and expert views of Two Child Psychologist of repute and a Professor of the department of Pediatric, AIIMS and if possible, Professor Yashpal. The Ganguli committee should associate State Government and its senior officers in this regard. The Ganguli Committee should also consider the views of the members of the Advisory Board constituted under Section 22 of the Act as also a cross section of parents including parents whose children have been given admission at the age of 3+ pursuant to our order dated 8th December, 2006. ( 27 ) WE would request the Ganguli Committee to try and find out a viable and all comprehensive policy for pre-primary education in Delhi so that admission to the pre-primary class/classes as the case may be is made homogeneous and uniform. ( 28 ) WHILE giving its recommendation we also expect that the Ganguli Committee would also consider the criteria for admission to pre-primary and primary classes in other states of India and also the yardstick adopted Internationally. ( 28 ) WHILE giving its recommendation we also expect that the Ganguli Committee would also consider the criteria for admission to pre-primary and primary classes in other states of India and also the yardstick adopted Internationally. We are of the view that the standard and the yardstick for pre-primary and primary education should be consistent and unvarying, whether it is for government, Government aided or Private Schools all over the State of Delhi. We are sure that the State Government which is a party to this proceeding would consider the recommendation of the Ganguli Committee and take steps to evolve a policy for pre-primary and primary education so as to ensure that pre-primary and primary eduction in all schools of Delhi whether Government, Government funded or Private Schools, all over the State of Delhi is consistent and uniform. ( 29 ) DURING the course of arguments, it was submitted that the aforesaid process would be time consuming and therefore it might not be possible to implement the recommendations of the Committee for the ensuing academic year starting from 1st April, 2007. We have no doubt that the members of the Ganguli committee and others involved in the process of giving their expert opinion would do so at the earliest so that its recommendations can be made applicable even for the academic year starting from 1st April, 2007. However, in case for some reason it is not possible to give its recommendation on or before the 31st of March, 2007, the Committee shall give some interim recommendation which can be made applicable for the ensuing academic year starting from 1st April, 2007. We hope that in giving its recommendations the Committee would bear in mind the fact that the admission process in most of the Schools is already complete. We need not mention that the Committee shall give its recommendations after considering the views of all sections including the State Government, Schools and the Parents of the children. We also hope that the convenience of all concerned particularly the parents of the children would be duly considered. The state Government shall upon due consideration of the recommendation of the committee take all appropriate measures under law to regulate and streamline the process and procedure of admission of children into pre-primary and primary classes of both Government, Government Aided and Private Schools so as to have homogeny, uniformity and equality. The state Government shall upon due consideration of the recommendation of the committee take all appropriate measures under law to regulate and streamline the process and procedure of admission of children into pre-primary and primary classes of both Government, Government Aided and Private Schools so as to have homogeny, uniformity and equality. ( 30 ) THE application stands disposed of in terms of this Order.