Master Mohan Kumar v. Richmond Global School & Anr.

1. Allowed, subject to all just exceptions.

2. The application is disposed of. W.P.(C) 7463/2024

3. The petitioner is a child belonging to the Economically Weaker Section (EWS), who qualifies as a “child belonging to weaker section” within the meaning of Clause (e) in Section 21 of the Right of Children (e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification; to Free and Compulsory Education Act, 2009 (the RTE Act).

4. The Respondent 1 school satisfies the definition of “school” within the meaning of Section 2(n)(iv)2 of the RTE Act.

5. Section 12(1)(c) of the RTE Act read with the proviso thereto[3] obligates every school falling within the definition of Section 2(n)(iii) and (iv) of the RTE Act to admit, in Class I or in the event, the school provides free school education for the entry level class in the school, at least 25% of the children belonging to the EWS or Disadvantaged Group (DG) to the extent of at least 25% of the strength of that class.

6. The petitioner is, therefore, entitled to the benefit of the said statutory dispensation.

7. Circulars have been issued by the Directorate of Education (DoE) to implement and operationalize Section 12(1)(c) of the RTE Act. For the said purpose, the children belonging to the EWS or the (n) “school” means any recognised school imparting elementary education and includes—

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;

12. Extent of school's responsibility for free and compulsory education. – (1) For the purposes of this Act, a school,— (a) specified in sub-clause (i) of clause (n) of Section 2 shall provide free and compulsory elementary education to all children admitted therein; (b) specified in sub-clause (ii) of clause (n) of Section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall admit in Class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion: Provided further that where a school specified in clause (n) of Section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education. DG categories are required to apply online for admission to the entry level class in the ensuing academic year and provide choices of the schools to which they desire admission, within the neighbourhood. Based on the data provided by the schools, the DoE uploads the seat matrix of all schools on its website, indicating the number of EWS/DG/CWSN[4], who are to be admitted by the schools in various classes. The schools are given a window of normally five to ten days to represent against any discrepancy contained in the seat matrix. Failure on the part of the school to make any such representation entitles the DoE to treat the data contained in the seat matrix as correct.

8. The DoE, thereafter, proceeds to conduct a computerized draw of lots based on the seat matrix read with any representation submitted by any school and the decision thereon. The children, who are shortlisted on the basis of the said computerized draw of lots for admission of EWS/DG/CWSN to various schools, have necessarily to be granted such admission and the school cannot refuse to do so.

9. This Court has been inundated with petitions by EWS/DG students, who, despite having been shortlisted by the DoE for admission to entry level class in various schools, are denied such admission. Uniformly, this Court has been adopting the view that the schools cannot deny admission to such students and have, therefore, been consistently issuing a writ of mandamus to such schools to grant admission to the students as per the result of the computerized draw of Children with Special Needs lots conducted by the DoE.

10. The problem, however, arises where the child does not approach the Court within the academic session in respect of which she, or he, has been found entitled to admission to the school in question by the DoE. This Court has held, in Jiya v. Maharaja Agrasen Model School[5] that the right that enures in favour of an EWS/DG child for admission to a particular class in a particular school consequent on the outcome of the computerized draw of lots conducted by the DoE can subsist only during the academic session in respect of which computerized draw of lots is conducted. If the student does not approach the Court within that academic session, the right perishes, as the student has no allotment in her, or his, favour, for the next higher class. For the next higher class, the student would have to compete with other EWS/DG children and reapply to the DoE for preferential admission on the basis of Section 12(1)(c) of the RTE Act.

11. Where a child does approach the Court within the academic session for which the computerized draw of lots has found the child entitled for admission to the respondent school, if any order of provisional admission is passed, or a seat is reserved by the Court at an interim stage in the class for which the child is found entitled to admission, then, even if the writ petition is taken up for hearing after the academic session comes to an end, the Court can direct the school to admit the child to the next higher class, as there is, by judicial order, an earmarked seat for the student. Where, however, no such order of provisional order exists and no seat has been reserved for the child then, if the writ petition comes up for hearing after the academic session has drawn to a close, the Court cannot help the petitioner. This view has been expressed by me in para 15 of Ankit Kumar v. State[6], which may, therefore, be reproduced thus: