Full Text
HIGH COURT OF DELHI
W.P.(C) 3446/2024
ARUN KUMAR ..... Petitioner
Through: Mr. Kuldeep Sharma, Adv.
Through: Ms. Jyoti Taneja and Ms. Sakshi Arora, Advs. for R-1
Mr. Utkarsh Singh, on behalf of Mr. Santosh Kumar Tripathi, Standing Counsel (Civil), for GNCTD
22.03.2024
JUDGMENT
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
3. The petitioner is the father of Kavya, who is 5 years old.
4. The petitioner belongs to the Scheduled Caste (SC) and, therefore, applied to the Directorate of Education (DoE) in accordance with the provisions of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 (“the RTE Act”) for admission to Class I. The petitioner was communicated the outcome of a computerized draw of lots conducted by the DoE, allocating Kavya to Class I in the PP International School (Respondent 1 herein).
5. As the Respondent 1 School did not admit Kavya, the petitioner has filed the present writ petition seeking a writ of mandamus directing the school to grant admission to Kavya.
6. This Court has passed several orders in similar matters, in which it has expressed the view that, where a child’s name is identified for admission to a particular school under the EWS category following a computerized draw of lots conducted by the DoE, the School has necessarily to admit the child. The only exception may be where, after the data relating to the General and EWS seats available in the various schools is uploaded by the DoE on its website, a representation, made by the school concerned within the time provided by the DoE therefor, questioning the correctness of the data, is either allowed or is not considered.
7. Indeed, though I had taken a view in Anjali Pandey v. GNCTD[1] that where a representation was allowed in favour of the School, the Court could not direct provisional admission of the child in the class as shortlisted by the DoE, that order has subsequently been stayed by the Division Bench of this Court. As such, the present position is that, even if the representation of the school is allowed and the numbers of EWS seats are reduced, the child may still be entitled to admission in accordance with the draw of lots conducted by the RTE. It may, however, be mentioned that, in Anjali Pandey, the decision on the representation was taken after the draw of lots was over and admission concluded.
8. In the present case, that situation does not arise. The petitioner’s application was for admission to Class I. Mr. Utkarsh Singh, who appears for the DoE, on being queried, submits that the Respondent 1 School did not prefer any representation against the number of seats of EWS seats available in Class I for the academic year 2023-2024, which was to be taken into consideration while conducting the computerized draw of lots. He submits that, in the said data, the DoE had included not only 25% of the declared strength of the school for that year, but also carry forward unfilled seats in KG/Pre-Primary for the previous academic session, to which the school had not made admissions.
9. The principle of admission against carry forward seats already stands upheld by a Division Bench of this Court in Siddharth International Public School v. MACT[2].
10. In any event, as the computerized draw of lots was conducted on the basis of data uploaded by the DoE on its website with respect to the number of General and EWS category seats available in the Respondent 1 School for the year 2023-2024, against which the
2016 SCC OnLine Del 5272 Respondent 1 School did not make any representation within the time available in that regard, the School cannot, prima facie, dissociate itself from the outcome of the computerized draw of lots.
11. In the circumstances, issue notice to show cause as to why rule nisi be not issued.
12. Notice is accepted on behalf of Respondent 1 by Ms. Jyoti Taneja and on behalf of Respondent 2 by Mr. Utkarsh Singh.
13. Counter affidavits, if any, be filed within four weeks with an advance copy to learned counsel for the petitioner, who may file rejoinder thereto, if any, within four weeks thereof.
14. Renotify on 28 May 2024. CM APPL. 14040/2024 (direction)
15. By this application, the petitioner seeks provisional admission to Class 1 in accordance with the draw of lots conducted by the DoE.
16. This Court has in a vast number of cases passed by this Bench as well as by Predecessor Benches, directed such provisional admission. In Anaysha Dhika v. Maxfort School[3], it was sought to be contended before this Court that such a direction for provisional admission could not be passed after 31 December of that academic year in view of the judgment of a Single Bench of this Court in Neeraj 2024 SCC OnLine Del 2020 Kumar v. Venkateshwar Global School[4].
17. I have, in Anaysha Dhika, considered this submission and prima facie found it to be unsustainable. In a subsequent writ petition in Nikshita v. Directorate of Education[5] which was taken up by the Division Bench of this Court, the Court opined that the fixation of cutoff date of 31 December in Neeraj Kumar required consideration.
18. More significantly, following that observation, the Division Bench in Nikshita went on to direct the DoE to issue advertisements inviting applications from EWS candidates and also directed that students who were shortlisted by the DoE consequent to the draw of lots which it would conduct, would be granted admission in accordance with the draw of lots. That order was passed on 18 February 2022, when there were less than three months left for the expiry of the academic year. As such, the opinion expressed in Neeraj Kumar that the Court could not direct provisional admission of children to school after 31 December of that academic year, cannot be regarded as binding as of today.
19. Ms. Taneja also sought to contend, relying on an order dated 1 September 2022 passed by the Supreme Court in Venkateshwar Global School v. Justice For All[6], that, where the issue of carry forward is involved, no order of provisional admission can be passed by the Court till the matter is disposed of finally after the parties are allowed to exchange pleadings.
20. The submission merely merits mention to be rejected.
21. The order of the Supreme Court in Venkateshwar Global School does not lend itself to any such interpretation. Were such an interpretation to be allowed, it would result in most children being completely foreclosed from getting any relief in the form of admission to schools, as, by the time pleadings are completed and the matter is heard at length, that academic year would elapse and the child would be left with nothing.
22. The order of the Supreme Court in Venkateshwar Global School, besides, does not say so even obliquely. The Civil Appeal in which the said order was passed was preferred against an order dated 26 May 2022 passed by the Division Bench of this Court in Justice For All v. Venkateshwar Global School[7]. I deem it necessary to reproduce in extenso the order dated 26 May 2022 passed by the Division Bench in Justice For All as well as the order dated 1 September 2022 passed by the Supreme Court in the Civil Appeal preferred thereagainst. These orders read thus: Order dated 26 May 2022 passed in LPA 5/2022:
2022 SCC OnLine Del 5143 land have to admit 25% students in the EWS category for which the repayment of fees, etc. is done on the basis of expenses incurred for a student of a government school; (ii) private schools on government land too have to admit 25% EWS category students at the entry level. However, reimbursement by the GNCTD is to be done for only 5% students of this category expenses of education of the remaining 20% EWS candidates is the obligation of the private schools themselves because of the condition for allotment of government land.
4. In instances where schools have not complied with the strict requirements of admission of EWS category students, the State has to step-in to the aid of the latter and exercise its duty as a Welfare State. No beneficiary of government land can overlook or avoid its obligation under the allotment.
5. In the circumstances, every endeavour shall be made by the State to ensure that the backlog of unfilled seats in private schools, both on private and government lands, is filled-up in the next five years in a phased manner; i.e., 20% of the vacancies each year, in addition to the mandated annual 25% intake.
6. The State shall ensure that the 25% seats in the EWS category students shall be filled up on the basis of declared sanctioned strength at the entry level (Pre-school/Nursery/ Preprimary/KG and Class-I), irrespective of the actual number of students admitted in the General category.
7. Compliance affidavit be filed before the next date.
8. List for further proceedings on 04.08.2022. Order dated 1 September 2022 passed in Civil Appeal 5911/2022: “Leave granted. We have heard learned counsel for the parties. We are unable to appreciate how clause 4 of the impugned order dated 26.05.2022 can be worked out even if the schools are at default for the earlier period of years as the same cannot be compensated in this manner by an interim order. Similarly, the issue which has been examined by the Court is whether the 25% of seats in EWS category is being filled up on the basis of the declared sanctioned strength or actual admissions and we do believe that this cannot form subject matter of an interim order. We are thus of the view that the final call will have to be taken in the main matter and it cannot be a subject matter of the nature of interim relief as granted. The result of the aforesaid is we set aside the impugned order qua directions contained in paragraphs 4 and 5, leaving the parties to bear their own costs. The Court is free to take appropriate view in the main matter. The appeals are disposed of accordingly.”
23. It is obvious that the Court was not concerned in Justice For All with any admission granted to any individual child or even a number of children. The question of provisional admission did not even arise for consideration. Justice For All was a litigation which alleged large scale violation of admission of students in the EWS category by schools. Para 1 of the order of the Division Bench in Justice For All records the contention of learned Standing Counsel of the GNCTD that 132 private schools were found prima facie to be violating the instructions of the Government relating to admission of students under the EWS category. The interim order which the Division Bench passed in that case and which, according to the Supreme Court, could not have been passed, directed the State to make every endeavour to ensure that the backlog of unfilled seats in private school, both in private and Government schools, was filled in the next five years in a phased manner with 20% of the vacant seats being filled each year in addition to the mandated annual 25% intake and further directed the State to ensure that 25% seats in the EWS category would be filled on the basis of the declared sanctioned strength at the entry level irrespective of the actual number of students admitted in the general category. As such, apropos the aspect of carry forward seats, the direction by the Division Bench was that entire backlog of unfilled seats in private schools for the next five years be exhausted by filling up 20% of the vacancies in every year over and above the 25% intake which was otherwise required under the law.
24. Quite clearly, this was a drastic interim order. It cannot even be remotely analogized to a prayer for granting provisional admission to an individual child to a school in accordance with the allotment made by the DoE.
25. In my opinion, it is in these circumstances that the Supreme Court expressed its doubt as to how the direction contained in para 4 of the order dated 26 May 2022 could be passed at an interim stage. The Supreme Court went on, therefore, to observe that the issue of whether 25% of the seat in the EWS category were being filled up on the basis of declared sanctioned strength or actual admissions could not form subject matter of an interim order.
26. There is no comparison between that case and this. They are as alike as chalk and cheese. In the present case, the petitioner’s prayer is predicated on the basis of the outcome of the computerized draw of lots conducted by DoE specific to Kavya. I do not see how the order passed by the Supreme Court in Venkateswara Global School can at all act as a fetter to this Court directing provisional admission to her.
27. Ms. Taneja also sought to contend that classes in Class I of the Respondent 1 School are over and that, therefore, even if Kavya is granted admission, she is in no position to attend any of the classes. That in my view, cannot be a basis to deny provisional admission to Kavya. In several of the cases, where provisional admission is granted to a particular class in a school, the child has never been able to study in that class, or in the classes lower to that class.
28. Besides, this argument cannot lie in the mouth of the Respondent 1 School as, if the petitioner has been unable to attend any class in Class I, it is only because the Respondent 1 School prima facie illegally denied admission to Kavya despite Kavya having with her a confirmed allotment by the DoE, allowing her to take admission in the Respondent 1 School. It goes without saying that the school cannot seek to capitalize on its own default.
29. For the aforesaid reasons, issue notice on this application, returnable on 28 May 2024.
30. Notice is accepted on behalf of Respondent 1 by Ms. Jyoti Taneja and on behalf of Respondent 2 by Mr. Utkarsh Singh.
31. Reply, if any, be filed within four weeks with advance copy to learned counsel for the petitioner, who may file rejoinder thereto, if any, within four weeks thereof.
32. In the meanwhile, Kavya is directed to be granted provisional admission to Class I in the Respondent 1 school in accordance with the computerized draw of lots conducted by the DoE.
33. Kavya would also be entitled to all facilities to which EWS children are entitled. This shall of course be provisional and subject to the outcome of this writ petition.
34. All views expressed in this order are, needless to say, only prima facie and intended for considering the prayer for ad interim relief.
35. Needless to say, pending further orders, Kavya shall be entitled to continue as an EWS student in Respondent 1 School in subsequent classes as well, on a purely provisional basis, subject to outcome of this writ petition.