Rameshwar Jha v. The Principal Richmond Global School & Ors.

(ii) What is the mechanism to enforce the provisions of the

12. Learned counsels for the petitioners submitted that the right to free education was originally a directive principle under Article 45 of the Constitution, which was elevated to the status of a fundamental right by way of the Constitution (Eighty-Sixth Amendment) Act, 2002 which inserted Article 21A under Part-III, thus, placing a categorical obligation on the State to provide free and compulsory education to all children of the age of six to fourteen years.

13. It is submitted that even prior to, and independent of, Article 21A, the Hon’ble Supreme Court in a plethora of judgments including Mohini Jain v. State of Karnataka (1992) 3 SCC 666, Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645 and State of H.P v. H.P State Recognised & Aided Schools (1995) 4 SCC 507 had declared the right to primary education to be a fundamental right.

14. It is also submitted that in the case of Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1, the Hon’ble Supreme Court has declared Article 21-A to be the most important fundamental right which stands above all other rights since the ability to enforce one’s fundamental rights flows from one’s education.

15. It is further submitted that the RTE Act was enacted to aid the implementation of Article 21-A and help the country realize the goal of universal elementary education. It is submitted that reliance is placed on W.P.(C) 1092/2021 & CONNECTED MATTERS the Statement of Objects & Reasons of the RTE Act for the purpose of understanding the true import of the said Act.

16. At this juncture, the learned counsel for petitioner sought to place reliance on some of the relevant provisions of the RTE Act applicable to the instant case, as stated hereunder: a) Section 2(a) of the Act defines who would be the ‘appropriate Government’ in respect of a school under the RTE Act. This provision may be read with Section 8 which lists the obligations of such appropriate Government. b) Section 2(e) defines who would be considered to be a ‘child belonging to weaker section’. c) Section 2(n) enumerates the schools which would be covered under the RTE Act, and specifically sub-clause (iv) which covers unaided schools as well. d) Section 3 sets out the objective and goal, i.e. every child from the age of 6 to 14 years is to be afforded free compulsory education in a neighborhood school till completion of elementary education. e) Section 12(2) provides that unaided schools providing free education would be reimbursed the expenditure to the extent of per-child expenditure incurred by the State. f) Chapter VI grants powers to the National Commission for Protection of Child Rights and the respective State Commissions for Protection of Child Rights to effectively act as grievance redressal mechanisms. W.P.(C) 1092/2021 & CONNECTED MATTERS g) Section 35 permits the Central Government and the appropriate Government to issue necessary guidelines and directions for implementation of the RTE Act. h) Section 38 confers powers to make necessary rules. It is important to highlight that the list provided under sub-clause (2) is ‘without prejudice to the generality’ of the general power to make rules and therefore, the argument that no rules can be made in respect of Section 12(1)(c) is completely misconceived.

17. It is also submitted that the Government of NCT of Delhi has framed the Delhi Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as the “Delhi RTE Rules”). Under Rule 11, the procedure for reimbursement of expenditure to the schools has been provided. Rule 15 permits withdrawal of recognition to a school which fails to fulfill conditions for grant of such recognition. It is also stated that, Form II appended to the Delhi RTE Rules specifically mandates admission to the extent of 25% of the strength of the class to students of EWS category. Rule 24 provides for a mechanism to approach the Delhi Commission for Protection of Child Rights for registering complaints under the RTE Act. Rules 26 and 27 grant powers to the DoE to issue necessary directions for implementation of the provisions of the RTE Act.

18. It is further contended that the most important provision for the purpose of adjudication of the instant dispute is Section 12(1)(c) of the RTE Act which reads as under: “(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.”

19. It is submitted that the school has mischievously caused confusion while interpreting the phrase 'strength of the class' to suggest that it means the students actually admitted in an academic year. This issue was considered by this Court in Birla Vidya Niketan v. Govt. of NCT of Delhi, 2013 SCC OnLine Del 3171 wherein it was categorically held that:

20. It is also submitted that the same issue was again considered by the Court in The Sovereign School v. Directorate of Education, 2013 SCC OnLine Del 3928 where it was held that a relaxation may be granted in cases where despite reasonable and bona fide attempts on the part of the school to admit the general category students, the ample number of admissions did not take place.

21. Again, in the case of Siddharth International Public School v. Motor Accident Claim Tribunal, 2016 SCC OnLine Del 5272, a Division Bench of this Court had the occasion to deal with the same question, and it was held that the 25% ratio under the RTE Act was not the upper limit, therefore, it is not the school’s discretion to refuse the admission to students from EWS category on the basis that there are insufficient general category admissions.

22. It is submitted that the Circular dated 9th July 2021, in furtherance of the judgments as mentioned hereinabove, issued by the DoE specifically states that all the concerned Private Unaided Schools must grant admission to all eligible candidates allotted to them as per the declared strength of the entry level classes and if the school is refusing the admission there should be genuine and bona fide reason as well as attempt to admit the sufficient number of general category students and apply to the DOE for the exemption. The said circular was challenged in the case of Action Committee Unaided Recognized Schools v. Directorate of Education, WP(C) 10839/2021, where the Court vide its Order dated 24.09.2021 upheld the Circular and dismissed the prayer to stay its effect and operation.

23. It is further submitted that the arguments offered by the school in justification of its action for denial of the admissions are twofold: firstly, that the schools are only required to admit EWS students corresponding to the general category admissions which is in stark contravention of the ruling of Siddharth International Public School (Supra) as well as to the W.P.(C) 1092/2021 & CONNECTED MATTERS bare reading of the Section 12(c) of the RTE Act. Secondly, the attempt has been made to discredit the credentials of a child seeking admission not at the stage when the admission is actually being sought, rather it is pleaded in the course of the proceedings initiated by the child for denial of admission despite being shortlisted by the DoE, thus bypassing the mechanism for admission of the EWS students.

24. It is also submitted that the private schools have been flagrantly violating the circulars and notifications issued by the DoE on the ground of the latter’s competence to pass those directions and circulars, whereas, the Rule 25 grants powers to DoE to issue necessary directions for implementation of the provisions of the RTE Act. Thus, the contention that DoE lacks authority to issue directions concerning the admissions is entirely baseless.

25. In view of the aforesaid, it is submitted that the sheer number of writ petitions being filed by the aggrieved students and their helpless parents is in itself a testament to the fact that the implementation of RTE Act is in tatters. Therefore, it is prayed that urgent intervention of this Court in exercise of its powers under Article 226 of the Constitution is required for providing directions for proper implementation of the RTE Act. Respondents’ Submissions

(i) Directorate of Education

26. In most of these petitions, the DoE has not filed a counter affidavit/reply to the averments made in the respective petitions. Furthermore, despite express directions made by this Court at the time of reserving the judgment on 10th November 2022 for filing the Written Submissions within one week for the assistance of the Court in deciding the issues in question, no such document could be found on record. Therefore, this Court is bereft of such assistance by the State that could otherwise been helpful to adjudicate the instant batch of petitions.

27. Learned counsel appearing for the DoE submitted that the DoE is the Regulatory Authority for education being imparted in the government schools run and established by it and Government Aided Schools which are aided by it. It is also the Regulatory Authority over the private unaided schools recognized by it under the provisions of Delhi RTE Rules and the RTE Act, and such schools are required to comply with the provisions of the said Act and Rules framed thereunder and terms and conditions of recognition. Hence, all the private unaided recognized schools are under obligation to follow the guidelines/directions of the DoE issued from time to time.

28. It is also stated, at bar, that despite several directions passed by this Court as well as a number of circulars issued by the DoE from time to W.P.(C) 1092/2021 & CONNECTED MATTERS time, the private unaided schools have failed to comply with the same, and have acted in contravention of the RTE Act and the Delhi RTE Rules.

29. It is stated that there are ample mechanisms available under the provisions of the Act as well as the said Rules to ensure the implementation of the provisions of the RTE Act and the DoE is taking all necessary measures to enforce the same.

30. It is further submitted that in case, the schools require an exemption for a specific academic session due to any dire circumstances, they have been provided with the option to approach the DoE and the same is considered on a case-to-case basis. However, the provisions of law as well as the directives/circulars of the DoE have to be implemented by the respective schools.

(ii) Private Unaided Schools

31. Per contra, it is submitted on behalf of the Private Unaided Schools that in terms of Section 12(1)(c) of the RTE Act, a Private Unaided School, is required to admit at least 25% of the strength of the Class, students belonging to Economically Weaker Section/Disadvantaged Group (EWS/DG). The expression Strength of the Class is very unique and has been used in order to maintain a healthy proportion, ratio and balance of students from general category & EWS/DG category, leading to smooth assimilation of all children with each other. A clear distinction between the RTE Act viz. Section 12(1)(c) & other Reservation Acts, creating Quota may be noted. In an Act of Reservation/Quota, the seats are to be offered irrespective of anything W.P.(C) 1092/2021 & CONNECTED MATTERS else, whereas, in the RTE Act, there is no reservation/quota, but the (actual) strength of the Class is determinative of the admissions/seats that would be offered/available to the EWS/DG category.

32. It is further submitted that the judgment of a coordinate bench of this Court in The Sovereign School (Supra), clearly holds that the admissions of EWS category is to be done on the basis of actual general category admissions and not on the basis of the total declared strength of the Class that the School is able to make in a particular year.

33. It is further submitted that the judgment of a Division Bench in Siddharth International Public School (Supra) does not overrule the judgment in The Sovereign School vs. DoE, Govt. Of NCT of Delhi (Supra). It is submitted that the question in the judgment of Siddharth International Public School (Supra) was totally different from the question raised in the judgment of The Sovereign School (Supra).

34. The factual position in Siddharth International Public School (Supra) case was that as against 27 general category admissions made by the school already, it had admitted only 7 students in the EWS category and was claiming under a wrong notion and misconception that it is only required to fill up 7 seats with EWS candidates, being 1/4th of the general category.

35. As per the said formula in Siddharth International Public School (Supra), the school had to give admissions to 9 EWS candidates and thus, there were two vacancies, one of which was rightly directed by this Court W.P.(C) 1092/2021 & CONNECTED MATTERS to be filled up, by exercising its extraordinary jurisdiction under Article

226. The said case, as a matter of fact, supports the case of the schools, contrary to the misleading averments made on behalf of the DoE. There is nothing to suggest that inclusive education be interpreted as exclusive education for one class merely because the Act states the term at least to the extent of 25%, it does not mean or imply that the same can be even more than 25% or even 100%.

36. It is submitted that the Hon'ble Supreme Court in Pramati Educational and Cultural Trust v. Union of India (2014) 8 SCC 1 has upheld the vires and constitutionality of the RTE Act, only for the reason that inroad made in the Right of Private Unaided Schools under Article 19(1)(g), is reasonable and minimal.

37. It is also submitted that under Section 10 of Delhi School Education Act, a comparison of the words “at least to the extent of 25%”, with “shall not be less than the salary & allowances of its counterpart in Government Schools” be done. In both the cases, it would be a voluntary act on the part of a School to be admitting more than 25% from EWS category, or to be paying salaries & allowances to its teachers, which are more than what is required to be paid to the counterparts in a Government School.

38. However, there cannot ever be a mandate or a mandamus sought from this Court that even more than 25% can be granted admission or to have a right to admission. In that case, everyone, successful or unsuccessful in a draw of lots, would approach this Court, to grant W.P.(C) 1092/2021 & CONNECTED MATTERS admission even against vacant general category seats, till such time even a single seat remains vacant.

39. It is also stated that, the Division Bench of this Court in the case of Justice for All & Anr. V. Venkateshwar Global School & Ors. in LPA No. 5/2022 was misguided and misled to pass an Interim Order dated 26.05.2022, directing the schools to fill up the vacant seats in EWS/DG category for the past 5 years, on the basis of the entire declared strength of the Classes, without referring to the judgment of Sovereign School (Supra). The Hon'ble Supreme Court set aside the said order and the judgement of Sovereign School (Supra) continues to hold the field, by way of order dated 01.09.2022.

40. The DoE has in fact issued numerous Circulars clearly mandating that the admissions in the EWS/DG category have to be made proportionate (3:1) to the number of General Category admissions, actually made by the School. Going further, the DoE has also clarified by way of an illustration, in the said Circulars, that the admissions shall be made in seriatim, in the order of the names appearing in the list of selected candidates forwarded by the DoE to the School.

41. It is also stated that as a matter of fact, the schools were prohibited by the DoE from making any extra admissions, beyond 25% of the actual general category admissions and it was stated that no reimbursement under the RTE Act shall be made for such extra admissions.

42. Further, even the State of Rajasthan, has issued guidelines for admissions in Private Unaided Schools under section 12(1)(c) of the RTE Act, inter alia, mandating that admissions shall be made against EWS/DG category seats, only in proportion to the general category admissions. It has been stated that for every 3 admissions made in the general category, the 4th admission shall be of a child from the EWS category and the said roster of admission shall be followed for every 3 general category admissions.

43. Similarly, the State of Karnataka has also clarified that Unaided Schools shall earmark at least 25% of seats as per the strength of the Class at entry level as on 30th September every year, for EWS/DG category candidates, as per the data filled by the Schools in UDISE (Unified District Information System for Education), which contains the names, details, etc. of the actual general category candidates admitted by the school till 30th September.

44. It is further submitted that there are many instances of fraud being committed by the wards and their parents wherein the entire application process qua them are pre-planned, pre-programmed and predetermined, being based on forgery and furnishing of false information – in terms of fake credentials regarding income, residence and age.

45. It is submitted that there has been gross abuse and misuse of the EWS Admission System. The very system of issuance of Certificates (be it EWS or Caste) on the basis of mere self-declaration, in the form of a W.P.(C) 1092/2021 & CONNECTED MATTERS one-page application, is flawed and is being grossly misused and abused by the Applicants, as the experience has shown.

46. The said system of issuance of EWS/Caste Certificates, on the basis of mere self-declaration by the Applicant, is inherently flawed and is not made/subjected to any verification or cross-checking by the issuing Authority (SDM/Tehsildar), to check the veracity of the self-declaration being made by the Applicant. Such verification by the Certificate-issuing- Authority, is absolutely necessary, so as to ensure that the state largesse, in the form of availing preferential admissions at government expense, are not misused or defeated, in any manner.

47. In most of the cases, of applicants obtaining income certificates of their entire family’s income, being less than Rs.[1] Lakh p.a., are false and misleading, in as much as even the minimum wages in the State of Delhi, are much more than Rs.17,000-22,000/month. Thus, the Issuing Authority (SDMs/Tehsildar) must insist on an Affidavit of Income, Assets & Liabilities, to be filed by the applicant, signed by all his/her immediate family members, so that he/she is made responsible, liable, and aware of the consequences of obtaining such certificate, on false information/declaration.

48. It is further submitted that the distance criterion is the foremost important criteria, which ensures that an applicant allegedly living within 0-1 KM radius of the school concerned has the best chance of securing admission under the EWS/DG category. However, unfortunately many ways and means have been innovated to defeat the very system of such EWS/DG admissions, by filling up false information by changing the constituency, sub-constituency, locality etc. by the way of online application for the EWS/DG seats.

49. Even the DoE has also found such kind of irregularities done by the Applicants in W.P.(C) No. 4531/2018, titled Sh. Rahul Malhotra v. Indraprastha World School & Ors., wherein the DoE was directed to pass a reasoned and speaking order whether the petitioner was residing at the address claimed by him or not. After the physical verification and hearing of both the parties, the DoE passed an order on 16.07.2018 holding that the applicant in that case to be ineligible for admission under EWS/DG category.

50. The aforementioned ways & means adopted by certain applicants, have taken magnanimous proportions in as much as general category and well-to-do applicants are making applications under the EWS/DG category to not only illegally enjoy/claim such state largesse, but also avoid the payment of fees to the School, for which they are not entitled in law. Such fraudulent practices of misusing and abusing the flaws in the system of certification and online applications defeats the very purpose of admissions of EWS/DG category candidates in Private Unaided Schools.

51. It is submitted that this Court would be pleased to lay down binding and mandatory directions, for the certificate-issuing-authorities, to insist on the Affidavit, before issuing the Certificate and also carrying out a verification of the self-declarations made therein, before issuing a certificate at all.

52. It is further submitted that 31st December is the last date of admission against the EWS/DG category seats. In the case of Neeraj Kumar vs. Venkateshwar Global School & Ors., (2017) SCC Online Del 7842 it was held that, admissions in the EWS/DG category are to be made only till 31st December of the year, in which the applicant is to be selected by draw of lots and not thereafter.

53. It is submitted that an applicant who is unable to secure admission by 31st December of the year has to apply again in the subsequent year(s) as a fresh applicant. It may also be noted that the ratio of the Neeraj Kumar (Supra) was followed by a Division Bench of this Court by way of Order dated 14.03.2018 passed in WP(C) No.3684/2013 titled Justice For All Vs. GNCTD.

54. Further, the judgment in Neeraj Kumar (Supra) was challenged in LPA No.255/2018 titled Master Vansh vs. Venkateshwara Global School & Ors., which came to be dismissed by the Division Bench, by way of a detailed judgment dated 16.07.2018 which judgment was never assailed before the Hon'ble Supreme Court and has attained finality.

55. It is submitted that the remedy prescribed under Section 32 of the RTE Act is statutory in nature and is binding upon all parties and cannot be ignored. No parallel or any other system contrary to the said statutory mandated Scheme containing the remedy in case of alleged violation of the Act, can be insisted upon or adopted by the parents or by the DoE. Unless and until such remedy is availed of and exhausted, no final rights accrue in favour of the parents of the DoE.

56. As stated above, there are cases of fraud being played upon the system. Since the DoE does not carry out any verification of applications, rightly the duty has been cast upon the schools to verify the same along with the documents submitted by the allottee students/parents with the school. In this regard reliance is placed on various Circulars of the DoE including the Circulars dated 14.05.2015, 21.04.2015, 27.02.0219 and 15.06.2021.

57. Thus, it is submitted that when a school on verification finds that the documents or information submitted by or on behalf the applicant, is not genuine, is fraudulent or is incorrect, the admission is rightly rejected by the school, with intimation to the ward concerned, as also to the DoE. Thereafter, it is for the concerned applicant to seek recourse to its statutorily mandated and prescribed remedies. Unverified allotments for admission being recommended by the DoE cannot be trusted upon the schools for them to challenge such allotments despite them being false and fraudulent.

58. In view of the aforesaid, it submitted that the instant set of petitions is frivolous, devoid of merits and hence be dismissed.

59. The aspirations of the people are reflected in the Preamble of the Constitution which reads as under:- “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

60. Originally, Part IV of Indian Constitution, under Article 39 (f) and Article 45 of the Directive Principles of State Policy had provisions for state-funded as well as equitable and accessible education. The provisions read as under:

61. Let us now briefly traverse across the journey for providing free and compulsory education for children in India. The first official document on the Right to Education was the Ramamurti Committee Report in 1990. In 1993, the Hon'ble Supreme Court’s landmark judgment in the Unnikrishnan JP v. State of Andhra Pradesh & Others, 1993 SCC (1) 645 held that education is a fundamental right flowing from Article 21. Tapas Majumdar Committee (1999) was set up, which encompassed insertion of Article 21-A. The 86th Constitutional Amendment in 2002 provided Right to Education as a fundamental right in Part-III of the Constitution. It inserted Article 21-A which made Right to Education a fundamental right for children between 6-14 years and was followed up by the legislation - RTE Act.

62. The Preamble, the Fundamental Rights and the Directive Principles of State Policy forming the Golden Trinity are the soul of the Constitution. The Preamble visualizes to remove economic inequalities and to secure to all citizens of India, Justice - Social, Economic and Political, which in its substance is the sum total of the aspirations as enshrined in the Part IV of the Constitution.

63. Economic empowerment to the weaker sections of the society is a fundamental requirement for ensuring equality of status and to promote fraternity assuring dignity as envisioned by the founding fathers of our Constitution. Therefore, any positive discrimination in favour of the weak or disadvantaged class of people by means of a valid classification has W.P.(C) 1092/2021 & CONNECTED MATTERS been treated as an affirmative action on the part of the State. The Preamble to the Constitution and the Directive Principles of the State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from the society.

64. The Constitution of India was amended by the Eighty-sixth Amendment Act, 2002, to include the right to education as a fundamental right under Article 21-A providing that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

65. The RTE Act, being the consequential legislation envisaged under Article 21-A, provides that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

66. Article 21-A and the RTE Act came into effect on 1st April 2010. The long title of the RTE Act reads as “a Bill to provide for free and compulsory education to all children of the age of six to fourteen years.” The words incorporated therein are ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this enactment, India moved forward to a rightsbased framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.

67. The Statement of Objects and Reasons of the RTE Act is furnished hereunder: “The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State shall provide free and compulsory education to all children up to the age of fourteen years. Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education.

2. Article 21A, as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine.

3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide,— (a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; (b) ‘compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education; (c) ‘free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;

(d) the duties and responsibilities of the appropriate

Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and (e) a system for protection of the right of children and a decentralized grievance redressal mechanism.

4. The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in article 21-A of the Constitution.

6. The Bill seeks to achieve this objective.”

68. Furthermore, in the case of Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, the Hon’ble Supreme Court while upholding the constitutionality of the RTE Act held as under:

38. The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school(s) as also grant of recognition (see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges.

39. In T.M.A. Pai Foundation [(2002) 8 SCC 481], this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the Government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6).

40. Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), a private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the W.P.(C) 1092/2021 & CONNECTED MATTERS above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects viz. upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.

41. We also do not see any merit in the contention that Section 12(1)(c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to Class I, to the extent of 25% of the strength of the class, of the children belonging to weaker sections and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on “free and compulsory education”. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees.”

69. Again, as has been recently reiterated in the majority judgment delivered by the Constitution Bench of the Hon'ble Supreme Court on 7.11.2022 in the case of Janhit Abhiyan v. Union of India, W.P. (C) NO. 55/2019, upholding the constitutionality of 103rd Constitution Amendment or the EWS Reservation, that according to the Constitutional scheme, the right to education forms part of the right to life under Article 21 and the right to education is incorporated separately and in clear terms W.P.(C) 1092/2021 & CONNECTED MATTERS as an independent fundamental right in the form of Article 21-A. That Article is couched in the language which is mandatory insofar as the State is obliged to provide free and compulsory education to all children of the age of 6 to 14 years. The matter of free and compulsory primary education has been perceived to be so important even at the time of drafting of the Constitution that Articles 45 and 46, respectively, were incorporated in Part IV of the Constitution to lay the principles which are fundamental for the governance of the Country and thus, it became the duty of the State to apply those principles in making laws by virtue of Article 37.

70. Since the right to education has not only been declared a fundamental right of every child, but the State has also been obliged to provide free and compulsory education, and hence, no authority which falls within the ambit of definition of State as per Article 12 could renege on the constitutional covenant.

71. The phrase “free and compulsory education” in Article 21-A clearly makes it obligatory on the State to not only provide necessary funds and facilities for free, but also ensure that compulsory education is imparted. Thus, the State is under an obligation to apply the provisions contained in Articles 45 and 46 respectively to provide childhood care and primary education and promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice.

72. Therefore, the right of children to free and compulsory education guaranteed under Article 21-A and the RTE Act can be enforced against the schools defined under Section 2(n) of the Act, except unaided minority schools not receiving any kind of aid or grants to meet their expenses from the appropriate governments or local authorities. In exercise of the powers conferred upon the appropriate Government under Section 38 of the RTE Act, the Government shall frame rules for carrying out the purposes of this Act and in particular, the matters stated under sub-Section (2) of Section 38 of the RTE Act. Issue II: Method of Calculating the Percentage of Admission under Weaker Sections category

73. The first sub-issue to be decided is whether the percentage is to be calculated on the basis of the actual strength of the class or as per the declared strength for an academic year? To decide the same, perusal of the relevant provisions of the Act is essential.

74. The second sub-issue to be considered by this Court is that whether the prescribed percentage is a cap on reservation or a basic threshold that needs to be followed? For deciding the same, it is pertinent to peruse the relevant provision of the Act, i.e., Section 12(1)(c).

75. For interpretation of a legislative instrument like a statute enacted by the Parliament, it is pertinent to seek resort to various aids of interpretation, including the internal as well as external aids. Internal aids include long title, short title, preamble, headings, title of chapter, marginal notes, illustrations, punctuation, proviso, and schedules.

76. When the internal aids are not forthcoming, recourse is sought to external aids to discover the object and true meaning of the provisions of legislation. External aids include Parliamentary History, Historical Facts and Surrounding Circumstances, Statement of Objects and Reasons, Reports of Commissions, Speeches of mover of Bill, Social, Political and Economic Developments, Scientific Inventions, reference to other statutes, and expert studies on the subject matter.

77. Section 12(1)(c) of the RTE Act reads as under:

78. The interpretation of the phrase 'strength of the class' to suggest that it means the student actually admitted in an academic year is fallacious since the intent of the Act is to ensure that a minimum of 25% of children admitted belong to weaker and disadvantaged sections. It is also to be noted that the words used in the provisions are “shall” and “at least”, which in a plain reading itself suggest that the limit thus prescribed is not at all an upper limit rather it is a minimum figure decided by the parliament in its wisdom.

79. The admissions actually carried out in an academic year is a matter that is within the realm of the school administration and the declared strength cannot be dynamically updated on the basis of the actual admissions being carried out and the poor children cannot be kept in limbo where on a daily basis, the portal reflects the number of admissions carried out in each school and accordingly vary the number of the EWS students that can be actually made. This will lead to a state of chaos and will defeat the very intent of the legislation. Lesser admissions as compared to the declared strength could be taken as a defense when the nation was fighting with the COVID-19 pandemic, however as on date, lesser admissions made cannot be considered to be a ground reality, and even be considered as an argument.

80. In any case, even if it is presumed for a moment that few less admissions are carried out, it still should not affect the number of admissions of EWS students since, the object of imparting education is charitable and not to profiteer and the appropriate government is duty bound to reimburse the expenses of the students admitted against the EWs category. Therefore, no question arises to peg the number/percentage of the students admitted under the weaker section category to the actual number of admissions. It is thus settled that the number of the students to be admitted has to be calculated on the basis of the strength as self-declared by the school.

81. This issue was also considered by this Court in Birla Vidya Niketan v. Govt. of NCT of Delhi, 2013 SCC OnLine Del 3171, where it was categorically held that:

82. The same issue was again considered by the Court in The Sovereign School v. Directorate of Education (Supra) where it was held that a relaxation may be granted in cases where despite reasonable and W.P.(C) 1092/2021 & CONNECTED MATTERS bona fide attempts on the part of the school to admit the general category students, the ample number of admissions did not take place.

83. It is also in the case of Siddharth International Public School v. Motor Accident Claim Tribunal (Supra), a Division Bench of this Court had the occasion to deal with the same question, and it was held that the 25% ratio under the RTE Act was not the upper limit, therefore it is not the school’s discretion to refuse the admission to students from EWS category on the basis that there are insufficient general category admissions. It was held therein:

84. Therefore, the arguments offered by the school in justification of its action for denial of the admissions stating that the schools are only W.P.(C) 1092/2021 & CONNECTED MATTERS required to admit EWS students corresponding to the general category admissions is in stark contravention of the ruling of Siddharth International Public School v. Motor Accident Claim Tribunal (Supra) as well as to the bare reading of the Section 12(C) of the RTE Act and hence, cannot be upheld. Issue III: Implementation of the RTE Act

85. The next question that arises for the consideration of this Court is what are the measures that can be adopted to ensure that the provisions of the RTE Act and/other orders passed by the Directorate of Education (DoE) under the Act are not violated. To decide this, two sub-issues have been framed: firstly, what is the ambit of powers of the Directorate of Education to pass binding orders to the schools under the RTE Act as well as the DSE Act; and secondly, what are the measures that can be adopted by the DoE in case of non-compliance with the same.

86. It is pertinent to peruse various salient provisions of the Act as well as the Rules framed.

87. Section 2(a) defines appropriate government as: “(a) “appropriate Government” means—

(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;

(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of— (A) a State, the State Government; (B) a Union territory having legislature, the Government of that Union territory”

88. In the instant case, since Delhi is the National Capital Territory (NCT) with its own legislature, the Government of NCT of Delhi is the appropriate government in relation to private unaided schools situated within the territory of Delhi. The DoE, being the concerned department under the Government of NCT of Delhi, can thus exercise the powers under the provisions of the Act.

89. Having settled the appropriate authority, it is now pertinent to seek recourse of the provisions of the Act and Delhi RTE Rules to delineate the scope of the powers of the DoE.

90. Section 2(n) defines school under the scheme of the RTE Act as under: ““school” means any recognised school imparting elementary education and includes—

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

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

91. Chapter III of the RTE Act deals with the duties of Appropriate Government, Local Authority, and Parents. Sections 6 and 7 provide as under:

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

(d) provide infrastructure including school building, teaching staff and learning equipment; (e) provide special training facility specified in section 4; (f) ensure and monitor admission, attendance and completion of elementary education by every child; (g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule; (h) ensure timely prescribing of curriculum and courses of study for elementary education; and

(i) provide training facility for teachers.”

93. Section 12 prescribes the extent of school's responsibility for free and compulsory education, and the same is reproduced hereunder:

12. (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 W.P.(C) 1092/2021 & CONNECTED MATTERS 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. (2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed: Provided that such reimbursement shall not exceed perchild-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2: Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. (3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.”

94. Section 15 deals with the period for carrying out admission. It reads as under:

95. Section 18 deals with the requirement of recognition and provides as under:

96. Rule 15 of the DTE Rules permits withdrawal of recognition to a school which fails to fulfil conditions for grant of such recognition. The provision is reproduced hereunder:

97. Chapter VII deals with various miscellaneous provisions, few of which are relevant for the purpose of this Judgment are cited hereinafter. Section 35 permits the Central Government and the appropriate Government to issue necessary guidelines and directions for implementation of the RTE Act, as quoted hereunder:

98. Section 38 confers the powers upon the appropriate Government to make necessary rules. It is important to highlight that the list provided under sub-clause (2) is ‘without prejudice to the generality’ of the general power to make rules. The said provision is reproduced hereunder:

99. Having perused the salient relevant provisions of the RTE Act, it is now pertinent to refer to the Delhi RTE Rules framed by the Government of NCT of Delhi.

100. Under Rule 11, the procedure for reimbursement of expenditure to the schools has been provided, and is reproduced as under:

101. Rule 14 pertains to recognition of schools and states as under:

102. Rule 26 grants powers to the DoE to issue necessary directions for implementation of the provisions of the RTE Act. The provision reads as under:

103. It is also pertinent to peruse the forms prescribed for recognition of schools. Relevant portion of Form-1(A) being the Self-declaration for recognized school is extracted hereinbelow: FORM-1(A)

SELF-DECLARATION FORM FOR RECOGNIZED SCHOOL (see sub-rule (1) of rule(14)

104. Relevant portions of Form-II being the application for recognition is reproduced hereunder: FORM II OFFICE OF DISTRICT EDUCATION OFFICER (Name of District/Union Territory) Subject: Recognition Certificate for the school under sub-rule (5) of rule 14 of Delhi Right of Children to Free and Compulsory Education Rules, 2011 for the purpose of section 18 of Right of Children to Free and Compulsory Education Act, 2009. ***

1. The grant for recognition is not extendable and does not in any way imply an obligation to recognize/affiliate beyond class VIII.

2. The School shall abide by the provisions of Right of Children to Free and Compulsory Education Act, 2009 and the Delhi Right of Children to Free and Compulsory Education Rules, 2011.

3. The School shall admit in class I (or in entry class, as the case may be), to the extent of 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary W.P.(C) 1092/2021 & CONNECTED MATTERS education till its completion.

4. For the children referred to in paragraph 3, the School shall be reimbursed in accordance with the provisions of sub-section (2) of section 12 of the Act. To receive such reimbursements school shall maintain a separate bank account.

5. The Society/School shall not collect any capitation fee and subject the child or his or her parent or guardian to any screening procedure. ***

17. The School is run by a society registered under the Societies Registration Act, 1860 (21 of 1860), or a public trust constituted under any law for the time being in force. ***

18. The School is not run for profit to any individual, group or association of individuals or any other persons.”

105. A bare reading of the provisions in the said forms as cited hereinabove outrightly establishes that the applicant schools have willfully consented to abide by the provisions of the RTE Act, Delhi RTE Rules, as well as the directives/instructions of the appropriate authority. There is also no dispute to the fact that under the provisions of RTE Act as well as DSE Act, recognition is a condition precedent for imparting education in the NCT of Delhi. It is also evident that the Form II as aforestated and appended to the Delhi RTE Rules specifically mandates admission to the extent of 25% of the strength of the class to students of EWS category, to which the schools have willfully consented.

106. From the aforesaid analysis, there is no iota of doubt that the DoE is empowered to pass orders for compliance of the provisions of the RTE Act as well as the Delhi RTE Rules; and that the schools are duty bound to implement the said orders issued for compliance of the RTE Act as well as the Delhi RTE Rules.

107. The impugned Circular dated 09.07.2021, in furtherance of the judgments as dealt with earlier, issued by the DoE specifically states that all the concerned Private Unaided Schools must grant admission to all eligible candidates allotted to them as per the declared strength of the entry level classes and if the school is refusing the admission there should be genuine and bona fide reason as well as attempt to admit the sufficient number of general category students and apply to the DOE for the exemption. The said circular was challenged in the case of Action Committee Unaided Recognized Schools v. Directorate of Education WP(C) 10839/2021, where the Court vide its Order dated 24.09.2021 the Circular and dismissed the prayer to stay its effect and operation. The Court held as under:

108. Having delineated the ambit of powers of the DoE to pass binding orders to the schools under the RTE Act, it is now pertinent to analyse the second issue, as to what are the measures that can be adopted to ensure implementation of the provisions of the Act, reliance is required to be placed on various provisions of the Act as well as the Rules under the Delhi RTE Rules.

109. The Act also envisages the formation of a School Management Committee, the provisions pertaining to which are reproduced hereunder:

110. Part II of the Delhi RTE Rules deal with the School Management Committee and is reproduced hereunder:

3. Composition and functions of the School Management Committee.─ (1) A School Management Committee (hereafter in this rule referred to as the said committee) having not less than 16 members shall be constituted in every school, other than an unaided school, within six months of the coming into force of these W.P.(C) 1092/2021 & CONNECTED MATTERS rules and reconstituted every two years: Provided that fifty percent of the members of this committee shall be women. Provided further that there shall be a proportionate representation of parents/guardians of children belonging to disadvantaged group and weaker sections. Provided also that the committee’s role would be limited to elementary education level. (2) Seventy five percent of the strength of the School Management Committee shall be from amongst parents or guardians of children. (3) The remaining twenty five percent of the strength of the School Management Committee shall be from amongst the following persons, namely:- (a) One member of the committee shall be an elected representative of the local authority; (b) Head of the school shall be the member of the committee; (c) One member of the committee shall be a teacher of the school to be decided by the teachers of school; (d) One member shall be a social worker involved in the field of education. (4) The following teachers of school shall be included in the School Management Committee as special invitee.

(i) One social science teacher.

(ii) One science teacher.

(iii) One mathematics teacher. (5) To manage its affairs, the School Principal shall be the exofficio Chairperson of the School Management Committee. Vice Chairperson shall be from among the parent members. The member teacher of the committee shall act as the convenor. (6) The said Committee shall meet at least once in two months and the minutes and decisions of the meetings shall be properly recorded and made available to the public. (7) The said Committee shall, in addition to the functions specified in clauses (a) to (d) of sub section (2) of section 21 of the Act, perform the following functions, namely:- (a) Communicate in simple and creative ways to the population in the neighbourhood of the school, the right of the child as enunciated in the Act; as also the duties of the Government, Local Authority, school, parents and guardian; (b) Ensure the implementation of clauses (a) and (e) of section 24 and section 28 of the Act;

(c) Monitor that teachers are not burdened with non academic duties other than those specified in section 27 of the Act;

(d) Ensure the enrolment and continued attendance of all the children from the neighbourhood in the school; (e) Monitor the maintenance of the norms and standards specified in the Schedule; (f) Bring to the notice of the Government or local authority as the case may be any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission, and timely provision of free entitlements as per section 3(2) of the Act; (g) Identify the needs, prepare a plan, and monitor the implementation of the provisions of section 4 of the Act; (h) Monitor the identification and enrolment of, and facilities for education of children with disabilities and ensure their participation in, and completion of elementary education;

(i) Monitor the implementation of the mid-day meal in the school.

(8) Money if received by the said committee for the discharge of functions under the Act, shall be kept in a separate account, to be audited annually. (9) The accounts referred to in sub-rule (8) should be signed by the Chairperson/Vice Chairperson and Convenor of the School Management Committee and made available to the authority releasing the fund within one month of their preparation.

111. The provisions under the Act regarding the redressal of grievances is reproduced hereunder:

THE MANDATE OF THE SCPCR/NCPCR

112. Chapter VI of the RTE Act deals with the Protection of Rights of Children. The provisions pertaining to the National Commission for Protection of Child Rights (hereinafter referred to as the “NCPCR”) and the State Commission for Protection of Child Rights (hereinafter referred to as the “SCPCR”) as reproduced hereunder pertains to monitoring of the child’s right to education:

114. Rule 24 of the Delhi RTE Rules provides for a mechanism to approach the Delhi Commission for Protection of Child Rights for registering complaints under the RTE Act. It reads as under:

115. Before parting away with the analysis and proceeding to the conclusion, it is pertinent to reflect for a while on the role of NCPCR. The NCPCR is a statutory body constituted under Section 3 of the Commission for Protection of Child Rights Act (CPCR) Act, 2005 to protect and safeguard the rights and interest of children.

116. From a bare perusal of the aforementioned provisions, it is evident that the NCPCR is tasked with the duties and responsibilities to examine and review the safeguards for rights provided by or under this Act and recommend measure for their effective implementation and to inquire into complaints relating to child's right to free and compulsory education.

117. At this juncture, it is pertinent to take cognizance of a letter issued by the NCPCR bearing F. No. DL-225244/2022-23/NCPCR/RTE/250390 dated 20th June 2022, addressed to the Chief Secretary of Delhi titled “Regarding denial of admission to children under EWS category by private schools in Delhi”.

118. In the said letter, it has been stated that the NCPCR has received various complaints of denial of admission to children under EWS category by private schools in Delhi, even after being selected in the due process for admission under EWS category prescribed by law. It is also stated therein that the concerned Officer from the DoE had been virtually summoned to seek clarification regarding the delay of admission to children belonging to EWS category by private schools.

119. It was stated that during the summon hearing, it had come to light that in the academic year 2021-2022, approximate seats allotted for admission of EWS category children in Delhi Private Schools were 40,000 wherein admission had been given to 28,000 children. Further, in the academic year 2022-2023, approximate seats allotted for admission of EWS category children in Delhi Private Schools were 33,000 wherein admission has been given to around 27,000 children.

120. The Commission in the said letter further noted that in addition, only 33,000 seats have been allotted in the academic year 2022-23 as against 40,000 seats allotted in the academic year 2021-22; evidently, 7,000 seats are yet to be allotted for admission of EWS category children by the Directorate of Education in the current academic year. It was further stated that it had prima facie come into light that in the past two years, that around 18,000 children were not provided admission in Delhi under the EWS category even after allotment by the DoE. Concluding the W.P.(C) 1092/2021 & CONNECTED MATTERS same, the Chief Secretary was directed to take cognizance of the issue and take appropriate legal remedy to ensure uninterrupted education of the concerned children in private schools in wake of the situation over the last two years.

121. As aforestated, it is undisputed that the NCPCR is the body tasked with the powers to examine, review the safeguards for rights provided under the RTE Act and to recommend measures for their effective implementation. It is also mandated to inquire into complaints relating to the child's right to free and compulsory education. When a body tasked with such important functions expresses an opinion on the basis of its findings, the same cannot be brushed aside as worthless. The overall scenario depicted paints a gloomy picture.

122. As per the statement made by learned counsel for the DoE, despite directions and circulars issued from time to time, the private schools have been reluctant to obey the same and have been blatantly violating the same thus, outrightly undoing the mandate and intent of the RTE Act. Thus, there is no doubt that the implementation of the provisions of the RTE Act is in tatters and the fiasco warrants the intervention of this Court.

CONCLUSION “The one thing that is at the root of all evils in India is the condition of the poor… The only service to be done for our lower classes is to give them education, to develop their lost individuality…They are to be given ideas; their eyes are to be opened to what is going on in the world around them; and then W.P.(C) 1092/2021 & CONNECTED MATTERS they will work out their own salvation… Now if the mountain does not come to Mohammed, Mohammed must go to the mountain. If the poor boy cannot come to education, education must go to him.” “Education, education, education alone! Travelling through many cities of Europe and observing in them the comforts and education of even the poor people, there was brought to my mind the state of our own poor people, and I used to shed tears. What made the difference? Education was the answer I got. Through education comes faith in one’s own Self, and through faith in one’s own Self the inherent Brahman is waking up in them, while the Brahman in us is gradually becoming dormant.” [Extracts from The Complete Works of Swami Vivekananda: Volume IV - “Our Duty to the Masses” & “The Education that India needs”]

123. It is high time that the judiciary reaches the people and not wait for the people to reach out to the judiciary, as the poor kids are being forced in the instant set of petitions to knock the doors of the Court for availing their Fundamental Right to Education. In view of the aforesaid analysis as well as to alleviate and ameliorate the miserable state of affairs as prevalent in the NCT of Delhi qua implementation of the RTE Act at elementary education level, it is pertinent to exercise the powers of this Court under Article 226 of the Constitution to issue directions to the DoE for ensuring admission to the poor children belonging to weaker sections. It is accordingly directed as under: a. All the schools within the meaning of Section 2(n) of the RTE Act shall ensure that the provisions of the Act as interpreted herein shall be given effect in letter as well as in spirit; b. All such schools as aforementioned shall also ensure that no student, belonging to ‘Weaker Sections’ as defined in the RTE Act W.P.(C) 1092/2021 & CONNECTED MATTERS and recommended by the DoE for being admitted in an Academic Session, shall be denied admission or treated with conduct that is unwelcoming of them on any pretext whatsoever including that of suspicion of credentials; c. Any exemption/waiver if required by the schools under the provisions of the RTE Act, in the most exceptional and unforeseen circumstances, can be availed by making such request to the DoE as per the scheme as delineated below: i. The Application must be made within one week of recommendation and the notification of admission of a particular student under the ‘weaker section’ quota to the neighborhood school. ii. The said Application must state the reasons and circumstances under which the limited liberty or onetime limited exemption is being sought, or in any format as the DoE may deem fit including other details therein in addition to the reasons for the request. iii. Upon receiving the said Application, the DoE shall give an opportunity of hearing to the concerned school within a week and decide the said application within a week thereafter, upon ascertaining that the prayers and reasons asserted therein are bona fide and stand the test of most exceptional circumstances and accordingly to its satisfaction, if deemed fit, grant a one-time limited exemption to the concerned school. W.P.(C) 1092/2021 & CONNECTED MATTERS iv. It is, however, made clear that no such exemption would be granted at the cost of causing prejudice to the admission of the child and shall only be passed after admitting the child, who would otherwise be aggrieved, to an alternate school that is in the closest neighborhood. d. The DoE shall exercise its powers under the Act and Rules to ensure that the provisions are duly complied with; e. The DoE shall ensure that all the students shortlisted and notified to be admitted in a neighborhood school shall be admitted at the earliest within one month or within the period prescribed by the appropriate authority subject to the provisions of the Act; f. In case of erring schools, the DoE shall issue strict directions as may be necessary to ensure the implementation of the RTE Act in a time-bound manner; g. The DoE shall not hesitate in initiating the process of derecognition of the schools which have been found to be indulging in any acts/omissions in contravention of the RTE Act and the Delhi RTE Rules.

124. The schools have inter alia raised a contention regarding frauds being committed by the parents of the students seeking admission, misrepresenting themselves as belonging to weaker section by forging documents and adopting other scrupulous means. In that regard, having W.P.(C) 1092/2021 & CONNECTED MATTERS considered the entire scheme of Act as well as the Rules and the various rulings passed by the Courts, this Court deems it fit, under the provisions/scheme as notified under the RTE Act/Delhi RTE Rules, to direct the DoE to carry out necessary screening as well as to mandate the submission of necessary documents to authenticate the credentials of the child and his/her parents and to verify the facts regarding eligibility while shortlisting, allotting and notifying the candidates who are found fit for admission to respective neighborhood schools under the said quota.

125. However, it is made clear that the admission of a student shortlisted and allotted under the said category by the DoE for being admitted shall not be denied for want of satisfaction of bona fides of the candidate by the school. Mere suspicion or doubt on the credentials of the candidate on the basis of fact-finding exercise carried out by the school, cannot be a ground to deny admission, otherwise it will render a deathknell to the spirit of the RTE Act. The schools as such, in the matters of admission under the Act/Rules, cannot bestow upon themselves the roles of the complainant, advocate as well as the adjudicator in such cases. Rather, if despite the due process adopted by the DoE for screening, in case the school, after admitting the child, suspects fraud being committed by the ward or their parents, they can seek recourse to legal remedies as available.

126. The instant set of petitions is accordingly disposed of.

127. Pending applications, if any, also stand disposed of.

128. The judgment be uploaded on the website forthwith.

JUDGE DECEMBER 16, 2022 gs/Adityak.