AADHARSHILA VIDYA PEETH vs MASTER JAI THROUGH HIS FATHER MANISH KUMAR AND ANR
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 13.09.2024
Judgment delivered on: 01.10.2024
+ LPA 854/2024 &CM APPL. 49991/2024, CM APPL. 49992/2024,
CM APPL. 49993/2024.
AADHARSHILA VIDYA PEETH …. Appellant
versus
MASTER JAI THROUGH HIS FATHER MANISH KUMAR & ANR ….. Respondents
Advocates who appeared in this case:
For the Appellant : Ms. Pinky Anand, Senior Advocate alongwith Ms. Jyoti Taneja, Mr. Saudamini Sharma, Ms. Prashansa Sharma, Ms. Nayoleeka Purthy, Mr.Jayant Kashyap and Mr. Samrat Pasriccha, Advocates.
For the Respondent : Mr. Kotla Harshavardhan and Mr. Rishbha Arora, Advocates for R-1
Mr. Sameer Vashisht, ASC (Civil), GNCTD alongwith Ms. Harshita Nathrani and Mr. Vedansh Vashisht, Advocates for R-2/DoE.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G M E N T
TUSHAR RAO GEDELA, J.
1. Present appeal has been preferred under Clause X of the Letters Patent Act, 1866, assailing the order dated 23rd August, 2024, passed by the learned Single Judge of this Court in W.P.(C) 11229/2024 titled Master Jai Kumar Through his Father Manish Kumar vs. Aadharshila Vidya Peeth & Ors filed by the respondent no.1/child, whereby the learned Single Judge has directed the appellant to allow the respondent no.1/child to complete the admission formalities by 27th August, 2024 and further directed the DoE, GNCTD, to initiate an inquiry to ascertain who is at fault in creating an anomaly, wherein, the seat came to be allotted to the respondent no.1. The learned Single Judge also directed DoE, GNCTD to place on record the steps taken by the department to impart suitable sensitization training to the teaching and non-teaching staff of the private unaided schools for proper implementation of the Right to Education Act, 2009, (hereinafter referred to as RTE Act) in letter and spirit. Learned Single Judge further directed an inquiry to be conducted by a competent officer designated by the Commissioner of Police, into the circumstances in which the respondent no.1 was not permitted to enter into the school premises.
2. The facts germane to the present appeal, shorn of unnecessary details and culled out from the appeal, are as under:
a) The appellant is a Senior Secondary School affiliated to the Central Board of Secondary Education.
b) Vide the notification dated 7th January, 2011, the GNCTD had issued the Delhi School Education (free seats for students belonging to economically weaker sections and disadvantage Group) Order, 2011. Vide notification dated 28th February, 2012, the said order was amended with respect to total number of seats at the entry level. The amended clause fixed the total number of seats should not be less than the highest number of seats in the entry class in the previous three academic years.
c) The appellant submitted that the respondent no.2/DoE vide circular dated 12th March, 2022 had indicated that a total of 200 seats were allocated to the appellant for the Academic Year 2022-2023, with 150 seats for the General Category and 50 Seats for the Economically Weaker Section/Disadvantaged Groups (hereinafter referred to as EWS/DG) & Child with Special Needs (hereinafter referred to as CWSN) category. It is submitted that the respondent no.2/DoE being fully aware of the number of seats declared by the appellant to be 126, yet, declared that 200 seats were allocated to the appellant. Aggrieved by the same, the appellant submitted a detailed representation dated 15th March, 2022 with the respondent no.2/DoE, wherein the appellant submitted that it had already submitted the admission procedure for pre-school/nursery class for academic session 2022-2023. The said representation is pending till date and has not been decided by the respondent no.2/DoE.
d) It is the case of the appellant that in the Managing Committee Meetings dated 10th December, 2021, 28th November, 2022 and 7th November, 2023 for the Academic Years 2022-2023, 2023-2024 and 2024-2025 respectively, the total number of declared seats at entry level for the aforesaid academic years was 126 with 25% out of the total seats i.e., 32 seats to be allotted to the EWS/DG category and remaining 94 seats to be allotted to the General category. The appellant claimed that in the said meetings, a nominee of the respondent no.2/DoE were also present.
e) Despite the aforesaid, the respondent no.2/DoE issued a circular dated 17th January, 2024 wherein the total number of seats in the appellant school were mentioned as 200 (150 General + 50 EWS/DG) instead of 126 (94 General + 32 EWS/DG) and also mentioned 16 carry forward seats in class I and 8 carry forward seats in class K.G under EWS/DG/CWSN in the circular. It is the case of the appellant that thereafter, the appellant has sent representations dated 19th January, 2024 and 3rd June, 2024 and 15th July, 2024 and the respondent no.2/DoE has not responded to any of the representations nor issued any speaking orders in response.
f) The appellant submitted that in the meanwhile, the respondent no.1 approached this Court by filing a writ petition bearing W.P.(C) 11229/2024 seeking grant of admission to the respondent no.1 in class I as per the circular dated 31st May, 2024 issued by the respondent no.2/DoE.
g) It is the case of the appellant that the learned Single Judge took up the matter on 22nd August, 2024 and had directed the appellant and the respondent no.2/DoE to file the counter affidavits within half a day and posted the case to 23rd August, 2024. It is stated that although the appellant filed its counter affidavit, the respondent no.2/DoEs counter affidavit was not filed. It is claimed that the learned Single Judge, accepted the oral submissions of the respondent no.2/DoE and directed the appellant to grant provisional admission to the respondent no.1 herein, in the appellant at class-I in EWS/DG category for the academic year 2024-25. Aggrieved by the same, the appellant filed the present appeal.
CONTENTIONS OF THE APPELLANT:-
3. Ms. Pinky Anand, learned senior counsel appearing on behalf the appellant submitted that the respondent no.2/DoE has allotted the respondent no.1/child to the appellant school at class-I in the EWS/DG category which is not the entry level class of the appellant. The entry level class for the appellant is pre-school/nursery and not class-I. She thus submitted that as such the impugned direction could not have been passed.
4. She further submitted that the appellant had declared a total number of 126 of seats for the academic year 2024-25 for its entry level classes i.e., Nursery/Pre-school. Out of the total 126 seats, 94 were allotted to the general category and 32 (28 & 4 seats) were reserved for the EWS/DG & CWSN category. She further submitted that the appellant has already admitted the students for the academic year 2024-25. She also submitted that the appellant had declared a total number of 126 seats for the academic year 2022-23 (presently class-I) and the appellant was required to admit 94 students in the general category and 32 students in the EWS/DG & CWSN category. She emphasised that the appellant had already admitted the students for the academic year 2022-23 who have now been promoted to class-I in the academic year 2024-25. Learned senior counsel for the appellant submitted that there are, in fact, no vacant seats either in the general category or in the EWS/DG & CWSN category for the academic year 2024-25 for class-I.
5. Learned senior counsel for the appellant submitted that vide notification dated 28th February, 2012, GNCTD has amended clause 4 of the Delhi School Education (Free Seats For Students Belonging To Economically Weaker Sections And Disadvantaged Group) Order, 2011 by substituting sub-clause (b), inter alia, specifying that total number of seats at the entry level i.e., nursery or 1st class as the case may be, shall not be less than the highest numbers of seats in the entry class in the previous three academic years. On this, she submitted that the declaration of seats by the appellant for the past five (5) years is in terms of the aforesaid notification. That, according to her, is evident from the representation filed by the appellant on 19th January, 2024, wherein the appellant in para 9 had presented the data of the total number of seats for the last five (5) years in the entry level class which has not declined for the past three years i.e., 2021-22: 103; 2022-23: 126 & 2023-23: 126. She also submitted that as the appellant had already complied with the conditions stipulated in the notification, the respondent no.2/DoE cannot now thrust children upon the appellant school.
6. She further submitted that on 7th November, 2023, the Managing Committee held its meeting for deliberating upon the academic year 2024-25 and declared 126 seats at the entry level i.e., (nursery/pre-school), with 32 seats designated for the EWS/DG category and the remaining 94 for the General category. She emphasised that the said meeting was held in the presence of the nominee of the respondent no.2/DoE. Though the respondent.2/DoE attended the meeting dated 7th November, 2023, where the appellant school declared 126 seats, the respondent no.2/DoE vide circular dated 17th January, 2024 showed the total number of seats as 200 (150 General and 50 EWS/DG) and misstated the carry forward seats. She stated that aggrieved by the same, the appellant had submitted a detailed representation dated 19th January, 2024, with the respondent no.2/DoE, highlighting the discrepancies in the circular and requesting corrections. She submitted that the representation is still pending before the respondent no.2/DoE for consideration.
7. Learned senior counsel for the appellant submitted that the circulars of the respondent no.2/DoE indicated intake of 25% of students in EWS/DG & CWSN category and that was duly followed by the appellant scrupulously. According to her, the appellant had admitted more students than mandated by the circulars i.e., 25% in EWS/DG & CWSN category. She attempted to project this by handing over the bench, a chart of total number of students admitted in EWS/DG & CWSN category from pre-school to class XII for the academic session 2024-2025 as on 5th September, 2024. She further submitted that the total number of intake of students is 30.38% which is more than what is required as the circular of the respondent no.2/DoE which is 25%.
8. Ms. Pinky Anand, learned senior counsel for the appellant after examining the enquiry report handed over by the respondent no.2/DoE submitted that the respondent no.1/child is already studying in class-I in a MCD school under EWS/DG category and admitting the respondent no.1/child to the appellant school would effectively amount to transfer of school, which is a statutory bar under section 5(2) of the RTE Act. She emphasised that unless the procedure stipulated in section 5(2) of the RTE Act is followed, the question of admitting respondent no.1, even provisionally does not arise. She states that thus, the impugned order be set aside.
CONTENTIONS OF THE RESPONDENT NO.1/CHILD:-
9. Mr. Kotla Harshavardhan, learned counsel appearing on behalf of the respondent No.1/child at the outset submitted that the all representations given by the appellant including the representation dated 19th January, 2024 had been decided by the respondent no.2/DoE vide their letter dated 6th August, 2024 and therefore, the submission of non consideration of representation is a bogey. According to him, the respondent no.2/DoE has, in its letter dated 6th August 2024, stated that all the representations received from the appellant have been forwarded to the competent authority for necessary action and the same was not considered by the competent authority. Simultaneously, the Principal of the appellant/school was directed to admit all the selected/eligible students immediately as per the guidelines issued by the respondent no.2/DoE vide circular dated 31st May, 2024.
10. Learned counsel for the respondent no.1/child referred to the letter dated 8th December, 2021 and submitted that in the academic year 2021-2022, the appellant had declared 50 seats on account of EWS/DG & CWSN category. If this is taken at its face value, then too according to him, the carry forward vacancies which had arisen at that time would enure to the benefit of respondent no.1. This submission is predicated on the fact that the respondent no.1/child at that time was in pre-school/nursery and would be eligible for admission in class-I in the academic year 2024-2025. In support of the aforesaid arguments he invited attention of this Court to list uploaded by the respondent no.2/DoE on 24th April, 2024. He submitted that as per the said list, the seats available under EWS/DG & CWSN category was 32 along with the carry forward vacancies at the next entry level were uploaded on the website, which indicated that there are 16 carry forward seats available from the past academic year for class-I under EWS/DG category for the academic year 2024-2025. On this, he submitted that the respondent no.1/child is entitled to a seat, irrespective of a dispute between respondent no.2/DoE and the appellant regarding challenge to the aforesaid list uploaded on 24th April, 2024. He further submitted that the list dated 24th April, 2024 uploaded on the official portal has never been challenged by the appellant. He further submitted that due to the miscommunication between the respondent no.2/DoE and the appellant, the respondent no.1/child cannot be deprived of the fundamental right to education.
11. Learned counsel for the respondent no.1/child drew attention of this Court to the minutes of the Managing Committee dated 7th November, 2023 particularly to an asterisk (*) mark next to the number of seats available in the school i.e., 126 in point 3B(a). He submitted that the footnote referring to the asterisk apparently specifies that the number of seats available for admission in pre-primary classes did not match with the number of seats shown on www.edudel.nic.in as it should be 160 instead of 126 seats as per the academic year 2023-2024. Premised on this, he submitted that the respondent no.1/child is entitled to be admitted in the appellant school as the noting clearly mentioned that 160 seats are available for the academic year 2024-2025.
12. He also emphasised that once the seat has been allotted to the respondent no.1/child by the respondent no.2/DoE in the appellant school, the latter cannot deny the seat. He also submitted that it is a well settled position as per the notification dated 12th January, 2012 that once the seat has been allotted to the student, it cannot be denied. He prays that the appeal be dismissed with costs.
CONTENTIONS OF THE RESPONDENT NO.2/DoE:-
13. Mr. Sameer Vashisht, learned Additional Standing Counsel (Civil), GNCTD appearing for the respondent no.2/DoE and stated that on 24th April, 2024, the respondent no.2/DoE had finally uploaded the final list of the vacant seats with respect to each of the schools also indicating the carry forward seats. According to him, if any school had any grievance, the same should have been opposed or necessary steps ought to have been taken. He further explained that even if the appellant had made any representation prior to 24th April, 2024, the same stood rejected while uploading the final list on 24th April, 2024. Learned counsel for respondent No.2 contended that till date the said list has not been challenged by the appellant.
14. He also contended that the representation dated 19th January, 2024 of the appellant was considered on the basis of admission data of last 5 years and viewing that it has maximum admission of 126 in nursery class for the session 2022-2023, the respondent no.2/DoE reduced the initially declared seats of 200 to 126 for allotment for session 2024-2025. He further submitted that the appellant was required to fill 32 seats (28 EWS/KG & 4 CWSN) in its entry level class nursery. He submitted that the said list is the final list dated 24th April, 2024 which was uploaded in the portal showing the vacancy position in respect of its entry level class nursery in respect of seats for EWS/DG and CWSN along with the carry forward vacancies at next entry level class and according to him, this was never challenged by the appellant.
15. Learned counsel for the respondent no.2/DoE submitted that the strength of class is what is sanctioned and not what is declared. For this proposition, the learned counsel referred to the judgement of this Court in W.P.(C) 5194/2023 captioned Anjali Pandey vs. Govt of NCT of Delhi & Anr.
REJOINDER OF THE APPELLANT :-
16. Ms. Anand, learned senior counsel for the appellant submitted that there is no concept of carry forward so far as unfilled seats in a particular year is concerned. In support thereof, she referred to the notification dated 12th February, 2012 wherein no such aspect is mentioned. Even the circulars issued in pursuance of the aforesaid notification too are silent. According to her, in the absence of any such stipulation in the notification itself, no such concept of carry forward can be introduced by the respondent no. 2/DoE. On that basis, she urged that the learned single judge could not have even passed the order directing provisional admission in favour of respondent no.1/child.
17. Learned senior counsel for the appellant relied upon the representation dated 19th January, 2024 to submit that the appellant/school has already exhausted the declared seats to the extent of 126 and as such there is no vacancy, even assuming that there does exist any concept of carry forward. Moreover, she forcefully argued that it is for the school to declare the strength and not for the DoE to assess and thrust upon the school.
ANALYSIS AND CONCLUSION:-
18. This Court has heard the arguments of Ms. Pinky Anand, learned senior counsel for the appellant, Mr. Kotla Harshavardhan, learned counsel for the respondent no.1/child and Mr. Sameer Vashisht, learned counsel for the respondent no.2/DoE, perused the impugned order and considered the documents on record.
19. From a perusal of the impugned order, this Court has noticed that the learned Single Judge has primarily decided the limited issue of maintainability of the writ petition under Article 226 of the Constitution of India against the private unaided school, in favour of the respondent no.1/child. Learned Single Judge held that since a public law element is involved in the matter, a writ petition cannot be termed as non-maintainable only on the ground that the body against which a writ is sought, is a private body. In any case, the said issue is no more res integra. [see: Binny Ltd. And another vs. Sadasivan and others, (2005) 6 SCC 657; Sushmita Basu & Ors vs. Ballygunge Siksha Samity & Ors., (2006) 7 SCC 680; and St. Marys Education Society & Anr. vs. Rajendra Prasad Bhargava & Ors., (2023) 4 SCC 498]. Consequent upon holding the petition to be maintainable, a direction for provisional admission of respondent no.1/child in class-I was passed against the appellant as an interim measure/arrangement. To this Court, it appears that such interim orders were passed so as to ensure that the academic year of the respondent no.1/child is not jeopardized and also in order to do complete justice. The reason is not far to see. In case the learned Single Judge decides in favour of the appellant, it would not stand to lose anything, whereas, in case the writ is allowed in the end, without the respondent no.1/child being provisionally admitted in the interregnum, the respondent no.1/child cannot be put back in the same situation, whether it is tuitions, attendance, assignments or other activities which are essential for assessment at the end of academic year. An irreparable injury would be caused to the respondent no.1/child.
20. Learned Single Judge in para. 29 of the impugned order has also recorded that though there is a dispute between the respondent no.2/DoE and the appellant, with respect to the challenge to the final updated list dated 24th April, 2024 in the portal, yet the respondent no.1/child cannot be deprived of his rights envisaged in the RTE Act. The same is reproduced hereinbelow:-
29. Further, as per the stand taken by the learned counsel who appears for the respondent-DoE, there was no objection to the final updated list signifying the vacant position. The said position is, however, controverted by the learned counsel who appears for the respondent-school. But the underlying fact remains that, by no prudent stretch of imagination, the petitioner could be said to be at fault with respect to the aforesaid aspect. The reason behind the suffering of the petitioner certainly is a communication gap between the respondent-DoE and the respondent-school. However, any contention to the effect that the said allotment has been done purportedly in contravention of any circular or against any other provision or scheme, could not be a determinative factor in ascertaining the right of the petitioner for getting admitted in the school in the EWS category.
21. This Court has also considered the detailed and lengthy arguments addressed by the learned senior counsel for the appellant. While arguing the issues, learned senior counsel overlooked a relevant factor. In that, the ratio regarding the acceptability of the concept of carry forward, has already been enunciated and settled by a learned coordinate Bench of this Court in Siddharth International Public School vs. Motor Accident Claim Tribunal Anr., 2016 SCC OnLine Del 5272. In order to shed light on the issue it would be apposite to reproduce the relevant paragraphs of Siddharth International (supra), hereunder:
9. The contention that there were only seven seats under EWS Category was considered and negatived by the learned Single Judge in the light of Clauses 3 and 4 of the order of the Government of NCT of Delhi dated 07.01.2011 and Clause 2(d) of the Guidelines for Admission to Entry Level Classes in Private Unaided Recognized Schools of Delhi. It is relevant to note that the Deputy Education Officer, Zone-VI, Directorate of Education, GNCTD filed an affidavit dated 05.04.2016 in the writ petition stating that –
In case of the Petitioner Siddharth International Public School, the said Petitioner School had a total of thirty-eight (38) seats for the academic year 2015-16 in the pre-primary class. Thus, as per the statutory mandate, a total of nine (9) seats had to be reserved for EWS category students. However, as per records submitted by the Petitioner School itself for the academic year 2015-16, in pre-school, only seven (7) students were admitted for EWS category. Thus, at least two (2) EWS Category seats were vacant in pre-primary category for the year 2015-16. As the students of Pre-primary Grade for 2015-16 will get promoted to Class I for the academic year 2016-17, there are at least two vacancies in EWS Category in Class I for the year 2016-17. A True Copy of the Chart Showing the Total Class-wise and Category-wise enrolment of students in the Petitioner School for 2015-16 is annexed herewith as Annexure A-5 at page 13.
10. In the light of the said affidavit, we do not find any substance in the contention of the appellant that there are no vacancies under the EWS Category and that the appellant school had already satisfied the 25% requirement mandated under RTE Act.
11. Even assuming that the plea of the appellant that the 25% seats under EWS Category were already filled up is correct, in our considered opinion, the same cannot be a ground to interfere with the direction of the learned Single Judge. According to us, 25% admission to children belonging to EWS under the RTE Act cannot be held to be the upper limit. It appears to us that the intendment of the Act is to provide admission to the children belonging to weaker sections in all schools to the extent of at least 25%. Therefore, the contention that there can be no direction to admit Master Priyanshu since the same would result in exceeding the limit of 25% is misconceived and untenable.
22. Thus, the concept of carry forward is no more res integra. Besides, the respondent no.2/DoE had, in the circular dated 17th January, 2024, specified the carry forward seats in KG and Class I, as indicated hereunder:
Carry Forward Seats:
Carry forward EWS/DG seats from Nursery to KG
Carry forward EWS/DG seats from KG to 1st
Carry forward CWSN seats from Nursery to KG
Carry forward CWSN from KG to 1st
Total EWS/DG seats in session 2024-25
Total CWSN seats in session 2024-25
3
16
5
0
63
11
23. It seems that as on 17th January, 2024 the DoE calculated 16 carry forward seats in respect of KG to Class I on total sanctioned strength of 200 seats which include 50 seats for EWS/DG/CWSN category. The representation dated 19th January 2024 submitted by the appellant appears to have been considered by the respondent no.2/DoE and the decision whereof was made available on 24th April, 2024. Upon consideration, the respondent no.2/DoE reduced the seats to 126 from 200, yet maintained the carry forward seats intact. This decision, along with the information regarding the carry forward seats was uploaded on the website www.edudel.nic.in. The table regarding the carry forward seats is reproduced hereunder:-
EWS/DG
CWSN
Nursery
K.G.
I
Nursery
K.G.
I
28
3
16
4
5
0
24. It is apparent that the carry forward seats were made known to the appellant at least as on 24th April, 2024. The respondents, in unison, have argued that the appellant has not challenged this decision and is therefore, precluded from questioning the correctness in the present proceedings. Except to state that further representation against the decision dated 24th April 2024 has been submitted to the Competent Authority of respondent no.2/DoE, the appellant appears to not have challenged the same in a Court of law. Though the appellant had contended it has submitted a written representation against the list dated 24th April, 2024 apart from other issues raised therein, yet the respondent no.2/DoE disputes the said fact. Since this is a disputed question of fact, having regard to the fact that the same is pending consideration before the learned Single Judge, this Court refrains from delving into it, at the appellate stage.
25. Having regard to the fact that the concept of carry forward is no more res integra, this Court would now consider the argument of the learned senior counsel for the appellant respecting the purported embargo under section 5(2), RTE Act. This Court notices that though the instant argument was not taken in the grounds of appeal by the appellant nor was argued before the learned Single Judge yet, this Court deems it appropriate to consider the said submission. Section 5 RTE Act governs the right of a child to seek transfer to another school for completing his or her elementary education, excluding those schools as specified in sub-clause (iii) and (iv) of clause of (n) of section 2 of the said act. Learned senior counsel for the appellant has predicated her argument on the basis that respondent no.1/child is already admitted to class I in a government/MCD school and thus, would be liable to seek transfer from the said MCD school to the appellant in terms of section 5 of RTE Act. According to her, in such situation the respondent no.1/child cannot be admitted to the appellant since it falls within sub-clause (iv) of clause (n) of section 2 of RTE Act. As per her, the direction for granting provisional admission vide the impugned order is contrary to law and cannot be implemented.
26. In the opinion of this Court it is imperative to consider that the respondent no.1/child did not seek transfer from the school which he is currently admitted to in class I, to the appellant school. The admission sought by respondent no.1/child in his writ petition, is on the basis of sixteen (16) vacant seats being available under the EWS/DG category. Ostensibly, the respondent no.1/child is predicating his claim on the basis of carry forward seats. If that be so, it is clear that the respondent no.1/child is not seeking transfer under section 5 of the RTE Act. As a consequence, the purported embargo, if any, would not create any impediment so far as the respondent no.1/child is concerned.
27. Since the entire gamut of facts and law, are yet to be argued by the parties before the learned Single Judge, we deem it appropriate not to enter into the other controversies, lest it prejudices the respective case and contentions of the parties.
28. Suffice it to state that the learned Single Judge has, by the impugned order, only directed appellant to grant provisional admission to respondent no.1/child, which consideration has been upheld by this Court in para 19 above. It is apparent that the contentions of the parties on merits are yet to be considered by the learned Single Judge. No prejudice would be caused to the appellant on this count.
29. We dispose of the appeal on the above terms, leaving the parties to raise all their contentions before the learned Single Judge.
30. Pending applications, if any, stand disposed of.
31. It is needless to say that the any observation made herein above shall not tantamount to any expression on the merits of the pending matter.
TUSHAR RAO GEDELA, J.
CHIEF JUSTICE
OCTOBER, 1, 2024/rl
LPA 854/2024 Page 1 of 3