ANAYSHA DHIKA THROUGH HIS FATHER VINAY KUMAR vs MAXFORT SCHOOL & ANR.

$~81
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4124/2024
ANAYSHA DHIKA THROUGH HIS FATHER VINAY KUMAR ….. Petitioner
Through: Mr. Bharat Malhotra, Adv.

versus

MAXFORT SCHOOL & ANR. ….. Respondents
Through: Mr. Utkarsh Singh, Adv. for Mr. Santosh Kumar Tripathi, Standing Counsel (Civil) for GNCTD/R-2

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 19.03.2024

CM APPL. 16838/2024

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

W.P.(C) 4124/2024

3. This is yet another case in which the petitioner, who is a four-year old girl, belonging to the Schedule Caste, had applied to the Directorate of Education (DoE) to the nursery/pre-school class as a candidate belonging to the disadvantaged group (DG) category, in the academic year 2023-24.

4. After obtaining data from the various schools regarding the number of general category and EWS category seats available with them, the DoE conducted a draw of lots, the results of which were declared on 14 March 2023.

5. In the said result, the petitioner was allotted admission to pre-school/nursery for the academic year 2023-24 in the Maxfort School (hereinafter referred to as “the School”).

6. As the School did not grant admission to the petitioner, the petitioner has instituted the present writ petition, seeking a writ of mandamus, directing the School to grant admission to her in accordance with draw of lots conducted by the DoE.

7. This Court has passed several orders directing granting of provisional admission in accordance with the outcome of the draw of lots conducted by the DoE in similar cases. Rewardingly, in several such cases, the schools have proactively agreed to regularize the provisional admissions so granted by this Court as well.

8. My attention was, however, drawn, recently, to the judgment of a coordinate Single Bench of this Court in Neeraj Kumar v. Venkateshwar Global School1, decided by V. Kameswar Rao, J., to contend that the Court was proscribed from granting admission to the petitioner after 31 December of that academic year.

9. Neeraj Kumar was instituted by parents of children who sought admission as EWS students, but had not submitted any online application for admission. Though the fact of non-submission of online applications by the students was one of the grounds on which Rao, J. dismissed the writ petition, that was not the sole ground. Rao, J. also relied on Rule 13 of the Delhi Right of the Children to Free and Compulsory Rules, 2011 (hereinafter “the RTE Rules”), which envisages children being admitted to the school at the commencement of the academic year or within an extended period of five months. The said period of five months (in Neeraj Kumar) expired on 31 August 2021.

10. While noting that the RTE Rules also contemplated the student being allotted admission even beyond the extended period of five months, Rao, J. observed, in Neeraj Kumar, that the extended period could not be open ended. Relying on Rule 5 of the RTE Rules, which envisaged a period of three months of training being granted to the children who were admitted beyond the period of five months, Rao, J. held that no direction to admit the student could be granted beyond 31 December of that academic year. Inasmuch as Neeraj Kumar was decided on 31 March 2017, and there were, therefore, less than three months left (in fact, not even a day), for the academic year to end, this was also cited, by Rao, J. as a ground to reject the writ petition.

11. The decision in Neeraj Kumar was carried in appeal by one of the petitioners in that case (Master Vansh) to the Division Bench in LPA 255/2018, (Master Vansh v. Vendkateshwara Global School & Ors). That LPA was dismissed by the Division Bench vide order dated 16 July 2018. However, a reading of the order reveals that the appeal was dismissed only on the ground that, as the parents of the appellant had not applied online for admission as required by Circular dated 29 December 2015 of the DoE, and had not challenged the said Circular, they were not entitled to relief. The Division Bench has not, therefore, accorded its imprimatur to the observation of Rao, J. in Neeraj Kumar that the Court could not direct admission to children beyond 31 December of that academic year.

12. The correctness of the decision in Neeraj Kumar is, however, presently under consideration before a Division Bench of this Court in W.P. (C) 1580/2022 (Miss Nikshita v. Directorate of Education). Mr. Utkarsh Singh who appears for the DoE has handed over, across the Bar, an order dated 18 February 2022 passed by the Division Bench in Nikshita. Para 6.1 of the said order reads thus:
“6.1. As indicated above, the issue concerning the cut-off date which has been stipulated by a learned single judge of this Court, via judgement dated 31.03.2017 passed in W.P.(C) No.7945/2016 out of which LPA No.5/2022 has arisen, requires consideration.”

13. Having thus opined that that the fixing of a cut-off date by the learned Single Judge in Neeraj Kumar was an aspect which required consideration, the Division Bench, significantly, went on to direct the DoE to issue a fresh advertisement, calling for applications for selection of children against seats reserved for EWS/DG and Persons with Disability and, following the procedure adopted by the DoE in the matter of allocation of schools and classes for EWS admissions, directed the petitioner, before it, to apply against the said advertisement and further directed that students who were found successful in the draw of lots conducted by DoE would be granted admission.

14. Inasmuch as the order passed on 18 February 2022 in Nikshita was passed by a Division Bench of this Court, the observation of the learned Single Judge in Neeraj Kumar that no direction for admission of the children could be issued by the Court when there were less than three months left for the academic session to come to an end cannot be treated as binding.

15. Accordingly, issue notice in this writ petition to show case as to why rule nisi be not issued.

16. Notice is accepted, on behalf of Respondent 2/DoE by Mr. Utkarsh Singh.

17. Let notice issue to Respondent 1 by all modes including dasti.

18. Counter affidavit, if any, be filed within four weeks with advance copy to learned Counsel for the petitioner, who may file rejoinder thereto, if any, within four weeks thereof.

19. List for disposal at the end of the Board on 22 May 2024.

CM APPL. 16839/2024 (for interim admission)

20. By this application, the petitioner seeks a direction for grant of provisional admission in accordance with the outcome of the computerised draw of lots conducted by the DoE.

21. Issue notice, returnable on 22 May 2024.

22. Notice is accepted, on behalf of Respondent 2/DoE by Mr. Utkarsh Singh.
23. Let notice issue to Respondent 1 by all modes including dasti.

24. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the petitioner, who may file rejoinder thereto, if any, within four weeks thereof.

25. In view of the aforesaid discussion, and following earlier orders passed by this Bench and other several benches in similar matters, the Respondent 1-School is directed to grant provisional admission to the petitioner in accordance with the outcome of the computerised draw of lots conducted by the DoE, and to provide education to the petitioner as a DG candidate with all facilities to which such candidates are entitled. The admission shall be subject to the outcome of the present writ petition.

C. HARI SHANKAR, J.
MARCH 19, 2024/dsn
Click here to check corrigendum, if any
1 (2017) SCC OnLine Del 7842
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