DEEPAK RAJ vs THE PRINCIPAL APEEJAY SCHOOL AND ORS
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14843/2023
DEEPAK RAJ ….. Petitioner
Through: Mr. Kuldeep Sharma, Mr. Narendra Kr. Upadhyay, Mr. Udai Bhan Sharma, Advs.
versus
THE PRINCIPAL APEEJAY SCHOOL & ORS. …Respondent
Through: Mr. Kamal Gupta, Ms. Tripti Gupta, Mr. Sparsh Aggarwal and Ms. Yosha Dutt, Mr. Karan Chaudhary and Mr. S.L Bansal, Advocates for R1
Mr. Utkarsh Singh and Ms. Prashansa Sharma, Advs. for Mr. Santosh Kr. Tripathi, Standing Counsel for DoE
+ W.P.(C) 15376/2023
SANDEEP KUMAR ….. Petitioner
Through: Mr. Kuldeep Sharma, Mr. Narendra Kr. Upadhyay, Mr. Udai Bhan Sharma, Advs.
versus
THE PRINCIPAL, APEEJAY SCHOOL ANR. …. Respondent
Through: Mr. Kamal Gupta, Ms. Tripti Gupta, Mr. Sparsh Aggarwal and Ms. Yosha Dutt, Mr. Karan Chaudhary and Mr. S.L Bansal, Advocates for R1
Mr. Utkarsh Singh and Ms. Prashansa Sharma, Advs. for Mr. Santosh Kr. Tripathi, Standing Counsel for DoE
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 03.05.2024
W.P.(C) 14843/2023
1. Section 12(1)(c)1 and the proviso thereto, read with Section 2(n)(iv)2 of the Right of Children to Free and Compulsory Education Act, 2009, (the RTE Act) requires every unaided private school to admit, in its entry level class, at least 25% of children belonging to the weaker section and the disadvantaged group in the neighbourhood and to provide them free and compulsory elementary education till its completion. A child belonging to disadvantaged group is defined in Section 2(d)3, inter alia, as a child belonging to the Scheduled Castes or Scheduled Tribes or a socially and educationally backward class. Elementary education is defined in Section 2(f) as education from Class I to Class VIII.
2. There is no dispute about the fact that the petitioner belongs to the Scheduled Castes, being a member of the Jatav community, which came within the definition of Disadvantaged Group (DG) for the purposes of the RTE Act.
3. It is also not in dispute that in terms of the proviso to Section 12(1)(c) of the RTE Act, the Nursery/Pre-school grade constitutes the entry level class in the Respondent 1 school.
4. On 2 February 2023, the Directorate of Education (DoE) issued a Circular for regulating the admissions of EWS/DG students at entry level classes in private unaided recognized schools for the academic session 2023-2024. Para 2 of the Circular stated that admission would be made through a computerized draw of lots to be conducted by the DoE. Eligible applicants belonging to the EWS or DG were invited to apply for admission of their wards at the entry level in neighbourhood schools in Delhi.
5. In accordance with the Circular dated 2 February 2023, the petitioner applied to the DoE for admission of his daughter Prinsikha Choudhary in Nursery/Pre-school as a DG category student in the 2023-2024 academic session. The respondent school was among the schools identified by the petitioner in the application as a school to which he desired his daughter to be admitted.
6. A computerized draw of lots was conducted by the DoE in terms of the Circular dated 2 February 2023, consequent to which the petitioners daughter was shortlisted for admission in Nursery/Pre-school in the respondent school.
7. As the respondent school declined to admit the petitioners daughter, the petitioner has instituted the present writ petition under Article 226 of the Constitution of India seeking issuance of a writ of mandamus, commanding the respondent school to grant admission to his daughter in Nursery/Pre-school in the academic year 2023-2024 in accordance with the outcome of the computerized draw of lots conducted by the DoE.
8. I have heard Mr. Upadhyay, learned Counsel for the petitioner and Mr. Kamal Gupta, learned Counsel for the respondent school and Mr. Utkarsh Singh, learned Counsel for the DoE at considerable length.
9. Several similar matters have come up before this Court. This Court has uniformly adopted a view that, where a computerized draw of lots conducted by the DoE shortlists an EWS or a DG category student for admission to an entry level class in a school for a particular academic year, the school is bound to admit the student in that class in that academic year. In the event the school refuses to do so, the child can approach the Court, and if the writ petition is instituted when the academic year is yet to come to an end, the school can be directed, by mandamus, to admit the child.
10. There is one exception, however, to this principle. Prior to conducting the computerized draw of lots, the DoE invariably uploads, on its website, the seat matrix containing the date relating to the general category, EWS and DG seats available in various classes in private unaided recognized schools for the ensuing academic year. This seat matrix is based on data provided by the schools themselves. The schools are required to represent within a stipulated period, normally five days, which is at times extended to ten days, pointing out of any discrepancy in the data so uploaded by the DoE. If no such representation is submitted, the DoE treats the data as correct and proceeds to conduct the computerized draw of lots on that basis.
11. I have held, in Jai v. Directorate of Education4 and Arpit v. Adriel High School5 that, if no representation, against the data relating to the seat matrix uploaded by the DoE on its website is submitted by a school within the period stipulated in that regard, the outcome of the computerized draw of lots binds the school.
12. In the present case, the seat matrix representing the vacancy position in various schools was uploaded by the DoE on its website on 13 January 2023. Admittedly, no representation was made by the respondent school against the said data within the time provided, in the circular dated 13 January 2023, to do so. The data, therefore, became binding on the respondent school, and the respondent school was required to abide by and honour the outcome of the computerized draw of lots conducted by the DoE on the basis of the said data.
13. Mr. Kamal Gupta, learned Counsel for the respondent school submits, however, that, prior to uploading of the seat matrix data by the DoE on its website vide circular dated 13 January 2023, the respondent school had already represented to the DoE, seeking a reduction in the Nursery/Pre-school entry level seats in its institution for the year 2023-2024 on 21 November 2022. The said representation, he points out, was rejected by the DoE on 1 December 2022. WP (C) 14287/2023 (Appejay School v. Directorate of Education) stands preferred by the respondent school before this Court, challenging the rejection dated 1 December 2022 by the DoE. In the said writ petition, the following interim order dated 2 November 2023 was passed by this Court:
By way of the present petition filed under Article 226 of the Constitution of India, the petitioner/Apeejay School, Sheikh Sarai, New Delhi (school) seeks quashing of order dated 01.12.2022, whereby the respondent/Directorate of Education (DoE) has rejected the schools application seeking reduction in the total number of seats available in the entry-level class, i.e. Class: Nursery/Pre-School for the Academic Session 2023-2024. The petitioner has also impugned the DoEs action of allotting seats under the EWS/DG Category in excess of the 25% proportion mandated by the Right of Children to Free and Compulsory Education Act, 2009 in Classes: Nursery/Pre-School, KG/Pre-Primary and Class-I.
2. In the course of submissions, Mr. Kamal Gupta, learned counsel appearing for the petitioner further challenges the power of the DoE to dictate the overall class strength in the school at any level, submitting that it is the schools sole prerogative to decide the overall class strength in any class in any given academic year.
3. Mr. Gupta argues that in the present case, as is evident from the table appearing in the impugned order, the total number of admissions in the General Category have dwindled over the years, which made it necessary for the school to seek a reduction in the number of seats available at the entry-level class, i.e. Class: Nursery/Pre-School. It is submitted that this plea has been rejected by the DoE, without application of mind.
4. Mr. Gupta also submits, that other things apart, it is counter-intuitive to presume that a school would voluntarily enrol fewer students in a given year, only to reduce the total number of admissions under EWS/DG Category, since that would be against the interests of the school in every way.
5. Issue notice.
6. Mr. Utkarsh Singh, learned counsel is present on behalf of Mr. Santosh Kumar Tripathi, learned Standing Counsel (Civil) for the respondent/DoE on advance copy; accepts notice; and seeks time to file counter-affidavit.
7. Let counter-affidavit be filed within 04 weeks; rejoinder thereto, if any, be filed within 03 weeks thereafter; with copies to the opposing counsel.
8. Praying for grant of interim relief, Mr. Gupta submits that the school has fulfilled its obligation of granting 25% seats under the EWS/DG Category in proportion to the overall class strength in Classes: Nursery/Pre-School, KG/Pre-Primary and Class-I; and in certain cases the school has granted admission in the EW/DG category even in excess of that obligation.
9. On the other hand, Mr. Singh opposes grant of any interim relief submitting that the impugned order was passed on 01.12.2022, and therefore the school has approached the court belatedly, in the middle of the academic year.
10. Be that as it may, considering the issue raised on behalf of the petitioner school, the DoE is restrained from taking any coercive action against Apeejay School, Sheikh Sarai, New Delhi arising from order dated 01.12.2022, till the next date of hearing.
11. Re-notify on 12th January 2024.
(Emphasis supplied)
14. According to Mr. Kamal Gupta, the interim restraint against taking any coercive action against the petitioner, as granted by para 10 of the order dated 2 November 2023 is, in fact, more effective than an order staying operation of the order dated 1 December 2022. He has drawn my attention to the following definition of coercion, as contained in Blacks Law Dictionary, Fifth Edition:
Coercion. Compulsion; constraint; compelling by force or arms or threat. General Motors v. Blevins, D.C.Colo.6,. It may be actual, direct, or positive, as where physical force is used to compel act against one’s will, or implied, legal or constructive, as where one party is constrained by subjugation to other to do what his free will would refuse. As used in testamentary law, any pressure by which testator’s action is restrained against his free will in the execution of his testament. “Coercion” that vitiates confession can be mental as well as physical, and question is whether accused was deprived of his free choice to admit, deny, or refuse to answer. Garrity v. State of N. J., U.S.N.J.7.
15. Mr. Gupta has also placed reliance on paras 20, 22, 28 and 29.4 of the judgment of the Supreme Court in Neeharika Infrastructure v. State of Maharashtra8. He points out that, because of the aforesaid interim order passed on 2 November 2023 in WP (C) 14287/2023, interim relief by way of provisional admission was declined to the petitioners daughter in the present case. Forcing the respondent school to make admission in the present case, he submits, would render the interim order meaningless. He submits that the respondent school has, in fact, admitted EWS students in excess of 25% of the number of general category students admitted by them in Nursery/Pre-school for 2023-2024.
16. Mr. Gupta has also placed reliance on the order dated 30 November 2023 passed by the Division Bench of this Court in Sovereign School v. DoE9.
17. In these circumstances, he submits that the present case is different from cases in which there was no request made by the school to the DoE, seeking reduction in the EWS seat matrix in respect of admissions in the ensuing academic year. In the peculiar facts of this case, he submits that the respondent school cannot be forced to admit the petitioner.
18. Mr. Utkarsh Singh, appearing for the DoE, submits that WP (C) 14287/2023 was instituted by the respondent school seven months after conducting of the draw of lots by the DoE for the academic sessions 2023-2024. He submits that the draw of lots was conducted on the basis of data obtained from the respondent school itself. Without having ever represented against the data uploaded by the DoE on 13 January 2023, and having preferred the writ petition challenging the decision dated 1 December 2022 of the DoE rejecting the respondent schools representation seven months after the draw of lots was conducted, the respondent school cannot escape its constitutional obligation to admit the petitioners daughter to its portals.
Analysis
19. As already noted, the facts of this case are starkly similar to several recent decisions passed by this Bench, including the judgments in Jai and Arpit.
20. I have, however, applied my mind to the submissions of Mr. Gupta that this case presents certain peculiar features, which would immunize the respondent school from the rigour of the decisions in Jai, Arpit and other such decisions.
21. Having done so, I am unable to subscribe to the submissions of Mr. Gupta, for the following reasons:
(i) The respondent school did not submit any representation to the DoE after the uploading, by the DoE, of the data relating to the seat matrix for EWS/DG students in various schools on its website on 13 January 2023, within the period provided in that regard, or even thereafter.
(ii) The only representation made by the respondent was much prior thereto, on 21 November 2022. That representation stood rejected on 1 December 2022. No challenge to the said rejection was made by the respondent school till conducting of the draw of lots by the DoE on 14 March 2023. It was only seven months thereafter that the respondent school chose to challenge the rejection, by the DoE, of its representation dated 21 November 2022, by the order dated 1 December 2022. The challenge was obviously an afterthought.
(iii) Irrespective of the merits of the said challenge, therefore, it cannot operate as an insulation against the respondent school from complying with its obligations to admit the petitioners daughter consequent on the outcome of the computerized draw of lots conducted by the DoE.
(iv) Besides, there is no interim order passed by this Court in WP (C) 14287/2023, staying the requirement of the respondent having to comply with the outcome of the computerised draw of lots conducted by the DoE.
(v) The decision in Neeharika Infrastructure, cited by Mr. Gupta, does not support his stand that the direction not to take coercive action against the respondent school amounts ipso facto to the respondent school not having to comply with the requirement of admitting the petitioners daughter to its institution, consequent on the outcome of the computerized draw of lots conducted by the DoE. Paras 20, 22, 28 and 29.4 of the said decision, which have been cited by Mr. Gupta, read thus:
20. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or “no coercive steps to be taken against the accused” in the quashing proceedings under Section 482 CrPC and/or Article 226 of the Constitution of India without assigning any reasons We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the charge-sheet/final report under Section 173 CrPC is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate to the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be m police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or “no coercive steps” would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the CrPC. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad interim direction during the pendency of the proceedings under Section 482 CrPC. Such reasons, however brief must disclose an application of mind.
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22. As observed by this Court in Hema Mishra v. State of U.P10, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief m the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or “no coercive steps” cannot be passed mechanically and in a routine manner.
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28. Thus, it has been found that despite absolute proposition of law laid down by this Court in Habib Abdullah Jeelani11 that such a blanket order of not to arrest till the investigation is completed and the final report is filed, passed while declining to quash the criminal proceedings m exercise of powers under Section 482 CrPC, as observed hereinabove, the High Courts have continued to pass such orders Therefore, we again reiterate the law laid down by this Court in Habib Abdullah Jeelani – and we direct all the High Courts to scrupulously follow the law laid down by this Court in Habib Abdullah Jeelani – and the law laid down by this Court m the present case, which otherwise the High Courts are bound to follow. We caution the High Courts again against passing such orders of not to arrest or “no coercive steps to be taken” till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 CrPC and/or Article 226 of the Constitution of India.
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29.4. That it is not clear what the High Court meant by passing the order of not to adopt any coercive steps, as it is clear from the impugned interim order that it was brought to the notice of the High Court that so far as the accused are concerned, they are already protected by the interim protection granted by the learned Sessions Court, and therefore there was no further reason and/or justification for the High Court to pass such an interim order of “no coercive steps to be adopted”. If the High Court meant by passing such an interim order of “no coercive steps” directing the investigating agency/police not to further investigate, in that case, such a blanket order without assigning any reasons whatsoever and without even permitting the investigating agency to further investigate into the allegations of the cognizable offence is otherwise unsustainable It has affected the right of the investigating agency to investigate into the cognizable offences. While passing such a blanket order, the High Court has not indicated any reasons
The Supreme Court, in Neeharika, was concerned with the power of the High Court to pass orders to not take any coercive steps against accused in a criminal case. A bare reading of the above paras reveals that there is no parallel between that case and this.
(vi) Based on the vacancy position computed by the respondent school on the basis of admissions made by it till the academic year 2022-2023, the respondent school had already represented to the DoE for sizing down its EWS/DG quota for the academic year 2023-2024 on 21 November 2022. The said representation stood rejected on 1 December 2022. The vacancy circular issued by the DoE on 13 January 2023 was based on the said vacancy position. The respondent school was, therefore, bound by the outcome of the computerized draw of lots conducted by the DoE based on the said data.
22. For all these reasons, the present case, in my view, has to follow the path set by Jai, Arpit and other such cases.
23. This writ petition was preferred in 2023-2024, during the year for which the petitioners daughter had been shortlisted for admission to the respondent school. On the basis of the above reasoning, the petitioners daughter is, therefore, entitled to have been admitted to the respondent school in Nursery/Pre-school in 2023-2024, based on the computerized draw of lots conducted by the DoE. She would, therefore, by now have been promoted to KG/Pre-primary.
Conclusion
24. Resultantly, the respondent school is directed to grant admission forthwith to the petitioners daughter in Class KG/Pre-primary as a DG category student and to continue to educate her as a DG category student in accordance with the provisions of the RTE Act. She would also be entitled to all facilities to which such students are entitled.
25. This writ petition stands allowed in the aforesaid terms, with no order as to costs.
CM 59074/2023 in W.P.(C) 14843/2023
26. This application does not survive for consideration and stands disposed of.
W.P.(C) 15376/2023
27. The facts of this case are identical to those in WP (C) 14843/2023, except that the petitioner in this case belongs to the Economically Weaker Sections (EWS), rather than the DG.
28. The judgment in WP (C) 14843/2023, therefore, applies mutatis mutandis to this case. As a result, the respondent school would admit Rutvi Chhokar, the ward of the petitioner to KG/Pre-primary in 2024-2025 and provide her with all the facilities to which EWS children are entitled.
29. This writ petition also stands allowed, with no order as to costs.
CM 61690/2023 in W.P.(C) 15376/2023
30. The application does not survive for consideration and is disposed of.
C.HARI SHANKAR, J
MAY 3, 2024
rb
1 12. Extent of school’s responsibility for free and compulsory education.
(1) For the purposes of this Act, a school, –
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(c) specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall admit in Class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided further that where a school specified in clause (n) of Section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.
2 (n) school means any recognised school imparting elementary education and includes
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;
3 (d) child belonging to disadvantaged group means 5[a child with disability or] a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;
4 2024 SCC OnLine Del 2437
5 Order dated 30 April 2024 in WP (C) 2848/2024
6 144 F.Supp. 381, 384
7 385 U.S. 493, 87 S.Ct. 616, 618, 17 L.Ed.2d 562
8 (2021) 19 Supreme Court Cases 401
9 LPA 760/2023
10 (2014) 4 SCC 453
11 (2017) 2 SCC 779
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