Amol Vasantrao Patil And Others vs Bharatiya Vidya Bhavans, Lloyds ...
2017 Latest Caselaw 4425 Bom

                                                                             WP.2303.17
                                             1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                 NAGPUR BENCH, NAGPUR.


                               WRIT PETITION NO. 2303 OF 2017


     1] Amol Vasantrao Patil,
        Aged 33 years, Occ. Private
        Service, R/o Telecom Nagar,
        Mhasala, Wardha,

     2] Smt. Shipra Viktuprasad
        Lokhande, Aged 35 years,
        Occ. Nil, R/o Near Leprosy
        Foundation, Ramnagar, Wardha,

     3] Vijay Narayanrao Dhobale,
        Aged 38 years, Occ. Auto Driver,
        R/o Near Tatagat Budhavihar
        Sindhimeghe, Wardha,

     4] Prafula Shankarrao Dhobale,
        Aged 35 years, Occ. Petty
        Business, R/o Hind Nagar,
        Wardha,

     5] Ghanshyam Govindrao Dorle,
        Aged 33 years, Occ. Repairing
        Garage, R/o Shiv Nagar, Borgaon
        Meghe, Wardha,

     6] Prakash Shankarlal Chaudhari,
        Aged 32 years, Occ. Laundry 
        Business, R/o Ganesh Nagar,
        Near Shiv Mandir, Borgaon Meghe,
        Wardha,

     7] Shyam Namdeorao Kolhe,
        Aged 33 years, Occ. Private
        Service, R/o Near Ganesh Hotel
        Mahadeopura, Wardha, Tah. And



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                                                                            WP.2303.17
                                            2

          District Wardha.    ....                                PETITIONERS

                     // VERSUS //        

     1]    Bhartiya Vidya Bhavan's
           Lloyds Vidya Niketan,
           Lloyds Nagar, Bhugaon,
           Tah. Wardha, District Wardha,
           Through its Principal,

     2]    Smt. Kirti Mishra, Principal, 
           Bhartiya Vidya Bhavan's
           Lloyds Vidya Niketan,
           Lloyds Nagar, Bhugaon,
           Tah. Wardha, District Wardha,

     3]    Education Officer (Primary),
           Zilla Parishad, Wardha, Tah.
           and District Wardha,

     4]    Director of Education (Primary),
           Education Directorate,
           Pune, Tah. and District Pune,

     5]    State of Maharashtra, through
           Department of Primary Education,
           Mantralaya, Mumbai.          ....                      RESPONDENTS


     Mr. S.K. Bhoyar, Advocate for petitioners.
     Mr. M.G. Bhangde, Senior Counsel with Mr. R.M. Bhangde, Advocate
     for respondent nos. 1 & 2,
     Mr. P.D. Meghe, Advocate for respondent no.3.
     Mr. A.M. Kadukar, A.G.P. for respondent nos. 4 & 5.


                     CORAM :  B.P. DHARMADHIKARI & ROHIT B. DEO, JJ.

DATED : JULY 13, 2017.

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ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).

1] Rule. Rule made returnable forthwith. Heard the learned

Counsel for the parties finally by consent.

2] By this petition under Article 226 of the Constitution of

India, the petitioners who are guardians of seven minor children seek

a writ to respondents to see that their respective wards are admitted

in a non-aided pre-primary school which is respondent no.1 before

this Court. Respondent no.2 is its Principal. Respondent nos. 3 & 4

are officers in Education Department while respondent no.5 is State of

Maharashtra.

3] It is not in dispute that the petitioners have participated in

on-line admission process for admission to 25% reserved seats in

various such non-aided or permanently unaided non-minority schools

and as per list displayed by respondent no.4, respondent no.3 has

attempted to admit them in respondent no.1 school. Respondent

no.1 school has refused to admit them on the ground that they are not

from neighbourhood. Total 30 seats are to be filled in against that

25% quota in respondent no.1 school but respondent no.1 has given

admission only to seven students. Out of remaining students, only

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seven have chosen to approach this Court.

4] Mr. S.K. Bhoyar, learned Advocate for petitioners, has

submitted that after on-line process, the wards of respective

petitioners have been duly admitted and as such, the respondent nos.

1 & 2 cannot deny admission to them. The provisions of Government

Resolution dated 10.1.2017 are pressed into service by him to urge

that there is no challenge to that process and hence, the action of

respondent nos. 1 & 2 is unsustainable. He is relying upon provisions

of Clause 13 to demonstrate that this G.R. obliges respondent nos. 1

& 2 to admit students and as per Clause 15.3 even students who are

residing beyond 3 kms. need to be admitted if expenses of their

journey to school every day are borne by their parents. According to

Mr. Bhoyar, learned Advocate for petitioners, reliance upon provisions

of the Right of Children to Free and Compulsory Education Act, 2009

("2009 Act" hereafter) or on provisions of Maharashtra Rules by

respondent nos. 1 & 2 to urge that direction to admit students residing

beyond 3 kms. is unsustainable, is misconceived.

5] He has invited our attention to an instance in which a

student by name Kavya Chandramani Bansod residing at a distance

of 3.233 kms. from respondent no.1 school has been given

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admission. He contends that these respondent nos. 1 & 2 are acting

high-handedly. He is taking support from the judgment of the Division

Bench of this Court at Bombay dated 25.1.2017 in P.I.L. No. 8/17 and

the judgment of Delhi High Court in Writ Petition (C) 636/12 decided

on 31.1.2012 : Federation of Public Schools .vs. Government of

NCT of Delhi.

6] Learned A.G.P. supports arguments of petitioners and

relies upon Clause 15.3 of the Government Resolution mentioned

supra to show that respondent no.4 is justified in ordering admission

of petitioners in respondent no.1 school.

7] Mr. P.D. Meghe, learned Advocate for respondent no.3

Education Officer points out limited role available to said respondent

in terms of above G.R. He submits that admissions are made on-line

by office of respondent no.4 and hence, only names are received by

office of respondent no.3. Respondent no.3 has to ensure that

selected students are accordingly admitted by respective schools.

8] Mr. P.D. Meghe, learned Advocate submits that though

respondent nos. 1 & 2 have made reference to certain other schools

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in the area and point out that those schools ought to have been

looked into and students should have been sent to those schools, the

parents prefer entry at Pre-Nursery or Nursery stage while those

schools are not registered and, therefore, admissions cannot be made

at said level in those schools. He further adds that the G.R.

specifically speaks of non-aided non-minority schools and hence,

other schools which receive full or some grants from the State

Government cannot be subjected to it. He further states that as per

the provisions of 2009 Act, reimbursement of fees is possible for

education in first standard onwards. Thus, facility of reimbursement is

not available to classes at Nursery level or K.G. level. The petitioners

want admission at Nursery level. He is inviting our attention to

specific discussion school-wise as contained in paragraph no.5

onwards of the reply affidavit filed by respondent no.3 on 28.6.2017.

9] During arguments, he has produced a chart showing

vacancy position in respective schools at Nursery level to

demonstrate that adequate vacancies are still available with

respondent nos. 1 & 2 to accommodate all seven petitioners. He is

relying upon above-mentioned Delhi judgment and submits that the

rationale in the said judgment may have led State Government to

issue G.R. dated 10.1.2017.

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10] Our attention is drawn to Rule 9A(4) of the Maharashtra

Right of Children to Free and Compulsory Education (Manner of

admission of Minimum 25% children in Class I or Pre-school at the

entry level for the children belonging to disadvantaged group and

weaker section) Rule, 2013. He submits that school allocation

envisaged in said sub-rule (4) allows admission even in schools

located beyond 3 kms. Our attention is invited to Section 12 to show

obligation cast upon school to admit such students. Proviso thereto

is relied upon to urge that when such school imparts pre-school

education, provisions of Section 12(1)(a) to (c) apply to admissions to

such pre-school education also. He contends that in this situation, the

respondent no.4 has gone by information available and completed on-

line process. He invites attention to forms filled in by respective

petitioners to demonstrate the distances of various schools from

places of their residence. Rule 3.3 is relied upon to demonstrate

procedure to be followed by schools while admitting such students.

He also states that after the on-line procedure came into force,

prescribed procedure therefor has been followed and submission of

respondent nos. 1 & 2 that children have been sent arbitrarily at its

whim and caprice by respondent nos. 3 & 4 is unsustainable. He also

adds that as no grants are released for pre-school education, schools

are not ready and willing to come forward and register themselves at

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entry level.

11] Mr. M.G. Bhangde, learned Senior Counsel with Mr. R.M.

Bhangde, learned Advocate for respondent nos. 1 & 2, relies heavily

upon the order of this Court dated 13.4.2017 and 2.5.2017 in the

present Writ Petition. He contends that information as sought for by

latter order is not supplied till date. He relied upon Section 3 of the

2009 Act to urge that child is given right of free and compulsory

education in a neighbourhood school and that school is defined in

Section 2(n) of the said Act. Section 12(1)(b) is also relied upon by

him to demonstrate the proportion in which seats are required to be

provided even in schools receiving grant-in-aid. Section 12(1)(c) is

pressed into service to show emphasis on admission in

neighbourhood school and for that purpose admission even at pre-

school level.

12] Relying upon Rule 9A of 2013 Rules, he submits that all

schools in which reservation is provided for have to register

themselves for on-line admission process. Defence of respondent

nos. 3 & 4 that few schools have avoided to do so, therefore, should

not be upheld. He argues that the respondent nos. 3 & 4 should have

included those schools also in admission process and if those schools

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receive grant-in-aid, preference should have been given to those

schools.

13] Arguing with the help of order of this Court dated 2.5.2017,

he submits that during on-line admission process an erroneous

approach has been adopted by respondent no.4. Effort should have

been made to first identify child with a neighbourhood school and then

admission should have been completed. He submits that even today

seats are vacant in such neighbourhood schools and petitioners can

be considered for admission in those schools which are located more

conveniently than the school of respondent nos. 1 & 2. By way of an

illustration, he invites attention to admission form filled in by petitioner

no.3 to show that Golden Kids Convent is located at a distance of

2.341 kms. (within 3 kms.) from residence of that petitioner. Seats

are lying vacant even today in that school and still the petitioner no.3

has been sent to school of respondent no.2 which is at a distance of

7.066 kms. He states that in this manner, cases of other petitioners

also can be looked into to demonstrate that a neighbourhood school

qualifying as such in terms of Rule 3.3 of 2013 Rules is available for

them. Specific assertion that procedure has not been followed

properly in paragraph 5 of reply affidavit filed by respondent nos. 1 &

2 is also pressed into service by him.

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14] Mr. M.G. Bhangde, learned Senior Counsel contends that

judgment delivered at Bombay and at Delhi are distinguishable on

facts.

15] Mr. S.K. Bhoyar, learned Advocate in reply arguments,

submits that after on-line admission process began, reliance upon

Rule 3.3 of 2013 Rules is misconceived. He also invites attention to

Clause 20 of G.R. dated 10.1.2017 to urge that respondent nos. 1 & 2

cannot accommodate anybody else against the seats meant to be

filled in through 25% admissions under 2009 Act.

16] Mr. M.G. Bhangde, learned Senior Counsel has attempted

to urge that there is no such obligation cast upon the respondent nos.

1 & 2 and there is no need to keep seats vacant. However, he

submits that respondent nos. 1 & 2 have not made any admissions

against 25% seats and after seven admissions, remaining seats are

still vacant with it. We do not wish to go into this controversy as that

was not the bone of contention between the parties and adjudication

in that respect is also not necessary to decide the present

controversy.

17] The petitioners do not claim to be residing within 1 km. or 3

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kms. or also within 6 kms. of the school of respondent nos. 1 & 2.

The chart showing neighbourhood school for each petitioner is placed

on record by respondent nos. 1 & 2 along with affidavit on 10.7.2017.

In so far as petitioner no.1 is concerned, respondent nos. 1 & 2 have

pointed out that at a distance of 2 kms. 100% aided school by name

Mahila Ashram Shala is available and petitioner no.1 could have been

admitted in that school. Another school fully aided and located at 2

kms. is Sushil Himat Singhka Vidyalaya. Third school mentioned by

respondent nos. 1 & 2 as suitable for admission to petitioner no.1

under R.T.E. Act is Kasturba Vidya Mandir (3 kms.). In fact, petitioner

no.1 had opted that school in his admission form. Similarly, for

petitioner no.2 they have pointed out Gandhi City Public School

located at a distance of 1 km. However, petitioner no.2 did not opt for

that school. Mother's Pet School is also located at a distance of 1 km.

but said school did not get itself registered in terms of Rule 9A for on-

line admission. Petitioner no.3 has got Gandhi City Public School at 1

km. but then the petitioner did not opt for that school. Golden Kids

Convent is at a distance of 3 kms. but petitioner did not opt for that

school. Chanakya School of Intelligence is located at a distance of

3.25 kms. and petitioner had opted for this school but no reason has

been given for not admitting petitioner in that school. According to

respondent nos. 1 & 2, in admission form petitioner no.3 did opt for

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Golden Kids Convent school but then respondent no.3 has

erroneously found that petitioner did not opt for that school. Last

school pointed out by respondent nos. 1 & 2 is Kasturba Public

School which is at a distance of 5 km. for petitioner no.3. Though

petitioner opted for that school, without any reason respondent nos. 3

& 4 have denied him that school.

18] For petitioner no.4 Gandhi City Public School is at a

distance of 1 km. but the said petitioner did not opt for this school.

Mother's Pet school is at a distance of 1 km. but this school did not

get itself registered under R.T.E. Act. Golden Kids Convent is at 3

kms. for petitioner no.4 but then petitioner did not opt for this school.

19] For petitioner nos. 5 & 6 Golden Kids Convent is at a

distance of 1 km. but then they did not opt for this school. For

petitioner no.7 Golden Kids Convent is at a distance of 2 kms.

Petitioner no.7 has opted for this school but respondent no.3 has

erroneously recorded that petitioner no.7 did not opt for Golden Kids

Convent.

20] Mr. M.G. Bhangde, learned Senior Counsel has heavily

relied on this chart and accompanying affidavit. Neither petitioners

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nor respondent nos. 3 & 4 have chosen to rebut the position therein.

We, however, note that various other schools mentioned in that chart

are not party respondents before this Court.

21] In so far as admission of Kavya Chandramani Bansod in

respondent no.1 school is concerned, respondent nos. 1 & 2 have on

affidavit pointed out that distance between their school and residence

of Kavya is only 536.25 meters, i.e. less than 1 km. They have

substantiated their submission by producing copy of Google map on

record. Thus, claim that she is residing at a distance of 3.233 km. by

petitioners appears to be incorrect.

22] The mode and manner in which the respondent nos. 3 & 4

have proceeded to make appointments is commented upon by this

Court in its order dated 13.4.2017 initially and thereafter on 2.5.2017.

Earlier order is only after hearing the learned Counsel for the

petitioners. However, after hearing the learned Counsel for the

Department/Government and the learned Counsel for the respondent

nos. 1 & 2, this Court has passed a reasoned order. This Court then

expected respondent no.4 to explain why parents belonging to weaker

or disadvantaged groups were permitted to apply for education of

their children in schools which are situated at a greater distance from

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their residence. This Court also wanted to know whether in those

schools situated in neighbourhood for seven petitioners, vacancies

wee still available in 25% quota. The learned Counsel for the

respondent nos. 3 & 4 thereafter has handed over chart mentioned

supra by us. In that chart, total 15 schools in Wardha district with

vacancy position at Nursery level find mention. Total expected R.T.E.

intake in all the schools is 158. Total applications received for

admission to these 158 seats is stated to be 677. Only 118 have

been admitted. 40 students are still to be admitted. Out of these 40,

only seven students are before this Court.

23] Total 40 vacancies are available in 15 schools, out of

which 24 vacancies are shown in school of respondent nos. 1 & 2. In

Kasturba Public School 7 vacancies are available while in Golden

Kids Convent 2 vacancies are available. We have taken that chart on

record and marked as Exhibit 'X' for ready reference. As there is no

supporting affidavit and the chart was produced at the stage of

arguments for the first time, we are not relying fully upon data given in

said chart.

24] This Court through its other two Hon'ble Judges on

2.5.2017 observed as under :-

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"Heard.

By this Writ Petition, the petitioners seek a direction against the respondent no.1-Bharatiya Vidya Bhavan's School, to admit their children in the nursery class from the academic session 2017-18, in view of the right of the petitioners to seek admission for their children under the 25% quota for free education, as provided under Section 12(1)(c) of the Right of Children to Free & Compulsory Education Act, 2009.

It is stated on behalf of the petitioners that the petitioners had given the option for seeking admission to the various schools that were within the neighbourhood of the petitioners' residence and the respondent no.1-School is one of them. It is submitted that though the respondent no.4 has allocated the children of the petitioners for admission to the respondent no.1-School, the respondent no.1-School is wrongfully denying admission to the children of the petitioners.

On a reading of the provisions of the Act and the Rules, we prima facie find that free and compulsory education is liable to be provided by the Schools to the children of the weaker and disadvantaged groups residing in the neighbourhood of the school. 'Neighbourhood' would include the area which is within the radius of 1 km. and 'extended neighbourhood' would include the area within the radius of 3 kms. It prima facie appears from a reading of the provisions of the Act and the Rules that it would be necessary for the parents of the children seeking admission to the

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schools under section 12(1)(c) of the Act, to first opt for schools which are in the neighbourhood i.e. within the radius of 1 or 3 kms. from the residence of the child and the school concerned. We, however, find on a perusal of the data produced by the respondent no.1 on record, that the petitioner no.1 has sought admission for his daughter in the respondent no.1-School, though the school is at a distance of 11 kms, from the residence of the petitioner no.1. We find that about nine schools are located in the neighbourhood or the extended neighbourhood of the petitioner no.1. It would be necessary, with a view to fulfill the objects of the Act and the Rules for the parents of the child desirous of seeking admission, to opt for schools that are within the neighbourhood or the extended neighbourhood. We prima facie find that only if the 25% quota in all the schools in the neighbourhood of the residence of the concerned parents of the child is complete or full, the procedure, as required to be followed by Rule 9-A of the Maharashtra Right of Children to Free and Compulsory Education (Manner of Admission of Minimum 25% Children in Class I or Pre-School at the Entry Level Belonging to Disadvantaged Group and Weaker Section) Rules, 2013, may come into play.

There is nothing on record to show that each of the petitioner had opted for the schools that are located in the neighbourhood of the residence of the petitioners. It is also not brought to the notice of this Court that the 25% quota under 12(1)(c) of the Act is exhausted in the schools in the neighbourhood, of the residence of each of the petitioners.

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By opting for a school which is at a distance of 11 kms. from the neighbourhood of the residence of the petitioner no.1, it appears that the petitioner no.1 is desirous of seeking free education for his daughter in a school which is far away from the neighbourhood. We prima facie feel that the object of the Act would get frustrated if the weaker and disadvantaged groups apply for free education in the schools that are located at a great distance from their residence. This would give an impression that the said applicants do not belong to the weaker or disadvantaged group, as if they belong to those groups they would not have desired to send their children to a school which is located at a distance of 11 kms from their residence. In any case, we prima facie find nothing in the Act or the Rules, which makes it obligatory for the schools to admit the students which do not reside within the extended neighbourhood of the schools. Section 12(1)(c) of the Act clearly provides that it would be obligatory for the Schools to admit at least 25% of the strength of the class from the neighbourhood for providing free education.

We have perused the application form that is required to be submitted online. The application form only mentions a column pertaining to aerial distance; it does not bear a column specifying that the applicants would be required to firstly give options for the schools which are situated within the radius of 3 kms. from their residence and then if there are no such schools or if the schools are less, an option for other schools in the nearby vicinity of their residence, though the distance would be a little more than 3

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kms. We prima facie find that there is a scope for mischief, only in view of the wrongful preparation of the application form providing for the application details. Since the respondent-the State of Maharashtra, through the Department of Primary Education is not joined as a party-respondent, we permit the petitioners to join the State of Maharashtra, through its Primary Education Department, as a party- respondent. The amendment should be carried out forthwith. The learned Assistant Government Pleader waives notice on behalf of the newly added party. We would like the respondent no.4 to explain on the next date of hearing, as to why the parents belonging to weaker or disadvantaged groups are permitted to apply for free education for their children in the schools which are situated at a great distance from their residence. We would also like the respondent nos.3 and 4 to explain on the next date of hearing whether the 25% quota as per the provisions of Section 12(1)(c) of the Act, is not yet filled in in any of the schools which are are at a lesser distance than the respondent no.1-School, from the residence of the petitioners, so that the interim order could be modified and/or the Writ Petition could be finally disposed of on the said date.

Stand over to 8 June 2017, for further consideration."

th

25] The perusal of 2009 Act shows that Section 3 thereof

provides and protects right of a child to a free and compulsory

education in a "neighbourhood school". This right of an elementary

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education, therefore, can be enforced against the neighbourhood

school. The provisions in Section 2(n) define "School" and 2009 Act,

therefore, applies to schools run by Government or local authority or

also to private schools receiving grant-in-aid or other assistance from

Government or local authority. It also applies to unaided school not

receiving any kind of aid or grants. Section 8 casts a duty on

appropriate Government to provide free and compulsory elementary

education to every child and to ensure availability of a neighbourhood

school as specified in Section 6. The Maharashtra Right of Children

to Free and Compulsory Education Rules, 2011 in Rule 2(m) defines

"Neighbourhood school". In respect of children in classes I-V, school

within distance of one km. and in classes VI to VIII, a school within

distance of 3 km. from residence has been envisaged as

neighbourhood school if minimum 20 children in age groups specified

therein are available and willing for enrolment in that school. The fact

that such schools are available in present matter is not in dispute.

Object of Parliament behind mandating the State to establish or

provide such a school in neighbourhood cannot be lost sight of.

26] Section 12 of 2009 Act is on extent of school's

responsibility for free and compulsory education. As per Section

12(1)(c) respondent nos. 1 & 2 have to admit 25% of its students in

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Class I or at pre-school level. Proviso to Section 12(1)(c) is very clear

and if such school is imparting pre-school education, provisions of

Clauses (a) to (c) apply even at such pre-school education level.

Rule 9A of 2013 Rules is about on-line admission process. All

schools on which obligation is cast under Section 12 must be

considered for such neighbourhood admissions and have to enrol

themselves under Rule 9A(2). Not only schools receiving grant-in-aid

but other schools like respondent nos. 1 & 2 must register themselves

for on-line admission process. The defence of respondent nos. 3 & 4

that certain schools though having pre-school facility have not

enrolled/registered, therefore, cannot be accepted. Respondent nos.

3 & 4 have in their reply affidavit pointed out such schools. The

petitioners or other respondents do not dispute this requirement as

per 2009 Act or 2013 Rules. Respondent nos. 3 & 4 have attempted

to explain position of such schools from paragraph no. 5 onwards of

their reply affidavit filed vide Stamp No. 7150/17 on 28.6.2017. As we

have already noted supra, these other schools are not parties before

this Court and hence, we need not observe more on these rival

contentions.

27] If the schools are not registered though dutybound to do

so, the respondent nos. 3 & 4 ought to have taken appropriate steps

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to get those schools registered. If such schools are neighbourhood

schools as pointed out by respondent nos. 1 & 2 in their affidavit and

chart filed on 10.7.2017, petitioners could have been accommodated

in those neighbourhood schools.

28] Perusal of judgment of Division Bench of this Court at

Bombay in P.I.L. No. 8/17 reveals that there very Government

Resolution dated 10.1.2017 was assailed contending that freedom

has been conferred on management/schools to fill up 25% reserved

seats. Second challenge was to clause 15.3 which permitted

students hailing from a distance beyond 3 km. in particular

circumstances to be admitted in these 25% free seats. This Court

has found no substance in the challenge raised. Thus, this Court has

not considered any challenge by any neighbourhood school or other

school to the G.R. dated 10.1.2017. This judgment, therefore, has got

no relevance in the present controversy.

29] In so far as judgment delivered by Delhi High Court in the

case of Federation of Public Schools .vs. Government of NCT of

Delhi is concerned, there the private unaided schools had impugned

a notification issued by Lieutenant Governor of Delhi. Said petitioners

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alternatively claimed that the Court should lay down guidelines and

preconditions for exercise of powers under Rule 10(3) of Delhi RTE

Rules for extending the limits/area of neighbourhood as defined under

RTE Act and Delhi RTE Rules. Paragraph 3 of said judgment shows

that Delhi Rules prescribed limit of neighbourhood school which was

almost same as in Maharashtra but on 16.12.2011 Director of

Education issued a direction to ensure that no child under

economically weaker sections and disadvantaged group is denied

admission on neighbourhood/distance basis so long as locality of the

child's residence falls within distance criteria devised by the schools

for general category children. Contention of learned Senior Counsel

representing petitioners before Delhi High Court find mention in

paragraph no. 7 of the judgment. Ultimately, in paragraph no. 13 the

Division Bench of Delhi High Court found that the problem was

already answered by a formula devised in earlier judgment dated

30.5.2007 in Writ Petition No. 3156/02. In paragraph no. 13 the

Division Bench has observed that admissions needed to be first

offered to eligible students belonging to economically weaker sections

and disadvantaged group residing within one km. of specified school.

If vacancies remain unfilled, students residing within 3 kms. of the

school would then be admitted. If vacancies were available even

thereafter, admissions should be offered to students residing within 6

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kms. of such institution. Lastly, students residing beyond 6 kms.

could have been considered if vacancies were still available. This

view, therefore, has been taken in the light of provisions contained in

Delhi Rules but it also requires school location and child residence

wise application of mind. This judgment does not lend support to the

case of petitioners.

30] In present facts, because total 103 applications were

received seeking admission to respondent no.2 school, a lottery was

held and 30 students were selected for admission. Seven petitioners

before this Court are their parents. Provisions of Rule 9A(4) of 2013

Rules show that it also mandates distance-wise or area-wise

consideration. If a school is available in neighbourhood within radius

of one km., students applying for it and residing within that radius

must be first accommodated in that school. If number of such

students residing within radius under consideration is more than

number of seats, then only a draw of lottery is to be arranged. Thus,

choice of school by individual student assumes secondary importance

in the process. 2009 Act gives right to elementary education, that too

in a neighbourhood school. Hence, vacancies available in a school

must be first offered to willing students in neighbourhood and

thereafter only, the other students residing beyond radius of one km.

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or 3 kms. can be considered. In the present case, chart produced by

respondent nos. 1 & 2 on 10.7.2017 shows that some of the

petitioners had in fact applied for such school in vicinity/

neighbourhood but their applications have been erroneously rejected.

Basic question is whether any effort was made to shortlist out of total

103 applicants, the students residing in the neighbourhood as

mandated by Rule 9A(4). Rule 9A(4) envisages auto-allocation if

number of such students residing in area of one km. and 3 kms. is

less than the number of total vacancies available in that school.

31] We have already stated supra that chart produced by

respondent nos. 1 & 2 has come on record at the eleventh hour and

data therein has not been rebutted either by petitioners or by

respondent nos. 3 & 4. Chart showing vacancy position at Exh. X has

been tendered by respondent nos. 3 & 4 at the time of final

arguments. That chart also shows vacancies in other schools.

32] Perusal of chart at Exh. 'X' or then process followed by

respondent nos. 3 & 4 clearly reveals that the on-line process was

aimed at honouring choice of parents qua a particular school. Total of

677 applications mentioned therein may not mean that 677 aspirants

existed as some students have applied for admission to more than

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one school. If out of total 103 applicants who desired admission to

respondent nos. 1 & 2 school, only 30 or less than 30 qualified as

residing within distance of either 1 km. or 3 kms., the holding of draw

was unwarranted. If a school was available in neighbourhood or

extended neighbourhood for such a student, student could have been

sent to that school, though he may not have applied for it.

33] Petitioners before us have not urged and demonstrated

that parents of such a student can restrict their choice to few schools

and indirectly attempt to secure admission in a coveted school. They

have not demonstrated that when a school is available in

neighbourhood or extended neighbourhood, petitioners can ignore

those schools and vie for a distant school. They have also not urged

and demonstrated that admission process cannot include all such

schools, whether aided or unaided. Contention of respondent nos. 1

& 2 that all schools ought to have been registered and subjected to

on-line exercise, has remained unrebutted. We find that respondent

nos. 3 & 4 cannot force petitioners on respondent nos. 1 & 2.

34] In the light of findings reached supra, we find admission of

7 students represented through Advocates before this Court by

respondent nos. 3 & 4 in school of respondent nos. 1 & 2

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unsustainable.

35] However, we cannot ignore right guaranteed to children by

2009 Act. We also find that the said right must be honoured and

preserved. It cannot be allowed to be defeated by invoking distance

equation, if school is not available in neighbourhood or extended

neighbourhood. The exercise therefor in tune with observations

contained in this judgment or as pointed out by Delhi High Court in its

judgment need to be completed afresh. It is possible only qua

vacancies now available. We direct respondent nos. 3 & 4 to publish

an advertisement pointing out the available vacancies school-wise at

Exh. 'X' and inviting applications from students for those vacancies.

After such applications are received, students shall be selected and

allocated to respective schools by adhering to provisions of Rule

9A(4) supra, adhering to school-child's residence norm and

attempting to fill in seats first through student, residing within 1 km.

radius and if required, thereafter 3 kms. radius, 6 km. radius and

beyond 6 kms. step by step. These directions should be complied

with within two months.

36] With these directions, we partly allow the Writ Petition and

dispose it of. Rule is made absolute in above terms with no order as

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to costs.

                     JUDGE                          JUDGE.
     J.