Mohd. Asif Khan & Ors. vs Navyug School & Ors
2010 Latest Caselaw 4977 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 28th October, 2010.

+ W.P.(C) 2080/2010 & CM No.6071/2010 (u/S 151 CPC for directions)

%        MOHD. ASIF KHAN & ORS.                   ..... Petitioners
                      Through: Mr. Ashok Agarwal with Ms. Kusum
                               Sharma, Advocates.

                                   Versus

         NAVYUG SCHOOL & ORS.                      ..... Respondents
                    Through: Mr. B.B. Gupta with Mr. Mohit Nagar
                              & Mr. Harsh Hari Haran, Advocates
                              for R-1 & 2.
                              Mr. Satya Saharawat for Ms. Jyoti
                              Singh, Adv. for R-3.
                              Ms. Zubeda Begum with Ms. Sana
                              Ansari, Advocates for R-4.
                              Mr. Mohit Jolly, Adv. for R-5.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    yes

2.       To be referred to the reporter or not?             yes

3.       Whether the judgment should be reported            yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The twelve petitioners seek a declaration that their wards/children are

entitled to be considered for admission in Nursery class and class-I in the

Navyug School of the New Delhi Municipal Council (NDMC) at Tilak

Lane, Tilak Marg, New Delhi and seek a direction to the NDMC and the

said Navyug School for consideration of the wards of the petitioners for

admission in the academic year 2010-11.

2. Notice of the writ petition was issued and a counter affidavit has been

filed on behalf of Navyug Schools. No counter affidavit has been filed on

behalf of the NDMC, Govt. of NCT of Delhi and Union of India but the

counsels have been heard considering the urgency of the relief claimed and

further considering that if the hearing of the writ petition was further

delayed, it would become infructuous.

3. The petitioners claim to be residents of Mata Sundri Road and Minto

Road areas of New Delhi. It is pleaded that the Navyug Schools are run by

the Navyug School Educational Society which is fully financed, controlled

and run by the NDMC. The petitioners claim that till the academic year

2008-09 their wards/children were being considered for admission to the

aforesaid Navyug School. Wards/children of some of the petitioners other

than the wards/children of petitioners whose admissions are claimed in the

academic year 2010-11, were in the earlier years infact admitted to the said

Navyug School. The petitioners claim that the said Navyug School w.e.f.

academic year 2009-2010 started denying admission to the residents of Mata

Sundri Road and Minto Road areas on the ground that on redrawing up of

the various constituencies pursuant to Delimitation, the said areas had fallen

outside of the New Delhi Parliamentary Constituency.

4. The petitioners contended that the denial by the aforesaid Navyug

School to consider the wards/children of the petitioners for admission on the

ground that their place of residence was now falling outside the New Delhi

Parliamentary Constituency is illegal and arbitrary. The provisions of the

Delhi School Education Act, 1973 and of Right of Children to Free and

Compulsory Education Act, 2009, are also invoked in this regard.

5. The Navyug School Educational Society aforesaid in its counter

affidavit has pleaded that one of the functions of NDMC is to provide

education to the wards/children living in its jurisdiction; that in performance

of this function, Schools including the Navyug Schools were established in

the NDMC area; that the said Navyug Schools had always been admitting

students living within the territory of the NDMC and/or New Delhi

Parliamentary Constituency; that the NDMC is obliged to provide services

only in the area within its jurisdiction; that in the Delimitation of New Delhi

Parliamentary Constituency in the year 2008, the areas of Mata Sundri Road

and Minto Road were taken out and certain other areas added to the said

Constituency; that the petitioners have no vested right to get their children

admitted to any particular School and are free to apply for and admit their

wards/children to the Schools in their locality.

6. The only question which therefore arises for adjudication in this writ

petition is whether the residents of outside NDMC area have a right to

admission in the Schools run by NDMC in areas within its jurisdiction.

7. Though the argument of the counsel for the petitioners is that the

Navyug Schools being an aided School are not entitled to so refuse to

consider for admission students, resident of Delhi and cannot discriminate

between residents of different areas in Delhi, but in my opinion, the question

really for consideration is whether the petitioners have a right to have their

wards/children considered for admission in any aided School, even if it not

be an aided School closest to their residence. The counsel for the petitioners

was also asked to address on the said aspect.

8. During the course of hearing relevant provisions of the following

three legislations were noticed:-

A. Delhi School Education Act, 1973 & Rules, 1973

(i) Section 1(2) - extending the said Act to the whole of the

Union Territory of Delhi.

(ii) Section 2(a) - defining "Administrator" as the

Administrator of Union Territory of Delhi.

(iii) Section 2(d) - defining an "aided School" as a

recognized private School, which is receiving aid in the

form of maintenance grant from Central Government,

Administrator or a Local Authority or any other

Authority designated by the Central Government,

Administrator or a Local Authority.

The arguments proceeded on the premise that the Navyug

Schools are aided Schools and thus the said question does

not arise.

(iv) Section 2(e) - defining "appropriate authority". In the

case of Schools recognized by the municipality, the

appropriate authority is that municipality.

(v) Section 2(f) - defining "Delhi" as the Union Territory of

Delhi.

(vi) Section 2(g) - defining "Director" as the Director of

Education, Delhi.

(vii) Section 2(l) - defining "Local Authority".

It is again not in dispute that NDMC is a Local

Authority.

(viii) Section 2(t) - defining "recognized school" as a School

recognized by the appropriate authority.

It would thus follow that the recognition to the Navyug

Schools established by NDMC is to be by the NDMC

and not by the Directorate of Education.

(ix) Section 3 - empowering the Administrator to regulate

education in all the Schools in Delhi in accordance with

the provisions of the Act and Rules made thereunder.

There is no doubt that the Delhi School Education Act

and the Rules framed thereunder apply to the Navyug

Schools. The question however arises is whether there is

anything in the Act or the Rules which obligates an aided

School to consider for admission a student wheresoever

he may be residing in Delhi or whether the aided School

can be compelled to consider for admission, children

residing outside the jurisdiction of the said Local

Authority.

(x) Rule 131 - empowering the Director to regulate

admissions to aided Schools.

This again in my opinion, is irrelevant for the

controversy.

(xi) Rule 132 - prohibiting aided Schools from holding any

test for admission to any class.

This again in my opinion, is irrelevant to the controversy

at hand.

(xii) Rule 133 - empowering the Director to regulate the

manner of admission. This Rule empowers the Director

to prepare in each year a plan for admission of the

students to the various classes in aided Schools in Delhi

and prohibits the Managing Committee of an aided

School from refusing admission to any students who is

assigned to that School under the admission plan.

Neither is it the case of the petitioners that under any

plan prepared by the Director, the Navyug Schools are

required to consider for admission, the students residing

outside the jurisdiction of NDMC nor it is the case of the

petitioners that admission of their wards/children to the

Navyug School has been recommended by the Director.

The counsel for the respondent Director of Education has

also stated that there is no such plan; he has also pointed

out that no relief in the writ petition has been claimed

against the Director of Education.

(xiii) Rule 134 - since great emphasis was placed by the

counsel for the petitioner on the said Rule, it is deemed

appropriate to set out the same hereinbelow:

"134 - Admission to be without distinction - Admission

of students in aided Schools shall be made without any

distinction of religion, race, caste, place of birth, or any

of them"

The counsel for the petitioners argued that refusal by the

Navyug School to consider the wards/children of the

petitioners for admission for the reason of their not

residing in the area of NDMC amounts to violation of the

aforesaid Rule.

The counsel for the respondent Director of Education has

argued that the said Navyug School has denied admission

not for the reason of place of birth but for the reason of

place of residence and thus Rule 134 is not applicable.

In my opinion also, Rule 134 will not apply. The

expression "place of birth" is used in conjunction with

religion, race, caste and has to take colour from them.

The prohibition is against discrimination on the ground

of caste and creed and thus discrimination on the ground

of place of birth has to be such which is stigmatic and the

said provision was not intended to come in the way of

concept of neighbourhood School or to come in the way

of a Local Authority refusing to give admission to

students residing outside its jurisdiction.

(xiv) Rule 144 - empowering the Director to issue directions

relating to admissions to aided Schools.

As aforesaid neither is it the case of the petitioners that

the Director of Education has issued any direction to the

Navyug Schools to admit students even from the outside

the NDMC area nor have the petitioners claimed any

relief against the Director of Education.

B. NDMC Act, 1994

(i) The said Act extends to "New Delhi" only as distinct

from the entire city of Delhi as the Delhi School

Education Act and Rules framed thereunder extend.

(ii) Section 10 - vesting the Municipal Government of "New

Delhi" in the NDMC.

(iii) Section 11 - defining the obligatory functions of NDMC

which include the establishment, maintenance of and aid

to Schools for primary education subject to such grants as

may be determined by the Central Government from time

to time.

(iv) Section 397 - it recognizes the power of the Central

Government to issue directions to the NDMC in respect

of subjects, curricula, text books, standards and method

of teaching in Primary Schools vested in the NDMC or

maintained wholly or partly by grants paid out by the

NDMC Fund. Neither does the said Section cover

"admission" to the Schools nor is it the case of the

petitioners that any direction in regard to admission has

been issued by the Central Government.

(v) The First Schedule to the NDMC Act gives the

boundaries of NDMC area.

The counsel for the petitioners admits that the Mata

Sundri Road and Minto Road areas where the petitioners

are residing, were never within the boundaries of NDMC.

C. The Right of Children to Free and Compulsory Education Act, 2009

(i) Section 3 - confers upon every child of the age of six to

fourteen years a right to free and compulsory education

in a neighbourhood School till completion of elementary

education.

(ii) Section 6 - imposes a duty on the appropriate

Government and the Local Authorities to establish within

such area or limits of neighbourhood as may be

prescribed, Schools where they had not been so

established within a period of three years from the

commencement of the Act.

(iii) Section 9 - provides for the duties of the Local

Authorities as NDMC is. Clause (a) thereof while

imposing a duty on the NDMC to provide free and

compulsory elementary education to every child clarifies

that where a child is admitted in a School other than a

School established by the Authority, the said child or his

parent shall not have a right to reimbursement of

expenditure incurred on elementary education of the

child in other School. Clause (b) imposes a duty on the

Local Authority to ensure availability of a neighbourhood

School. Clause (e) is relevant and important for present

purpose. It imposes a duty on a Local Authority to

"ensure and monitor admission, attendance and

completion of elementary education by every child

residing within its jurisdiction".

It thus follows that the Local Authorities as NDMC are

required to fulfill obligation qua children residing within

its jurisdiction only.

Clause (l) imposes a duty on the Local Authority to

monitor functioning of Schools within its jurisdiction.

(iv) Section 35(3) - empowers the Local Authority to issue

guidelines and directions to the School Management

Committee regarding implementation of the provisions of

the Act.

(v) Rule 6 of the Rules framed under the Right to Education

Act defines neighbourhood as within a radius of one

kilometer for children from classes I to V and of three

kilometers in respect of children in classes VI to VIII.

9. On a conspectus of the aforesaid provisions of law, it appears that the

obligation of NDMC which has established the Navyug Schools is qua only

those residing within the limits of its jurisdiction and not qua those residing

outside NDMC areas. NDMC is well within its rights to contend that the

students within its jurisdiction being sufficient or more than the capacity of

the Schools established by it, it will not consider for admission, students

living outside its jurisdiction. Establishment and running of Schools needs

money. NDMC has its own budgets and finances. If an obligation is

imposed on NDMC to provide education even to those residing outside its

jurisdiction, it can upset the budgets of NDMC; while it is obliged to provide

education within its jurisdiction and can thus not refuse admission to any

child within its jurisdiction, the additional obligation to also provide

education to those not living within its jurisdiction cannot be imposed.

10. The counsel for the petitioners faced with the aforesaid, contended

that the finances to the NDMC are provided by the Central Government or

the Delhi Government only. The counsel for the respondent NDMC refuted

the said contention. There is no basis for the rival contentions in the

pleadings. Without elaborating further on the subject, it cannot be said that

the residents of the NDMC area do not make any contribution to the finances

of the NDMC. The property tax and other similar taxes paid by the NDMC

area residents to the NDMC add to the budget of the NDMC. The residents

of the NDMC areas can certainly demand that their contributions to the

finances of the NDMC should not be spent on providing services as of

education to those residing outside the limits of NDMC and who have a right

to claim such services from their respective municipality.

11. We are today faced with a situation where the city of Delhi is divided

into NDMC, MCD, Delhi Cantonment Board and at times, even DDA

zones/areas. There is often a comparison of the functioning of the two

municipalities and the services provided by them. If the arguments of the

counsel for the petitioners were to be accepted that NDMC has an obligation

to provide education to children residing outside its jurisdiction also, it

cannot end at that. The residents of one area would then also be entitled to

demand that roads constructed by the other municipality are better and the

other municipality should be directed to construct roads in their area also.

The same cannot be permitted.

12. I am unable to find any such right being created under the Right to

Education Act also. The only right thereunder is to admission in a School in

the neighbourhood; such neighbourhood would necessarily mean the

neighbourhood within the municipality in which the residence is situated. In

the present case the counsel for the petitioners admits that there are other

aided Schools closer to the residence of the petitioners than the Navyug

School in question. The desire of the petitioners for admission in the said

Navyug Schools is perhaps because of better standard of education being

maintained in the Navyug Schools than in the other Schools closer to the

residence of the petitioners. However, the said desire does not constitute a

right under any of the legislations aforesaid.

13. The counsels for the Director of Education and the Navyug Schools

and NDMC have also contended that since the petitioners are claiming

admission to Nursery Class and Class-I, the Right to Education Act is not

applicable. They have also contended that the admission sought at the pre-

school level are also not within the purview of the Delhi School Education

Act. The said arguments have been controverted by the counsel for the

petitioners. However, in view of the findings returned above, it is not

deemed necessary to adjudicate the said aspects.

14. I have enquired from the counsel for the respondent Navyug Schools

and the NDMC as to why the admissions to the Schools established by

NDMC are being given to students residing outside the NDMC areas but

within the New Delhi Parliamentary Constituency. The counsel states that

since large part of the New Delhi Parliamentary Constituency is in the

NDMC area, the said benefit has since beginning been extended to the entire

New Delhi Parliamentary Constituency i.e. to the residents beyond the

NDMC area also. He could however not give any legal justification for the

same. However the challenge in this regard is for a resident of the NDMC

area to make and does not fall for adjudication in the present case. All that

can be said is that the said aberration even if any on the part of the NDMC

would still not create a right in favour of the petitioners.

15. The writ petition therefore fails. The petitioners being the residents of

outside the NDMC area, are found to have no right for consideration for

admission to a School in an NDMC area.

The writ petition is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th October, 2010 „bs‟