Master Aaditya Birmani vs Sardar Patel Vidyalaya & Anr
2011 Latest Caselaw 1405 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 10th March, 2011.

+                                 W.P.(C) 1063/2011
%        MASTER AADITYA BIRMANI              ..... Petitioner
                     Through: Mr. Ashok Aggarwal & Ms.
                              Kusum Sharma, Advocates.

                                   Versus

         SARDAR PATEL VIDYALAYA & ANR .......Respondents
                     Through: Mr. T.R. Andhyarujina, Sr. Adv.
                              with Mr. Sakesh Kumar & Mrs.
                              Rita Kumar, Advocates for R-1.
                              Ms. Neha Kapoor, Adv. for Mr.
                              Najmi Waziri, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No.

2.       To be referred to the reporter or not?             No.

3.       Whether the judgment should be reported            No.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition was filed for quashing the draw of lots held by

the respondent no.1 School for admissions to nursery class in the year

2011 and seeking direction to the respondent no.1 School to re-hold the

draw of lots after including the name of the petitioner therein. Finding

that the petitioner, a resident of Mayur Vihar, Phase-II, Delhi was

claiming admission to a distant School, it was enquired from the

counsel for the petitioner when the writ petition came up first on 21 st

February, 2011 as to why admission was not being sought to a

neighbourhood School. The counsel for the petitioner had then stated

that the facilities for children with special needs as the petitioner is, are

available in the respondent no.1 School and for this reason the

petitioner was seeking admission to respondent no.1 School, even

though distant.

2. Notice of the writ petition was issued. The respondent no.2

Directorate of Education was also directed to in the meanwhile look

into the matter and to place a report before this Court.

3. The counsel for the petitioner today states that he has received

advance copy of the counter affidavit of the respondent no.1 School.

The counsel for the respondent no.1 School states that the same could

not be filed and he has been permitted to hand over the same in the

Court and the same is taken on record. The counsel for the petitioner

states that he does not need to file any rejoinder thereto.

4. The counsel for the respondent no.2 Directorate of Education

states that in pursuance to the earlier direction, an enquiry was

conducted and she has handed over for perusal of this Court, the file in

that regard, containing the report dated 9th March, 2011 of the said

enquiry.

5. As per the said report, the respondent no.1 School had received

2124 applications for admission in the General Category; out of these

applications, 333 applications were shortlisted on the basis of

admission criteria, for final selection for 63 seats in the General

Category; the petitioner did not have the minimum score required for

admission and was as such not shortlisted in the General Category. It

is further reported that for 21 seats in the Economically Weaker

Section (EWS) Category, 1018 applications were received by the

respondent no.1 School of which 24 applications were shortlisted on

the basis of neighbourhood criteria and of which shortlisted candidates,

21 were admitted. It is thus reported that the respondent no.1 School

has complied with the procedure prescribed for admission.

6. The counsel for the petitioner states that he does not need to file

any response to the said enquiry report also. The counsels have been

heard.

7. The senior counsel for the respondent no.1 School has at the

outset contended that the petitioner got the notice of the writ petition

issued on misrepresentation in response to the query of the Court, that

the respondent no.1 School has provisions for children with special

needs. It is contended that the respondent no.1 School is like any other

School and there is no plea in the writ petition also in this regard.

8. The counsel for the petitioner has fairly stated that though the

petitioner had applied for admission in the General Category also and

in which he did not made the requisite minimum score but had

subsequently applied under the EWS Category and the grievance now

of the petitioner is for not being shortlisted in the said Category only.

9. The senior counsel for the respondent no.1 School has contended

that for the EWS Category, the criteria applied was of neighbourhood;

the first preference was given to the children residing within the radius

of 3 Km. and thereafter successively to those residing within 5 and 7

Km radius of the School. It is contended that since the residence of the

petitioner is at a distance of 12 Km., the petitioner was not shortlisted

in the EWS category also.

10. The counsel for the petitioner has confined his arguments to the

Delhi Government having not defined "neighbourhood", though

required to do so under Section 38(2)(b) of The Right of Children to

Free and Compulsory Education Act, 2009. He seeks a direction in

this regard. He has next contended that no provision has been made

for education of the children with special needs. He invites attention to

the judgment dated 16th September, 2009 of the Division Bench of this

Court in W.P.(C) No.6771/2008 titled Social Jurist, A Civil Rights

Group Vs. Govt. of NCT of Delhi regarding appointment of teachers

for children with special needs and states that in pursuance thereto

Notification dated 4th November, 2010 has been issued. He contends

that a status report ought to be called from the Govt. of NCT of Delhi

and the Directorate of Education as to the steps being taken for

fulfilling the educational needs of children with special needs.

11. Upon it being put to the counsel for the petitioner that the

petitioner for the said purposes ought to file a Public Interest Litigation

(PIL), the counsel states that since the issue has arisen for

consideration in the present writ petition, the same be considered

herein only.

12. Though it is permissible for any writ petition/proceeding to be

converted into a PIL but I do not find any necessary/relevant averments

in the present writ petition in this regard for the said course to be

followed. Even for a PIL to be maintained, the petitioner is required to

make the requisite pleas for the Court to entertain the litigation.

13. The counsel for the petitioner has also contended that since

"neighbourhood" has not been defined in the Act till now, the

respondent no.1 School could not have fixed its own criteria of

"neighbourhood" as has been done. I am of the opinion that till the

"neighbourhood" is not defined, the common sense view with respect

thereto is to prevail and the criteria for admission followed by the

respondent no.1 School is found to be inconsonance therewith.

14. In the circumstances, while dismissing the writ petition, liberty

is granted to the petitioner to if so desires, take up the aforesaid two

reliefs in PIL before the appropriate Bench.

15. The counsel for the petitioner at this stage states that a direction

be issued to the respondent no.1 School at least to have provision for

educating children with special needs. Without any specific pleadings

in this regard, such direction also cannot be issued.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 10, 2011/bs