Master Shikhar Gupta vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 2538 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI



+                       W.P.(C) No.2140/2011


%                          Judgment delivered on: 11th May, 2011

Master Shikhar Gupta                              ...... Petitioner.

                Through: Mr. Aditya Aggarwal, Adv.

                           versus

Govt. of NCT of Delhi & Ors.                      ..... Respondents

                Through: Ms.Sonia Arora, for respondent No.1
                         Mr.Kamal Mehta,for respondent No.2.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                         Yes

2.     To be referred to Reporter or not?                      Yes

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

KAILASH GAMBHIR, J. Oral

*

1. By this petition filed under Articles 226 & 227 of

the Constitution of India, the petitioner seeks direction to

direct respondent No.1 to forthwith provide admission to the

petitioner in the pre-school for the academic year 2011-12.

Petitioner also seeks directions to direct the Directorate of

Education to take action against respondent No.1 in

accordance with law on account of failure on their part for

not holding the draw of lots in accordance with the laid down

rules of the Directorate of Education.

2. The short point involved for adjudication in the

present petition is that the petitioner applied to the

respondent no.2 school for admission for the academic year

2011-2012 in the category of "alumni", but was not selected.

The grievance of the petitioner is that the draw of lots by

which selection was made was not conducted in the presence

of the parents of the applicants and thus alleging that there

has not been any transparency in the selection process.

Feeling aggrieved by the act of the respondent no.2 school

the petitioner has preferred the present petition.

3. Mr.Aditya Aggarwal, counsel appearing for the

petitioner submits that respondent-school clearly violated

Rule No.19 of The Recognized Schools (Admission Procedure

For Pre-Primary Class) Order, 2007 which clearly provides

draw of lots to be held in a transparent manner in front of

parents or guardian and all the members of admission

committee. Counsel has also placed reliance on the

subsequent order dated 27th October, 2008 passed by the

GNCTD which reiterated the same rule. Counsel has further

placed reliance on the guidelines issued by Directorate of

Education to contend that the same process has been

adopted by Sarvodya Vidyalaya School i.e holding the draw of

lots in the presence of the parents and guardians. Counsel

for the petitioner further submits that the petitioner had

applied to seek admission in the nursery as well as pre-

primary under the alumni category and so far the pre-nursery

class was concerned, for 36 seats there were total 112

applicants and for 14 seats for pre-primary there were 56

applicants and, therefore, if the draw of lots was fairly

conducted by the school then the petitioner stood a fair

chance of being selected. Counsel also states that the

petitioner had applied for the last academic session 2010-

2011 also but was not selected by the school. The contention

of the counsel for the petitioner is that in the face of the

policy guidelines issued by the respondent/Directorate of

Education, the petitioner has a legitimate expectation that

the draw of lots would be held in the presence of the

parents/guardians. In support of his arguments, counsel for

the petitioner placed reliance on the judgment of the Jammu

and Kashmir High Court in Vikas Jandial and Ors vs. State of

J & K, 2004(3) JKJ 66.

4. Opposing the present petition, Mr.Mehta, learned

counsel appearing for respondents 2-school submits that it is

not the case of the petitioner that he was not considered for

admission in the said nursery and pre-primary school.

Counsel also submits that the draw of lots was held in the

presence of the members of the admission committee

consisting of two parents, one nominee of the Directorate of

Education NDMC and the Head Mistress of the School.

Counsel further states that the draw of lots was conducted by

the respondent-school strictly in terms of the policy

guidelines issued by the Directorate of Education. The

learned counsel has also produced order dated 15.12.2010

issued by the Directorate of Education and the last para of

the same, as per the counsel, would clearly show that the

previous admission guidelines issued were superseded. Mr.

Mehta has also invited attention of this Court to Clause 8 of

the Recognized Schools (Admission Procedure for Pre-

Primary Class) Order, 2007 wherein it is clearly stated that

that there shall be no overall lottery system to select/short

list a child for admission and limited use of lottery may

however be adopted in case there is a tie amongst applicants.

Counsel thus submits that under the said policy also it was

not that the selection of all the students was to be made

through a draw of lots but only in a case where there was a

tie amongst students. Counsel thus states that this Clause

19(b) has to be read with clause 8 and the same would be

applicable only where there is a tie between two candidates.

Counsel thus states that clause 19 does not provide the

holding of draw of lots for the entire selection and that too in

the presence of parents or guardians. Counsel further

reiterates that the earlier orders of 2007 and 2008 also

stand superseded as fresh guidelines were issued by the

Directorate of Education through order dated 15.12.2010,

and now the school has the liberty to frame its own criteria

in compliance with the guidelines laid down in the said order

dated 15.12.2010.

5. Ms. Sonia Arora, counsel appearing for the

Directorate of Education, respondent No.1 states that the

latest guidelines were issued by the Directorate of Education,

by the order dated 15.12.2010 and the same is applicable to

the case of the petitioner. Counsel also submits that in the

said order there is no requirement to issue any notice to the

parents before holding draw of lots.

6. I have heard learned counsel for the parties.

7. The grievance raised by the petitioner in the

present petition is that he had applied for admission in

respondent no.2 school at the entry level/ pre school for the

academic year 2011-2012, but he was not selected for

admission in the category of „children of alumni‟ for the

academic year 2011-2012 and even his non-selection in the

previous academic year 2010-2011 has been attributed by the

petitioner to the alleged arbitrary conduct of the respondent

school. The conduct complained of by the petitioner is that

the school did not send any intimation to the parents and

guardians including that of the petitioner to hold a draw of

lots in their presence. Such an act on the part of the

respondent school has been dubbed as illegal, arbitrary and

in violation of Rule 19 of the Recognized Schools (Admission

Procedure for Pre-primary Class) Order, 2007-2008 and also

the guidelines issued by the Directorate of Education.

Counsel for the petitioner has taken a stand that the

petitioner had a very fair chance of getting admission in the

category of alumni either in the nursery class or pre-

primary class as in the said category there were limited

applicants.

8. During the course of arguments, the counsel has

not denied the fact that the draw of lots for admission in the

nursery and pre-primary level was held by the school and the

same was held in the presence of members of the Admission

Committee. Counsel has also not disputed the fact that in

the Admission Committee there was due representation of

the parents as there were two members representing the

parents of the students in the said committee. The counsel

also has not disputed the fact that no other parents had

raised any dispute so as to challenge the draw of lots held by

the school to grant admission in the nursery and pre-primary

level for the academic year 2011-12.

9. It is also not in dispute that the Order dated

15.12.2010 issued by the GNCT of Delhi, Directorate of

Education would be applicable to govern the admission in the

school for nursery and pre primary level for the academic

year 2011-12. A perusal of the order dated 15.12.2010

issued by the Directorate of Education clearly reveals that

the said order on admission guidelines supersedes the

previous orders issued by the Directorate of Education on

the same subject. In the face of this latest order dated

15.12.2010, the reliance placed by the counsel for the

petitioner on the previous orders issued by the Directorate of

Education in the year 2007-2008 will be of no relevance.

Under this latest order for admission to 75% of the seats in

the General Category each school was required to formulate

its own policy and the criteria to be formulated by the

school should be in terms of the objectives of the school and

the same can include sibling, transfer case, single parents

and alumni. As per the said order dated 15.12.2010, each

school was required to submit its own admission policy to the

Directorate of Education which should be in conformity with

the various guidelines as issued by the Directorate of

Education vide their order dated 15.12.2010, which

guidelines in fact are based on the guidelines issued by the

Ministry of Human Resource Development, Government of

India through their Circular dated 23.11.2010.

11. Based on the abovesaid order dated 15.12.2010,

the respondent no.2 school formulated a policy where 20

percent of the seats were reserved for the children of the

alumni, giving due consideration to double alumni and more

than one generation alumni. It is however not the case of the

petitioner that the respondent school has not conducted the

draw of lots to grant admission in the nursery and pre-school

level for the academic year 2011-2012. It is also not the case

of the petitioner that the said draw of lots was not held in

presence of members of the Admission Committee which

comprised of two representatives from the parents of the

students. It is also not the stand of the petitioner that there

has been any bias or prejudice against the petitioner of the

respondent school due to which the petitioner was not

granted admission. Thus, in the face of all these admitted

facts it is difficult to accede to the contention of the counsel

for the petitioner that the respondent school did not

undertake the process of draw of lots in a transparent and

fair manner.

12. It is undoubtedly true that the petitioner applied

for two consecutive sessions in the alumni category hoping to

get admission in the same school as his father studied. It is

understandable that the parents want their children to get

the same quality education and value system that they got

from the same established educational institution, besides

the emotional attachment that they have with their alma

mater and consequently the schools also have a moral

responsibility for the wards of their old students, for which

this special category of alumni has been created. But to

expect that the children of every alumni would get admission

in the school is a far fetched proposition and the petitioner

cannot be allowed to seek relief alleging the whole process to

be arbitrary and not in consonance with the guidelines issued

in this regard. The right to education is undoubtedly a

fundamental right of every citizen of the country today and

no authority can deprive any child of the same, but at the

same time it cannot also be used as a weapon to allege

capriciousness or arbitrariness on the part of the school or

other authorities.

13. In the light of the aforesaid, this court does not

find any merit in the present petition and the same is

accordingly dismissed.

May 11, 2011                          KAILASH GAMBHIR, J