Social Jurist, A Civil Rights ... vs Action Committee Unaided ...
2014 Latest Caselaw 6632 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      LPA No.781/2014
       DIRECTORATE OF EDUCATION                    ..... Appellant
                    Through: Mr. P.P. Malhotra, Sr. Adv. with Mr.
                             V.K. Tandon, Mr. Pardeep Kumar,
                             Mr. Yogesh Saini & Mr. Kartik
                             Jindal, Advs.

                                    versus

       ACTION COMMITTEE UNAIDED RECOGNIZED PRIVATE
       SCHOOLS & ORS                          ..... Respondents
                    Through: Mr. Rakesh Khanna, Sr. Adv. with
                             Mr. Kamal Gupta, Adv. for R-1.
                             Mr. Arun Bhardwaj, CGSC with Mr.
                             Rishi Kapoor, Adv. for R-3/UOI.
                             Mr. Vedanta Verma, Adv.

                                       AND
+      LPA No.769/2014
       SOCIAL JURIST, A CIVIL RIGHTS GROUP         ..... Appellant
                      Through: Mr. Ashok Aggarwal, Adv.

                                    Versus

       ACTION COMMITTEE UNAIDED RECOGNIZED PVT.
       SCHOOLS & ORS                           ..... Respondents
                    Through: Mr. Rakesh Khanna, Sr. Adv. with
                             Mr. Kamal Gupta, Adv. for R-1.
                             Mr. Anurag Ahluwalia, CGSC for R-
                             4/UOI.
                             Mr. Vedanta Verma, Adv.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW




LPA No.781/2014 & LPA No.769/2014                        Page 1 of 14
                              ORDER

%                            10.12.2014

1.     Admit.

2. The counsels for all the respondents appear on caveat / advance notice

and waive formal service of notice.

3. Considering the nature of the controversy, hearing is expedited.

4. List for hearing in the category of "After Notice Miscellaneous

Matters" on 15th January, 2015.

5. The writ records be kept available.

CM No.20128/2014 (for stay) in LPA No.781/2014 and CM No.19877/2014 (for stay) in LPA No.769/2014.

6. Both appeals impugn the judgment dated 28th November, 2014 of the

learned Single Judge of this Court allowing W.P.(C) No.177/2014 preferred

by the respondent no.1. Vide the same judgment, another writ petition being

W.P.(C) No.202/2014 filed by "Forum for Promotion of Quality Education

For All" and entailing identical issues as raised in W.P.(C) No.177/2014 was

also allowed. The counsel for the appellant Directorate of Education (DoE),

Government of National Capital Territory of Delhi (GNCTD) states that

appeal against the judgment allowing W.P.(C) No.202/2014 is also under

preparation and will be filed shortly. Be that as it may, the counsel for the

said "Forum for Promotion of Quality Education For All" namely Mr.

Vedanta Varma, Advocate also appears and we have heard him also.

7. W.P.(C) No.177/2014 and W.P.(C) No.202/2014 were filed

impugning the orders dated 18th and 27th December, 2013 of Hon‟ble the Lt.

Governor of Delhi. The order dated 18th December, 2013, called the

"Recognized Schools (Admission Procedure for Pre-primary classes)

(Amendment) Order, 2013" (Admission Order 2013) was issued by Hon‟ble

the Lt. Governor in exercise of the powers conferred by Section 3(1) of the

Delhi School Education (DSE) Act, 1973 read with Rule 43 of the Delhi

School Education (DSE) Rules, 1973 and amending the " Recognized

Schools (Admission Procedure for Pre-primary class) Order, 2007"

(Admission Order 2007). Vide the Admission Order 2013, the 20%

Management Quota in admission in any private unaided recognized school

of Delhi under the Admission Order 2007 was done away with and fixed

parameters and points for admission to a class at entry level of the school

were laid down and the schools prohibited from fixing additional points

other than the points specified. The subsequent order dated 27 th December,

2013 merely extended the parameter of neighbourhood from 06 k.m. as

prescribed in the order dated 18th December, 2013 to 08 k.m.

8. The learned Single Judge, vide the impugned judgment has held:-

(i) that the Admission Order 2013, being an executive action, by

prescribing a straight jacket formula for who can be admitted

and who cannot be admitted to the entry level class in the

school, not only takes away in entirety the choice / discretion of

the management committees of such schools, set up without

any aid from the State, in the matter of such admissions but also

takes away the choice / discretion of students / their parents in

selecting a school;

(ii) that private unaided schools managements have a fundamental

right under Article 19(1)(g) of the Constitution of India to

establish, run and administer their schools, including the right

to admit students. Reliance in this regard was placed on T.M.A.

Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481;

(iii) that autonomy has also been recognized and conferred upon

such schools by Section 16(3) of DSE Act and Rule 145 of

DSE Rules which empower the head of every unaided school to

regulate admissions in the schools or any class thereof;

(iv) that the scope of reasonable restrictions permitted vide Article

19(6) to be prescribed vis-a-vis such right is confined to ensure

maintenance of proper academic standards, atmosphere,

infrastructure, prevention of mal-administration by those in

charge of the management and does not extend to taking away

the right to regulate admissions in the school;

(v) that such restrictions under Article 19(6) can only be imposed

by way of a law only and not by way of an executive action /

Office Order, without any authority of law;

(vi) that neither the DoE, GNCTD nor the appellant in LPA

No.769/2014 had placed any material to show that private

unaided schools were indulging in any mal-practice or misusing

their right to admit students in pursuance to the Admission

Order 2007;

(vii) that the right to impose conditions while granting recognition /

affiliation cannot be used to destroy institutional autonomy;

(viii) that the judgment of the Supreme Court in T.M.A. Pai

Foundation supra is applicable to nursery admissions in private

unaided non-minority schools; reliance in this regard, besides

on T.M.A. Pai Foundation, is also placed on P.A. Inamdar Vs.

State of Maharashtra (2005) 6 SCC 537, Society for Unaided

Private Schools of Rajasthan Vs. Union of India (2012) 6

SCC 1 and on Pramati Educational & Cultural Trust

(Registered) Vs. Union of India (2014) 8 SCC 1;

(ix) that the except the proviso to Section 12(1)(c), none of the other

provisions of Right of Children to Free and

Compulsory Education Act, 2009 (RTE Act) apply to nursery

admissions; reliance in this regard is placed on a judgment of

Division Bench of this Court in Social Jurist, A Civil Rights

Group vs. Govt. of NCT of Delhi 198(2013) DLT 384;

(x) that the Admission Order 2013 is contrary to Guidelines issued

by the Central Government under Section 35(1) of the RTE

Act;

(xi) that Section 3 of the DSE Act and Rule 43 of the DSE Rules

cannot be read to overrule Section 16(3) and Rule 145;

(xii) that the points system introduced vide the Admission Order

2013 is neither procedural, proper nor rational; and,

(xiii) that children through their parents, under Article 19(1)(a), have

a fundamental right to chose a school in which they wish to

study; reliance in this regard is placed on the judgment dated 6 th

March, 2014 of the Supreme Court in Civil Appeals No.5166-

5190/2013 titled State of Karnataka Vs. Associated

Management of (Government Recognized-Unaided-English

Medium) Primary and Secondary Schools.

Resultantly, the Admission Order 2013 of Hon‟ble the Lt. Governor

has been quashed with regard to 75% general nursery seats in the private

unaided schools of Delhi.

9. The appellants seek interim stay of the judgment, contending that the

judgment if allowed to stand would come in the way of the admissions to

nursery classes in unaided recognized schools of Delhi for the Academic

Year 2015 and which process is likely to begin soon.

10. We have heard the counsels for the appellants as well as the counsels

for the respondent.

11. We at the outset wondered whether it would be appropriate for us,

entertaining a Letters Patent Appeal, to at this preliminary stage to grant

interim stay of the operation of a detailed judgment of the learned Single

Judge of this Court giving as many as thirteen reasons/ grounds aforesaid for

quashing the Admission Order 2013. Ordinarily the same is not to be done,

unless the Appellate Court finds no reasoning to have been given by the

learned Single Judge or the reasoning given is prima facie found to be

perverse and unsustainable. Else, the settled principle is that once a Single

Judge of this Court has for reasons which appear to be well founded, struck

down an executive action, such executive action should not be allowed to

operate during the consideration of the appeal thereagainst. We may notice

that at least the Division Benches of the High Court of Punjab & Haryana,

High Court of Gauhati and the High Court of Bombay in Major Jagjit

Singh Vs. Kartar Singh MANU/PH/0288/1973, Naren Talukdar Vs. The

Publication Board MANU/GH/0189/2011 and Sulochana Daulatrao

Thakare Vs. Sangam Shikshan Sanstha 2004(4) Bom. C.R. 488

respectively have held that an intra court appeal under Letters Patent is not

to be mistaken as an ordinary appeal and that the jurisdiction thereunder

against a judgment of a Writ Court under Article 226 is narrower than that

of the Writ Court. It was further held relying on Milkhiram (India) Pvt. Ltd.

Vs. Chamanlal Bros. AIR 1965 SC 1698 that the judges hearing the LPA

have no jurisdiction to entertain "any appeal merely because they do not

agree with the plausible view taken by the learned Single Judge on the basis

of cogent material before him unless it is perverse or patently illegal".

12. The matter being still at large, we consider it suffice to state that we

prima facie do not find the reasons given by the learned Single Judge to be

perverse or totally unsustainable.

13. However there are other far more weighty factors which guide us to

refuse such interim stay.

14. Admissions to nursery classes in such schools, prior to the Admission

Order 2013 were governed by the Admission Order 2007 supra which had

come into being under the supervision of a Division Bench of this Court in

LPA No.196/2004 titled Rakesh Goel Vs. Montfort School decided vide

order dated 4th September, 2006. Under the Admission Order 2007, the

schools were to develop and adopt a clear, well defined, equitable, non-

discriminatory and unambiguous criteria for admission in the interest of

children, including on the aspects of neighbourhood, background of the

child, sibling, transfer of case, single parent and management quota not

exceeding 20%, and were also given option of fixing additional parameters

though were required to stipulate a point system of such criteria, but not

heavily loaded in favour of few parameters only. The schools were required

to obtain prior approval of DoE for finalization of admission criteria.

Subsequently, vide interim order in SLP (C) No.2463-18/2007 thereagainst,

it was directed that it will be sufficient if the admission criteria adopted by

the schools was sent to the DoE. However the said SLP was subsequently

disposed of in view of certain subsequent developments, without

commenting on the judgment dated 4th September, 2006 supra of the

Division Bench of this Court.

15. The Admission Order 2007 governed the nursery admissions in Delhi

till the Academic Year 2013 when vide Admission Order 2013 the same

was sought to be changed for admission to nursery classes in the Academic

Year 2014.

16. The respondent no.1 / writ petitioner and Forum for Promotion of

Quality Education For All being the petitioner in W.P.(C) no.202/2014,

during the pendency of the writ petition from which this appeal arises had

sought interim stay of the Admission Order 2013 contending that the same

took away their autonomy in the matter of admission. The said applications

for interim relief were dismissed by the learned Single Judge vide order

dated 10th January, 2014. LPAs No.30 and 31/2014 were preferred

thereagainst and which were dismissed vide judgment dated 20 th January,

2014 of the Division Bench of this Court. What primarily prevailed with the

Division Bench of this Court for refusing interim stay of the Admission

Order 2013 was the fact that the matter was not found to be as such causing

irreparable loss and injury. It was observed that it mattered not as to who

was admitted to the schools and as far as the autonomy of the schools was

concerned, the same though would be taken away qua admissions in one

academic year, would stand restored in the event of the petitions being

allowed. It was also noticed that the number of admission seekers is much

more than the seats available in schools and which leads to elaborate

planning on the part of the parents of children of arranging for admission

and any uncertainty in the rules of admission causes grave prejudice to the

parents body.

17. SLP (C) No.2106/2014 and SLP (C) No.2113/2014 preferred

thereagainst were dismissed vide order dated 31st January, 2014.

18. In our opinion, the factors which weighed with the Division Bench of

this Court at the time of refusing interim stay of the Admission Order 2013

applies with equal force at this stage also, when the learned Single Judge has

quashed the said Admission Order 2013 and the DoE is in appeal. The

essential ingredients of balance of convenience and irreparable loss and

injury are absolutely lacking in the applications for interim relief.

19. The senior counsel for the DoE however contended that the

Admission Order 2013 is for the benefit of the citizens of Delhi in as much

as the same enables the children to get admission in neighbourhood schools.

He has rather contended that the nursery admissions in the year 2014 having

been allowed to be made as per the Admission Order 2013, be so allowed to

be made for the Academic Year 2015 also and if the appeals are ultimately

dismissed, w.e.f. the Academic Year 2016, the Admission Order 2007 earlier

in vogue can be restored.

20. There is however a sea change in position since the Division Bench of

this Court on 20th January, 2014 had refused to grant interim stay of the

Admission Order 2013. The Admission Order 2013 has since then been held

to be ultra vires the DSE Act and the DSE Rules and the fundamental rights

of the Management Committees of the schools and of the parents of the

admission seeking students. Once a Judge of this Court has after hearing

arguments spanning over several months held so, we would not be justified,

in the facts and circumstances of the case, to allow a state of affairs which

has been found and declared to be illegal, to continue even for a day more,

without finding a very strong prima facie case and which at this moment, we

do not.

21. The senior counsel for the DoE has otherwise built his case on the

provisions of the RTE Act. However a Division Bench of this Court in

Social Jurist supra has already held the provisions of the RTE Act to be not

applicable to nursery schools and / or to admission to seats in excess of 75%.

The senior counsel contends that the said judgment of the Division Bench of

this Court is erroneous and a Special Leave Petition preferred thereagainst is

pending consideration. However on enquiry it is informed that there is no

stay thereof by the Supreme Court. Again, at this preliminary stage, the

doctrine of precedent requires us to abide by the earlier judgment of the

Division Bench of this Court.

22. The counsel for the appellant in LPA No.769/2014 has also relied

extensively on certain portions of the order/judgment dated 20th January,

2014 supra. He however forgets that what is expressed therein was on a

prima facie view of the matter. Since then the writ petition filed by the

respondent no.1 has been allowed. Reliance on the said passages is thus

misconceived.

23. We reiterate that the only effect of non-grant of the interim stay

sought would be that instead of one child another child may be admitted to

the nursery classes in some of the unaided recognized schools of Delhi. To

us, at this stage, all children are equal and we do not find this to be a ground

for us to grant any interim stay.

Resultantly the applications are dismissed.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J DECEMBER 10, 2014 „pp‟