Ramesh Negi vs Government Of Nct Of Delhi And Ors
2015 Latest Caselaw 6527 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 2nd September, 2015

+              W.P.(C) 5949/2015 & CM No.10781/2015 (for directions).

       RAMESH NEGI                                        ..... Petitioner
                          Through:      Mr. Rajat Aneja & Ms. Chandrika
                                        Gupta, Advs.
                                     Versus
    GOVERNMENT OF NCT OF DELHI AND ORS. ... Respondents
                  Through: Mr. Naushad Ahmed Khan, Adv. for
                           GNCTD.
                           Mr. Ramesh Singh with Ms. Megha
                           Mukherjee & Mr. Anshul Gupta,
                           Advs. for R-4.
                           Mr. R. Dhawan & Mr. B.S. Rana,
                           Advs. for R-5.
                           Mr. Ashok Chhabra & Mr. Dinesh
                           Madan, Adv. for R-6.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The petition seeks mandamus to the respondents no.1 to 3 Directorate

of Education (DoE) of the Government of National Capital Territory of

Delhi and to the respondent no.8 Chief Commissioner of Persons with

Disabilities to ensure admission of his minor son born on 5 th January, 2011

to the Preparatory (Prep)/ Nursery Class in either of the respondents no.4 to

7 Sanskriti School, Springdales School, Bal Bharati Public School Rajinder

Nagar or Delhi Public School, Mathura Road, under the category of

Children With Special Needs (CWSN).

2. Notice of the petition was issued on 10th June, 2015 when the

respondents no.4 to 7 Schools were also directed to inform the status of

compliance with the Circular dated 10th February, 2015 of the respondent

DoE and the respondent DoE was directed to ascertain the said information.

Vide subsequent order dated 17th June, 2015, respondents no.4 to 7 Schools

were further directed to in their respective counter affidavits clarify as to

how and when the applications of the CWSN admitted to the respective

Schools were received and admissions granted. Neither has anybody

appeared for the respondent no.7 Delhi Public School, Mathura Road nor

any counter affidavit has been filed on its behalf. Counter affidavits have

been filed by the respondent DoE and the respondents no.4 to 6 Schools. The

counsels were heard on 21st July, 2015 when it appeared that the right which

was asserted by the counsel for the petitioner was under the Right of

Children to Free and Compulsory Education (RTE) Act, 2009. Attention of

the counsel for the petitioner was invited to the judgment of the Division

Bench of this Court in Social Jurist, A Civil Rights Group Vs. Government

of NCT of Delhi AIR 2013 Del. 52 referred to in Forum for Promotion of

Quality Education for All Vs. Lt. Governor, Delhi 216 (2015) DLT 80 to

enquire whether not it was held therein that RTE Act is not applicable to

Nursery classes or below the age of six years. It was as such enquired from

the counsel for the petitioner as to how under the RTE Act mandate to the

respondent DoE to ensure admissions in the Prep / Nursery class was sought.

Upon the counsel contending that the petitioner was also invoking the

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) (PWD) Act, 1995 it was enquired as to how the same could be

invoked against the respondents no.4 to 7 unaided Schools. It was yet further

enquired whether not as held by this Court in Forum for Promotion of

Quality Education for All supra, the unaided schools in the matter of

admission to Nursery classes have an absolute autonomy, which cannot be

interfered with by the State by office orders / circulars which do not have

any authority of law. On request of the counsel for the petitioner, hearing

was adjourned. On 29th July, 2015 further arguments were heard and hearing

concluded.

3. It is the case of the petitioner, that:-

       (a)      his son is suffering from Autism;




        (b)     the Division Bench of this Court in Pramod Arora Vs. Hon'ble

Lt. Governor of Delhi (2014) X AD (Delhi) 241 directed the

DoE to take steps for admission of disabled children in Private

Unaided Recognized Schools by issuing Guidelines therefor;

(c) in compliance of the aforesaid direction, respondent DoE has

issued the Circular dated 10th February, 2015 outlining the

procedure for admission of CWSN in the selected schools;

(d) the petitioner filled up Common Application Form, for

admission in Entry Level classes in private unaided recognized

schools having facilities for CWSN, prescribed by the

respondent DoE vide Circular dated 10th February, 2015, opting

for the respondents no.4 to 7 Schools; the petitioner

independently also applied to the respondents no.4 to 7

Schools;

(e) respondents no.4 to 7 Schools possess the facility /

infrastructure to provide education to CWSN;

(f) as per the Circular dated 10th February, 2015, the respondent

DoE was to supervise the entire admission process of CWSN;

(g) though the respondent no.4 Sanskriti School declared having

reserved two seats in Preparatory (Prep) class for CWSN but till

the filing of the petition had not taken any steps to fill the said

seats;

(h) similarly the respondents no.5 to 7 Schools also did not take

any steps to fill up the seats for CWSN;

(i) the respondent DoE has failed to take any action;

(j) Section 26 of the PWD Act also provides for free education to

every child with disability and for an endeavor to promote the

integration of students with disabilities in normal schools;

(k) the petitioner, on 7th April, 2015 lodged a complaint with the

respondent no.8 Chief Commissioner of Persons with

Disabilities which issued notice thereof to the respondents no.4

to 7 Schools;

(l) the petitioner received a reply from the respondent no.5

Springdales School falsely stating that it had not received any

application form from the petitioner;

(m) the respondents no.4&5 Sanskriti and Springdales Schools also

took a stand that the seats reserved for CWSN in their

respective Schools had been filled up - however without giving

any particulars thereof; the respondent no.6 Bal Bharati Public

School also took the same stand; and,

(n) the respondent DoE has failed to perform its duty as a Nodal

Officer.

4. The respondent DoE in its counter affidavit has merely furnished the

information collated by it as to the number of seats available for CWSN in

the unaided schools in the Prep class and the status thereof.

5. The respondent no.4 Sanskriti School in its counter affidavit has

pleaded that, (i) it is one of the Schools selected by respondent DoE for

admitting children suffering from Autism; (ii) it had two seats under the

CWSN category; (iii) while the petitioner submitted his application on 11 th

March, 2015 the two children ultimately granted admission submitted their

applications on 27th February, 2015 and 11th March, 2015 respectively; (iv)

the School evaluates and selects the applications on the basis that the

admitees, despite having special needs would settle and benefit in an

integrated and inclusive set up, by evaluating the condition of the child to

handle activities of daily living, adaptive behaviour, readiness for

academics; (v) only those children who clear the said criteria are called for

personal individual interaction to assess cognition, social-emotional and

physio motor levels, to match with the curriculum being run in the School

and interactions are held with the parents to have a consensus on the

curriculum and specific requirements of the child; (vi) the petitioner‟s son on

the basis of his medical records submitted with the application could not

clear Level-I of screening (detailed reasons therefor are set out in para-6 of

the Preliminary Objections but it is not deemed appropriate to record the

same here); (vii) that on the basis of evaluation, two other children with

CWSN were admitted; and, (viii) that there are no more seats available

under the CWSN category.

6. The respondent no.5 Springdales School in its counter affidavit has

pleaded that, (a) for admissions in the Academic Session 2015-16, three

seats were meant for CWSN; (ii) eleven applications were received

including from the three children ultimately admitted on 9 th January, 2015,

5th January, 2015 & 8th January, 2015; (iii) no application was received from

the Nodal Officer viz. respondent DoE; (iv) the number of applicants being

more than the number of seats, admissions were decided on the basis of

draw-of-lots held on 4th February, 2015 in the presence of the representative

of the respondent DoE and parents of the applicants - ten of the eleven

applicant parents were present; (v) no objection was raised by the respondent

DoE to the admission process adopted; (vi) the petitioner submitted his

application only on 25th March, 2015, after the admissions were already

over; (vii) now there is no vacancy; and, (viii) the petitioner was under an

obligation to apply and/or ensure that his form is communicated to the

School before the last date of receiving of applications but did not take any

steps and got himself registered with the Nodal Officer also after the date

prescribed therefor.

7. The respondent no.6 Bal Bharati Public School in its counter affidavit

has pleaded that, (i) the total number of seats in the Prep class for Academic

Session 2015-16 was 368 and of which 25% i.e. 92 were reserved as per the

provisions of the RTE Act; (ii) a draw-of-lots for admission to the said seats

was conducted on 2nd February, 2015 in the presence of the Observer

appointed by the respondent DoE in which 92 children were provisionally

selected and a waiting list of 46 prepared; (iii) the petitioner visited the

School after 16th March, 2015 along with an application for admission of his

child and was informed that since his first two preferences were Sanskriti

and Springdales Schools he should first disclose the status thereof; and, (iv)

the petitioner thereafter did not turn up.

8. Though the petitioner has filed rejoinders to the counter affidavits of

the aforesaid Schools but since during the hearing no reference was made

thereto, need to advert to the contents thereof is not felt.

9. The counsel for the petitioner argued, that:-

A. the Division Bench in Pramod Arora supra devised a admission

and reporting mechanism for the admission for CWSN in primary

and 1st Grade i.e. Entry Level classes by directing the Government

of NCT of Delhi:-

(i) to create a list of all public and private educational

institutions catering to CWSN; and,

(ii) to create a Nodal Agency under the authority of the DoE for

processing all applications pertaining to admission to CWSN;

B. the DoE in pursuance to the above got inspected 231 private

unaided recognized schools to verify the facilities available for

CWSN and uploaded the details of the Schools on its website and

also devised Common Registration Form for applying for

admissions;

C. even prior thereto, respondent DoE had issued an order dated 19 th

September, 2014 in this regard;

D. the petitioner submitted his application to the respondent DoE on

5th March, 2015; and,

E. with respect to the query raised in the hearing on 21 st July, 2015

supra it was contended that the judgment of the Division Bench in

Social Jurist, A Civil Rights Group supra though holds that RTE

Act is not applicable to Prep / Nursery classes admission whereof

is made before the age of six years but nevertheless refers to the

proviso to Section 12(1)(c) thereof providing that where the

School imparts pre-school admission it shall comply with the

provisions of RTE Act for admissions to such pre-school

education.

10. The counsel for the respondent no.5 Springdales School and the

respondent no.6 Bal Bharati Public School during the hearing re-affirmed

the contents of their respective counter affidavits.

11. The counsel for the respondent no.4 Sanskriti School contended, that

a) Pramod Arora supra was a Public Interest Litigation, in which none

of the unaided schools or their association was impleaded as

respondents;

b) challenge in Pramod Arora was to the amendment w.e.f. 2012 to

Section 2(d) of the RTE Act, including a child with disability in the

definition of a "child belonging to disadvantaged group" and to the

definition in Section 2(ee) of a "child with disability" and it was in

that context held that the rights under Section 26 of the PWD Act

were in no manner affected by the said amendment;

c) the said judgment, though creating the respondent DoE as the Nodal

Agency, vide para 61(b) vests the ultimate decision with the Schools

and in para 61(f) provides that if any CWSN is unable to be placed in

a School catering to his or her special needs, it is the responsibility of

the DoE to ensure that the mandate under Section 26 of the PWD

Act is fulfilled by looking for an alternative - on the basis thereof it

is argued that once the seats in the respondents Schools have been

filled up, it is the duty of the respondent DoE to find an alternative

placement for the child of the petitioner;

d) as per para 62 of Pramod Arora, the purpose of the Court devising

the scheme was only to optimize the filling up of the seats for CWSN

in the schools;

e) as far as the respondent no.4 Sanskriti School is concerned, it had

catered to CWSN even prior to 2012;

f) the school is fully entitled to evaluate a CWSN for the purposes of

admission in that category;

g) though the Circular dated 10th February, 2015 supra required the

petitioner to take a print out of the form filled up with the respondent

DoE and to submit the same with the respective Schools with all

relevant documents but the petitioner did not comply with the said

requirement; he did not submit the requisite documents;

h) the challenge in the writ petition is on the basis of the respondents

Schools having not made any admissions in the CWSN category -

once it is established that admissions have been made, the petition

has to be dismissed;

i) the petitioner, in the rejoinder filed has sought to change his stand by

alleging the seats available in the Sanskriti School in the CWSN

category to be four instead of two; it is explained that two of the

seats are for Nursery class and for which the petitioner being overage

is not qualified; and,

j) the right of CWSN under the PWD Act against unaided Schools can

be to the extent of 25% of the seats under the RTE Act only and no

more; reliance in this regard is placed on para 59 of Pramod Arora.

12. I have considered the rival contentions.

13. As far as the query raised in the hearing on 21st July, 2015 supra is

concerned, on a re-reading of the judgment of the Division Bench in Social

Jurist, A Civil Rights Group I am satisfied that the same cannot be read as

negating the rights under the proviso to Section 12(1)(c) of the RTE Act

whereby though the provisions of RTE Act are made applicable to children

between the classes I to VIII but if the School provides pre-school

admission, it is required to abide by the provisions of the RTE Act while

making admissions to pre-school classes. The same is essential inasmuch as

unless the same is done, the School would not have any seats available for

admission under the RTE Act at the stage of class-I. Reference by the

counsel for the respondent no.4 Sanskriti School to Gajraj Singh Vs. State

of U.P. (2001) 5 SCC 762 laying down that a doubt arising from reading of a

judgment of the Court can be resolved by assuming that the judgment was

delivered consistently with the provisions of law and therefore a course or

procedure in departure from or not in conformity with statutory provisions

cannot be said to have been intended or laid down by the Court, in this

regard, is apposite.

14. At the same time, it is clear from a reading of para 59 supra of

Pramod Arora Vs. Hon'ble Lt. Governor that the enforcement of the rights

under Section 26 of the PWD Act against the unaided Schools is limited to

25% of the seats under the RTE Act and to no more.

15. That brings me to, whether the actions of the respondents no.4 to 7

Schools impugned in this petition are violative of the dicta in Pramod Arora

supra or the order dated 19th September, 2014 or the Circular dated 10th

February, 2015 issued in pursuance thereto.

16. This Court in Pramod Arora negated the challenge as aforesaid to the

amendment of the year 2012 of Section 2(d) of the RTE, Act on the ground

that the same by including a "Child with Disabilities" within the meaning of

PWD Act in the definition of a child belonging to the disadvantaged group

curtailed the rights under the PWD Act, by inter alia holding that

Government of NCT of Delhi could within the reservation of 25% of the

seats in Schools under the RTE Act provide for a further reservation for

children with disability or CWSN. However neither was any percentage of

any such reservation specified in the said judgment nor in the order / circular

supra issued in pursuance thereto nor is it the case of the petitioner that there

is otherwise any such reservation. It thus cannot be said that as of today the

schools are required to reserve any percentage of seats out of 25% seats

under the RTE Act for children with disability or CWSN; rather from a

reading of the dicta in Pramod Arora it is evident that the facilities

necessary for CWSN are available in certain schools only. It was for this

reason only further held, that neighbourhood criteria cannot be applied for

admissions under the CWSN sub category.

17. What prevailed with the Division Bench in Pramod Arora to provide

for a Centralized Application Form for admission under the CWSN category

and to appoint DoE as the Nodal Officer was the need to match the demand

for schools for CWSN with the supply of seats in educational

institutions(public and private) and to ensure that the legal rights under

Section 26 of the PWD Act are not frustrated and the seats available in the

CWSN category are utilized to the optimum. The judgment notices that all

the schools do not have the facilities necessary for CWSN; it was felt that

preparation of a list of such schools with the facilities available therein for

different kind of disabilities and publication thereof on the website would

facilitate the parents of such children. A reading of the judgment also shows

that the purpose of the Centralized Application Form was to enable the

respondent DoE to keep a track and build data of the seats available in

different schools and the filling up thereof. It was perhaps felt that the same

would also enable the parents to track the available seats. While doing so,

the responsibility of forwarding the applications for admission submitted to

the respondent DoE as a Nodal Officer, to the concerned school was

entrusted to the respondent DoE. Further directions were issued to the

respondent DoE to design an appropriate admission mechanism to optimize

the filling up of those seats having regard to the facilities available.

18. Though the order dated 19th September, 2014 and Circular dated 5th

February, 2015 were issued in pursuance thereto but I am afraid did not

carry the matter further. The order dated 19th September, 2014 is nothing but

a repetition of the directions issued in the judgment. However in the Circular

dated 10th February, 2015, the respondent DoE, in addition to requiring the

Centralized Admission Form to be filled up, in Clause (3) prescribed as

under:-

"(3) The application form filled up by the parents will be transferred online to the private school/s concerned as well as Dy. Director (IEDSS)/Nodal Officer. The parents/guardians may take a print out of the filled up application form/s sent to the school/s and hard copy of the same after affixing photograph of the child shall be submitted to school authority/ies concerned with all relevant documents to support their request for admission, for consideration."

The same thus required the parents to take a print out of the filled up

centralized application form and to themselves take it or send it to the

School, affixing thereon the photographs of the child as well as the

supporting documents.

19. Some of the respondents no.4 to 7 Schools have as aforesaid denied

receipt of any application from the respondent DoE. The petitioner has not

been able to establish that the application made by him to the respondent

DoE on 5th March, 2015 was forwarded by the respondent DoE to the

respondents no.4 to 7 Schools. The said schools claim to have, in any case,

by then having already completed their admissions process. Neither the

judgment nor the order / Circular mention any date for admission. The

admission procedure otherwise prescribed for unaided schools for the year

2014-15 was set aside by this Court in Forum for Promotion of Quality

Education for All supra and which judgment was applicable to the year

2015-16 also. It was held that the Schools have autonomy in the matter of

admissions and which cannot be interfered with. The same would apply to

admissions under the CWSN category as well.

20. I am of the opinion that the order/circulars aforesaid are misleading. It

appears that there is no proper system in place for the respondent DoE to

forward the centralized applications forms to the schools having facilities for

CWSN. It is suggested that respondent DoE, required to be submitted with

it, if for the following academic year unable to devise a foolproof system

therefor, ought to clarify that the parents in addition to filing an application

with the respondent DoE are also required to approach the schools directly

for admission.

21. Otherwise also, absolute discretion has been left to the unaided

schools in the matter of admission. Though the petitioner approached this

Court with the case of the schools having not made admissions under the

said category but what has emerged is that all the schools indeed have made

admissions. The challenge by the petitioner to the admissions made cannot

be entertained in the absence of the parents of the children admitted; even

otherwise, in accordance with the dicta of this Court in Forum for

Promotion of Quality Education for All, there is no such right save under

the RTE Act.

22. I am thus unable to find the petitioner entitled to any relief in law and

dismiss the petition though with the hope that the respondents no.4 to 7

Schools if are able to accommodate the child would make best endeavour to

do so.

No costs.

RAJIV SAHAI ENDLAW, J

SEPTEMBER 2ND , 2015/„pp‟ ..