Delhi High Court
Neeraj Kumar vs Venkateshwar Global School And ... on 31 March, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 31, 2017
+ W.P.(C) 7945/2016 & CMs 7936/2017, 32976/2016
NEERAJ KUMAR ..... Petitioner
Through: Mr. N.K.Upadhyay, Adv.
versus
VENKATESHWAR GLOBAL SCHOOL AND ORS ..... Respondents
Through: Mr.Sanjoy Ghose, Ms.Pratishtha Vij,
Mr.Rhishabh Jetley, Advs. for R-2-4
+ W.P.(C) 9069/2016, CM No. 36734/2016
MASTER VANSH THROUGH FATHER RAVINDER KUMAR ..... Petitioner
Through: Mr.K.B.Jha, Adv.
versus
VENKATESHWAR GLOBAL SCHOOL & ORS ..... Respondents
Through: Mr.O.S.Soran, Adv. for R-1-2
Mr.Gautam Narayan, ASC with
Mr.S.Banerji, Adv. GNCTD along
with Mr.Shyam Behari, LA, Zone-
13
+ W.P.(C) 9144/2016, CM No. 36997/2016
MASTER DEVANSH AHUJA THR MOTHER BHARTI AHUJA
..... Petitioner
Through: Mr.K.B.Jha, Adv.
versus
W.P.(C) 7945/2016 Page 1 of 36
VENKATESHWAR GLOBAL SCHOOL & ORS ..... Respondents
Through: Mr.O.S.Soran, Adv. for R-1-2
Mr.Gautam Narayan, ASC with
Mr.S.Banerji, Adv. GNCTD along
with Mr.Shyam Behari, LA, Zone-
13
+ W.P.(C) 10361/2016 & CMs 40720/2016, 7956/2017
MUKESH KUMAR ....... Petitioner
Through: Mr.N.K.Upadhyay, Adv.
versus
VENKATESHWAR GLOBAL SCHOOL & ORS. ..... Respondents
Through: Mr.Prashant Sivarajan, Adv. for Mr.Ankur
Chhibber, Adv. for R-1-2
+ W.P.(C) 10675/2016, CM Nos. 41829/2016 & 8667/2017
RAVI KUMAR ..... Petitioner
Through: Mr.Narendra Kumar Upadhyay,
Ms.Juhi, Advs.
versus
G D GOENKA PUBLIC SCHOOL AND ORS ..... Respondents
Through: Mr.Peeyosh Kalra, ASC with
Mr.Shiva Sharma, Ms.Sona Babbar,
Advs. for DOE (GNCTD).
Ms.Vijaya Singh, Adv. for R-1.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. Vide the present order, I shall dispose of five writ petitions being W.P.(C)
7945/2016, W.P.(C) 9069/2016, W.P.(C) 9144/2016, W.P.(C) 10361/2016 and W.P.(C)
10675/2016 as they involve common issue. The substantive prayer sought in all the
writ petitions is that a direction be issued to the respondents to give admission to the
minor petitioners/wards of the petitioners for the academic session 2016-2017. As the
facts in each of the writ petition are at variance, I intend to narrate the facts of each writ
petition and the stand of the respondents in their pleadings.
Writ Petition (Civil) No. 7945/2016
2. It is the case of the petitioner that the respondent No.1 had in the month of March
2016 displayed the vacancies for admission under EWS/Freeship category on public
domain i.e the website of the Directorate of Education, Govt. of NCT of Delhi. On the
basis of the said vacancies, the petitioner submitted an application to the office of the
respondent No.1 for the admission of his ward Avish Rana in Class 1st in the session
2016-2017. In April, 2016 the petitioner visited the office of the respondent No.1 and
he was given some forms. The petitioner filled up the forms and also paid the requisite
fee but no receipt was given to the petitioner and this aspect has been informed to the
office of the respondent No.2. After waiting for three weeks, the petitioner approached
respondent No.1 when he was told that his application along with the papers are being
sent to the relevant Committee of respondent No.1 School for approval, which may take
some days. The petitioner approached the respondent No.2 as well as the respondent
No.1 but no response was given.
3. It is the case of the petitioner, he was informed by the officer of the respondent
No.1 in the month of July 2016 that the respondent No.1 is not allotted/provided with
land by DDA or any other Government agency, so the respondent No.1 is not
responsible for admission under EWS/DG/Freeship category. The petitioner's case is
that he suspects that the respondent No.1 has allotted seats in a non-transparent manner,
which raise serious doubt over the admission process of the School. Just like the
vacancies are being displayed in public domain on the website of the Directorate of
Education i.e respondent No.3, in the same manner the finally selected list of wards,
financial and social status of the parents of the wards and the admission criteria must
also be displayed on the website of the respondent No.3. It is the case of the petitioner
that the issue of admission under EWS/DG/Freeship category is already a decided
matter by this Court vide judgment dated November 24, 2014 in W.P.(C) No.
4607/2013 in the case of Justice for All v. Govt. of NCT of Delhi and Another.
4. The respondent No.1 School has filed a counter-affidavit, wherein it has been
stated that the vacant seat for the admission under EWS/Freeship category was put on
public domain on the website of the Directorate of Education in the month of March,
2016. It is denied that the petitioner submitted an application in its office for admission
of his ward in Class I for the session 2016-2017 under the EWS/Freeship category. It is
also stated that the ward of the petitioner is not entitled to admission considering the
fact that the distance of the house of the petitioner is more than 6 km whereas as per the
guidelines of the respondent No.2 of neighbourhood criteria, the child/ward residing
within the parameter of 6 km is to be admitted first. It is stated that in terms of the
categorization EWS/DG students residing within 0-1 km shall be admitted first,
secondly those residing within 1-3 km, thirdly those residing 3-6 kms and lastly students
residing beyond 6 kms shall be admitted only in case vacancies remain unfilled even
after considering all students within six kms area. It is their case, the School has
represented that the distance of the petitioner's house is more than 10 kms from the
School, hence, the question of the admission of the petitioner does not arise since the
School was already having nine applications for admission under the EWS category
against four vacancies in Class-I and out of them, five applicants are claiming to be
residing within the parameter of the guidelines i.e 6 kms.
5. It is averred by the respondent No.1 School that it has taken up the matter with
the respondent No.2 for further issuance of direction on the subject matter to respondent
No.1 vide letter dated May 2, 2016 and the respondent No.2 has categorically issued a
letter dated May 25, 2016 that the applications for admission in Class I are to be
submitted through online only whereas many applications are forwarded to School
through drop box/post. It is also stated that respondent No.1 vide its letter dated May
31, 2016 forwarded all the details of the applications under EWS category, which were
received against these vacant seats in Pre-Primary (KG) and Class I but the respondent
No.2 neither replied nor issued any guidelines. The School has denied that the
petitioner has visited the School in the month of April, 2016. The School has denied
that the admission has been done in a non-transparent manner. It is also the stand of the
School that as per the guidelines, all such type of vacancies are to be filled up through
respondent No.2/3 by submitting online application and as per the guidelines of the
respondent No.2/3 and the said vacancies should be filled up and it is the responsibility
of the respondent No.2/3 to issue guidelines. In the absence of any application to the
respondent No.1 and the ward of the petitioner is neither a neighbourhood child nor has
followed the guidelines, is not entitled to the admission.
6. A rejoinder to the counter-affidavit filed by the respondent No.1 has been filed.
7. Respondents 2 and 3 have filed a short affidavit. It is stated that in terms of
provisions of Section 12(1)(c) of Right of Children to Free and Compulsory Education,
Act, 2009 ("RTE Act") all the private unaided recognized Schools are bound to comply
with such notifications/circulars issued by the Directorate of Education regarding
admission under Economically Weaker Section/Disadvantage Group Category at their
respective entry level classes Pre-School/Nursery, Pre-Primary/KG and Class I and the
respondent No.1 Venkateshwar Global School being in the same category of the School
is bound to comply such notifications/circulars. It is the stand of respondents 2 to 3 that
in order to ensure a fair opportunity to the children belonging to EWS/DG sections of
society for admission in said Private Unaided Recognized Schools (except minority
schools) vide circular dated December 29, 2015 issued guidelines for admission under
EWS/DG category at the entry level classes against 25% seats reserved in Private
Unaided Recognized Schools of Delhi for the session 2016-2017. For the Private
Schools recognized under Delhi School Education Act & Rules, 1973, which includes
respondent No.1/Venkateshwar Global School also, the respondents 2 and 3 devised a
common online module for admissions under EWS/DG category at their respective
entry level classes for the session 2016-2017. Through the aforesaid guidelines, the
respondents 2 and 3 devised a common online registration form at the respondent
department website for admission under EWS/DG category in all the concerned Private
Unaided Schools recognized under the Delhi School Education Act & Rules, 1973 for
the session 2016-2017. All such candidates who had applied online for EWS/DG
category as per the circular dated December 29, 2015 guidelines were considered for
admission through computerized draw of lot. The last date of online submission of
application for such admissions in the said concerned Schools was January 22, 2016,
which was later extended upto February 5, 2016 vide circular dated January 22, 2016
then upto February 9, 2016 vide office order dated February 6, 2016. At the initial stage
of online admission process, all the concerned Schools were requested to provide their
respective details online on the respondents 2 and 3 website regarding their respective
entry level classes and number of EWS/DG category vacancies at the declared entry
level classes of the School. The entry level class declared by the respondent No.1 for
EWS/DG category admission for the session 2016-2017 is Pre-School/Nursery but did
not declare KG/Pre-Primary and Class I as entry level and accordingly the respondent
No.1 showed zero vacancies under EWS/DG category in class KG/Pre-Primary and
Class I for session 2016-2017. The guidelines of the said circular explicitly states that
EWS/DG category admission in the entry level classes in the Private Unaided
Recognized Schools can only be done by way of centralized online admission module
devised by the respondents 2 and 3. The petitioner has not followed the said
instructions contained in circular dated December 29, 2015. The respondents 2 and 3
also state that the respondent No.1 vide its letter dated June 23, 2016 informed the
respondent department that the respondent No.1 have vacancies in Class I under
EWS/DG category on account of cancellation of EWS/DG category admissions due to
fake/forged EWS/DG category certificates and vacancies due to increase in General
Category seats at the initial stage of online EWS/DG category admission process, there
was no vacancy in the Pre-Primary/KG and Class I of the respondent No.1 School.
When the vacancy arose later in the academic year, at that point of time, due to non
availability of the online application for the Class I, the respondent department could
not carry out the online process for filling vacant seats in Class I of the respondent No.1
School under EWS/DG category through computerized draw of lots.
8. The respondents 2 and 3 have stated that it is the responsibility of the School to
inform the respondents 2 and 3 well in time about the EWS/DG category vacancy
position correctly so that the online applications could be called against the vacancies in
Class I of respondent No.1 School. It is stated that the School which have taken fresh
admission under General Category at various entry levels (Pre-School/Nursery, Pre-
Primary/KG and Class-I) and did not declare the same at the beginning of the online
EWS/DG category admission process for the academic session 2016-2017, the
respondent Department has taken a policy decision that the EWS/DG category
vacancies in proportion to the General/Open Category admissions done shall be added
in respective entry levels during the next academic session 2017-2018. Vide circular
dated December 8, 2016 the respondent Department conveyed the aforesaid policy
decision to all the concerned Private Unaided Recognized School and all the concerned
Schools, including the respondent No.1 School are bound to comply with the said policy
decision. The respondent No.1 School by way of representation dated December 15,
2016 declared that the School has 14 vacancies in Pre-Primary/KG and four vacant seats
in Class I under EWS/DG category. The respondent No.1 School has requested to add
these vacancies in the online EWS/DG category admission process for the ensuing
session 2017-2018 and the respondents 2 and 3 considered the request of the respondent
No.1 School and as per the aforesaid policy decision, decided to carry forward 14
vacancies of Pre-Primary/KG class in Class I under EWS/DG category for the academic
session 2017-2018. The respondents 2 and 3 justified the online admission process
being fair and transparent. It is also stated that online system has saved time and cost of
going to various Schools and submitted various applications and then several further
rounds till the admission takes place. The computerized draw of lots has checked
malpractices to a large extent and has made the monitoring much more effective.
Further, the Department cannot continue with the process of inviting fresh applications
for the vacancies arising during the mid academic session and that is why the vacancies
which are created in mid academic session are carry forward for the admission process
of ensuing academic session. It is stated that the petitioner having neither applied for
admission of his ward under EWS/DG category at entry level declared of the respondent
No.1 School within the stipulated time nor did he apply for the same using the
appropriate mode i.e online portal of the Directorate of Education, the petitioner having
opted to seek admission by way of manual application in September, 2016, no cause of
action lies against the respondents 2 and 3 and the instant writ petition be dismissed.
Writ Petition (Civil) 9069/2016
9. The present petition has been filed by Master Vansh a minor through his father,
seeking admission in the respondent No.1 School in KG. It is the case of the petitioner
that he belongs to Economically Weaker Section of the Society and the respondent No.1
School is a neighbourhood School to the petitioner. The School is situated on the land
allotted by the DDA to the Society running the School and also under obligation to
admit children belonging to Economically Weaker Section upto a maximum extent of
25% of the strength of the School. He would refer to the provisions of Section 12(1)(C)
of the RTE Act, 2009. The Directorate of Education has notified admission Rules for
admission under EWS category namely Delhi School Education (Free Seats for
Children belonging to Economically Weaker Section and Disadvantaged Group) Order,
2011 and notified the manner of admission. All duties imposed on Government now
shifted to parents and children. Now they have to apply for admission in the School and
Schools have to organize draw of lots with priority to students residing in the
neighbourhood, which is defined 1 km under the Rules of 2011. The household survey
and identification of children belonging to EWS could take time so it could be an
interim arrangement until government should complete duty imposed under Act but it
failed even to start the duty under Act and continued the admission process until session
2015-2016 in the same manner. It is the case of the petitioner that on December 29,
2015 the respondent No.1 notified guidelines for admission of EWS/DG category at
entry level classes in Private Unaided Recognized Schools of Delhi for the session
2016-2017 and notified the online process of admission in the entry level classes in
some of the schools including the respondent No.1 School and called for vacancy in the
School. The petitioner would submit that the circular is void without any authority in
the law and contrary to provisions of Section of RTE Act, 2009 and also contrary to
statutory Rules for admission notified by the Lieutenant Governor of Delhi. The
circular categorically mentions the closure of admission process by March 31, 2016. In
the online system respondent No.1 School filled up the vacancy only for first entry level
class and no vacancy uploaded by respondent School for Pre-Primary class and no
student applied for that class in the school despite there was vacancy in the school in
Pre-Primary class. The circular states in clause (m) that after online system comes to
end on March 31, 2016, the admission process shall continue as per manner notified in
the notification dated January 7, 2011.
10. It is the case of the petitioner that his father came to know about EWS scheme
and approached the respondent No.1 School for admission against the vacant seat on
August 5, 2016. The respondent No.1 School refused to entertain the candidature of the
petitioner and informed the father of the petitioner that he did not apply through online
system, so the petitioner cannot get the admission in the School. The father of the
petitioner approached the concerned Deputy Director of Education and searched for
District Admission Monitoring Committee and help desk but nothing was in existence
and even officers there refused to accept the application of the petitioner who also
informed the father of the petitioner that he has missed an opportunity for admission of
his ward. It is the case of the petitioner that on August 16, 2016 the father of the
petitioner raised the grievance under PGMS to the Hon'ble the Chief Minister and the
respondent Director of Education informed the petitioner that he has not applied for
admission at the time prescribed for admission in the respondent No.1 School and hence
his claim for admission cannot be entertained. The petitioner's case is that the School
or the Directorate never shown any vacancy in the respondent No.1 School in online
system so there is no question to apply against vacancy which never notified. Now the
respondents refused admission to the petitioner in the School on the ground that he has
not applied in the same through online system.
11. The respondents 1 and 2 have filed their counter affidavit. It is the case of the
said respondents that they have not shown any reluctance to implement the provisions
of the RTE Act, 2009 and land allotment condition or ever did any act which is contrary
to the guidelines/instructions of respondent No.3. It is stated that the respondent No.1
has only acted in accordance with the instructions issued by the respondent No.3 vide its
letter dated November 18, 2015 and accordingly declared the vacancies in that
particular module for the entry level class. They state that the respondent no.1 School
only declared the seats in class nursery in accordance with the circular dated November
18, 2015, which clearly states that "whenever any fresh admissions are made" and
School accordingly notified the vacancies in the Pre-School. However, School always
declared the EWS vacancies in all other classes also as and when they occurred as per
the guidelines of respondent No.3. It is also stated that as the instant matter pertains to
the admission under EWS category in Pre-Primary for which the respondent No.3 has
categorically instructed respondent No.1 School vide its letter dated May 25, 2016 that
the application for admission in entry level classes are to be submitted through online
only and the petitioner was not a single applicant to apply against those vacancies but
many other applications were also forwarded to the School by parents through drop
box/post, which were declared by respondent School against cancellation of EWS
admissions in the month of March/April, 2016. It is also stated that even before
receiving the application of the petitioner, the respondent No.1 School received 34
applications through drop box/post till May 31, 2016 in Pre-Primary class and for which
the respondent No.1 School approached the respondent No.3 to seek guidelines but no
response was received. It is also stated that respondent No.3 vide its letter dated May
25, 2016 clearly stated that the application for admission in entry level classes are to be
submitted through online only and since there were other applications received through
drop box/post against vacancies which were declared in the month of March/April, 2016
on cancellation of EWS admissions in Pre-Primary class till May 31, 2016.
12. Respondent No.3 in its short affidavit has taken a similar stand, as has been taken
by them in W.P.(C) No. 7945/2016. An additional affidavit was also filed by the
respondent No.3 wherein it is stated that in terms of Clause 10 of the Notification dated
November 7, 2011, the respondent No.3 is empowered to issue
instructions/guidelines/clarifications to Schools so as to ensure effective implementation
of the provisions of the Notification. In order to implement the provisions of the
Notification, the respondent No.3 issued a circular dated December 29, 2015 so as to
ensure a fair, uniform and transparent admission procedure and to maximize the
opportunity for securing admission under EWS/DG category. From the aforesaid
circular, the respondent No.3 has devised a common online registration form, which can
be accessed through the website of the respondent No.3. All such candidates who had
applied online for EWS/DG category as per the circular were considered for admission
through computerized draw of lots. For centralized online EWS/DG category admission
process, the procedure followed is, all concerned Schools were directed to update their
vacancy status of all entry level classes online on the respondent No.3's website; the
declared vacancies were made public on the website and online module was opened for
filling up the application form w.e.f January 1, 2016; the last date of filling up the form
was February 09, 2016 after extension of date twice; thereafter first computerized draw
of lots was conducted on February 15, 2016 and successful candidates were informed
through SMS on their registered mobile number; the list of successful candidates were
also displayed on the respondent No.3's website, thereafter second and third
computerized draw of lots were conducted on May 24, 2016 and October 26, 2016
respectively against the remaining EWS/DG category vacancies after getting updates
from the respective private unaided recognized schools. It is the case of the respondent
No.3 School that it would be erroneous to apprehend that admission process is closed by
the 31st March of the relevant academic year. The admission process remains open only
for those applicants who had applied online.
13. On District Admission Monitoring Committee, it is the stand of the respondent
No.3 that DAMC discharges its obligation as per the role defined in the Notification in
respect of manual admissions to all classes in Schools recognized under the RTE Act.
However, the respondent No.3 in the interest of the school education in Delhi and in
order to implement the provisions of the Notification, issued the aforesaid circular so as
to ensure fair, uniform and transparent admission procedure and to maximize the
opportunity for securing admission under EWS/DG category. It is the case of the
respondent No.3 that with regard to admissions under the EWS/DG category, the role of
DAMC comes into play after all online applications have been exhausted. It was
submitted that the right of admission will first go to a candidate who had applied within
the stipulated time period after having followed the procedure prescribed. It is stated
that still there are thousands of such online applicants who have remained unsuccessful
even after the third round of computerized draw of lots. Hence, the present petitioner
has no right to be considered by-passing thousands of such unsuccessful applicants.
14. It is the stand of the respondent No.3 that if afterwards EWS/DG category
vacancies arise in a particular entry level class (not declared at the beginning of online
process), not owing to fresh general category admission, but due to any other bonafide
reason such as attrition, cancellation of admission due to fake documents etc, then such
vacancies should be carried forward to the next entry level class during the online
admission process of next academic session. Therefore, the EWS/DG category
vacancies of this nature, if any in Pre-School/Nursery, Pre-Primary/KG or Class-I shall
be carried forward to Pre-Primary/KG, Class-I and Class-II respectively. Such carried
forward vacancies in Pre-Primary/KG and Class-I shall be filled through online
admission process for the next academic session and carried forward vacancies in Class-
II shall be filled by the concerned school themselves through manual admission process
of next academic session. This decision has been taken in order to ensure that vacant
seats are filled in a fair, uniform and transparent manner and to maximize the
opportunity for securing admission under EWS/DG category. It is stated that Clause 10
of the Notification, empowers the respondent No.3 to issue guidelines/instructions for
admissions under EWS/DG category in Private Unaided Recognized Schools of Delhi.
On Public Grievance Monitoring System, it is stated that it ensures redressal of
grievances in a fair and time bound manner. It has been evolved to ensure proper
recording, tracking and monitoring of each and every grievance uploaded on the portal.
Writ Petition (Civil) No. 9144/2016
15. This petition is also filed by a minor through his mother seeking admission in
Class KG under EWS Category in the respondent No.1. The facts of this case are
identical to the facts as noted in W.P.(C) No. 9069/2016 except that it is stated that on
September 14, 2016, the mother of the petitioner came to know about the vacancy in the
respondent No.1 School and approached the School for admission against the vacant
seat. The respondent No.1 School refused to entertain the candidature of the petitioner
and informed the mother of the petitioner that he did not apply through online system so
the petitioner cannot get the admission in the School. The mother of the petitioner
approached the concerned DDE and searched for District Admission Monitoring
Committee and help desk but nothing was in existence and even officers there refused to
accept the application of the petitioner and she was informed by the officials that the
petitioner has missed an opportunity of getting admission in the School. It is the case of
the petitioner that his mother has sent representation dated September 29, 2016 to the
respondent No.1 School and Directorate of Education requesting them to admit the
petitioner in the respondent No.1 School. The mother of the petitioner also requested
the Chairperson of DAMC district north west B FU Block, Pitampura to forward the
name of the petitioner in the respondent School but no response was received.
16. The counter-affidavit filed by the respondent Nos.1 and 2 would reveal that the
stand is the same as was taken in W.P.(C) No. 9069/2016.
17. Insofar as the facts relatable to the petitioner are concerned, the petitioner has
never submitted any application with the respondent No.1 School at any point of time.
It is denied that the petitioner is residing at a distance of 500 meters from the respondent
No.1 School. According to the respondent No.1, the distance is of 4 kms. It is also
stated that EWS vacancies in KG and Class I were declared subsequent to the
cancellation of few EWS admissions in the month of March/April, 2016 whereas the
DoE asked the School to declare the EWS vacancy for entry level class in November,
2015 for the academic session 2016-17. Hence, the respondent No.1 School initially
declared vacancies for closure in November, 2015 as fresh admissions were to be made
in Nursery only and subsequently in KG and Class I in following months in 2016.
Subsequently, the vacant seats are under EWS category in KG and Class I were also
displayed vide circular dated November 18, 2015. The respondent No.1 School has
admitted that it has received application from the petitioner in the month of September
2016 and was subsequently advised as per the instructions of DoE, which were issued to
School vide letter dated May 25, 2016. As a common stand taken by the respondent
No.3 in its short counter-affidavit and additional affidavit, the same are not repeated for
the sake of brevity.
Writ Petition (Civil) No. 10361/2016
18. The present petition has been filed by a parent of the child inter-alia seeking
admission for his ward for the academic session 2016-2017. The averments in the writ
petition, being identical to the one in W.P.(C) No. 7945/2016, the same are not repeated
for the sake of brevity.
19. The respondent No.1 in its counter affidavit has stated, the petitioner has not
submitted any application with the respondent No.1 within the period of competency of
HOS for admission i.e August 31, 2016 but the application was submitted after the
expiry of period of competency of HOS for admission i.e on September 22, 2016. It is
also averred that the petitioner is not entitled to admission of his ward considering the
fact that the distance of the house of the petitioner is more than 6 kms whereas, as per
the guidelines of the respondent Nos.2 and 3 of neighbourhood criteria, the child/ward
residing within the parameter of 6 kms are to be admitted first. Preference need to be
given to students belonging to EWS/DG category residing within 0-1 kms, secondly to
those residing 1-3 kms, thirdly to those residing 3-6 kms and lastly students residing
beyond 6 kms shall be admitted only in case vacancies remain unfilled even after
considering all students within six kms area. It is stated that the petitioner's house is
situated around 17 kms away from the School. Rest of the contents being same, the
same are not repeated for the sake of brevity. Suffice to state, rejoinder has been filed
to the counter-affidavit. A statement was given by the learned counsel for the
respondents 2 and 3 on February 28, 2016 that the counter-affidavit filed in W.P(C)
No.7945/2016 is adopted by the said respondents in this writ petition. Suffice to state,
the stand of the respondents 2 and 3 is the same as reflected in short counter-affidavit
filed in W.P(C) No.7945/2016.
Writ Petition (Civil) No. 10675/2016
20. This petition has been filed by a parent of the minor child namely Hemang for
admission under EWS/Freeship category. It is averred in the writ petition that in April,
2016 the petitioner visited the office of the respondent No.1 and after going through all
the details of the petitioner, the respondent No.1 gave some forms to the petitioner to be
filled up. The petitioner filled up the forms and also paid the requisite fee but no receipt
was given. That after some time, the respondent No.1 instructed the petitioner to wait
for a few days for verification of documents. After waiting for few days, the petitioner
was told by the respondent No.1 that fresh application along with papers are being sent
to relevant Committee of respondent No.1 for approval, which can take some more
days. Despite approaching respondent No.2, no satisfactory response was given.
21. Counter-affidavit has been filed by respondent No.1. It is stated that the
respondent No.1 cannot directly take any application form from candidates for
admission under EWS/DG category. Such applications are to be filled/submitted with
the respondent No.3. The DAMC prepares cluster/zone wise vacancy data for fresh
seats and otherwise names of the children to Schools where vacant seats are available
for admission against seats following the principle of neighbourhood School. The
respondent No.1 never received any application from respondent No.3/DAMC
regarding the ward of the petitioner for admission under EWS/DG category. It is stated
that the respondent No.1 received application of the ward of the petitioner from
respondent No.3 for admission after completion of normal admission process under the
EWS/DG category. It is also stated that instructions have been received from the
respondent No.3 for taking admission in EWS/DG category on November 21, 2016 for
admission of Vedansh Kumar, S/o Pawan Kumar. The admission is pending due to
non-availability of caste certificate. As and when Mr. Pawan Kumar arranges the same,
the admission formalities as prescribed in the guidelines will be completed. The
respondent No.1 stated that the petitioner has never approached the said respondent for
admission of his ward under any category. It is also stated that the name of the ward of
the petitioner does not appear on the list submitted with DAMC/respondent No.3 as the
application for admission under EWS category was never received from respondent
No.3 unlike in the case of other candidates.
22. No counter-affidavit has been filed by respondent No.3. In any case, the counter-
affidavit, as filed in other writ petitions, is considered as the stand of the respondents in
this petition as well.
23. Mr. N.K. Upadhyay, learned counsel appearing for the petitioners in writ petition
(civil) no. 7945/2016, 10675/2016 and 10361/2016, apart from reiterating the facts of
each of the writ petition filed by him, would submit that in terms of the Public Notice
dated 16th April, 2016 wherein in the last Para it is stated that "the parents may submit
their applications DIRECTLY to the school concerned after verifying the vacancy
position from the School. It may ALSO BE NOTED THAT NO ACTION WILL BE
TAKEN ON SUCH APPLICATIONS in this Office" to contend that the applications for
admission were entertained by the Schools. That apart he would state that there is no
transparency in the admission process against the seats which arose during the progress
of the academic session because of attrition, cancellation of admission on account of
submission of fabricated income certificate etc. He would rely upon the judgment of
this Court in the case of Justice for all v. Govt. of NCT of Delhi & Anr. in writ petition
(civil) no.4607/2013 decided on 24th November, 2014 wherein it had directed the Delhi
Government to devise a mechanism to ensure 25% reservation of poor children in play-
schools.
24. Mr. Khagesh Jha, learned counsel appearing for the petitioners in writ petition
(civil) no. 9144/2016 and 9069/2016, apart from stating the facts of the writ petition
would submit that under the provisions of Section 12 (1)(c) of the Right to Education
Act, minor petitioners are entitled for priority admission under the provisions of the
RTE Rules, 2011 read with DOE Notification dated 7th January, 2011. He states that
there is a failure on the part of the Directorate of Education to ensure compliance of
provisions of Section 6, 8, 9 and 12 (1) (c) of the said Act. According to him, the
Schools situated on the DDA land, there is an obligation to admit 25% children from
EWS category. He also states that in terms of the Notification dated 7th January, 2011,
issue to implement section 12(1)(c) of Right to Education Act, all the burden for
admission has been shifted to the parents to approach the Schools with various
documents and there is provision of draw of lot if the number of applications are more
than available seats in the Schools. The parents who could not secure the admission
have to approach the District Admission Monitoring Committee for admission against
free ships seats and there is a provision to forward the name of the deserving candidates
to the private schools having vacancies. According to him as per the provisions of the
Delhi School Admission Order, 2011, the Schools shall complete the admission process
by their own on 31st March and the vacancy position shall be informed to the DAMC,
which will forward the names of the candidates to the Schools for admission. He states
that until the session of 2015-16, the respondent / Directorate of Education was
implementing the provisions of Notification dated 7th January, 2011, but in the current
session, the Directorate issued guidelines dated 29th December, 2015 which are contrary
to the Right to Compulsory Education Act, Notification dated 7th January, 2011 and as
such void. According to him, the circular dated 29th December, 2015 is applicable only
for the first round of admission which shall be closed on 31st March and after that
Clause (m) of Circular Admission shall continue as per Clause 7 of the Notification
dated 7th January, 2011. He would also rely on the judgment of this Court in Justice
for All (supra) to contend that Division Bench of this Court made strong observations
that the children belonging to weaker sections has every little access to justice and they
are not aware with the Scheme of EWS admission. He states that despite being allotted
land at concessional rate, the failure on the part of the Directorate devising any
mechanism for ensuring the compliance of the condition would amount to denial of the
right to the weaker sections of the society.
25. On the other hand, learned counsel appearing for the Schools would reiterate the
submissions as made in their counter-affidavit. In substance it is their submission that
they are bound by the instructions issued by the Directorate of Education and have
complied with the said provisions. Mr. Gautam Narayan, learned counsel appearing for
the Directorate of Education and connected respondents apart from dealing with the
facts of each case, would submit that in terms of the provisions of Section 12(1)(c) of
the Right to Education Act, all private unaided Schools are bound to comply with such
Notifications / Circulars issued by the Director of Education regarding the admission
under economically weaker sections / disadvantaged categories at their respective entry
level classes, Pre-school / Nursery, Pre-Primary/KG and the Class-I. In order to ensure
opportunity to the children for getting admission in EWS / DG category against 25%
seats at the entry level classes of the private unaided schools recognized under the Delhi
School Education Act / Rules devised a common online module for the session 2016-
2017 and accordingly a Circular dated 29th December, 2015 was issued for admission
under EWS / DG Category in all the said Schools. Through the Circular a centralized
online registration form was devised and all such candidates who had applied online for
EWS / DG category as per the Circular dated 29th December, 2015 guidelines were
considered for admission through computerized draw of lot. He states that in the
academic session 2016-2017, the last date for online submission of applications of such
admissions was 22nd January, 2016, which was extended twice, firstly up to 5 th
February, 2016 and 9th February, 2016. At the initial stage of online admission process,
all concerned Schools were directed to provide the respective details online on the
respondent / department's website regarding the respective entry-level classes and
number of EWS / DG category vacancies at the declared entry-level classes of the
School. The Circular provides that EWS / DG category admission in all three entry
level classes in the private unaided re-cognized Schools can be done only by way of
School online admission module. He would also draw my attention to various
provisions of the Act and the Rules and the Notification dated 7 th November, 2011 to
submit that in terms of the Notification dated 7th November, 2011, the Directorate of
Education is empowered to issue instructions / guidelines / clarifications to Schools so
as to ensure effective implementation of the Notification. It is in furtherance to
implement the provisions of the Notification, the Circular dated 29 th December, 2015
was ensured so as to have a fair / uniform and transparent admission procedure and to
maximize the opportunity of securing the admission in EWS / DG category. He
contests the plea of Mr. Jha that the Circular is ultra-virus to the notification and / or
provision of the RTE Act. He also states that in the academic session 2016-2017, a
computerized draw of lot was also held on 15th February, 2016, 24th May, 2016 and 26th
October, 2016 respectively. He contests the stand of Mr. Jha that the admission process
is closed by 31st March of the relevant academic year. However the admission remains
open only for those applicants who had applied online. He also refers to the Clause 7
of the Notification dated 7th January, 2011 which refers to District Admission
Monitoring Committee and Clause 2 (l)(m) of the Circular dated 29 th December, 2015.
According to him, the DAMC discharges its obligations as per the roles defined in the
Notification in respect of the manual admissions to all classes in Schools recognized
under the RTE Act. However, the answering respondent in the interest of School
education in Delhi and in order to implement the provisions of the Notification issued
the aforesaid Circular so as to ensure a fair, uniform and transparent admission
procedure and to maximize the opportunity for securing admission under the EWS / DG
Category by way of providing status of vacancies at a single point through answering
respondent website. This is in exercise of power conferred under Clause 10 of
Notification dated 7thJanuary, 2011. He states that the roles DAMC comes into play
after all online applications have been exhausted. In other words, the right to admission
will first go to a candidate who had applied within the stipulated time period after
having followed the procedure prescribed.
26. Having heard the learned counsel for the parties, the only issue which arises for
consideration is that the prayer as sought for by the petitioners in this petition is liable to
be granted when the petitioners have not applied through online for admission in terms
of circular issued by the Director of Education on 29th December, 2015. I may only
state here, in none of the petitions, the petitioners have challenged the Circular dated
29th December, 2015.
27. The stand is that the said circular shall hold good for those admissions made
uptill March 31, 2016 and not against the vacancies, which may arise after that date
because of attritions, cancellation of admissions on account of submission of fabricated
certificates etc. In other words, the admission against those seats need to be made on
the basis of manual application by the School concerned. Such a plea is not appealing
for the reason, the stand of the Directorate of Education on the objective to introduce
online system to ensure a fair, uniform, and transparent admissions under EWS/DG
category, can't be overlooked. As stated above, the petitioners have not submitted
online applications. In the absence of applications and also a challenge to the circular
dated December 29, 2015 it must be held that till such time, the online applications are
exhausted, the petitioners/wards of the petitioners have no right to seek admission on
the strength of a manual application.
28. Insofar as the plea of Mr. Upadhyay and Mr. Jha that admissions must continue
throughout the academic year till March 31, 2017 (in this case) by relying on clause 7(d)
of Notification dated January 7, 2011, Rule 13 of Delhi Right of Children to Free and
Compulsory Education Rules, 2011 and clause 2(m) of circular dated December 29,
2015 is concerned, to answer the issue and the plea urged, it is necessary to reproduce
some of the provisions as referred to by the counsel for the parties during arguments.
"Section 12. Extent of school's responsibility for free and compulsory
education: (1) For the purposes of this Act, a school,-
(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free
and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide
free and compulsory elementary education to such proportion of
children admitted therein as its annual recurring aid or grants so
received bears to its annual recurring expenses, subject to a minimum of
twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall
admit in class I, to the extent of at least twenty-five per cent. of the
strength of that class, children belonging to weaker section and
disadvantaged group in the neighbourhood and provide free and
compulsory elementary education till its completion:
Provided further that where a school specified in clause (n) of section 2
imparts pre-school education, the provisions of clauses (a) to (c) shall
apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of clause (n) of section 2
providing free and compulsory elementary education as specified in
clause (c) of sub-section (1) shall be reimbursed expenditure so incurred
by it to the extent of per-child-expenditure incurred by the State, or the
actual amount charged from the child, whichever is less, in such manner
as may be prescribed:
Provided that such reimbursement shall not exceed per-child-
expenditure incurred by a school specified in sub-clause (i) of clause (n)
of section 2:
Provided further that where such school is already under obligation to
provide free education to a specified number of children on account of it
having received any land, building, equipment or other facilities, either
free of cost or at a concessional rate, such school shall not be entitled
for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by
the appropriate Government or the local authority, as the case may be.
Section 15 of RTE Act, 2009 No denial of admission:
A child shall be admitted in a school at the commencement of the
academic year or within such extended period as may be prescribed:
Provided that no child shall be denied admission if such admission is
sought subsequent to the extended period:
Provided further that any child admitted after the extended period shall
complete his studies in such manner as may be prescribed by the
appropriate Government.
Delhi Right to Children to Free and Compulsory Education Rules, 2011
5. Special Training. ─ (1) The School Management Committee of a school owned
or managed by the Government or the local authority shall identify children
requiring special training and organise such training in the following manner,
namely:-
(a) the special training shall be based on specially designed, age appropriate
learning material, approved by the academic authority specified in sub-section
(1) of section 29 of the Act;
(b) the said training shall be provided in classes held in the premises of the
school or in classes organised in safe residential facilities;
(c) the said training shall be provided by teachers working in the school, or by
teachers specially appointed for the purpose;
(d) the duration of the said training shall be for a minimum period of three
months which may be extended, based on periodical assessment of learning
progress, for a maximum period not exceeding two years.
(2) The child shall, upon induction into the age appropriate class after special
training continue to receive special attention by the teacher to enable him/her to
successfully integrate with the rest of the class, academically and emotionally.
10. Admission of children belonging to weaker section and disadvantaged
group. ─ (1) The school referred to in clauses (iii) and (iv) of clause (n) of
section 2 shall ensure that children admitted in accordance with clause (c) of
sub-section (1) of section 12 shall not be segregated from other children in the
classrooms nor shall their classes be held at places and timings different from the
classes held for the other children.
(2) The school referred to in clauses (iii) and (iv) of clause (n) of section 2 shall
ensure that children admitted in accordance with clause (c) of subsection (1) of
section 12 shall not be discriminated from the rest of the children in any manner
pertaining to entitlements and facilities such as text books, uniforms, library and
information and communication technology facilities, extra-curricular activities
and sports.
(3) The area or limits of neighbourhood specified in sub-rule (1) of rule 6 shall
apply to admissions made in accordance with clause (c) of subsection (1) of
section 12.
Provided that the Government may, for the purposes of filling up the requisite
percentage of seats for children referred to in clause (c) of sub-section (1) of
section 12 extend these limits of neighbourhood from time to time.
(4) The Government may prescribe the procedure for admission of children under
clause (c) of sub-section (1) of section 12 by official notification issued from time
to time.
13. Extended period for admission. ─ (1) Extended period of admission shall be
five months from the date of commencement of the academic year of a school.
(2) Where a child is admitted in a school after the extended period, he or she
shall be eligible to complete studies with the help of special training, as
determined by the head of the school.
Provisions of Notification dated January 07, 2011
4(j) In case the number of applications for admission against the free seats is
below the number of seats available, admission shall be made from the available
applications and the vacant seats shall be renotified for inviting further
applications and also be notified to DAMC.
4(k) The School shall furnish all such details as mentioned in paras (a), (c), (f),
(g), (h) and (i) regarding free ship seats on its website and also on official
website of Directorate of Education giving all details through the link provided
by the department on the same day or latest by next very day of the such events.
7(d) The DAMC shall prepare cluster/zone-wise vacancy data for free-seats and
shall forward the names of children to schools where vacant seats are available,
for admission against free-seats, following the principle of neighbourhood
school.
Circular dated December 29, 2015
2(l) After completion of admission process, each school shall sent information
/details regarding the number of filled and vacant seats under EWS & DG
category at Entry Level Classes to the Chairman of the District Admission
Monitoring Committee/Deputy Director of Education of district concerned by
1600 hours on 07-04-2016. Simultaneously, the details shall also be provided on
the online module available on this Directorate's website: www.edudel.nic.in.
All DDEs of the districts shall compile the said data (Number of filled and vacant
seats of EWS/DG Category) zone-wise and forward the same to Act-I Branch on
13.04.2016 for taking further necessary action.
2(m) The admission to such vacant seas of EWS/DG Category is an ongoing
process which may continue throughout the academic year and the District
Admission Monitoring Committee has been empowered to get filled such
vacancies and can take steps as per the directions contained in sub-clause (d) of
this Directorate's notification No.15 (172)/DE/Act/2010/69 dated 07/01/2011 and
Rule 13 of Delhi Right to Education Rules, 2011."
29. Section 15 of the Right to Education Act contemplates, a child shall be admitted
in a School at the commencement of the academic year or within such extended period
as may be prescribed. Even though, this part of the Section contemplates an extended
period to be prescribed but first proviso to the Section stipulates that no child shall be
denied admission if such admission is sought subsequent to the extended period. The
second proviso also give an indication with regard to admission during the extended
period by stipulating that the child shall complete studies in such manner as may be
prescribed by the Appropriate Government.
30. The Appropriate Government has prescribed in terms of Rule 13 of the Delhi
Right of Children to Free and Compulsory Education Rules, 2011, the extended period
to be five months from the date of commencement of the academic year of a School i.e
31st August and it also contemplates a situation that if a child is admitted in a School
after the extended period, he shall complete the studies with the help of a special
training as determined by the Head of the School. At the same time, the very Rules
does vide Rule 10(4) prescribe the procedure for admission of children under clause (c)
of sub-section 1 of Section 12 by official Notification issued from time to time. The
Notification dated January 7, 2011 issued under sub-section 3 of the Delhi School
Education Act, 1973, Rule 43 of the Delhi School Education Rules, 1973 and Right to
Education Act, 2009 stipulate in case the number of applications for admission against
the free seats are below the number of seats available, admission shall be made from the
available applications and the vacant seats shall be renotified for inviting further
applications and also be notified to DAMC. Suffice to state, this provision of the
Notification dated January 7, 2011 does refer to District Admission Monitoring
Committee and the role of DAMC is filling up the free seats. It contemplates, if any
free seats shall remain unfilled and the DAMC which is required to prepare cluster/zone
wise vacancy data for free seats shall forward the names of children to Schools where
vacant seats are available for admission against free seats. This aspect is also clarified
by clause 2(l) of circular dated December 29, 2015, which reads as under:-
2(l) After completion of admission process, each school shall sent information
/details regarding the number of filled and vacant seats under EWS & DG
category at Entry Level Classes to the Chairman of the District Admission
Monitoring Committee/Deputy Director of Education of district concerned by
1600 hours on 07-04-2016. Simultaneously, the details shall also be provided on
the online module available on this Directorate's website: www.edudel.nic.in.
All DDEs of the districts shall compile the said data (Number of filled and vacant
seats of EWS/DG Category) zone-wise and forward the same to Act-I Branch on
13.04.2016 for taking further necessary action.
31. The plea of Mr. Upadhyay and Mr. Jha if looked from the perspective of the
above provisions is appealing and shall hold good only if the number of applications are
less than the seats available. In other words, after all the applicants have been given
admission still some seats have remained unfilled. As noted above, it is the stand of the
Directorate of Education that the draw of lots were held on February 15, 2016, May 24,
2016 and October 26, 2016 respectively and there are still thousands of online
applicants who have remained unsuccessful even after the third round of computerized
draw of lots. In view of such a stand of the respondent No.3 that the number of
applications far exceeds the seats available, surely the parents/applicants who have
submitted application online and who have not got admission cannot be overlooked for
vacancies arisen later during the academic session.
32. Further in terms of the Rules of 2011, the extended period of admission is five
months i.e 31st August of that year. No doubt, the said period is not a fixed period,
inasmuch as a child can also be admitted thereafter, who shall be eligible to complete
the studies with the help of special training as determined by the Head of the School.
Such a period need to be a reasonable period and cannot be stretched till 31st March i.e
the last date of the academic year as an admission made on the last date of the academic
year, presupposes the child did not have the occasion of learning/studies/training of that
particular class till that date. It is expected that child need to achieve a particular level
of learning/knowledge/training to progress to the next higher level/class so as to be at
par with his peers/students of his age. The question is what should be that date. I note,
Rule 5 of the Rules of 2011, which has been reproduced above, does indicate the
minimum period of at least three months of training be given to a child. If that be so, an
admission must take place on or before 31st December of the academic year, as from the
date following that date i.e 1st January till 31st March of the academic year, the period is
achieved. In the cases in hand, the said period cannot be achieved at this point of time.
So the prayer of the petitioners for grant of admission cannot be accepted on this ground
as well, apart from the ground that the petitioners/wards of the petitioners have not
submitted online application. The writ petitions are dismissed.
CM Nos. 7936/2017 (for stay) and 32976/2016 (for stay) in W.P.(C) 7945/2016
CM No. 36734/2016 (for direction) in W.P.(C) 9069/2016
CM No. 36997/2016(for direction) in W.P.(C) 9144/2016
CM Nos. 40720/2016 (for stay) & 7956/2017 (for stay) in W.P.(C) 10361/2016
CM Nos. 41829/2016 (for direction) & 8667/2017 (for stay) in W.P.(C) 10675/2016
Dismissed as infructuous.
V. KAMESWAR RAO, J
MARCH 31, 2017/ak
