Sidhi Jain Through: Her Mother ... vs Director Of Education And Ors.
2019 Latest Caselaw 823 Del

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: 8th February, 2019

+       W.P.(C) 2339/2018
       SIDHI JAIN THROUGH: HER MOTHER PRIYANKA JAIN
                                                  ..... Petitioner
                      Through: Mr. S.D. Singh, Mr. Rahul Kr.
                               Singh, Mr. Jitender Singh,
                               Mr. Puneet Kr. Jain and
                               Mr. Mohit Agarwal, Advs.

                           versus

       DIRECTOR OF EDUCATION AND ORS.       ..... Respondents

Through: Mr. Gautam Narayan, ASC-

GNCTD with Ms. Mahamaya Chatterjee, Adv.

                             Mr.     Kamal       Gupta    and
                             Ms.Pragya Agrawal, Advs. for
                             R2

       CORAM:
       HON'BLE MR. JUSTICE C. HARI SHANKAR

%                   J U D G M E N T (ORAL)

1. Learned counsel for the petitioner at the outset submits that he is giving up prayers (a), (b) and (c).

2. The controversy in this writ petition is extremely limited, and is essentially concerned with interpretation of the admission criteria, devised by the Bal Bharati Public School, Pitampura (Respondent

No.2 herein and referred to, hereinafter, as "the School"), for admission to its pre-school classes for the academic session, 2018- 2019. These admission criteria may be reproduced thus:

"ADMISSION CRITERIA FOR PRE-SCHOOL FOR 2018-19

1.1 Neighbourhood Maximum Points

2. 5 to 7 km (30 points)

3. > 7 km (10 points)

1.3 Parents who are old students of the 10 school (Alumni)

Total Points 100

2. Seat Allotment :

• Except for EWS, Staff wards & Management quota seats, for all other categories 50% seats will be given to Boys & 50% to Girls.

• The remaining seats if any, of B, C, D will become open seats.

• There will be no interaction with parent/child.

• No prospectus to be sold. Only Registration Fee of 25/- will be charged.

• There will be no weightage for parent's educational qualification, occupation or financial status.

• Distribution/Receipt of forms will start from 27 th December, 2017 till 17th January, 2018.

• First list of provisionally selected candidates alongwith waiting list will be displayed at 2.00 p.m. on 15th January, 2018.

• Queries of parents, if any, will be resolved through email between 16th January, 2018 to 20th February, 2018.

• Second list of candidates (if any) will be displayed th on 28 February, 2018.

• Admission process to be over in all respects by 31 st March, 2018."

3. Adverting, now, to the facts.

4. The petitioner, who, at the time, was a little over three years of age, applied for admission to the pre-school classes in the school for the academic session 2018-2019, on 10th January, 2018.

5. Applying the admission criteria, as extracted hereinabove, the petitioner scored 80 points, as she was residing within 5 km of the school, her mother happened to be an alumnus of the school and she was the first born child of her parents. It is apparent, from a glance at the points allocated against various criteria in the first table in the Admission Criteria extracted in para 2 hereinabove (referred to, hereinafter, for the sake of felicity, as "the points table"), that the maximum points which a child could possibly score would be 80, as

no child could possibly qualify both under criteria 1.2 and 1.4. In other words, the petitioner scored the maximum number of points, i.e. 80, as per Admission Criteria fixed by the school itself. She is, therefore, conveniently being referred to, hereinafter, as an "80- pointer".

6. The grievance of the petitioner is that, despite her being an 80- pointer, she was not admitted to the school and, instead, children who scored lesser points, with some scoring as low as 30 points, were granted admission. Referring to the second list of provisionally selected candidates, which is on record, Mr. Singh, arguing for the petitioner, points out that Ms Hashvi Kajaria, figuring at S. No. 26 thereof, had scored only 50 points, Ms Kyrene Popli, at S. No. 30, had scored only 30 points and Saumil Kumar, at S. No. 38, had scored only 50 points. Besides, Mr. Singh would submit, several of the children, who had been selected for admission, had scored 70 points. On facts, this position is not disputed. This, according to her, was manifestly arbitrary, as it directly infracted the points allocated to various candidates in the points table, contained in the Admission Criteria formulated by the school itself.

7. Mr. S.D. Singh, learned counsel appearing for the petitioner has also invited my attention to a chart, titled "List of Candidates Qualified for Draw of Lots for Open Seats", which may be reproduced, to advantage, thus:

"BAL BHARATI PUBLIC SCHOOL, PITAMPURA LIST OF CANDIDATES QUALIFIED FOR DRAW OF LOTS FOR OPEN SEATS

PRE-PRIMARY I (2018-2019)

ALUMNI CATEGORY STUDENTS WHO HAVE PASSED CLASS XII FROM BBPS, PITAMPURA S. No. Reg. No. Name of the Name of Gender Total Child the Points Father 1 BBPSPP/PP BHUMI MR. Female 80 2018- PARWANI MANISH 19/00324 PARWANI 2 BBPSPP/PP ISHITA MR. Female 80 2018- TANEJA SIDDHAR 19/00480 TH TANEJA 3 BBPSPP/PP RUSHIKA MR. Female 80 2018- SINGH SURJEET 19/01071 SINGH 4 BBPSPP/PP ANVI MR. Female 80 2018- TAYAL ANKIT 19/01637 TAYAL 5 BBPSPP/PP MAIRA MR. Female 80 2018- JAIN SAURABH 19/01864 JAIN 6 BBPSPP/PP RIFAYA MR. Female 80 2018- NAIN DEEPAK 19/01990 KUMAR NAIN 7 BBPSPP/PP SHREEJA MR. Female 80 2018- MEHTA ASHUTOS 19/02835 H MEHTA 8 BBPSPP/PP SHREYA MR.JAYA Female 80 2018- MANAV M 19/03085 MANAV 9 BBPSPP/PP AYANA CA. Female 80 2018- BHAGWA PAWAN 19/03146 NI BHAGWA NI 10 BBPSPP/PP SWASTEE MR. Female 80 2018- KEJRIVAL AMBUJ 19/03517 KEJRIWA L 11 BBPSPP/PP AHAANA MR. Female 80 2018- SHARMA MUKUL 19/04614 SHARMA 12 BBPSPP/PP DIVISHA MR. Female 80 2018- JAIN SAURABH 19/04662 JAIN 13 BBPSPP/PP MISHIKA MR. Female 80 2018- GUPTA PARIVES 19/04696 H GUPTA 14 BBPSPP/PP SIDHI JAIN MRS. Female 80 2018- PRIYANK 19/04796 A JAIN

15 BBPSPP/PP SHAYNA MR. Female 80 2018- SHASHI 19/04916 16 BBPSPP/PP PULAK MR. Female 80 2018- GUPTA VIKAS 19/04918 GUPTA 17 BBPSPP/PP SAMYA MR. Female 80 2018- SETHI GAUTAM 19/05421 SETHI 18 BBPSPP/PP AAMYA MR. Female 80 2018- VERMA GAURAV 19/05465 VERMA 19 BBPSPP/PP ANANDINI MR. Female 80 2018- GUPTA VIKRAM 19/05731 GUPTA

8. A juxtaposed reading of the second table contained in the Admission Criteria devised by the school (referred to, hereinafter, for the sake of felicity, as "the Allotment table"), with the table extracted at para 7 (supra), can leave no manner of doubt that the nineteen 80- pointer girls, enlisted in the latter table, were being considered, via a draw of lots, for admission against the 96 seats, designated as "open seats" in the Admission Criteria. It is necessary to emphasise this position as one of the arguments advanced by Mr. Kamal Gupta, learned counsel appearing for the school, was that the petitioner had been made well aware of the fact that her case was being considered only against 10 seats. The titular recital, above the table extracted in para 7 supra discloses, however, that this is not so, and that the nineteen students, named in the said table were being considered for draw of lots against the "open seats". How Mr. Gupta worked out the figure of 10 seats, against which alone, according to him, the petitioner was considered - and was entitled to be considered - would become apparent from the recital which follows hereinafter.

9. Be that as it may, the Allotment Table in the Admission Criteria extracted in para 2 (supra) hereinabove, read in conjunction with the tabular statement, issued by the school itself and extracted in para 7 supra, seen in conjunction, make it clear that the case of the petitioner was to be considered with other 80-pointers against the 96 open category seats. This, in fact, was also the position held out, by the School, to the candidates, as is apparent from the said Tables.

10. Mr. Kamal Gupta submits that the petitioner's case was considered, not in one, but in two draws of lots, firstly, against 10 seats, and secondly, against the 96 seats, and that she was unsuccessful in both the draws though, according to Mr. Gupta, the petitioner was actually entitled to be considered only in one draw of lots, against 10 seats. Mr. Gupta's reasoning, on this aspect, proceeds thus:

(i) The "Allotment Table", in the Admission Criteria formulated by the School and extracted in para 2 (supra), limited the entitlement, of "alumni category students", i.e. children, any of whose parents was an alumnus of the School, only to 20 seats.

(ii) Of these 20 seats, which alone, according to Mr. Gupta, were available for "alumni category" students, only 10 seats were available to girls, in view of the stipulation, in the Admission Criteria, that 50% of the vacancies would be allotted to girl students and 50% to boy students.

(iii) The Table extracted in para 7 supra, makes it apparent that there were 19 girl students in the "alumni category", of which the petitioner was one.

(iv) The petitioner's case was, accordingly, considered, along with the other 18 "alumni category" girls, for admission against the aforementioned 10 seats. Unfortunately, the petitioner was not successful in the said draw of lots.

11. This, according to Mr. Kamal Gupta, ends the matter. The petitioner's entitlement, in his understanding, being limited to a consideration to 10 of the 20 seats, which alone were reserved for "alumni category" students, and the petitioner having failed to succeed in the draw of lots held for the said purpose, the writ petition would necessarily have to fail.

12. Nevertheless, Mr. Gupta submits, the petitioner's case was considered, once again, against the 96 "open seats", for which a separate draw of lots was held, and her name did not turn up even in the said second draw of lots.

13. Something is required to be said about this second draw of lots, in the manner in which the case of the petitioner was considered therein. I had queried, of Mr. Gupta, as to how a child who did not come within any of the categories A to E mentioned in the "Allotment Table" in the Admission Criteria, as extracted in para 2 (supra), i.e., who (i) was not an EWS candidate, (ii) did not have a sibling studying

in the School, (iii) was not the child of a parent who was an alumnus of the School, (iv) was not the ward of any of the staff members of the school and (v) was not being admitted against management quota, but who did live within 5 km of the school and was the first born child of the parents, and who, therefore, scored 70 points, as per the Points Table, would be considered in the draw of lots. Mr. Gupta's response was that, as the child was not falling within categories A to E of the Allotment Table, his case would be considered against 48 open seats, being 50% of the 96 open seats (in view of the 50% gender cap). I then queried of Mr. Gupta as to whether the case of such a child would be considered along with other 70-pointers or would be clubbed in the draw of lots with children who had scored lesser points. Mr. Gupta's response was that, naturally, such a child would be considered along with other 70-pointers, and not clubbed with children scoring a lesser number of points.

14. Extrapolating this reasoning to the case of the present petitioner and examining how her case was considered in the second draw of lots, the petitioner admittedly was an 80-pointer. Assuming that the rejection of the petitioner in the first draw of lots was at all justifiable, she would be entitled to be considered, in the second draw of lots, along with other 80-pointers, and not clubbed with children who had scored a lesser number of points. Actually, however, Mr. Gupta concedes that, in the second draw of lots (i.e. against the 48 "open seats"), the petitioner was clubbed with children scoring a lesser number of points. Mr. Gupta seeks to justify this somewhat anomalous situation on the ground that, by not succeeding in the first draw of lots,

held for admissions against the 10 seats which, according to Mr. Gupta, alone were earmarked, and available, for "alumni category" girls, the petitioner had "exhausted the advantage" of her being a child of the "alumni category", i.e. a child whose mother happened to be an alumnus of the School.

15. I confess that I am completely unable to appreciate, far less accept, this reasoning, or the concept of "exhausting of advantage", on which it is premised. Even if it were to be assumed that the rejection of the petitioner in the first draw of lots (against 10 seats) was at all justified, it is impossible to comprehend how, thereby, the petitioner "exhausted the advantage" of being the child of an alumnus of the School. By not succeeding in the said first draw of lots, did the petitioner cease to be the child of an alumnus of the School? Did, therefore, by her name failing to turn up in the first draw of lots made against 10 seats, the petitioner forsake the 10 points available to her, under the Points Table, as a child of an alumnus of the School?

16. The answer to both these questions, quite obviously, has to be in the negative. De hors the legality of the manner in which the petitioner's case was considered in the first draw of lots, held for 10 seats, the School could, having condescended to consider her case for admission against the 96 "open seats", have considered it only along with other 80-pointers. There could be no question of consideration of clubbing 80-pointers with children scoring as lesser number of points in a final draw of lots. The said clubbing, clearly, resulted in of the entire stream of fixing points for various categories while considering

children for admission, as contemplated in the Points Table, which formed part of the Admission Criteria formulated by the School itself.

17. Coming, now, to the "first draw of lots", for admission against the tale "alumni category" seats, Mr. Gupta's submission is that "alumni category" students were entitled to be considered against 20 seats, in view of the number of vacancies reserved for various categories, as reflected in the Allotment Table, which reserved only 20 seats for "alumni category" students. Of these 20 seats, Mr. Gupta points out, 50% of the seats were to be given to boys and 50% to girls, so that the petitioner was entitled to be considered only against 10 seats. It was for this reason, he submits, that the petitioner's case was first considered in a draw of lots which was held for 10 seats, alongwith the other eighteen 80-pointer girls, whose names figure in the table extracted in para 7 (supra). The name of the petitioner did not, however, turn up in the candidates successful in the said draw of lots. The rejection of the petitioner's request for admission to the School was, therefore, according to Mr. Gupta justified.

18. I am unable to subscribe to the submission, of Mr. Gupta, that a child, one of whose parents happened to be an alumnus of the School, i.e., an "alumni category" child, was entitled to be considered only against 10 seats. Any such consideration would, in my view, be violative, not only of the Admission Criteria formulated by the school itself, but would also, even otherwise, be arbitrary. The table extracted in para 7 (supra) makes it clear that the case of the petitioner was, in fact being considered alongwith 80-pointers, against

the 96 open seats. This, in fact, was the correct exercise, required to be undertaken as per the Admission Criteria of the School. The number of open seats were only 96. 48 of those seats would, therefore, go to girl candidates. There were only nineteen 80-pointers including the petitioner. There could be no question of clubbing these 80-pointers with children scoring a lesser number of points, while drawing lots. The petitioner, therefore, was entitled to be considered in a draw of lots, if at all, alongwith the remaining eighteen children, against the 48 open seats. As, however, there were 48 seats, and only nineteen 80-pointer girls, the whole exercise of draw of lots would have been utterly superfluous. It is for this reason that the petitioner in this writ petition sought that she should be directly considered for admission against the said seats, and, in my view, the prayer is justified.

19. The plea of Mr. Gupta that, in view of the "cap" of 20 seats indicated against category C in the Allotment Table, as extracted in para 2 (supra), the petitioner's case was entitled to be considered only against 10 seats, in my view, has only to be urged to be rejected. If such an interpretation, of the Admission Criteria formulated by the school, were to be accepted, it would amount to penalising the petitioner for being the child of an alumnus of the school. As she was an 80-pointer, she could not be expected to forego the advantage of those 80 points, or be considered only against 10 seats, merely because only 10 seats were shown as reserved for "alumni category" girl candidates. In my view, in any case, if the petitioner was, by virtue of her residing within 5 kilometers of the school, being the

daughter of an alumnus of the school and being the first born child of her parents, entitled to 80 points, her case was required to be considered with other 80-pointers against at least 48 seats, and could not legitimately have been restricted to 10 seats. This would amount, in fact, to the petitioner having to completely forego the advantage of the 80 points which she scored under the Admission Criteria of the school, and compete with children who had much lesser points, merely because one of her parents happened to be an alumnus of the school. It is for this reason that I have opined, hereinabove, that such an interpretation would amount to penalising the child for the fact that one of her parents happened to be an alumnus of the school. Such an interpretation, in my view, is manifestly arbitrary and goes against the grain of the Admission Criteria formulated by the school itself.

20. The manner in which the School has operated the Admission Criteria, in the case of the petitioner, has resulted, ironically, in a situation in which the higher number of points scored by the petitioner as per the Points Table, and the reservation of a specified number of seats for "alumni category" children, both of which, one presumes, were intended to be beneficent dispensations, and to both of which the petitioner ought, legitimately, have been entitled, have worked against her. Being an 80-pointer under the Points Table, as well as the child of an alumnus of the School, under the Allotment Table, one would have thought that the petitioner had a double advantage which would cement, further, her right to admission to the School. The peculiar manner in which these two criteria have been worked by the School has, however, resulted in their operating at cross purposes with each

other, culminating in the closure, of the doors of the school, to the petitioner.

21. This is clearly unjust, and cannot be tolerated by any Court conferred with the duty of dispensing justice.

22. Clearly, therefore, the petitioner, as an 80-pointer, was entitled to be considered with other 80-pointer girls, against the 48 open seats which were available for girls in the open draw - which is what the table published by the School itself and extracted in para 7 (supra) indicated. Viewed thus, the 80 points scored by the petitioner would entitle her, proprio vigore, to admission in the school.

23. In view of the above, it is not necessary to enter into the submissions of Mr. Gupta, that the petitioner was not entitled to challenge the Admission Criteria formulated by the School, for the simple reason that the said Admission Criteria entitled the petitioner to be admitted to the School.

24. Mr. Gupta has also drawn my attention to various documents, to press his point that the School was entitled to place a cap on the number of students to be admitted against various criteria such as sibling, alumni, etc. There cannot be any cavil with this proposition. That, however, it does not mean that, merely because a student happens to be the child of an alumnus of the school, she, or he, would forego all the points which were available to her, or him by virtue of her or his residence being in the neighbourhood of the school, and her, or him being the first born child of

her, or his parents, apart from the points scored by her, or him as the child of an alumnus of the School. She, or he would be entitled to be benefited of all these points and, on that basis, the petitioner in the present case was entitled for admission to the school. The refusal of the school to admit the petitioner cannot, therefore, sustain.

25. Resultantly, a mandamus would necessarily issue, to the School, to admit the petitioner against a seat in the 2018-2019 academic session.

26. Even if the number of seats allocated to the school stand exhausted, inasmuch as the non-admission of the petitioner was because of a clear misreading of the Admission Criteria drawn up by the School itself, the School shall accommodate the petitioner and permit her to attend classes in the pre-school classes for the remainder of the 2018-2019 academic session, and continue to pursue her studies in the school in future as well, needless to say in accordance with the applicable legal provisions governing the same.

27. Before parting with this judgment, I may also refer to the order passed by this Court on 14th March, 2018, while issuing notice on the writ petition. While rejecting the prayer for stay of the entire admission process, this Court had clarified that "in case the petitioner succeeds, appropriate orders may be passed regarding the admission of the petitioner". In view thereof, even if the cutoff date for admission has expired, the petitioner shall, nevertheless, be admitted as a pre- school student in the School, subject, of course, to the petitioner

paying the requisite fees and fulfilling all other requisite formalities. The petitioner shall be allowed to commence attending classes within one week of her completing all requisite formalities. Learned counsel for the petitioner submits that the petitioner would report to the school with her parents within two days.

28. It is made clear that this order has been passed in the peculiar facts of this case.

29. The writ petition stands allowed in the aforesaid terms.

30. There shall be no orders to costs.

Dasti.

C. HARI SHANKAR, J FEBRUARY 08, 2019/kr