Delhi High Court
Annu Kumari (Minor) Through Her ... vs Government Of Nct Of Delhi & Ors. on 25 May, 2021
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision 25th May, 2021
+ W.P.(C) 108/2021 & CM APPL. 312/2021
ANNU KUMARI (MINOR)
THROUGH HER NEXT FRIEND AND
NATURAL MOTHER RADHA DEVI ..... Petitioner
Through: Mr. Ashok Agarwal & Mr.
Kumar Utkarsh, Advocates.
versus
GOVERNMENT OF NCT
OF DELHI & ORS. ..... Respondents
Through: Mr. Anjum Javed, ASC with
Mr. Devendra Kumar and Mr.
Faran Ahmed, Advocates for
GNCTD/R-1 & 2.
Ms. Seema Dolo, Advocate for
R-3/CBSE.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
PRATEEK JALAN, J. (Oral)
The proceedings in the matter have been conducted through
video conferencing.
1. The petitioner sought admission in Government Girls Senior
Secondary School, Goela Khurd, New Delhi (respondent no. 2) in
Class XI in the year 2020-21. Her request to be granted admission in
the Humanities stream was rejected, relying upon a Circular issued by
the Directorate of Education ["DoE"] of the Government of National
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Capital Territory of Delhi ["GNCTD"] dated 27.08.2020. The
petitioner has assailed the aforesaid Circular and sought a direction
upon the respondents to grant her admission in the Humanities stream
in the said school or any government school near her residence.
2. The case of the petitioner is that she was originally a student of
the respondent no. 2-school, but was unable to continue her education
in school due to some family preoccupations. She therefore took a
transfer certificate in the year 2018-19 and registered herself with the
National Institute of Open Schooling ["the NIOS"] for the Class X
examination. She was unable to take the examination in 2018-19, but
passed Class X in the academic year 2019-20. (Although regular
examinations were not held in the year 2019-2020 due to the Covid-19
lockdown, the petitioner was assessed on the basis of the assignments
submitted by her, like all other students of NIOS). The petitioner has
annexed her marksheet of the examination (Annexure P-3 to the writ
petition), which shows that she had taken the subjects of English,
Home Science, Science/Science and Technology, Social Science, and
Hindi. She passed in each of the five subjects, and secured an
aggregate of 38.2%. The petitioner wished to resume her education in
the respondent no. 2-school. However, her request for admission in
Class XI in the Humanities stream was declined, relying upon the
Circular dated 27.08.2020.
3. The impugned Circular provides that students who have passed
their secondary examination (Class X) directly from NIOS with 55%
marks or above in the aggregate of five main subjects are eligible for
admission in Humanities without Skill Subjects, and with 50% marks
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or above in the aggregate of five main subjects are eligible for
admission in Humanities with Skill Subjects.
4. By an order dated 29.04.2021, it was recorded as follows: -
"2. Mr. Ashok Agarwal, learned counsel for the
petitioner, submits that the aforesaid stipulation is
entirely arbitrary and is also discriminatory against the
students who have taken classes directly from NIOS,
inasmuch as students of Delhi Government Schools are
given admission simply upon passing the Class X
examinations. He draws my attention to a specific clause
in the impugned circular to the effect that this criterion
would be applicable both for regular students and
students of the Directorate of Education ["DOE"],
studying regularly under the NIOS project. According to
Mr. Agarwal, the students of the DOE, studying under the
NIOS project, take exactly the same examination as
students who study directly under the NIOS. Mr. Agarwal
also draws my attention to a Division Bench judgment of
this Court dated 11.05.2018 in W.P.(C) 1813/2018
[Anshul Aggarwal vs. Union of India & Ors.] and
connected matters, wherein the Division Bench has
drawn an equivalence between the candidates who pass
Class XII examinations through open schooling and
regular schooling.
3. Mr. Devender Kumar, learned counsel who
appears on behalf of the GNCTD relies upon the counter
affidavit filed by the GNCTD in these proceedings.
Although the GNCTD's affidavit relies upon the
impugned Circular as the basis for denial of admission to
the petitioner, it is inadequate to appreciate the
justification for the impugned Circular.
xxx xxx xxx
6. The GNCTD will file a further affidavit within two
weeks, explaining the rationale behind the impugned
Circular, and also addressing the argument of Mr.
Agarwal that it creates an invalid classification. .....
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7. As the petitioner has not, in fact, been enrolled in
any school or been given the benefit of any classes in
Class XI, Mr. Agarwal will also take instructions as to
whether she wishes to be admitted in Class XI in the
respondent No.2/School for the academic session 2021-
22."
5. Pursuant to the aforesaid order, Mr. Ashok Agarwal, learned
counsel for the petitioner, has taken instructions, and states that the
petitioner would be agreeable to admission in Class XI in the
respondent no. 2-school for the academic session 2021-22. The
GNCTD has also filed a further affidavit dated 22.05.2021.
6. It is the undisputed position that, as an alternative to the Class X
examination offered by the Central Board of Secondary Education,
DoE schools also prepare students to appear through the DoE for the
Class X examination conducted by the NIOS. The NIOS also directly
enrolls students, and the petitioner falls in that category.
7. As recorded in the order dated 29.04.2021, Mr. Agarwal
submits that the classification between the students in NIOS and
candidates who are regular students of DoE is unsupportable. He relies
upon the Division Bench judgment of this Court dated 11.05.2018 in
W.P.(C) 1813/2018 [Anshul Aggarwal v. Union of India & Ors.] and
connected matters. He further contends that, by way of the impugned
Circular dated 27.08.2020 itself, DoE students under NIOS project
were eligible for admission in the Humanities programme without any
stipulation as to minimum marks.
8. Mr. Anjum Javed, learned Additional Standing Counsel for the
GNCTD, does not dispute that the examinations taken by the NIOS
candidates who appear directly (such as the petitioner) is the same as
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the examinations taken by the NIOS candidates who appeared through
DoE. However, he relies upon the counter affidavit filed by the
GNCTD in the present petition to submit that the students directly
enrolled with the NIOS are not required to take the same subjects as
offered to students in the DoE schools. It is particularly contended in
the counter affidavit that a student enrolled directly with the NIOS
may not have studied subjects in Class X which would enable her to
study the subjects offered in Class XI in DoE schools. She may also
not have taken any of the languages of Hindi, English or Sanskrit, as
required by the Government schools in Class XI. However, Mr. Javed
accepts that, in the present case, the petitioner has studied subjects
which are akin to those studied by students in the DoE schools, and
this impediment does not arise in her particular case.
9. In view of the fact that the petitioner has admittedly studied the
same subjects as are studied in the DoE schools, and has undergone
the very same assessment that is taken by the NIOS students who
appear through the DoE, the application of the minimum cut-off to the
petitioner's case cannot be justified. Although interference of the writ
court with matters of academic policy or eligibility conditions is
limited, the present case is one where it is appropriate to grant relief to
the petitioner on the anvil of Article 14 of the Constitution.
10. The DoE has sought to justify the classification imposed by the
Circular on the basis that direct NIOS candidates may not have the
requisite subjects to enable them to study the subjects offered in Class
XI in government schools. This cannot justify the rejection of the
petitioner's case, as she has admittedly taken the requisite subjects.
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Students who take the NIOS exam through the DoE in the same
subjects are offered admission in the Humanities stream without any
minimum cut-off marks. The petitioner is also entitled to the same
consideration. The stipulation in the impugned Circular, to the extent
that the student should have passed Class X directly from NIOS with
the minimum mark stipulated, cannot be applied, even on the
contentions raised in the counter affidavit, to a student who has in fact
studied the very same subjects through the NIOS directly. Such a
classification cannot be used by a government school to deprive a
student from pursuing her schooling in the subjects of her choice.
11. For the reasons aforesaid, the respondents are directed to admit
the petitioner in Class XI in the Humanities stream, in the respondent
no. 2-school or any other government school near her residence, for
the year 2021-22. Mr. Javed assures the Court that he will coordinate
with Mr. Agarwal, so that the petitioner is informed about the
modalities by which she can take admission.
12. In view of my finding that the minimum cut-off marks
prescribed by the impugned Circular cannot be applied to the
petitioner's case, the question regarding the validity of the Circular
dated 27.08.2020 is left open for decision in an appropriate case.
13. The writ petition is allowed in the terms aforesaid. Pending
applications also stand disposed of.
PRATEEK JALAN, J.
MAY 25, 2021
'pv'
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