Delhi High Court
Jiya Through Her Next Friend And Natural ... vs Maharaja Agrasen Model School & Anr. on 22 March, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19 March 2024
Pronounced on: 22 March 2024
+ W.P.(C) 4683/2023 and CM APPL. 18067/2023
JIYA THROUGH HER NEXT FRIEND AND
NATURAL MOTHER MS. SUSHMA ..... Petitioner
Through: Mr. Khagesh B. Jha, Mr. Manoj
Kumar, and Mr. Kumar Utkarsh, Advocate
versus
MAHARAJA AGRASEN MODEL SCHOOL
& ANR. ..... Respondents
Through: Mr. Pramod Gupta, Adv. with
Ms. Nicole Gomez, Adv. and Ms. Adyanshi
Kashyap, Adv. for R-1
Mr. Utkarsh Singh and Ms. Prasansha
Sharma for Mr. Santosh Kumar Tripathi,
SC (Civil) for DoE
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 22.03.2024
1. Jiya was born on 17 August 2016. She is presently a little over
7 ½ years of age.
2. Jiya belongs to the Economically Weaker Section (EWS) of
society. On her behalf, her mother applied to the Directorate of
Education (DoE) for securing Jiya admission under the EWS category
in Class I for the academic session 2022-23. A computerized draw of
W.P.(C) 4683/2023
lots was conducted by the DoE, following which Jiya was shortlisted
for admission to Class I in the Maharaja Agrasen Model School
(Respondent 2, hereinafter) for the academic session 2022-23.
3. Despite her mother visiting the school on several occasions, the
Respondent 2 school refused to admit Jiya. Jiya's mother accordingly
addressed representations to the DoE on 24 June 2022, 18 July 2022, 7
January 2023 and 27 March 2023 seeking the intervention of the DoE
to secure admission for Jiya in the Respondent 2 school but to no
avail.
4. Jiya has, therefore, instituted the present writ petition through
her mother before this court. The petition was filed on or around 11
April 2023. Jiya seeks issuance of a writ of mandamus directing the
Respondent 2 school to grant admission to her as an EWS student in
Class II for the academic session 2023-24.
5. Jiya contends that, in the light of the provisions of the Right of
Children to Free and Compulsory Education Act, 2009 (hereinafter
"the RTE Act"), read with the circulars issued by the DoE from time
to time, the Respondent 2 school could not have refused to grant
admission to her after her name was shortlisted for admission
following the computerized draw of lots conducted by the DoE.
6. Counter affidavits have been filed by the DoE and by the
Respondent 2 school.
W.P.(C) 4683/2023
7. The DoE, in its counter affidavit, supports Jiya. It is stated in
the counter affidavit of the DoE that the Respondent 2 school had
declared a total of 200 seats in the general category for the academic
session 2022-2023, on the basis of which the DoE allotted 50
nursery/pre-school seats, 28 KG/pre-primary seats and 8 Class-I seats
in the school in the EWS category. All 50 seats in the nursery/pre-
school class were entry level seats; of the 28 seats in KG/pre-primary,
21 were carry forward unfilled nursery/pre-school seats of the
previous year; and of the 8 Class I seats, 6 were unfilled KG/pre-
primary seats of the previous year.
8. Consequent on receipt of a complaint that the Respondent 2
school was not admitting EWS students shortlisted by the DoE in the
computerized draw of lots conducted by it, the DoE, by the following
e-mail dated 13 April 2023 addressed to the Principal of the school,
directing the school to admit Jiya, as per the guidelines of the DoE,
that very day:
"Subject:- Denial of Admission of JIYA (Regn. No.20220026605)
for the academic
session 2022-23 in Maharaja Agrasen Model School, CO-Block,
Pitampura, Delhi
Dr. RAKESH RAHI, DOE, ZONE-XI [email protected]
13April 2023 at 11:23
To: MAMS CD-Block Pitampura [email protected]
To
The Principal/HOS,
Maharaja Agrasen Model School (1411182)
CD Block, Pitampura, Delhi
Sir/Madam
W.P.(C) 4683/2023
Find enclosed herewith a complaint/representation dated 27.03.2023,
received from Ms. Sushma M/o JIYA in this office regarding denial of
admission in r/o Baby J IYA (Reg.No. 202200266605) D/o Mr. Amit
Kumar, who was selected through computerised draw lots for class-1st
for the academic session 2022-23 and allotted your school.
With reference your reply vide letter dated 29.08.2022 & 07.02.2023
regarding complaint of admission in respect of Baby Jiya
(Reg.No.20220026605) in class 1st, which was not found satisfactory;
hence not acceptable.
The Principal/HOS of the school is hereby directed to admit the child as
per DoE's guidelines and submit the Action Taken Report today (i.e.
13.04.2023 by12.00 noon) positively.
This may be given TOP PRIORITY.
Dy. Director of Education,
Zone-XI : Distt. NWB-(1)"
The DoE contends that Section 12(1)(c)1 of the RTE Act mandatorily
requires all schools except minority schools to admit at least 25% of
children belonging to the EWS category at the entry level.
9. Reliance has also been placed by the DoE on its circular dated 9
July 2021, which requires any school desirous of obtaining exemption
from the requirement of admitting 25% students belonging to EWS
category in its entry level class, to seek specific permission from the
Deputy Directorate of Education (DDE) after following all steps and
due process in that regard, as held by this Court in its order dated 30
September 2013 in W.P. (C) 3358/2013 (The Sovereign School v.
12. Extent of school's responsibility for free and compulsory education. -
(1) For the purposes of this Act, a school,--
***
(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:
W.P.(C) 4683/2023
Directorate of Education). It is pointed out, in the counter affidavit
of the DoE, that the circular dated 9 July 2021 was challenged before
this Court in W.P. (C) 10839/2021 (Action Committee Unaided
Recognized Private Schools v. Directorate of Education). By its
order dated 24 September 2021, this Court clarified that no school
could deny admission to eligible students under the EWS/DG
category, once their names were forwarded by the DoE. It was
reiterated, in the said order, that, if any school desired to admit fewer
students than that computed by the DoE, it had to seek specific
exemption from the DoE in that regard. Once the child was
shortlisted by the DoE for admission to a particular school in a
particular class as an EWS student, the school had no option but to
grant admission to the child.
10. The counter affidavit of the DoE further avers that, w.e.f.2 the
2017-18 academic session, the DoE introduced a concept of carry
forward seats, whereunder EWS category seats which remained
unfilled in a particular class in a particular school were carried
forward and added to the number of EWS category seats required to
be filled in the next higher class in the next year in that school. This
principle, it is pointed out in the counter affidavit of the DoE, stands
endorsed by the Division Bench of this Court in Siddharth
International Public School v. MACT3, and also stands affirmed by
the Division Bench of this Court in its order dated 14 March 2018 in
Justice for All v. GNCTD4.
with effect from
2016 SCC OnLine Del 5272
W.P.(C) 3684/2013
Digitally Signed
By:AJIT KUMAR
Signing
W.P.(C) 4683/2023
11. Finally, relying on the judgment of a Coordinate Bench of this
Court in Rameshwar Jha v. Principal Richmond Global School5, the
counter affidavit of the DoE asserts that the act of school in denying
admission to Jiya, despite her name having been shortlisted by the
DoE, was completely illegal.
12. The School, through Mr. Pramod Gupta, learned Counsel, has
also filed a detailed counter affidavit, seeking to defend its decision in
not admitting Jiya in Class I in the 2022-23 academic session.
13. Mr. Gupta has also placed reliance on the judgment of a
Coordinate Bench of this Court in Bushra Riyaz v. GNCTD6 which
held that the petitioner, in that case, could not be directed to be
granted admission at the school in one academic session on the basis
of an application filed for the previous academic session.
14. At the outset of proceedings, I queried of Mr. Khagesh B. Jha,
learned Counsel for Jiya, as to how this Court could direct the school
to admit her in Class II in 2023-2024 when she had neither applied for
admission as an EWS category student nor, quite obviously, been
shortlisted by the DoE for admission as an EWS student to Class II in
any school in the 2023-2024 academic year.
15. Mr. Jha has placed reliance on Section 47 of the RTE Act,
2022 SCC OnLine Del 4438
2012 SCC Online Del 4648
4. Special provisions for children not admitted to, or who have not completed, elementary
education. - Where a child above six years of age has not been admitted in any school or though admitted,
W.P.(C) 4683/2023
which provides that, where a child above six years of age, has either
not been admitted in any school, or has not been able to complete her
elementary education, she shall be admitted in a class appropriate to
her age. Thus, submits Mr. Jha, there was nothing illegal in the DDE,
vide the email dated 13 April 2023, directing the Respondent 2 school
to admit Jiya in Class I. Besides, he submits, the said e-mail dated 13
April 2023 of the DDE has not been challenged by the Respondent 2
school and is, therefore, binding on it.
16. Mr. Jha submits that the allotment of Jiya, following the
computerised draw of lots conducted by the DoE, conferred on her the
right to admission in accordance with the outcome of the draw of lots.
This right, he submits, is indefeasible. He places reliance, in this
context, on Article 21A8 of the Constitution of India which obligates
the State to provide free and compulsory education to all children of
the age of six to fourteen in the manner determined by the State in
accordance with the law.
17. Mr. Jha submits that, therefore, the Respondent 2 school cannot
refuse to admit Jiya, after her name was shortlisted for admission to
Class I in the Respondent 2 school following the computerised draw
of lots conducted by the DoE. He also places reliance on the directive
could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to
his or her age:
Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or
she shall, in order to be at par with others, have a right to receive special training, in such manner, and within
such time-limits, as may be prescribed:
Provided further that a child so admitted to elementary education shall be entitled to free education
till completion of elementary education even after fourteen years.
21-A. Right to education. - The State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may, by law, determine.
W.P.(C) 4683/2023
contained in the email dated 13 April 20239 whereby the
Principal/Head of the Respondent 2 school was directed to admit the
petitioner as per the guidelines issued by the DoE and submit an
action taken report that very day. This command, reiterates Mr. Jha,
was never challenged by the Respondent 2 school and was, therefore,
binding on them.
18. To substantiate his contention that the above directive of the
DoE, contained in the e-mail dated 13 April 2023, was binding, Mr.
Jha draws my attention to Notification dated 7 January 2011 issued by
the Education Department, GNCTD. He invites particular attention to
para 7 of the said Notification which constitutes a District Admission
Monitoring Committee (DAMC) in each district, to be chaired by the
concerned Deputy Director (Education). He submits that the directive
contained in the e-mail dated 13 April 2023 is in exercise of the power
conferred by Clause 7(d) of the above Notification dated 7 January
2011, which reads thus :
"(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."
19. As such, the DoE having acted within its jurisdiction and
authority in directing the Respondent 2 school to admit the petitioner
in Class I, the School had no option but to do so. Mr. Jha has also
invited my attention to Section 3210 of the RTE Act, which deals with
Refer para 8 supra
32. Redressal of grievances. -
Digitally Signed
By:AJIT KUMAR
Signing
W.P.(C) 4683/2023
redressal of grievances relating to the rights of a child under the RTE
Act. He submits that it was in exercise of the right conferred by
Section 32(1) that Jiya had, through her parents, approached the
DAMC in January 2023. He submits that the DAMC, in directing the
Respondent 2 school to admit the petitioner, only moulded the relief to
which she was entitled.
20. Mr. Jha places reliance on the judgment of Hima Kohli J. (as
she then was) sitting singly in this Court in Araav Porwal v. The
Mother International School11, which was subsequently affirmed by
the Division Bench, against whose decision the Special Leave Petition
stands dismissed by the Supreme Court.
21. Finally, Mr. Jha presses for compensation against the
Respondent 2 school in terms of prayer (iii) in the writ petition,
though he submits that, if his client is granted admission, he would not
press the said prayer.
Analysis
22. To my mind, in order to maintain a writ petition seeking a
mandamus to a school to admit a child as an EWS student at the entry
(1) Notwithstanding anything contained in Section 31, any person having any grievance
relating to the right of a child under this Act may make a written complaint to the local authority
having jurisdiction.
(2) After receiving the complaint under sub-section (1), the local authority shall decide the
matter within a period of three months after affording a reasonable opportunity of being heard to the
parties concerned.
(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the
State Commission for Protection of Child Rights or the authority prescribed under sub-section (3)
of Section 31, as the case may be.
(4) The appeal preferred under sub-section (3) shall be decided by State Commission for
Protection of Child Rights or the authority prescribed under sub-section (3) of Section 31, as the
case may be, as provided under clause (c) of sub-section (1) of Section 31.
W.P.(C) 4683/2023
level class in a particular school in any particular academic year, the
child must, in the first instance, have applied to the DoE for admission
to that class in that year as an EWS student and must have been
shortlisted by the DoE for admission to the school concerned. It is
only if the computerized draw of lots conducted by the DoE identifies
a particular child as entitled to admission as an EWS student at the
entry level class in a particular school, that the child acquires a right to
such admission. The application, the shortlisting by the DoE and the
allocation in favour of the child must be class-, school- and academic
year-specific. It is only if, on the basis of the computerized draw of
lots conducted by the DoE, the child is found entitled for admission as
an EWS student to a particular entry level class, in a particular
school, for a particular academic year, that the child can claim
admission to that class in that school for that year.
23. A detailed and intricate exercise is conducted by the DoE prior
to children being shortlisted for EWS admissions at entry level classes
in schools. The DoE first invites data from schools regarding the
number of general category and EWS seats available with them for the
ensuing academic year. On the basis of the data so provided by the
schools, the DoE uploads, on its website, the school-wise data of
availability of EWS and general category seats at the entry level. The
schools are given time to represent to the DoE, against any error or
inaccuracy in the said data, within a stipulated time. If no such
representation is received within the time so provided, the data
uploaded by the DoE on its website is treated as correct and, on the
2012 SCC OnLine Del 2454
Digitally Signed
By:AJIT KUMAR
Signing
W.P.(C) 4683/2023
basis thereof, a computerized draw of lots is held. Based on the result
thereof, children are allocated to entry level classes in various schools.
24. No child, without her application suffering the rigour of this
exercise, can directly claim a right to be admitted to a particular class
in a particular school in a particular year as an EWS student.
25. The right guaranteed to every child under Article 21A of the
Constitution or under the RTE Act is only for free and compulsory
education till the age of fourteen. The State is only obligated to ensure
that every child receive such education free of charge. The child,
therefore, has a right only to receive such education. Article 21A does
not, however, confer, on any child, a constitutional right to be
educated in a particular school of her choice. That right would arise
only if the child applies to the DoE as an EWS student for admission
in the entry level class for that year and is shortlisted therefor, in the
computerized draw of lots conducted by the DoE.
26. Absent such application, holding of a computerized draw of lots
and shortlisting of a child for admission to a particular class in a
particular school, no right to seek such admission enures in favour of
the child. The right available under Article 21A of the Constitution or
under Section 12 of the RTE Act is only to free and compulsory
education till the age of fourteen, not for being provided such
education in a particular school.
27. There is no dispute that Jiya never applied to the DoE for
admission as an EWS student in Class II for the year 2023-2024.
W.P.(C) 4683/2023
Absent such an application, the case of Jiya was obviously not
subjected to any draw of lots by the DoE for admission to Class II for
the academic year 2023-2024. Absent such draw of lots and absent
any resultant allocation of any school to Jiya for the academic year
2023-2024, Jiya has no enforceable right in law to seek such
admission in that year to any particular school.
28. The GNCTD notification dated 7 January 2011 does not help
the petitioner. It merely empowers the DAMC to forward the names of
children to schools where vacant seats are available, for admission
against said seats following the neighbourhood school principle. The
letter dated 13 April 2023 is not issued by the DAMC. Moreover, it is
clearly not issued in exercise of the jurisdiction vested in the DAMC
by Clause 7(d) of the GNCTD notification dated 7 January 2011.
29. The directive of the DoE to the Respondent 2 School to admit
the petitioner as contained in the e-mail dated 13 April 2023 supra
could not, therefore, be sought to be justified on the basis of the
GNCTD notification dated 7 January 2011.
30. In fact, the directive was, even otherwise, unenforceable, as it
was issued on 13 April 2023, by which time the 2022-2023 academic
year, for which Jiya had been shortlisted for admission in Class I in
the Respondent 2 school, was over. Neither had Jiya applied for
admission to any school for the academic year 2023-2024, nor had she
been found eligible for such admission. The mere fact that the DoE
had found her entitled for admission to Class I in the Respondent 2
school for the academic year 2022-23 cannot make that right available
W.P.(C) 4683/2023
in perpetuity for all times to come.
31. Each year constitutes a fresh academic session. A child, who,
for whatever reason, is unable to secure admission into a school as an
EWS candidate despite having been shortlisted therefor by the DoE,
and allows that academic year to pass without initiating any legal
action in that regard, cannot claim, that on the basis of the said
shortlisting, that she or he has an enforceable right to admission in that
school for the next academic year to the next higher class. There is no
such automatic carry forward of the right which enures in favour of
the student, consequent to the draw of lots conducted by the DoE for a
particular academic year, to the next academic year, in that class or in
any higher class. Rights, it must be appreciated, extinguish with time.
32. The directive of the DoE in the email dated 13 April 2023 to the
respondent school to enlist the petitioner that very day is not,
therefore, either legal or enforceable. By 13 April 2023, the 2022-23
academic session had come to an end. With it, it must unfortunately be
said, perished Jiya's right to admission as an EWS student in the
Respondent 2 school as well. Beyond that, Jiya's right to education
under the RTE Act, or under Article 21A of the Constitution, is only
for being educated till the age of 14, and not for being educated
specifically in the Respondent 2 school.
33. The reliance, by Mr. Jha, on Section 32 of the RTE Act, is also
misconceived. Section 32 only enables a person having any grievance
relating to the right of the child under the RTE Act, to make a written
complaint to the local authority. I do not know whether the petitioner
W.P.(C) 4683/2023
has made any such complaint. Assuming she, through her parent(s),
has done so, the complaint would be dealt with in accordance with
law. Section 32(1) cannot entitle Jiya to admission to Class II in the
Respondent 2 school, for which she never approached the DoE in the
first place, as an EWS student.
34. The decision in Araav Porwal is also of little use to the
petitioner. Araav Porwal had specifically applied for admission to
Class I as a Disadvantaged Group (DG) category student for the year
in question. Araav approached this Court on the said admission being
denied to him. In the present case, however, there is no such
application made by the petitioner for admission as an EWS student to
Class II for the academic year 2023-2024. The application made for
the academic year 2022-23, and the allotment of the petitioner to the
respondent school consequent to the computerized draw of lots
conducted by the DoE as a result of the said application, has,
unfortunately, outlived its welcome.
35. That said, it would be entirely contrary to Section 12 of the
RTE Act as well as Article 21A of the Constitution of India not to
protect the interests of Jiya insofar as her right to education,
guaranteed by the said provisions, is concerned. The said guarantee,
however, as already noted, only entitles Jiya to be educated till the age
of fourteen as an EWS student and to nothing more.
Conclusion
36. Jiya is not, therefore, entitled to admission to Class II in the
W.P.(C) 4683/2023
Respondent 2 school as sought by her. The said prayer has therefore,
necessarily to be rejected.
37. The DoE would, however, make every endeavour to ensure that
Jiya is granted admission as an EWS student in Class II in some other
school. This should be done as expeditiously as possible and, at any
rate, within four weeks from the date of pronouncement.
38. The writ petition stands disposed of in the above terms.
C. HARI SHANKAR, J.
MARCH 22, 2024
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W.P.(C) 4683/2023
