Delhi HC rejects plea of schools on nursery admission guidelines


Court :
Delhi High Court

Brief :
The Delhi High Court dismissed the plea of unaided private schools, seeking a stay on Delhi government's nursery admission guidelines including scrapping of 20% Management Quota. Important highlights from the judgment by bench comprising Chief Justice N. V. Ramana and Justice Rajiv Sahai Endlaw: ''24. We have also enquired from the senior counsels for the appellants as to how deprivation for admission through the Management Quota causes loss to the schools. The schools are not entitled to charge any capitation fee or any excess amount from the students admitted through the Management Quota also. Though Management Quota has been recognized in several judgments but in relation to admission to professional courses, where merit is a criteria. It is not so here. We are thus not satisfied of any loss lest irreparable loss to the appellants from being denied admission to 20% of the seats through Management Quota also. ''

Citation :
Society for Unaided Private Schools of Rajasthan Vs. Union of India (2012) 6 SCC 1 Prabhjot Singh Nand Vs. Bhagwant Singh (2009) 9 SCC 435 Ramniklal N. Bhutta Vs. State of Maharashtra (1997) 1 SCC 134 State of Uttar Pradesh Vs. Ram Sukhi Devi (2005) 9 SCC 733 Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group (2005) 5 SCC 61 Zenit Mataplast P. Ltd. Vs. State of Maharashtra (2009) 10 SCC 388 Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd. (2012) 6 SCC 792 All India Council for Technical Education Vs. Surinder Kumar Dhawan (2009) 11 SCC 726 University Grants Commission Vs. Neha Anil Bobde (2013) 10 SCC 519

* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

 

            Date of Decision: 20

 

 +     LPA 30/2014     

 

th

 January, 2014. 

 ACTION COMMITTEE UNAIDED RECOGNIZED 

 PRIVATE SCHOOLS            ..... Appellant

    Through: Mr. N.K. Kaul, Sr. Adv. with Mr.

      P.D. Gupta, Mr. Kamal Gupta, Ms.

      Diya Kapur, Ms. Shyel Trehan, Ms.

      Manjira Dasgupta, Vedanta Varma &

      Mr. Vibhor Kush and Mr. Abhishek

      Gupta, Advocates. 

 

     Versus 

 

 LT. GOVERNOR & ORS                        ..... Respondents

    Through: Mr. Raju Ramachandran, Sr. Adv. 

      with Ms. Zubeda Begum, Vivek

      Kumar Tandon, Ms. Sana Ansari &

      Ms. Vanessa Singh, Advs. for R-1&2.

      Mr. Himanshu Bajaj and Ms. Saakshi

      Agrawal, Advocates for R-3/UOI.

      Mr. Ashok Agarwal, Mr. Khagesh B.

      Jha and Ms. Arushi Agarwal, 

      Advocates for R-4.  

 

     AND 

 

+      LPA 31/2014    

 

 FORUM FOR PROMOTION OF QUALITY EDUCATION 

 FOR ALL                ..... Appellant 

    Through: Mr. Rajiv Nayyar, Sr. Adv. with Mr.

      Vedanta Varma, Adv. 

 

     Versus

 

 LT. GOVERNOR OF DELHI & ORS  ..... Respondents

    Through: Mr. Raju Ramachandran, Sr. Adv. 

LPA Nos.30/2014 & 31/2014                       Page 1 of 32

 

      with Ms. Zubeda Begum, Vivek

      Kumar Tandon, Ms. Sana Ansari &

      Ms. Vanessa Singh, Advs. for R-1&2.

      Mr. Himanshu Bajaj and Ms. Saakshi

      Agrawal, Advocates for R-3/UOI.

      Mr. Ashok Agarwal, Mr. Khagesh B.

      Jha and Ms. Arushi Agarwal, 

      Advocates for R-4.

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

 

1. Both intra court appeals impugn the common order dated 10

January, 2014 of the learned Single Judge of this Court in W.P.(C) 

No.177/2014 and W.P.(C) No.202/2014 respectively preferred by the 

appellants, refusing to grant the interim relief sought by the 

appellants/petitioners, observing, “that any interim order of partial stay or 

substitution of the Government policy at this stage would create confusion 

and would be detrimental to the interests of the children as well as parents 

of the wards who are seeking admission”,  though directing the writ 

petitions to be heard at the admission stage itself and listing them for 

hearing on 11

th

 March, 2014.  

2. Though the appeals came up before this Court for admission on 15

January, 2014 but since the counsel for the respondents appeared on 

advance notice, considering the nature of the controversy and with the 

LPA Nos.30/2014 & 31/2014                       Page 2 of 32

 

th

th

 

 

consent of the counsels, we finally heard the appeals.  

3. The writ petitions from which these appeals arise were filed 

impugning the orders dated 18

Governor of Delhi.  

4. The order dated 18

th

th

 & 27

th

 December, 2013 of Hon‟ble the Lt. 

 December, 2013 called the “Recognized Schools 

(Admission Procedure for Pre-primary Classes) (Amendment) Order, 2013” 

was issued by the Hon‟ble Lt. Governor in exercise of the powers conferred 

by Section 3(1) of the Delhi School Education Act, 1973 read with Rule 43 

of the Delhi School Education Rules, 1973 and amending the “Recognized 

Schools (Admission Procedure for Pre-primary Class) Order, 2007”.  Vide 

the said order dated 18

th

 December, 2013, the Management Quota of 20% in 

admission in any private unaided recognized school of Delhi under the 

Admission Order 2007 was done away with and fixed parameters and points 

for admission to a class at entry level of the school were laid down and the 

schools prohibited from fixing additional points other than the points 

specified.  The subsequent order dated 27

th

 December, 2013 merely 

extended the parameter of neighbourhood from 6 Km. as prescribed in the 

order dated 18

th

 December, 2013, to 8 Km. 

5. We may notice that the stand/counter affidavit of the respondents is 

LPA Nos.30/2014 & 31/2014                       Page 3 of 32

 

not on record, neither in the writ petition nor in this appeal.  However, 

owing to the process of admission to the schools, which we are informed 

ordinarily begins on 1

st

 January of each year having already been delayed 

and having been now prescribed to begin on 15

th

 January, 2014 and which 

date is now gone and the admissions are held up and any delay would 

ultimately result in not only delaying the admissions to the schools but 

consequently also the commencement of the academic year, it has been 

deemed appropriate to hear the counsels without counter affidavit. 

6. The learned Single Judge having declined interim relief to the 

appellants, not for the reason of not finding a prima facie case in favour of 

the appellants/petitioners but for the reason that the interference in the 

admission process at this stage is likely to create confusion and would be 

detrimental to the interests of the children as well as parents of the wards 

who are seeking admission, we at the outset only asked the senior counsels 

for the appellants to address us as to what was the irreparable loss and injury 

to the appellants, who are a committee/fora of recognized unaided schools 

of Delhi and as to how the balance of convenience was in favour of granting 

interim stay of operation of the impugned orders dated 18

December, 2013 as is sought and which would result in admissions being 

LPA Nos.30/2014 & 31/2014                       Page 4 of 32

 

th

 & 27

th

 

made to the schools in accordance with the Admission Order 2007.  

However, notwithstanding our said query, the senior counsels for the 

appellant chose to address lengthy arguments spanning over nearly the 

entire day on merits of the case of the appellants.   

7. The contentions of the senior counsels for the appellants on the aspect 

of prima facie case in favour of the appellants are: 

 (i) that the Division Bench of this Court vide order dated 4

September, 2006 in LPA No.196/2004 titled Rakesh Goel Vs. 

Montford School, also concerned with the admission of the tiny tots 

to nursery class in the schools, constituted an Expert Committee 

headed by Sh. Ashok Ganguly then Chairman of the CBSE to evolve 

a mechanism for having transparency in the process of admissions in 

pre-nursery classes and to eliminate the system of interviews; 

 (ii) that the Ganguly Committee after detailed discussions and 

deliberations with all stakeholders vide report dated 14

recommended the admission process to be based on several defined 

scientific, rational and tested criteria including of neighbourhood, 

alumni, sibling, single parent, management quota etc. and the schools 

were given the freedom to choose, emphasize and focus on any 

LPA Nos.30/2014 & 31/2014                       Page 5 of 32

 

th

 July, 2007 

th

 

number of criteria and leaving 10% of the total seats to be allotted at 

the discretion of the Management; 

 (iii) that the Cabinet of Delhi after a meeting with the Delhi School 

Advisory Board constituted under Section 22 of the School Act, vide 

Resolution dated 3

rd

 September, 2007 accepted the Ganguly 

Committee‟s recommendations with some modifications; 

 (iv) that the Directorate of Education (DoE), Government of 

National Capital Territory of Delhi (GNCTD) in their affidavit filed 

in LPA No.196/2004 supra took a stand that the autonomy to the 

heads of private unaided schools as per Rule 145 of the School Rules 

has to be protected and for the reasons thereof, recommendation of 

the Ganguly Committee imposing a uniform set of criteria on schools 

cannot be accepted and each school should be allowed to define and 

adopt its own admission criteria, making a scheme out of a set of 

parameters so that their autonomy is ensured and that there should be 

no lottery system except to break ties;   

 (v) that the Division Bench of this Court also vide order dated 14

November, 2007 in LPA No.196/2004 made certain suggestions; 

 (vi) that pursuant to the aforesaid, the Admission Order 2007 was 

LPA Nos.30/2014 & 31/2014                       Page 6 of 32

 

th

 

issued as per which the schools were to develop and adopt a clear, 

well defined, equitable, non-discriminatory and unambiguous criteria 

for admission in the interests of the children including on the aspects 

of neighbourhood, background of the child, sibling, transfer case, 

single parent and management quota not exceeding 20% and were 

also given the option of fixing additional parameters though were 

required to stipulate a point system for each criteria/parameter; on 

29

th

 November, 2007 it was clarified that weightage assigned to the 

parameters/criteria adopted by the schools should not be heavily 

loaded in favour of a few parameters only; vide subsequent order 

dated 6

th

 December, 2007, it was further clarified that there would be 

no upper limit/cap for points assigned by the school to any one 

parameter; 

 (vii) that the schools preferred SLP(C) No.246317-18/2007 to the 

Supreme Court against the judgment in LPA No.196/2004 supra, vide 

interim order in which the operation of the Admission Order 2007 

which required the schools to obtain prior approval of the DoE before 

finalization of admission criteria, was stayed and it was directed that 

it will be sufficient if the admission criteria adopted by the schools 

LPA Nos.30/2014 & 31/2014                       Page 7 of 32

 

was sent to the DoE; 

 (viii) that upon promulgation of the Right of Children to Free and 

Compulsory Education (RTE) Act, 2009 and issuance of Guidelines 

dated 23

rd

 November, 2010 thereunder permitting schools to frame 

their own policy for admission under the RTE Act, W.P.(C) 

No.8533/2010 titled Social Jurist Vs. Govt. of NCT of Delhi was 

filed in this Court impugning the said criteria; vide judgment dated 

19

th

 February, 2013 wherein, the provisions of the RTE Act and the 

Guidelines were held to be not applicable to admissions being made 

to 75% general category students of private unaided schools and 

which admissions were held to be governed by the Admission Order 

2007; 

 (ix) that the Supreme Court vide judgment dated 6

LPA Nos.30/2014 & 31/2014                       Page 8 of 32

 

th

 March, 2013 

disposed of SLP(C) No.246317-18/2007 supra in view of the 

Guidelines dated 23

rd

 November, 2010 supra having been framed; 

 (x) that the Division Bench of this Court vide order dated 25

September, 2013 in W.P.(C) No.2463/2013 titled Social Jurist, A 

Civil Rights Group Vs. Lt. Governor of National Capital Territory 

of Delhi requested the Hon‟ble Lt. Governor to consider the 

th

 

representation of Social Jurist for amendment of the Admission order 

2007 within twelve weeks; 

 (xi) that the Hon‟ble Lt. Governor, Delhi vide CM No.16832/2013 

in disposed of W.P.(C) No.2463/2013 sought extension of time for 

disposing of the representation supra by at least eight weeks stating 

that the minutes of the meeting of the Delhi School Education 

Advisory Board could not be finalized and education being a 

transferred subject, the aid and advise of the Council of Ministers for 

framing any new policy should be there and since new Government of 

Delhi was in the process of formation, it was desirable that no order 

be passed without the aid and advise of the new Council of Ministers; 

the said application was listed before this Court on 18

2013 when the same was adjourned to 8

th

 January, 2014; 

  (xii) that notwithstanding the Hon‟ble Lt. Governor having sought 

time to dispose of the representation of Social Jurist for amendment 

of the Admission Order 2007 on the ground of the new Government 

of NCT of Delhi being under formation, on 18

th

LPA Nos.30/2014 & 31/2014                       Page 9 of 32

 

th

 December, 

 December, 2013 

itself, the impugned order amending the Admission Order 2007 was 

issued; 

  (xiii) that the GNCTD has in the various affidavits filed in the 

proceedings aforesaid accepted the autonomy of the recognized 

unaided schools under the School Rules as per the dicta in T.M.A. Pai 

Foundation Vs. State of Karnataka (2002) 8 SCC 481; 

 (xiv) that the Admission Order 2007 was issued after widespread 

deliberations pursuant to the directions of this Court in LPA 

No.196/2004 including after considering the recommendations of the 

Ganguly Committee and the Delhi School Advisory Board; per 

contra, the same has been amended vide the impugned orders solely 

by the Hon‟ble Lt. Governor without any consultation with the 

stakeholders and without even consulting the experts and without 

even the statutory body Delhi School Advisory Board being 

consulted; 

 (xv) that while under the Admission Order 2007, the schools had the 

autonomy to fix whatever admission criteria they deemed appropriate 

within the prescribed norms, vide the impugned orders the autonomy 

of the schools has been taken away by prescribing fixed admission 

criteria heavily loaded in favour of „neighbourhood‟; 

 (xvi) that the Ganguly Committee had frowned on the criteria of 

LPA Nos.30/2014 & 31/2014                       Page 10 of 32

 

„neighbourhood‟ and had prescribed the same only as one of the 

criteria; 

 (xvii) that if the admissions were to be based solely on the criteria of 

„neighbourhood‟, there would be no homogeneity left; 

 (xviii) that there is no reason for the Hon‟ble Lt. Governor to within a 

few days, change his mind; while seeking extension of time for 

deciding representation for amendment of the Admission Order, 

2007, he gave the reason of it being prudent to await formation of  

new Govt. of NCT of Delhi but then issued the impugned amendment 

order without even waiting for the government formation; 

 (xix) that the impugned order is thus without jurisdiction, in 

violation of the fundamental rights of the recognized unaided schools 

and their management and amounts to taking away fundamental rights 

by executive action; 

 (xx) that the admissions in pursuance to the Admission Order 2007 

were going on smoothly for the past five years and there is no reason 

for tinkering with the same and if at all it was felt that any of the 

schools were violating the spirit of the Admission Order 2007, the 

remedy was to take action against them and not to amend the 

LPA Nos.30/2014 & 31/2014                       Page 11 of 32

 

Admission Order; 

 (xxi) attention is also invited to paras 41 and 42 of Modern School 

Vs. Union of India (2004) 5 SCC 583; 

  (xxii)  that there is no reason to change the admission criteria; 

 (xxiii)  that the criteria for admission should be left to the schools, as 

long as the same is transparent; 

 (xxiv)  that the DoE in the affidavit filed in the year 2008 in the 

Supreme Court in SLP(C) No.24622/2007 titled Forum for 

Promotion of Quality Education for All Vs. Rakesh Goel also had 

taken the same stand as is being taken by the appellants herein and 

supported the Admission Order 2007 and the autonomy of the schools 

in the matter of admissions as laid down in T.M.A. Pai Foundation 

supra; 

 (xxv) that the respondents even if of the view that the Admission 

Order 2007 is to be amended ought to hold widespread consultation 

as done earlier and consult the Delhi School Advisory Board; 

 (xxvi)  that the Educational Institutions are entitled to the 

Management quota and which entitlement has been upheld in the 

various judgments of the Supreme Court; the said Management Quota 

LPA Nos.30/2014 & 31/2014                       Page 12 of 32

 

has to be protected and cannot be done away with as has been done 

by the impugned orders; 

 (xxvii) that the orders dated 23

rd

 November, 2010 and 15

2010 of the Govt. of India, Ministry of Human Resource 

Development and of the Govt. of NCT of Delhi respectively also 

admit of each school formulating its admission policy identifying the 

various categories based on principles that are fair, just and 

reasonable; 

 (xxviii) that the Attorney General also in his written submissions 

before the Supreme Court in W.P.(C) No.95/2010 titled Society for 

Unaided Private Schools in Rajasthan Vs. Union of India had 

contended that with respect to 75% of the general category seats, the 

schools can formulate a policy for admission which evolves fair, and 

transparent criteria on rational, reasonable and just basis; 

 (xxix)  that if the selections were to be made only on the basis of 

„neighbourhood‟, it will place all the applicants at par making the 

selection random.        

8. The senior counsels for the appellants on the ingredients of 

irreparable loss and injury and balance of convenience, have contended: 

LPA Nos.30/2014 & 31/2014                       Page 13 of 32

 

th

 December, 

 (a) that the impugned orders break the back of Educational 

Institutions and the child admitted by the schools in this academic 

year will remain with the schools for 14 years; 

 (b) that the impugned orders take away the constitutional right of 

the appellants; 

 (c) that the academic session commences only in the month of 

April each year and the admission process can be deferred/delayed for 

one month and the writ petition can be disposed of finally within such 

time and no prejudice will be suffered by anyone by so deferring the 

admission process; 

 (d) that when the members of the appellants are in law entitled to 

select the students for admission, their such right cannot be taken 

away; 

 (e) that there will be no injury to the State if the same criteria as 

prevalent for the last five years is continued for another one year till 

the writ petitions are disposed of; 

 (f) that unless the impugned orders are stayed, the appellants shall 

be forced to admit and accept students against their will; 

 (g) that the impugned orders are a direct attack on the autonomy of 

LPA Nos.30/2014 & 31/2014                       Page 14 of 32

 

the schools; 

 (h) that there is no balance of convenience in changing the 

admission process during the pendency of the writ petitions as the 

same cannot be reversed.   

9. Per contra, the senior counsel for the Hon‟ble Lt. Governor has 

contended: 

 (I) that the impugned orders deal with admission to pre-primary 

school i.e. at the age of 3 to 6 years; 

 (II) that the judgment of the Supreme Court in T.M.A. Pai 

Foundation supra has to be seen in the context of the facts thereof; 

the said judgment is of a pre RTE Act era; 

 (III) that the RTE Act statutorily recognizes the concept of 

„neighbourhood‟; 

 (IV) that thus the deprecation even if any, of „neighbourhood‟ being 

the sole criteria for admission in the recommendations of the Ganguly 

Committee, is today of no value; 

 (V) that even prior thereto under Rule 50(ii) of the School Rules, 

no school was entitled to recognition or to continue to be recognized  

unless it serves the real need of the „locality‟; thus the concept of 

LPA Nos.30/2014 & 31/2014                       Page 15 of 32

 

neighbourhood exists in the School Rules itself;     

 (VI) that the schools are not entitled to profiteer and Management 

Quota leads to profiteering; 

 (VII) that the respondents were vide judgment dated 19

2013 of this Court in W.P.(C) No.8533/2010 supra expressly directed 

to re-visit the Admission Order 2007; 

 (VIII) that merely because the Hon‟ble Lt. Governor had sought 

extension of time for re-considering/re-visiting the Admission Order 

2007, did not mean that he was denuded of the power to re-consider; 

 (IX) that the Hon‟ble Lt. Governor on his own, without the Council 

of Ministers being in place also, was/is competent to pass the 

impugned orders and it cannot be said that the same are without 

jurisdiction; 

 (X) that in fact this Court, on 18

th

LPA Nos.30/2014 & 31/2014                       Page 16 of 32

 

th

 February, 

 December, 2013 when the said 

application for extension of time was listed, informed of the decision 

having already been taken and it was for this reason only that instead 

of extending the time, the application was simply adjourned to 8

January, 2014; 

 (XI) that the neighbourhood criteria, of within 8 Kms. distance from 

th

 

the school, provided a catchment area of 150 sq. Kmts. enabling the 

schools to admit any student from the said 150 sq. Kmts. area; the 

same thus did not amount to curtailment of freedom or autonomy of 

the schools which remains unaffected; 

  (XII) that merely because the school has become famous, it cannot 

be heard to say that it will admit students not from its neighbourhood 

but resident 25 Km away; 

 (XIII) that the order has been passed considering the welfare of the 

child which is distinct from the aspirations of the parents; if the 

children are admitted to schools far away, they have to travel long 

hours to and fro, to their detriment and are forced to wake up much 

earlier than if were to attend a school in the neighbourhood/vicinity of 

their residence; 

 (XIV)  that the argument of the impugned orders interfering with the 

autonomy of the schools is illusory inasmuch as there is no 

interference with the syllabus, recruitment of teachers etc. of the 

schools which provides enough autonomy to the schools; 

 (XV) that in fact the definition of neighbourhood was changed from 

6 Km. to 8 Km. after hearing the schools; 

LPA Nos.30/2014 & 31/2014                       Page 17 of 32

 

 (XVI)  that if any glitches are found in the admission criteria as now 

introduced, the same will be subject to change;  

 (XVII)  that there is no loss lest irreparable loss to the appellants so as 

to call for any interim relief; 

 (XVIII)  that the impugned orders are in the interest of the children. 

10. The counsel for Social Jurist which got impleaded as a respondent in 

the writ petitions, has invited attention to Section 13 of the RTE Act 

prohibiting the schools from collecting any capitation fee and from 

subjecting the child or the parents or guardians to any screening procedure.  

Attention is also invited to para 28 of Society for Unaided Private Schools 

of Rajasthan Vs. Union of India (2012) 6 SCC 1 laying down that the RTE 

Act is child centric and not institution centric and it is contended that the 

want of the parents to have the child admitted to a far away school is not to 

be considered and only the interest of the child is to be seen.  Attention is 

also invited to paras 33, 36.3, 48 and 59 of the said judgment to contend that 

the right to establish and administer an educational institution is not an 

absolute right and is subject to the other constitutional provisions and that 

the emphasis and focus in T.M.A. Pai Foundation supra was institution 

centric and not child centric and that too in the context of higher education 

LPA Nos.30/2014 & 31/2014                       Page 18 of 32

 

and professional education where the level of merit and experience have to 

be given different weightage and it is argued that merit is not a criteria while 

admitting a child of the age of 3 to 6 years.  It is yet further argued that the 

only loss to the schools is of illegal earnings and which cannot be taken into 

consideration.   

11. The senior counsel for the appellants, in rejoinder, have argued: 

 (A) that the Management Quota has been recognized in para 66 of 

P.A. Inamdar Vs. State of Maharashtra (2005) 6 SCC 537 also; 

 (B) that there is Management Quota in Guru Gobind Singh 

Indraprastha University of the Govt. of Delhi and is thus not a dirty 

word; 

 (C) that if any of the schools, acting under the Admission Order 

2007 have misused their liberty, action ought to be taken thereagainst 

instead of taking away the autonomy of  all the schools; 

 (D) that as per the information of the schools, the Delhi School 

Advisory Board had recommended the continuance of the Admission 

Order 2007 for the current year also; 

 (E) that the DoE in the affidavits in earlier proceedings had 

discouraged the lottery system; 

LPA Nos.30/2014 & 31/2014                       Page 19 of 32

 

 (F) that there is no harm in allowing more weightage to certain 

aspects; 

 (G) that no instance of a single school which may have misused the 

Admission Order 2007 has been given; 

 (H) that the Hon‟ble Lt. Governor ought not to have rushed to 

change the Admission Order 2007 passed after detailed deliberations; 

 (I) that while defending the challenge to the Admission Order 

2007, the DoE had contended that the same protected the autonomy 

of the schools but now the said autonomy has been killed.  

 12. The senior counsel for the Hon‟ble Lt. Governor has denied the 

argument that the recommendation of the Delhi School Advisory Board was 

for continuation of the Admission Order 2007 and has stated his instructions 

to be that the Board has suggested some changes on the same lines as have 

been carried out in the Admission Order.  

13. The counsel for Social Jurist has invited attention to para 53 of 

Unaided Private Schools of Rajasthan observing that T.M.A. Pai 

Foundation  and  P.A. Inamdar  supra  are  in  the   context  of  

professional / higher  education  where  merit  and   excellence   have   to   

be   given   due  weightage  and  which   tests   do   not   apply  to  

LPA Nos.30/2014 & 31/2014                       Page 20 of 32

 

admission  to class I of schools.  

14. Though we have for the sake of maintaining the record faithfully 

reproduced hereinabove the lengthy arguments addressed but it cannot be 

lost sight of that the hearing is on the aspect of grant / non grant of interim 

relief only and not for disposal of the writ petitions of which the learned 

Single Judge is still seized of.  

15. We had as aforesaid at the beginning of the hearing only enquired 

from the senior counsels for the appellants that even if we were to agree 

with the appellants, of having a good prima facie case, does the same entitle 

the appellants to the interim relief, for the grant whereof, traditionally the 

ingredients of irreparable loss and injury and balance of convenience have 

also to be satisfied.  The Courts in (See Prabhjot Singh Nand Vs. 

Bhagwant Singh (2009) 9 SCC 435 and Ramniklal N. Bhutta Vs. State of 

Maharashtra (1997) 1 SCC 134) have added the ingredient of public interest 

also and have held that interim relief can be denied even if the other three ingredients are in 

favour of the seeker thereof, if the grant thereof would be against public interest.   

16. Save for contending that non-grant of stay of impugned orders would 

interfere with the autonomy of the recognized unaided schools which exists 

in the matter of admission also and that the child so admitted would remain 

LPA Nos.30/2014 & 31/2014                       Page 21 of 32

 

in the school for ten years, no other argument in this respect has been raised.  

When we further asked the counsels as to how the schools would suffer, if 

instead of one child, another child is admitted inasmuch as the fee and other 

charges chargeable by the school, would not be different, and more so when 

admission is not merit based and there is to be no screening, no answer has 

been forthcoming.   

17. It thus appears that the argument of autonomy of the school being 

affected by admission of one child against another child, cannot be said to 

be causing any irreparable loss or injury to the school.  It also cannot be lost 

sight of that the admission, if any, would be only of one batch of students 

i.e. for the current academic year.  Upon the appellants succeeding in the 

writ petitions and which we are confident would be disposed of before the 

commencement of the admissions for the next academic year, the autonomy 

of the schools in the matter of admission, even if affected by the impugned 

orders, would be restored.  It is not as if, it will be gone for ever like 

chastity.  Conversely, if the writ petitions were to fail and the orders 

impugned therein were to be upheld, grant of stay would for all times to 

come affect those who under the impugned orders may be entitled to 

admission to a school and who would be denied admission, if the operation 

LPA Nos.30/2014 & 31/2014                       Page 22 of 32

 

of the impugned orders were to be stayed.  (We do not accept the contention 

that the balance of convenience is in favour of the appellants as the State 

would suffer no loss by the grant of interim order.  The State has issued the 

impugned orders for the benefit of the citizens of Delhi and the Courts at the 

time of grant of relief, cannot be unmindful of the effect of the interim 

orders on the persons affected thereby.  The Supreme Court in ONGC Ltd. 

Vs. Saw Pipes Ltd. (2003) 5 SCC 705 took note of the loss to the public at 

large by the delays in completion of public projects like road construction 

etc. and negatived the argument that none suffers therefrom).  Thus, qua 

such admission seekers, the grant of interim relief sought would be the grant 

of final relief in the writ petitions inasmuch as such persons would not be 

seeking admission in the following years.   

18. It is not as if, the principles for grant of interim relief in the 

proceedings under Article 226 of the Constitution of India are different than 

under the Civil Procedure Code.   

19. The Supreme Court, in: 

 (i) Deoraj v. State of Maharashtra (2004) 4 SCC 697 held that 

the Court could grant interim relief only if satisfied that withholding 

of it would prick the conscience of the Court and do violence to the 

LPA Nos.30/2014 & 31/2014                       Page 23 of 32

 

sense of justice, resulting in injustice being perpetuated throughout 

the hearing, and at the end the Court would not be able to vindicate 

the cause of justice; 

 (ii) State of Uttar Pradesh Vs. Ram Sukhi Devi (2005) 9 SCC 733 

deprecated the practice of grant of relief only for the reason of prima 

facie case having been made out, without being concerned with 

balance of convenience, public interest and a host of other 

considerations; 

 (iii) Bombay Dyeing and Manufacturing Co. Ltd. Vs. Bombay 

Environmental Action Group (2005) 5 SCC 61 held that before an 

interim order is passed, the courts must consider the question as 

regards the existence of a prima facie case, balance of convenience as 

also the question as to whether the writ petitioners shall suffer 

irreparable injury, if the injunction sought is refused and have to 

strike a balance between the two extreme positions viz., whether the 

writ petition would itself become infructuous if interim order is 

refused, on the one hand, and the enormity of losses and hardships 

which may be suffered if an interim order is granted, particularly 

having regard to the fact that in such an event the losses suffered by 

LPA Nos.30/2014 & 31/2014                       Page 24 of 32

 

the affected parties thereby may not be possible to be redeemed; 

 (iv) Zenit Mataplast P. Ltd. Vs. State of Maharashtra (2009) 10 

SCC 388 reiterated that for grant of interim relief in proceedings 

under Article 226 of the Constitution of India, all the three ingredients 

of prima facie case, irreparable loss and injury and balance of 

convenience have to be satisfied. 

20. Neither is the present such a case where non grant of interim relief 

pricks the conscience of this Court or in our view results in injustice to the 

appellants nor have the counsels been able to satisfy us of any irreparable 

loss to the appellants by denial of interim relief. Rather, the counsels have 

argued on the premise that mere satisfaction that there is a prima facie case 

is sufficient for grant of interim relief and which is not the correct position 

in law as recently reiterated in Best Sellers Retail (India) Pvt. Ltd. Vs. 

Aditya Birla Nuvo Ltd. (2012) 6 SCC 792 also. All the ingredients 

governing the grant or refusal of interim relief must co-exist and mere 

existence of prima facie case does not ipso facto justify the grant of interim 

relief. An interim relief will not be granted even though the seeker thereof 

might have an unbeatable/invincible prima facie case, if the other 

ingredients are not satisfied.  

LPA Nos.30/2014 & 31/2014                       Page 25 of 32

 

21. There is another aspect of the matter.  The impugned orders concern 

education which is largely a policy decision.  The settled position in law is 

that interference by the Courts in academic/educational matters even at the 

final stage lest at interim stage is minimal.  The Supreme Court recently in 

All India Council for Technical Education Vs. Surinder Kumar Dhawan 

(2009) 11 SCC 726 reiterated that the Courts are neither equipped nor have 

academic or technical backgrounds to take decisions in academic matters 

and if the Courts start doing the same, it will lead to chaos in education.  It 

was further held that if it is a question of educational policy or an issue 

involving academic matters, the Courts should keep their hands off.  It was 

yet further held that the Court should be extremely reluctant to substitute its 

own views as to what is wise, prudent and proper in relation to academic 

matters in preference to those formulated by the persons authorized to do so 

and that the Courts cannot interfere with policy either on the ground that it 

is erroneous or on the ground that a better, fairer or wiser alternative is 

available; legality of the policy, and not the wisdom or soundness of the 

policy, is the subject of judicial review.  Similarly, in University Grants 

Commission Vs. Neha Anil Bobde (2013) 10 SCC 519 it was held that in 

academic matters, unless there is clear violation of statutory provisions, 

LPA Nos.30/2014 & 31/2014                       Page 26 of 32

 

regulations or notification issued, Courts should not interfere.   

22. Applying the aforesaid principles, it is not the case of the appellants 

that the Hon‟ble Lt. Governor was not authorized to issue the impugned 

orders.  Merely because the Hon‟ble Lt. Governor a few days prior to 

issuing the impugned orders felt that any decision in this respect should 

await the formation of the government, does not take away from his power 

to issue such an order.  Section 16(3) of the School Act prescribes that 

admission to a recognized school shall be regulated by rules made in that 

behalf.  Rule 145(1) provides that the head of recognized unaided school 

shall regulate admissions thereto either on the basis of admission test or on 

the basis of result.  Though the schools on an earlier occasion as aforesaid, 

challenged interference in their admission process but unsuccessfully and 

which led to the issuance of the Admission Order 2007.  The schools though 

today wanting to retain/continue the said Admission Order unsuccessfully 

challenged the same also till the Supreme Court. This is a classic example of 

“Mind wants change every time but it is unwilling to change any time” 

Thus, it is no longer res integra that the admission to recognized schools 

can be regulated as was done by the Admission Order 2007.  There may 

have been certain more play/freedom given to the schools under the said 

LPA Nos.30/2014 & 31/2014                       Page 27 of 32

 

Admission Order than is available under the impugned orders.  However, 

the same does not take away from the legal position that the respondents are 

under the School Act and Rules authorized and empowered to regulate 

admissions to the school.       

23. It has also not been argued by the counsel for the appellants that 

consultation with the Delhi School Advisory Board though statutory is 

mandatory before issuance of such an order.  Thus, merely because the 

impugned orders do not record the same to be in consultation with the said 

Board, cannot also be a ground at least at this stage to stay the operation 

thereof. 

24. We have also enquired from the senior counsels for the appellants as 

to how deprivation for admission through the Management Quota causes 

loss to the schools.  The schools are not entitled to charge any capitation fee 

or any excess amount from the students admitted through the Management 

Quota also.  Though Management Quota has been recognized in several 

judgments but in relation to admission to professional courses, where merit 

is a criteria.  It is not so here.  We are thus not satisfied of any loss lest 

irreparable loss to the appellants from being denied admission to 20% of the 

seats through Management Quota also.   

LPA Nos.30/2014 & 31/2014                       Page 28 of 32

 

25. We had during the hearing enquired from the senior counsel for the 

respondents, whether not the emphasis on neighbourhood is likely to lead to 

the applicants with the same points being much more than the seats 

available and how the admission would be governed then.  The senior 

counsel replied that the same will then have to be on the basis of lottery. 

26. Though the senior counsels for the appellants, upon it being pointed 

out that the paragraphs relied upon of Modern School supra, are of the 

minority view, withdrew reliance on the said judgment but we may notice 

that the majority view in the said judgment also held that a balance has to be 

struck between autonomy of schools and measures to prevent 

commercialisation of education. The impugned orders appear to be a step in 

that direction. The Supreme Court in para 61 of the majority judgment in 

T.M.A. Pai Foundation supra has also observed that in schools, there is no 

merit based selection.  

27. We may notice that Chapter XII of the School Rules containing Rules 

131 to 145 deals with admission to recognized schools. Though Sub-rule (1) 

of Rule 145 provides that the head of every recognized unaided school shall 

regulate admissions thereto but Sub-rule (2) thereof makes the Rules 131 to 

144 providing for admission to aided schools, applicable to unaided schools 

LPA Nos.30/2014 & 31/2014                       Page 29 of 32

 

also subject to the provisions of Sub-rule (1).  Rule 134 provides for 

admissions to be without any distinction of religion, race, caste, place of 

birth or any of them and Rule 144 enables the Director to issue instructions 

with regard to any mater not covered by any Chapter relating to admissions.  

The said two Rules appear to be not inconsistent to Sub-rule (1) of Rule 145 

and to be thus applicable to recognized unaided schools also.  Again prima 

facie, it appears that while the Admission Order 2007 contained the 

possibility of the school making distinction in the matter of admission, on 

the grounds prohibited under Rule 134, the amendments thereto prevent the 

possibility of such distinction/discrimination.  Similarly, it appears that the 

DoE is empowered to issue instructions to unaided schools also relating to 

admissions thereto. 

28. We therefore are of the view that the appellants have not been able to 

satisfy us of any irreparable loss and injury to them from the non-grant of 

the interim order sought.  

29. We are further in agreement with the learned Single Judge that any 

interference at this stage would create confusion and would be detrimental 

to the interests of children as well as parents of the wards who are seeking 

admission.  Significantly, the impugned orders are not challenged by the 

LPA Nos.30/2014 & 31/2014                       Page 30 of 32

 

parents who appear to have welcomed the same.  As aforesaid, the process 

for admission to the said schools has already been delayed and the date 

fixed of 15

th

 January, 2014 for commencement thereof for the current 

academic year has also passed.  Though the counsels for the appellants have 

argued that the writ petitions thus can be disposed of within a month‟s time 

but the said argument loses sight of the history of such litigations which are 

known to have on each aspect travelled upto the Supreme Court.  Notice can 

be taken of the fact that though residences in Delhi are spread over the NCR 

region but the School Act and the Rules are applicable only to the Schools 

in Delhi and not to the schools in the areas of NCR situated in the State of 

Uttar Pradesh and Haryana.  Notice can also be taken of the fact that the 

number of admission seekers is much more than the seats available in the 

schools.  The same leads to elaborate planning on the part of the parents of 

the children, for arranging for admission if not got in one school into 

another and any uncertainty in the rules of admission is likely to cause grave 

prejudice to the parents‟ body.  We are thus of the opinion that the interim 

relief sought by the appellants does not pass the anvil of the fourth 

ingredient of public interest also. 

30. Though undoubtedly the Hon‟ble Lt. Governor issued the impugned 

LPA Nos.30/2014 & 31/2014                       Page 31 of 32

 

orders without waiting for formation of the new GNCTD but the GNCTD, 

by defending the challenge to the impugned orders, has shown its support 

therefor. 

31.   We reiterate that we have had to give the aforesaid detailed reasoning 

only for the detailed arguments addressed before us even though in the 

absence of the counter affidavit of the respondents and we thus clarify that 

any observation herein would have no bearing on the final adjudication of 

the matter.  

32.  There is no merit in these appeals, which are dismissed.  No costs. 

33. During the pendency of these appeals, the process of admissions was 

kept in abeyance. The GNCTD to now forthwith notify the new date for 

commencement of admission process.  

 CHIEF JUSTICE     

       RAJIV SAHAI ENDLAW, J.

              

JANUARY 20, 2014

Bs. 

 

LPA Nos.30/2014 & 31/2014                       Page 32 of 32

 

 

Vineet Kumar
on 21 January 2014
Published in Others
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