* 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
