Supreme Court Stays HC Direction That Delhi Private Schools Must Fill Up Backlog EWS Seats In Next 5 Yrs

Considering that the High Court had sought a compliance affidavit from the Government of NCT of Delhi and fixed the next date of hearing as 04.08.2022, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh was beseeched to stay the proceedings. Accordingly, while issuing notice and staying the operation of the impugned order, the Bench also stayed further proceedings before the High Court.

"Issue Notice. Stay of operation of impugned order as well as stay of proceedings. Counter Affidavit to be filed within 2 weeks. Rejoinder, if any to be filed within 2 weeks thereafter. List on 01.09. 2022."

By its order dated 26.05.2022, a Division Bench of Justices Najmi Waziri and Vikas Mahajan had, inter alia, directed the EWS seats in private schools, both on private and government lands, to be filled-up in the next five years in a phased manner; i.e., 20% of the vacancies each year, in addition to the mandated annual 25% intake. It also asked the Delhi Government to ensure that the 25% EWS seats be filled up on the basis of declared sanctioned strength at the entry level, irrespective of the actual number of students admitted in the General category.

The order was passed by the Division Bench of the High Court after the Standing Counsel for Delhi Government had submitted that 132 private schools were prima facie found to be violating Government orders regarding admission of students in the EWS category.

On Tuesday, Senior Advocate, Shyam Divan appearing on behalf of the petitioner apprised the Bench that the order was passed in a Letter Patent Appeal, at the behest of a person who was not a party before the Single Judge. He submitted -

"The matter is - in the petition, which is an LPA, the appellant was not a party before the Single Judge."

Curious, Justice Kaul enquired -

"How does the appeal come about?"

Mr. Divan informed the Bench that a limited notice was issued in the Letter Patent appeal. He emphasised that from a limited notice, an extensive order with such far-reaching consequences has now been passed by the Division Bench of the High Court,.

"A limited notice was issued. From that notice, this order comes. The effect is they have started de-recognising schools, issuing FIRs."

Justice Kaul was not satisfied how the appellant, who was not a party before the Single Judge, could have intervened at the stage of Letter Patent Appeal.

"There may be a problem regarding filling up seats. But who are you to come before the Division Bench?"

Justice Kaul expressed concern that the High Court has treated the Letter Patents Appeal (LPA) proceedings like a Public Interest Litigation (PIL) and passed the impugned order -

"How can a Court in LPA, pass an order in the nature of PIL?"

He added -

"My conscience is shocked by this order (High Court order), that is all."

[Case Title: Venkateshwar Global School v. Justice For All And Ors. SLP(C) No. 11264/2022]

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