Supreme Court Sets Aside HC Direction That Delhi Private Schools Must Fill Up Backlog EWS Seats Within 5 Years

Deepankar Malviya

7 Sept 2022 10:17 AM IST

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Supreme Court Sets Aside HC Direction That Delhi Private Schools Must Fill Up Backlog EWS Seats Within 5 Years

The Supreme Court on September 1 set aside the order of the Delhi High Court that private schools should fill up the backlog seats of Economically Weaker Section (EWS) in the next five years in a phased manner(Venkateshwar Global School versus Justice For All).Further, the Supreme Court also set aside the High Court direction that the 25% EWS category students shall be filled up on the basis...

Further, the Supreme Court also set aside the High Court direction that the 25% EWS category students shall be filled up on the basis of declared sanctioned strength at the entry level(Pre-school/Nursery/Pre-Primary/KG and class 1), irrespective of the actual number of students admitted in the General Category.

As regards the first direction of the High Court, a bench comprising Justices Sanjay Kishan Kaul and Justice Abhay S Oka wondered how it will be workable. Regarding the second direction, the bench observed that the High Court could not have passed the direction at an interim stage when the very same issue was the subject matter of the case.

"We are unable to appreciate how clause 4 of the impugned order dated 26.05.2022(clause 4 contained the direction to fill up backlog EWS seats) can be worked out even if the schools are at default for the earlier period of years as the same cannot be compensated in this manner by an interim order.

Similarly, the issued which has been examined by the Court is whether the 25% of seats in EWS category is being filled up on the basis of the declared sanctioned strength or actual admissions and we do believe that this cannot form subject matter of an interim order".

The Apex Court set aside the impugned order qua directions contained in paragraphs 4 and 5.

Paragraph 4 of the High Court order stated as follows :

"every endeavour shall be made by the State to ensure that the backlog of unfilled seats in private schools, both on private and government lands, is 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".

Paragraph 5 of the HC order stated as follows

"The State shall ensure that the 25% seats in the EWS category students shall be filled up on the basis of declared sanctioned strength at the entry level (Pre-school/Nursery/ Pre-primary/KG and Class-I), irrespective of the actual number of students admitted in the General category"

The Supreme Court was considering special leave petitions filed against the interim order passed by a division bench of the High Court on May 26. The order was earlier stayed by the Supreme Court on July 19.

The Delhi High Court bench comprising of Justice Najmi Waziri and Justice Vikas Mahajan heard a matter where the standing Counsel for the Government of NCT Delhi submitted that 132 private schools were found to be violating the directions of the Government regarding the admission of the students in the EWS Category. It was the stand of the Government that the seats in the EWS Category were to be fulfilled upto the fullest at the entry level which was not being done by some of the schools at the for the last decade.

The Delhi High Court had observed that the private schools on private lands have to admit 25% students in the EWS Category for which the repayment of the fees is done on the basis of the expenses incurred for a student of a government school. The Court also observed that private schools on government land too have to admit 25% EWS category students, however reimbursement by the GNCTD was to be done for only 5% of the students, expenses of the remaining 20% is the obligation of the private schools as condition of allotment of land.

The High Court had directed that where the schools have not complied with the requirements of the admission the States would have to step in and provide aid. The Court directed that the State should make every endeavour to ensure that the backlog is filled within the next five year in a phased manner, i.e., 20% vacancies to be filled each year in addition to the 25%. The Court further directed that the State shall ensure that 25% seats in the EWS category students shall be filled on the basis of declared sanctioned strength irrespective of number of students admitted in General Category.

The Supreme Court did not appreciate the order passed by the Delhi High Court at the interim stage. Disposing of the SLPs, the Court stated as follows :

"We are thus of the view that the final call will have to be taken in the main matter and it cannot be a subject matter of the nature of interim relief as granted.

The result of the aforesaid is we set aside the impugned order qua directions contained in paragraphs 4 and 5, leaving the parties to bear their own costs.

The Court is free to take appropriate view in the main matter"

Under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), inclusion of EWS children in private schools is mandated by Section 12(1)(c) of the Act. As per this provision, 25% of seats are reserved for EWS children at entry level in all affiliated private schools. The expenses are to be borne by the government.

Case Title : Venkateshwar Global School versus Justice For All SLP(C) 11264/2022

Click here to read/download the order

Supreme Court Sets Aside HC Direction That Delhi Private Schools Must Fill Up Backlog EWS Seats Within 5 Years

Deepankar Malviya

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