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In a major setback to unaided private schools, the Delhi high court on Monday refused to stay new nursery admission guidelines, saying any interference will prove "detrimental" to the interests of children and ordered Delhi government to immediately notify new dates of admission.
The bench, headed by Chief Justice N V Ramana, said the private schools have not been able to "satisfy" it that not granting stay on the guidelines was harming them.
It ordered the Delhi government to "forthwith" notify the new date for commencement of admission process, which was to begin on January 15. "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.
"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," the bench, also comprising Justice Rajiv Sahai Endlaw, said.
Action Committee Unaided Recognised Private Schools and Forum for Promotion of Quality Education for All, the bodies which represented almost all recognised private schools in Delhi, had moved the larger bench after a single judge refused to stay the nursery admission guidelines, 2014-15.
The lieutenant governor, on December 18 and 27, had issued the guidelines by which various steps including weightage to neighbourhood kids and abolition of 20 per cent management quota were taken.
The bench, in its 32-page judgement, rejected schools' plea against scrapping of contentious management quota also. "We have also enquired from the senior counsels for the appellants (schools) 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 management quota also.
"Though management quota has been recognised 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 per cent of the seats through management quota also," it said.
The bench, however, said its verdict was on the issue of grant of interim relief and the larger issues such as autonomy of unaided private schools and power of Delhi government to regulate the admission process will be decided by the single judge bench and hence, its observations will have no bearing on that proceeding.
"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," Justice Ramana, writing the judgement for the bench, said.
It also considered the fact that the guidelines have been challenged by the schools only and one of the affected parties, the parents, have "welcomed the same".
The bench rejected the plea that it should decide the entire issue within a month and in the meantime, the admission process be kept at abeyance, saying "... the process for admission to the said schools has already been delayed..."
"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 traveled up to the Supreme Court...," it said.
"... 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," it said.
The bench rejected the plea that it should decide the entire issue within a month and in the meantime, the admission process be kept at abeyance, saying "... the process for admission to the said schools has already been delayed..."
"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 traveled up to the Supreme Court...," it said.
"... 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," it said.
The bench said the private schools could not satisfy it as to how the non-grant of stay will affect their rights in the backdrop of the fact that either one or another kid will get the admission.
"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," it said.
“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 said.
The bench said instead of schools, the children, who are eligible for admission according to the new guidelines, will suffer as they will not be seeking entry in the next academic session.
Citing various apex court verdicts, it said the education was primarily a policy decision and ordinarily, the courts should avoid venturing into this domain.
"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," it said.
The guidelines outlined many criteria including the neighbourhood criteria, which seeks schools to give preference to children living within a radius of 6 km from school, has been given maximum weightage with 70 points out of 100 in open category seats. Later, the LG enhanced the criteria to 8 km.
Besides these, the applicants who have sibling studying in the same school will get 20 points and five points will be added by default in the application of girls and wards of school alumni.