Supreme Court sets aside Delhi High Court order to fill up vacant EWS seats in private schools in 5 years

The Supreme Court recently set aside directions of the Delhi High Court ordering the State government to ensure that unfilled seats for Economically Weaker Sections (EWS) are filled up within the next five years in a phased manner [Venkateshwar Global School and ors vs Justice for All and ors]..In an order passed on September 1, a Bench of Justices Sanjay Kishan Kaul and AS Oka noted that the issue of whether 25 per cent of EWS seats are to be filled on the basis of declared sanctioned strength or actual admissions, cannot form subject matter of an interim order."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 Court said.The final call will have to be taken in the main matter in the present case before the High Court, which cannot be the basis of any interim relief, the Bench made it clear.Therefore, the High Court direction that the backlog of unfilled seats in private schools, both on private and government lands, is to filled up in the next five years in a phased manner, was set aside by the apex court..A division bench of Justices Najmi Waziri and Vikas Mahajan of the Delhi High Court had in June this year ordered that in cases where schools, both on private and government lands, do not adhere to the admission conditions for EWS category students, the government has to step in by exercising it's duty as a welfare state.The order was passed by the High Court after taking into consideration the Delhi government's statement that more than 132 private schools were in violation of admission requirements with respect to the EWS category and that notices in this regard had been issued to them.Further, the Delhi government had said that seats in the EWS category are to be filled up to the fullest at the “entry level” but some of the schools had not been admitting EWS students for the last decade or so.The High Court had noted that under the EWS category: (i) the private schools on private land have to admit 25 per cent students in the EWS category for which the re- payment of fees, etc. is done on the basis of expenses incurred for a student of a government school; (ii) private schools on government land too have to admit 25 per cent EWS category students at the entry level.However, it was also observed that reimbursement by the government is to be done for only 5 percent students of this category and that the educational expenses of the remaining 20 percent EWS candidates fall under the obligation of the private schools because this is the condition for allotment of government land to them.The High Court had ordered that, in such circumstances, 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 per cent of the vacancies each year, in addition to the mandated annual 25 per cent intake.The High Court had also directed the State to ensure that 25 percent seats in the EWS category students are 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..This led to the appeal before the top court. In their plea filed through advocate Gaurav Kejriwal, the petitioners submitted that the High Court had issued directions on an issue which was not even the subject matter of the appeal.The High Court had overruled an earlier single-judge decision in The Sovereign School vs Directorate of Education, which was not even challenged before Division Bench, the plea pointed out.Moreover, the direction to fill up EWS seats at the entry level of students (that is, the full strength at nursery classes) on the basis of declared sanctioned strength irrespective of general-category strength is not supported by any proviso of the Right to Education Act, the plea said.It is common knowledge that not all general category seats are filled up, the plea pointed out.The Supreme Court had, on July 19, stayed the Delhi High Court order.In its order passed on September 1, the top court said that interim directions by the High Court were not tenable and could not have been issued. "We are unable to appreciate how clause 4 of the impugned order dated 26.05.2022 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," the top court stated.It, therefore, set aside the directions contained in paragraphs 4 and 5 of the High Court's order..Advocates Pramod Gupta, Gaurav Kejriwal, Kamal Gupta, Harshvardhan Jha, Sparsh Aggarwal, Aman Pathak, and Yugandhara Pawar Jha appeared for the petitioners. Advocates Santosh Kumar Tripathi, Khagesh B Jha, Shikha Sharma Bagga, Mohini Priya, Niranjana Singh, Somyashree, and Sarvshree represented the respondents. [Read order]