"Proceedings shocking:" Supreme Court stays Delhi High Court order to fill up unoccupied EWS seats within 5 years

The Supreme Court on Tuesday stayed a recent Delhi High Court order directing the State government to ensure that unfilled seats for Economically Weaker Sections (EWS) have to be filled up within the next five years in a phased manner [Venkateshwar Global School and ors vs Justice for All and ors]..A Bench of Justices Sanjay Kishan Kaul and MM Sundresh took note of counsel's submissions that the High Court's interim order came to be passed a challenge which was limited to the cut-off date for EWS admissions.After orally observing the proceedings before the High Court in this regard were 'shocking', the top court stayed the order, and issued notice in the matter. The matter will be taken up next on September 1..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 Court 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..Challenging the High Court order before the top court, counsel for the petitioners Senior Advocate Shyam Divan submitted that a burden was being created on private unaided schools, and their recognition was being taken away for not being able to comply with the High Court directions. 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 Bench 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."In fact, the order refers to backlog of unfilled seats, which in reality does not exist and on notional basis of EWS admissions being on the basis of declared strength, the same is being conjured for the past 10 years or so and is to be filled in a phased manner over the next 5 years @ 20% each year. These directions are dehors the provisions of Act of 2009," the appeal said.Pertinently, the plea stated that the Delhi Department of Educations's insistence to fill up EWS-category students as per declared vacancies has resulted in the said quota going beyond the 25 per cent strength prescribed by the RTE Act. Further, it is common knowledge that not all general category seats are filled up. "DoE is pushing the populist agenda of local government and is forcing the schools to take admissions beyond the mandate of 25% of the strength of that class under S.12(1)(c) of RTE Act, 2009, by giving its own fanciful interpretation to the plain unambiguous provisions of the Act and insisting that 25% of the EWS/DG category seats have to be filled by the private unaided recognised schools as per the declared strength of entry level class", it was contended.