Full Judgment Text
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 927/2024 & C.M.Nos.53680-81/2024
BABY AAYAT (MINOR) THROUGH HER MOTHER MS.
TANZEEM KHAN .....Appellant
Through: Ms. Monisha Handa, Advocate
(DHCLSC).
versus
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI& ANR .....Respondents
Through: Mr. Divyam Nandrajog, Panel
Counsel, GNCTD and Mr. Aman
Wasan, Advocates for R-1 with Mr. B
K Sharma, DDE (Zone 4) and Mr. A
K Goswami, LA (Zone 4).
th
% Date of Decision: 13 September, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
th
1. Present appeal has been filed challenging the order dated 30 August,
2024 passed by the learned Single Judge in W.P. (C) 10649/2024 titled
“Baby Aayat (Minor) Through Mother Ms. Tanzeem Khan vs. Government
of National Capital Territory of Delhi” , whereby the learned Single Judge
held that the appellant should not be allowed to misuse the policy drafted for
economically weaker or disadvantaged groups by filing income certificates
Signature Not Verified
LPA No. 927/2024
Page 1 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39
of the relatives, only for the purpose of being covered under EWS/DG
category.
2. Ms. Monisha Handa, learned counsel for the appellant states that the
appellant is about six (6) years of age. The present appeal has been preferred
by the appellant, through her mother. She further states that the respondent
th
no.1 issued Circular dated 24 April, 2024 inviting admissions into the
EWS/DG/CWSM in Private Unaided Recognized Schools at the entry level
classes. Learned counsel for the appellant submits that respondent no.2 is a
private school and by way of a computerized draw of lots, the appellant was
allotted the respondent no.2/school for the academic year 2024-2025. She
further contends that since the Food Security Card has not been issued in the
name of the parents of the child but in the name of the grandmother, the
respondent no.2/school has refused to grant admission to the appellant.
Aggrieved, the appellant filed the underlying writ petition seeking admission
in class I under EWS/DG category for the academic session 2024-25 in the
respondent no.2/school. The learned Single Judge dismissed the underlying
writ petition by directing the appellant and her parents to apply afresh for the
draw of lots for securing admission under EWS/DG category, in future.
Hence, the appellant, through her mother has filed the present appeal.
3. Learned counsel for the appellant submits that on account of there
th
being an ambiguity in the Circular dated 24 April, 2024 issued by the
respondent no.1, grandchildren of EWS/DG category are being deprived of
their rightful entitlement. She states that the Circular does not place any
embargo upon the Food Security Card holder, being the grandparent of the
candidate, to seek admission under the EWS/DG category. According to her,
the said assumption has no legal or factual basis. She states that the
Signature Not Verified
LPA No. 927/2024
Page 2 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39
confusion or ambiguity in the said Circular cannot be construed to deprive
the appellant from right to education and admission under the EWS
category. She also states that keeping in view the provisions of the Right to
Education Act, 2009, the ambiguity, if any, has to necessarily be interpreted
and inferred in favour of the appellant. Since the respondent no.1 has
already allotted admission in EWS category to the appellant in respondent
no.2/school, the said school could not have deprived the appellant from such
allotment on the ground that the policy does not envisage grandparents as
eligible to seek admission in the EWS category for their grandchildren.
4. She also states that during the pendency of the underlying writ
petition the father of the appellant had obtained the income certificate which
may be considered even now at this stage for the purpose of entitling the
appellant for admission under the EWS category to the respondent
no.2/school.
5. Per contra , Mr. Divyam Nandrajog, learned counsel (GNCTD) for the
respondent no.1 states that the present appeal has become infructuous on
account of the said seat having been allotted to another student belonging to
the EWS category. He states that the policy does not envisage grandparents
as persons who would be entitled to seek admission in the EWS/DG
category for their grandchildren. Though he admits that there could be a
possibility of ambiguity in the terms of the policy, yet, he states that the fact
that only parents of the child are recognized under the said policy is not
doubted. On that basis, he states that the present appeal be dismissed.
6. This Court has heard the arguments of learned counsel for the
appellant and the respondent no.1 and examined the impugned judgement.
7. Having perused the impugned judgement, it would be appropriate to
Signature Not Verified
LPA No. 927/2024
Page 3 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39
extract para 11 thereof to appreciate that the learned Single Judge had infact
tested the terms and conditions prescribed in the relevant notification no.
th
15(172)/DE/Act/2010, dated 7 January, 2011, which is reproduced as
under:-
“11. In this regard, it will be important to note that as per Clause 6 of
Notification No. 15(172)/DE/Act/2010 dated 07.01.2011, the documents
required for seeking admission for EWS/DG category are as under:
“…(a) For the admission of child belonging to weaker sections
Income-Certificate issued by a revenue officer not below the rank of
Tehsildar or BPL Ration Card (yellow coloured) or AAY Ration
Card (Pink coloured) shall be considered as proof of income :
Provided that the parents of the child belonging to weaker section
shall submit a self-declaration of annual income on an affidavit every
year for continuation of free seat in the school once admitted against
free seat. However, no student shall be expelled or debarred from the
school in case of non-submission of above mentioned documents
without the prior approval of Director (Education), Dte. of Education,
GNCTD.
(b) For the admission of child belonging to disadvantaged group a
certificate issued by a revenue officer not below the rank of Tehsildar
or any other competent authority, in the name of child or his/her
parents shall be considered
(c) The school shall not consider any other document except any one
of the following documents, as proof of residence: -
(i) Ration card issued in the name of parents
(mother/father having name of the child)
(ii) Domicile certificate of child or of his/her parents.
(iii) Voter I-card of any of the parents
(iv) Electricity bill/MTNL telephone bill/water bill/Passport in the
name of any of the parents or child...”
8. Apart from the aforesaid, this Court also finds that the learned Single
th
Judge had also examined and considered the terms of the Circular dated 24
April, 2024 issued by the respondent no.1, which stipulated the nature of
documents to be submitted by the parents of the candidate. After having
th
examined the policy as also the Circular dated 24 April 2024, learned
Single Judge concluded that the policies refer only to the parents of the
Signature Not Verified
LPA No. 927/2024
Page 4 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39
candidate and not the grandparents. Learned Single Judge had also taken
into consideration that in case the interpretation as projected by the appellant
is agreed to, the same would lead to absurd results. In that, the possibility of
the misuse of the said provision could not be checked nor controlled.
th
9. This Court too has scrutinized the clauses in the notification dated 7
January, 2011 which makes it apparent that the conditions stipulated therein
th
refer only to the parents. The examination of the Circular dated 24 April,
2024, brings to fore the mandatory direction of submission of Aadhaar Card
of parent/legal guardian only. Apart from that there is no reference to
grandparents anywhere in the said notification too. In view of the clear
th
mandate of the notification dated 7 January, 2011 and the Circular dated
th
24 April, 2024, this Court is unable to appreciate as to on what grounds the
appellant is predicating her entitlement on the basis Food Security Card
issued in favour of the grandmother. It is trite that what is not specified
cannot be inferred in a policy document nor can the cassus omissus be
supplied by a Court. The law in this regard has been authoritatively
pronounced by the Supreme Court in Commissioner of Sales Tax, U.P.,
Lucknow vs. Parson Tools and Plants, Kanpur , (1975) 4 SCC 22 which is
reproduced as under:-
“16. If the legislature wilfully omits to incorporate something of an
analogous law in a subsequent statute, or even if there is a casus omissus
in a statute, the language of which is otherwise plain and unambiguous,
the Court is not competent to supply the omission by engrafting on it or
introducing in it, under the guise of interpretation, by analogy or
implication, something what it thinks to be a general principle of justice
and equity. To do so “would be entrenching upon the preserves of
6
legislature” , the primary function of a Court of law being jus dicere and
not jus dare.”
10. So far as the arguments regarding procurement of income certificate
Signature Not Verified
LPA No. 927/2024
Page 5 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39
by the father of the appellant during the pendency of the underlying writ
petition and the same being a document to be considered for admission is
concerned, the said submission cannot be entertained at this stage. It has
been informed to this Court by learned counsel for respondent no.1 that the
seat reserved for the appellant under the interim orders of the learned Single
Judge, has already been allotted to another candidate belonging to the
EWS/DG category. Since the said EWS/DG category seat has been allotted
to another candidate belonging to the same category, at this stage to pass any
orders in favour of the appellant would result in deprivation of a right to
another candidate of the same category. This would not only be unfair but
also unjust. This Court cannot countenance such situation. Accordingly, the
said submission is also rejected.
11. For the aforesaid reasons, present appeal along with the applications
is dismissed.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J
SEPTEMBER 13, 2024/ rl
Signature Not Verified
LPA No. 927/2024
Page 6 of 6
Digitally Signed
By:MADHU SARDANA
Signing Date:17.09.2024
16:34:39