Master Singham Vs Directorate of Education (Delhi High Court)
Delhi High Court imposed heavy cost for obtaining admission under Economically Weaker Sections (EWS) category by illicit means. Further, directed to convert the admission under the General Category in place of EWS category.
Facts- The petitioner in the instant case is a minor student whose father, on 08.01.2013, got the requisite income certificate issued by the Tehsildar in the office of the Deputy Commissioner (New Delhi District) to secure admission for his son in Sanskriti School, New Delhi. The said certificate assessed the annual income of the petitioner’s father to be Rs. 67, 200/- from all sources.
The petitioner got admitted in respondent no.2-School in 2013, availing the quota for EWS based on the aforementioned income certificate of his father.
After admission, the petitioner continued to study in respondent no.2-School as an EWS category candidate without any difficulty till 2018. However, the controversy began on 03.01.2018, when the father of the petitioner wrote letters to the Principal of respondent no.2-School along with the admission form of the sibling of the petitioner, seeking alteration in the category of petitioner from EWS to General category and change in address of the petitioner’s residence. Since the said letter raised the eyebrows of respondent no.2-School, it was forwarded to respondent no.1-Directorate of Education (hereinafter as ‘DOE’) and accordingly, enquiry from the District Magistrate, Jamnagar House, Delhi (DM, Jamnagar) about the income certificate of the father of the petitioner was directed. The DM, Jamnagar and SDM, M.B. Road, Saket, Delhi, vide letters dated 21.02.2018 and 07.03.2018, respectively, conveyed to respondent no.1-DOE that the said income certificate is found to have been issued by the office.
On 31.03.2018, the order was passed by respondent no.1-DOE, whereby, the petitioner’s admission was cancelled for the first time. On the basis of report of District Magistrate, New Delhi and Investigation report of DCP (South), it was concluded that date of birth certificate of the petitioner was fraudulently obtained as the petitioner was born seven months before date of birth mentioned in the certificate submitted at the time of securing admission in respondent no.2-School.
The said report also suggests that the income certificate was obtained by misrepresentation of the actual income by the petitioner’s father, whereby, he declared his total income from all the sources as Rs. 67,200/-. On the contrary, the report of the DCP (South) shows that the self-declared income as per Income Tax Returns (ITR) of the petitioner’s father for the year 2012-13 himself alone was Rs. 4,23,850/-.
Conclusion- Held that the petitioner is not at fault in the whole saga. It is the father of the petitioner who perpetuated the misdeeds for which the petitioner should not be made to suffer at this belated stage, precisely when the petitioner has been continuing his studies since 2013. Therefore, in the peculiar facts and circumstances of the present case, this court directs that the admission of the petitioner in respondent no.2-School shall remain undisturbed. However, the admission of the petitioner and his continued education hereinafter shall be recognized under the General Category in place of EWS category. The extant rules and regulations governing the admission of students belonging to General Category, including the payment of fees, shall apply hereinafter.
Held that heavy cost should be imposed in the instant case for obtaining admission under the EWS category by illicit means and depriving a deserving candidate. In view of the fact that nothing could be more unfortunate for a school-going child, at the stage of learning ethical and moral values, being made to suffer on account of the misdeeds of his father, only a sum amounting to the tune of Rs. 10,00,000/- (Rupees ten lacs only) is imposed as costs in lieu of the cancellation of the admission of the petitioner vide orders dated 09.02.2021 and 15.02.2021, and in lieu of continuation of the petitioner’s admission. Let the same be deposited with respondent no.2-School within six months of the passing of this judgment. The said amount be utilized by respondent no.2-School for aiding the needs of the children admitted in respondent no.2-School in EWS category, under intimation to respondent no.1-DOE.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. Satyam Vada, Dharmam Chara, which literally translates to „speak the truth, pursue righteousness‟, referenced from the Taittireeya Upanishad, reckons the conviction of the ancient education system of Bharat, wherein, the aforesaid exhortation was sermonized during the convocation ceremonies of disciples to sum up the objective of education. It is, undoubtedly, the pillars of truth which make the superstructure of education stand firm and tall. It is also a truism that nothing could refine and develop human intellect except vidya (education). In spiritual realm, it leads to liberation of self and in the mundane spheres, it encompasses a holistic growth and prosperity.
2. The exaltation of ethics and morality has invigorated education to bloom to its pinnacle and the education would lose its purpose if the said conditions were negated from it. In fact, it is the duty of an egalitarian society to march towards accessible education for all, guided by the tenets of morality. The pious fountain of education, therefore, must be reached out with utmost integrity and any surreptitious attempt to dislodge such piousness must be checked and corrected.
3. The present case, on the contrary, enunciates a harrowing tale of blatant subversion of a welfare scheme enacted for extending the benefit of quality education to the Economically Weaker Sections (EWS) of the society. The case at hand, reflects a tormenting state of affairs where the opulent class is putting in blood, sweat and tears to reap the benefits of EWS reservation at the expense of the economically marginalized candidates. A calculated attempt at subverting the cherished constitutional vision of education for all is under scrutiny in this case.
4. The Government of National Capital Territory of Delhi, with an objective of fulfilling the aspirations of students belonging to economically downtrodden sections of the society to attain quality education, in exercise of the powers conferred by Section 3(1) of the Delhi School Education Act, 1973 (18 of 1973) read with Rule 43 of the Delhi School Education Rules, 1973 under the provisions of the Right of Children to Free and Compulsory Education Act, 2009, passed an Order, namely Delhi School Education (Free seats for Students belonging to Economically Weaker Sections and Disadvantage Group) Order, 2011 (hereinafter as „2011 Order‟), providing free seats for such students. As per the 2011 Order, all the schools are required to admit children belonging to economically weaker section in class one to the extent of at least twenty-five percent of the strength of that class and provide free and compulsory elementary education till its completion.
5. Clause 2(c) of the said Order defines a child belonging to weaker section as the one whose parents have total annual income of less than one lakh rupees from all sources and who have been staying in Delhi for the last three years.
6. The petitioner in the instant case is a minor student whose father, on 08.01.2013, got the requisite income certificate issued by the Tehsildar in the office of the Deputy Commissioner (New Delhi District) to secure admission for his son in Sanskriti School, New Delhi. The said certificate assessed the annual income of the petitioner’s father to be Rs. 67, 200/- from all sources.
7. The facts of the case show that the petitioner got admitted in respondent no.2-School in 2013, availing the quota for EWS on the basis of the aforementioned income certificate of his father.
8. The domicile certificate dated 18.02.2012, issued by the Executive Magistrate in the office of the Deputy Commissioner (New Delhi District) and duly attested by a Judicial Member of the Customs, Excise and Service Tax Appellate Tribunal, was also submitted to show that the petitioner resided along with his parents in Sanjay Camp, Chanankya Puri, Delhi.
9. After admission, the petitioner continued to study in respondent no.2-School as an EWS category candidate without any difficulty till 2018. However, the controversy began on 03.01.2018, when the father of the petitioner wrote letters to the Principal of respondent no.2-School along with the admission form of the sibling of the petitioner, seeking alteration in the category of petitioner from EWS to General category and change in address of the petitioner’s residence. Since the said letter raised the eyebrows of respondent no.2-School, it was forwarded to respondent no.1-Directorate of Education (hereinafter as ‘DOE‘) and accordingly, enquiry from the District Magistrate, Jamnagar House, Delhi (DM, Jamnagar) about the income certificate of the father of the petitioner was directed. The DM, Jamnagar and SDM, M.B. Road, Saket, Delhi, vide letters dated 21.02.2018 and 07.03.2018, respectively, conveyed to respondent no.1-DOE that the said income certificate is found to have been issued by the office.
10. However, a complaint dated 15/16.03.2018 was filed by respondent no.2-School against the father of the petitioner in P.S. Chanakya Puri, on the ground that the copy of the Voter IDs produced by him was forged as it did not reflect the correct date of registration as a voter. While examining the veracity of the documents from the office of the Chief Electoral Officer, Kashmere Gate, it was found that the said Voter IDs were registered since 13.02.2018 and not on 13.02.2016. The said complaint was subsequently registered as an FIR bearing no. 0015/2018.
11. Pursuant to the FIR, a report was filed by the DM, Jamnagar on 27.03.2018 and sent to respondent no.1-DOE, which stated that on 22.03.2018, the SDM along with the Tehsildar and Civil Defence volunteers had gone for a visit at Sanjay Camp, Chanankyapuri, New Delhi. During the said visit, it recorded the statements of 10 residents who deposed that the family of the petitioner never stayed in the camp.
12. On 31.03.2018, the order was passed by respondent no.1-DOE, whereby, the petitioner‟s admission was cancelled for the first time. On the basis of the report of District Magistrate, New Delhi and Investigation report of DCP (South), it was concluded that the date of birth certificate of the petitioner was fraudulently obtained as the petitioner was born seven months before the date of birth mentioned in the certificate submitted at the time of securing admission in respondent no.2-School.
13. The said report also suggests that the income certificate was obtained by misrepresentation of the actual income by the petitioner’s father, whereby, he declared his total income from all the sources as Rs. 67,200/-. On the contrary, the report of the DCP (South) shows that the self-declared income as per Income Tax Returns (ITR) of the petitioner’s father for the year 2012-13 himself alone was Rs. 4,23,850/-.
14. It was also found that the father and the mother of the petitioner never resided at the Sanjay Camp, Chanakyapuri, New Delhi, as claimed during the time of the admission. On the basis of the enquiry report of SDM (Chanakyapuri), on 18.04.2018, the domicile certificate as well as the income certificate was declared to be null and void by the District Magistrate.
15. The petitioner, thereafter, preferred the first writ petition being W.P. (C) No. 6572/2018 against the cancellation of his admission vide order dated 31.03.2018, which was allowed on 02.07.2018 because no show cause notice was issued to the petitioner before passing the cancellation order. Subsequently, respondent no.1-DOE issued a show cause notice dated 20.07.2018 with a view to grant personal hearing, calling the father of the petitioner to explain as to why the admission of the petitioner should not be cancelled.
16. However, on 13.08.2018, respondent no.1-DOE, on the basis of status report obtained in the aforementioned FIR, once again cancelled the admission of the petitioner. This order was further assailed in the second writ petition filed by the petitioner being W.P. (C) 8791 of 2018 and the said writ petition was allowed on 07.01.2019, on the ground of the violation of principles of natural justice, without recording any comment on the merits of the case.
17. A show cause notice was, thereafter, issued on 24.01.2019, calling upon the father of the petitioner to explain as to why the admission of the petitioner should not be cancelled. In pursuance of the same, personal hearings in the form of meetings were arranged by respondent no.1-DOE on several occasions to enable the petitioner and his father to present their case.
18. The respondent no.1-DOE, after duly considering the submissions made by the petitioner‟s father in the aforesaid personal hearings, passed a detailed order on 09.02.2021, cancelling the admission of the petitioner. This order was communicated to the petitioner by respondent no.2-School vide letter dated 15.02.2021.
19. The petitioner, therefore, has filed the instant writ petition against the show cause notice dated 24.01.2019 and the resultant order dated 09.02.2021, both passed by respondent no.1-DOE, whereby, the admission of the petitioner has been cancelled by respondent no.2-School. The petitioner vide the instant petition is also challenging the letter issued by respondent no.2-School on 15.02.2021, wherein, in pursuance of the order passed by respondent no.1-DOE, the admission of the petitioner stands cancelled with effect from 31.03.2021.
SUBMISSIONS
20. Learned counsel appearing on behalf of the petitioner submits that the impugned order is passed in blatant violation of principles of natural justice as neither the petitioner nor his father were afforded an opportunity of effective hearing. He submits that the said order suffers from procedural impropriety inasmuch as the order of cancellation of the admission of the petitioner was passed by an authority which did not conduct the personal hearing. According to him, any authority which was not present at the time of hearing cannot pass an order without actually hearing the matter afresh.
21. He submits that the cancellation order in the present case would have been sustainable in the eyes of law, only if the successor officer had conducted a fresh proceeding in the matter. Learned counsel has placed reliance on the decision passed by the Hon‟ble Supreme Court in the cases of Automotive Tyre Manufacturers Association v. Designated Authority and Others1and Union of India v. Shiv Raj2, to submit that the said order is vitiated as it flagrantly violates the principles of natural justice.
22. Learned counsel for the petitioner submits that neither there was any just cause nor respondent no.1-DOE has the requisite jurisdiction to pass the impugned order. It is the case of the petitioner that under Section 3 of the Delhi School Education Act, 1973, Rule 26 of the Delhi Right of Children to Free and Compulsory Education Rules, 2011 read with Clause 10 of the Notification No. 15(172)/DE/Act/2010/69 dated 07.01.2011, there is no power bestowed upon respondent no.1-DOE to act upon the application of the petitioner and conduct an investigation of the nature in the impugned order.
23. He further tries to impress upon the fact that the income certificate of the petitioner’s father was duly issued by the concerned authority after the necessary verification was carried out by the bailiffs and therefore, there is no reason to assail the veracity of the same. He contends that once the genuineness of the said certificate has been corroborated by various Government offices, it is erroneous to cancel the admission of the petitioner on the ground of falsity of the said document.
24. Learned counsel further submits that, if the said allegation on the cancellation of the income certificate is based on the letter dated 18.04.2018 of the District Magistrate, New Delhi District, the said letter is flawed as it itself derives its conclusion from, inter alia the statement of the erstwhile SDM that the said certificate was issued only after due verification of the available documents.
25. It is also contended by the learned counsel that the falsity of the said income certificate cannot be established on the ground that the petitioner’s father undertook various travels outside India in the year 2012-13. According to him, all the alleged abroad trips were done in official capacity as a part of his employment and the expenses incurred during the concerned trips were borne by his employer.
26. Learned counsel further submits that the ITR was filed upto 31.03.2013, whereas, the income certificate was issued on 08.01.2013, which implies that the additional income of 3 months could not be taken into account by the concerned authority while issuing the income certificate. Since the petitioner’s father did not earn any taxable income for the financial years 2010-11 and 2011-12, he did not file any ITR during the same period. It is, therefore, submitted by the learned counsel for the petitioner that in the absence of any evidence to the contrary, it must be presumed that the income certificate was genuine and does not suffer from any illegality.
27. Learned counsel appearing on behalf of the petitioner, while referring to the domicile certificate of the petitioner, submits that the veracity of the said certificate cannot be repudiated on the basis of testimony of randomly chosen handful of people, when it was issued by a competent authority. According to him, the precedence must be given to the issuing public authority as against arbitrarily selected 10 persons. He further submits that, despite repeated requests were made to the concerned authority, no opportunity was afforded to the petitioner to cross-examine the said persons and thus, in the absence of any such reasonable opportunity, the genuineness of the domicile certificate cannot be assailed.
28. He also submits that a reasonable opportunity of hearing should have been allowed to the petitioner before cancelling his birth certificate. According to him, had the petitioner been called upon by the concerned authorities to present his explanation, he would have controverted the contents of the said birth certificate. It is, therefore, submitted by the learned counsel that the petitioner‟s admission was sought on legitimate grounds and there is no cogent reason for the respondents to cancel the same on the alleged commission of fraud.
29. Per contra, learned counsel appearing on behalf of the respondents vehemently oppose the submissions made by the learned counsel for the petitioner. Learned counsel for respondent no.1 -DOE, while relying on his counter affidavit, submits that the instant writ petition is based on false, fabricated and concocted statements and documents. According to him, due to the illegal and fraudulent act on the part of the petitioner’s father, respondent no.1-DOE was constrained to direct respondent no.2-School to declare that the admission of the petitioner was obtained by misrepresentation and is illegal and void ab initio.
30. He submits that the father of the petitioner has made a false and fraudulent self-declaration claiming his income to be Rs. 67,200/- per annum from all sources with an aim of obtaining the income certificate from the Revenue Department, whereas, his actual income for the said year is much higher than the said amount. He contends that the income certificate as well as the domicile certificate was obtained fraudulently through misrepresentation of facts and therefore, both the documents came to be cancelled vide orders dated 18.04.2018 and 07.05.2018 by the competent authorities.
31. Learned counsel for respondent no.1-DOE then takes this court through the affidavit dated 27.04.2023, filed on behalf of District Magistrate, New Delhi, to indicate that the income as well as the domicile certificate were duly cancelled by the competent authorities and based upon the same, the decision of cancellation of the petitioner’s admission was taken by respondent no.1-DOE. The relevant paragraphs of the said affidavit read as under:
“9. It is submitted that upon the request of Dy. Director (PSB) through letter no F.No.DE/PSB/2018/WPC1372/2018/22469 Dated 19.02.2018, District Magistrate, New Delhi District has sent verification report bearing no F.no: (1405)/SDM (Ch. Puri)/2017/1100-1101 dated 27.03.2018 to the Directorate of Education regarding Domicile Certificate and Income Certificate in respect of Mr. Gaurav Goyal. The copy of said report is hereby Annexure as “G”
10. It is submitted that after receiving of report from the relevant branches regarding not finding/traceable of application and relevant documents of Domicile and Income Certificates and on the basis of spot visit verification report conducted by MS. Ankita Anand, IAS, SDM (ChanakyaPuri]. On 07.05.2018 Sh. AshishShokeen, Executive Magistrate has cancelled the Domicile and Income Certificates of Mr. Gaurav. The copy of order dated 07.05.2018 is hereby Annexure as “H”.
11. It is submitted that the application and relevant documents filed by the petitioner for issuing the Domicile and Income Certificate could not be found/ Traceable after taking all the necessary steps.”
32. Learned counsel appearing on behalf of respondent no.2-School states that the petitioner had fraudulently secured the admission under EWS category through false disclosure of the income by his father and thus, the admission of the petitioner has been rightfully cancelled from the School. He submits that since the income certificate of the petitioner’s father, for the years spent by the petitioner in the school, does not correspond to the adequate eligibility for availing the benefits of EWS category, the admission of the petitioner is liable to be cancelled on this sole ground only.
33. He further contends that the petitioner has fraudulently received the education at the expense of a deserving candidate and has time and again agitated procedural grounds with an objective of prolonging the matter. According to him, by virtue of accepting the income mentioned in the impugned order dated 09.02.2021 as correct, the fraud has already been admitted by the petitioner vide order dated 13.09.2022 passed by this court. It is, therefore, submitted by the learned counsel that the impugned order must be upheld to prevent the evasion of fraud and misuse of the judicial process.
34. Learned counsel for respondent no.2-School further submits that the impugned order does not suffer from any factual or legal infirmity as the income of the petitioner’s father alone, as per the relevant ITRs handed over across the board on 13.09.2022, was well above the threshold amount of Rs.1,00,000/- from all sources, rendering the petitioner ineligible for admission in EWS category. He states that since the petitioner has candidly accepted the actual income in the aforesaid order, the facts and situation in the instant case are distinguishable from the facts of the previous writ petitions filed by the petitioner, where the wrongdoing on the part of the petitioner was never admitted. It is, thus, contended by respondents that they had the requisite and cogent material which reckoned that the petitioner forged the quintessential documents and engaged in egregious fraud to secure the admission in respondent no.2-School.
35. Learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the cases of Sartaj & Ors. v. State of U.P & Ors.3 and State of U.P. v. Sudhir Kumar Singh & Ors.4, to submit that when the facts are admitted or undisputed then, the court may not issue its writ to compel the observance of natural justice when it is futile and the said principle may only be applicable where the real prejudice is caused to the parties. It is, therefore, the case of the respondents that since the primary contention of the controversy at hand, i.e., the actual income of the petitioner’s father, is squarely admitted by the petitioner, there is no question of prejudice involved in the case which would warrant the petitioner to invoke the principles of natural justice to mitigate his grievance.
36. He further submits that even if it is presumed that the principles of natural justice are applicable in the facts and circumstances of the present case, the series of personal hearings granted to the father of the petitioner to present his case before passing of the impugned order would show that the petitioner has not been deprived of any effective hearing. With regard to the question of the competent authority to pass the impugned order, he submits that the Government departments undergo departmental rotation very commonly and if the hearing had to be restarted each time the shuffling of officers takes place, no decision would be arrived at.
37. Learned counsel, while contending that no prejudice is caused by the issuance of the order by a different officer from the one who held the initial meetings, has placed reliance on the decision of the Hon’ble Supreme Court in the case of Ossein and Gelatine Manufacturers’ Association of India v. Modi Alkalies and Chemicals Ltd. & Anr.5 and a decision passed by this court in W.P. 3642 of 2020 titled as Rhonpal Biotech Pvt. Ltd. v. New Delhi Municipal Council & Ors. to buttress his submissions.
38. Learned counsel for respondent no.2-School, while referring to Para C (ii) of the impugned order passed by respondent no.1 -DOE, indicates that when the verification of the documents was conducted, it was confirmed that the petitioner’s father had two PAN cards. Since the ITRs only pertain to one PAN card, in all probability, the actual income would not have been ascertained. As per respondents, it is highly implausible and far-fetched to assume that the income of the petitioner’s father had increased six times in the period of around three months, i.e., in the interregnum period when the income certificate was issued and the ITR was filed.
39. He further submits that the order dated 18.04.2018, issued by the District Magistrate, New Delhi District to the DCP, New Delhi District, declared the income certificate as null and void. The said order also states that the admission of the petitioner was based on gross misrepresentation of material facts. It is contended by the respondents that since the said order was never challenged by the petitioner, it has attained finality and it only bolsters the well-reasoned order passed by respondent no.1-DOE. He also submits that the plethora of certificates relied upon by the petitioner only attest the genuineness of the income certificate and since the income certificate itself is found to have been obtained fraudulently, none of the said certificates would advance the case of the petitioner.
40. According to him, the order of annulment of the domicile certificate has also not been challenged by the petitioner till date and in any case, the central dispute in the present case is the income certificate which has been illicitly used to obtain admission and therefore, all other documents are ancillary to the same.
41. I have heard the submissions made by learned counsel appearing on behalf of the parties and perused the record.
ISSUES
42. The questions which fall for consideration are delineated forthwith as:
I. Whether the petitioner obtained admission under EWS category in a mala fide manner and by engaging in egregious fraud or misrepresentation?
II. Whether the scope of Article 226 of the Constitution of India, being equitable and discretionary, warrants invocation in favour of the petitioner in the given facts and circumstances?
III. Whether the petitioner was afforded an effective hearing in congruity with the principles of natural justice, particularly the rule of audi alteram partem?
ANALYSIS
43. Before adverting to the above-framed issues for adjudication of the instant case, it is significant to trace the brief journey which led to the passage of 2011 Order. In the year 1993, the decision of the Hon‟ble Supreme Court in the case of Unnikrishnan JP v. State of Andhra Pradesh & Ors.6, recognized the Right to Education as a fundamental right flowing from Article 21 of the Constitution of India.
44. However, it was the 86th Constitutional Amendment brought in the year 2002, which led to the insertion of Article 21-A in the Constitution of India and paved the way for recognition of Right to Education as a fundamental right for the children between the age of 6 to 14 years. Pursuant to the said amendment, Right of Children to Free and Compulsory Education Act (hereinafter as „RTE Act‟) was passed in 2009, which came into effect on 1st April, 2010.
45. The RTE Act was enacted to realize the goal of free and compulsory education to all children of the age of six to fourteen years envisaged under Article 21-A of the Constitution of India. The Statement of Objects and Reasons of the RTE Bill, 2008 reads as under:
“The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State shall provide free and compulsory education to all children up to the age of fourteen years.
Over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education.
2. Article 21A, as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002, provides for free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such manner as the State may, by law, determine.
3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008, is proposed to be enacted which seeks to provide,—
(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;
(b) “compulsory education‟ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;
(c) “free education‟ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;
(b) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and
(e) a system for protection of the right of children and a decentralized grievance redressal mechanism.
4. The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.
5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged in article 21-A of the Constitution.
6. The Bill seeks to achieve this objective.”
46. Section 2(n) of the RTE Act defines „school’ as:
“(n) “school” means any recognised school imparting elementary education and includes—
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;”
47. Section 12 of the RTE Act deals with the extent of school’s responsibility for free and compulsory education including reservation of twenty-five percent seats for economically disadvantaged class, which reads as under:
“12. Extent of school’s responsibility for free and compulsory education.—
(1) For the purposes of this Act, a school,—
(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent. of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:
Provided that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.
(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:
Provided that such reimbursement shall not exceed per-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:
Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may ”
48. The legislative wisdom expressed in the RTE Act finds its source in the constitutional promise of equal opportunity for one and all. An expansive definition of “school” coupled with an unconditional promise of free and compulsory education indicate the pragmatic approach of the legislature. The RTE Act aims to create an equalizing effect so far as access to education is concerned, unaffected by the differences or barriers born out of economic weakness.
49. Further, Section 38 of the RTE Act equips the appropriate government to make rules for carrying out the provisions of the RTE Act. The Government of NCT of Delhi, which is the appropriate government in the present case, passed the 2011 Order to implement the provisions of the RTE Act.
50. The main thrust of the petitioner in the instant case is that he has not been afforded a requisite opportunity of fair hearing by the respondents and thus, in view of the miscarriage of natural justice, the impugned order dated 09.02.2021 is non-est in the eyes of law as the hearing was merely an empty formality. According to him, a sufficient opportunity was never provided to him to effectively present his case and the hearings in which he was called upon, were ostensibly artificial attempts in the teeth of due process of law. However, before moving towards examining the aforesaid contention, it is pertinent to delve into the intricate factual matrix of the case to determine the existence of mala fide on the part of the petitioner and whether invocation of the equitable jurisdiction under Article 226 of the Constitution of India is warranted.
Issue I
51. It has been argued by learned counsel for the respondents that the petitioner had obtained the admission in a clandestine manner through submission of fake documents including the income certificate, the genuineness of which is of paramount importance in securing the admission under EWS category. The impugned order dated 09.02.2021 passed by respondent no.1-DOE, which according to the respondents establish a clear case of an egregious fraud on the part of the petitioner‟s father, is culled out as follows:
“23. On the basis of material on record and going through the reply dated 27.03.2019, it is concluded that:
I. Gaurav Goyal has secured admission of his child Master Singham under EWS category in academic session 2013-14 on the basis of documents obtained on false premises by mis-representing and concealing his actual total income and deliberately giving false declarations of residential address, wrong/fake birth certificate and hence he has not only committed a fraud but also encroached the fundamental right of a deserving child for the seat reserved under EWS/DG Category for the academic session 2013-14 in Sanskriti School, Chankya puri, New Delhi.
II. That the present case is one of a fraud, perpetrated by Mr. Gaurav Goyal, whereby a seat which could otherwise have gone to a deserving EWS student, was effectively high jacked by him for his ward Master Singham.
III. That in fact, the income certificate and date of birth certificate and tendered by Mr. Gaurav Goyal at the time of securing admission for his ward master Singham under EWS Category in year 2013 has all been subsequently cancelled by the concerned government agencies.
IV. That the cancellation of the admission of the student is only an inevitable sequitur to the unearthing of the fraud and this kind of practice must be dealt with strictly, otherwise, it would embolden others, who are of similar bent of mind and would completely negate the very intent and purpose of providing for a preferential right, to education, for students belonging to the Economically Weaker Section of the society.
V. Suffice to state that Mr. Gaurav Goyal on false premises by misrepresenting and concealing his actual total income and deliberately giving false declaration of residential address, birth certificate, as a result whereof he had not only committed a fraud but also prevented another economically deprived child from getting admission in the said school. That if such admission is not cancelled and treating the child as having been admitted under the general category instead of EVS category, would provide a carte blanche to unscrupulous parents, to obtain admissions, for their wards, under the EWS category and, on the fraud being detected, claim that the admission be retained, but under the General category.”
52. The Constitution of India prescribes special measures for various categories of persons. Originally, we recognized reservations for socially and educationally backward classes of the society. However, after the promulgation of 103rd amendment, the Constitution created space for reservation on purely economic basis. The core of EWS reservation policy lies in the quantum of income. Therefore, there could be no denying of the fact that besides all other documents, if the income certificate submitted by the petitioner’s father at the time of admission is itself not acceptable as per law, the necessary sequitur is the cancellation of the concerned child’s admission. The said income certificate of the father of the petitioner dated 08.01.2013 reads as under:
“OFFICE OF THE DEPUTY COMMISSIONER (NEW DELHI DISTRICT), DELHI
S. No. 7/23/2418/12/12/2012/0321012860/108
Dated 08.01.2013
INCOME CERTIFICATE
On the basis of the affidavit filed / documents produced by Shri Gaurav s/o d/o w/o Sh. Avneet r/o A-154, Block S-117, Sanjay Camp, Chanakya Puri, New Delhi before the undersigned and in view of the verification and enquiry report furnished by the bailiff/ field staff, etc the income from all sources of Sh. / Ms. Gaurav assessed to be at Rs. 67,200/- (Sixty Thousand and Two Hundred Only) per annum.
Certificate is issued for the purpose of for school admission. Certificate valid for the period of one year from the date of issue.”
53. The contents of the income certificate exhibit that the income of father of the petitioner was assessed to be Rs. 67,200/- per annum at the time of admission.
54. However, it is seen that the petitioner’s father has himself admitted before this court that his income for the said year and subsequent year was exceedingly above the threshold required for seeking admission in EWS category. The order of this court dated 13.09.2022, whereby the petitioner’s father has admittedly accepted his income to be well above the threshold income required for admission in the EWS category, reads as under:
“1. Pursuant to order dated 07th September, 2022, Mr. Rajesh Yadav, Senior Counsel for Petitioner, on instructions, states that figures mentioned in paragraph 22 of impugned order dated 09th February, 2021 pertaining to Petitioner’s income, are correct. Copies of income tax returns for assessment years 2010-11, 2013-14, 2014-15 and 2015-16 handed over across the board by Mr. Vaibhav Sethi, counsel assisting Mr. Yadav, are taken on record. On a query of the Court, it has been informed that no income tax return was filed for assessment years 2011-12 and 2012-13 on account of nil income. The said statement is also taken on record.
2. It is directed that Petitioner shall remain present in Court on the next date of hearing.
3. List on 12th October, 2022”.
55. It is apposite to extract the relevant portion of paragraph no.22 of the impugned order dated 09.02.2021, which reads as under:
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B. During admission of his first child in EWS category, Sh. Gaurav Goyal submitted an Income Certificate dated 08.01.2013 issued by the Tehsildar, Chanakya Puri, New Delhi claiming to be a EWS category applicant with a total annual income only Rs. 67,200/- from all sources. Whereas, in the Income Tax Return filed by Sh. Gaurav Goyal (PAN No. AOTPG9631E) for the Assessment Year 2013-14 (Financial Year 2012-13) Sh. Gaurav Goyal has declared his total income as Rs. 4,23,850/- out of which he has paid income tax of Rs. 28,530/- and got refund of Rs. 1,890/-. This indicates that he had obtained the Income Certificate based on false declaration and in a fraudulent manner. Further, from the Income Tax record, it has come out that Sh. Gaurav Goyal has filed following Income Tax Returns:
