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And whereas, subsequently in LPA 5/2022 & CM APPLs. 474-477/2022, 481/2022 titled Justice for All Vs Venkateshwar Global School & others, Division Bench of Hon'ble High Court of Delhi has passed an order dated 26/05/2022 directing that (Para-4) in the circumstances, every endeavor 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% of the vacancies each year, in addition to the mandated annual 25% intake.

49. Indeed, based on the said tabular statement, the DOE issued the order dated 17 April 2023, granting waiver, to the respondent-School, from the requirement of filling up carry forward backlog seats in Class I during the year 2023-2024. This Order is also not in challenge.

50. Unaided schools function on fees, and the Court cannot, in its zeal to protect the interests of the student, compromise on the fees which the unaided school can legitimately earn, as such fees would be its sole source of sustenance. It is for this reason that the RTE Act envisages 25% as the minimum quota of EWS/DG students which an unaided school would have to admit in a year, reckoned as a percentage of the number of general category students that it admits for that year. Undoubtedly, this is a statutory mandatory imperative, and if a School falls short of fulfilling this is imperative in a particular area, it can legitimately be directed to fill up the backlog in the next year in the next higher class. Where, however, there is in fact no shortage in the number of EWS/DG candidates which the school was required to admit, to fulfil the 25% limit, in a particular year, it would be not only unfair but also illegal to regard the school as having unfilled vacancies, which can be carried forward to the next year. The carry forward principle can apply, therefore, only where there is a shortage in feeling of EWS/DG vacancies in earlier years, reckoned as a percentage of the number of general category students that the school has admitted.

55. The petitioner managed to secure admission to Class I in 2023- 2024 only because of the erroneous view, held by the DOE, that there were unfilled backlog KG/pre-primary EWS/DG vacancies of 2022- 2023 in the respondent-School. Had there been no such backlog vacancies, the petitioner would not have been able to secure admission to the respondent-School; indeed, the name of the respondent-School would not have figured in the draw of lots as available for the petitioner to seek admission to Class I in 2023-2024.

63. Where, however, as in the present case, there is actually no unfilled EWS/DG category vacancy in the previous year, reckoned as 25% of the General Category admissions made by the School, the principle of carry forward would not apply.

64. If, despite this, the DOE adds, to the number of EWS admissions to be made by a school in a coming year, carried forward backlog vacancies of earlier years despite there being no such backlog, it is the responsibility of the school concerned to bring the error to the notice of the DOE on release of the first intimation by the DOE and within the time provided therein. If the school does not do so, and allows a computerized draw of lots to take place, it cannot, thereafter, refuse to admit EWS/DG students who, as per the draw of lots, are to be admitted by it.