14 education law

Education LawVol. LII] 425

14

EDUCATION LAW

M. P. Raju*

I INTRODUCTION

“The purpose of education is to engender in the young, a spirit of

enquiry, a desire for knowledge and a sense of values. Among those

values are the fundamental values on which our constitutional core is

founded: liberty, equality and the dignity of each individual.”1

This is what the Supreme Court has reminded us during the year under survey.

But the court was keen to add,

“Morality as a defining concept of spreading values may run the risk

of being dangerously one sided, exposing young citizens to the same

dogma which those who decry the creed of materialism seek to change.

Moreover, morality itself is a notion which has varying hues.”2

During this year, almost all the different aspects of the education law attracted

the attention of the apex court as well as the different high courts of the country. A

constitution bench has dealt with the commercialization and privatisation of education

especially professional education in the hands of unaided private institutions. It also

went into the complex issue of determining the reasonableness of the permissible

restrictions which can be imposed on the unaided private institutions. Medical

admissions received a major part of attention as in earlier years. The constitutionality

of a centralized entrance test and centralized counselling excluding the freedom of

the institutions both state-run and private were contested fiercely before the courts

and apparently solved for the present.

Right of children to receive education and the related provisions of law came

for interpretation more before the high courts than before the Supreme Court. Students’

rights were protected without endangering the sanctity of education and rule of law.

Selection, appointment, promotion, discipline and other conditions of service of the

* Advocate, Supreme Court of India.

1 Santosh Singh v. Union of India (2016) 8 SCC 253.

2 Id. at 261.

Annual Survey of Indian Law426 [2016

staff of the institutions were dealt with keeping in mind the interest of the students

and the institutions.

Rights of the minority run institutions under article 30 of the Constitution saw

the reiteration of the earlier judgments but at times blurring them into the right to

occupation of citizens to administer educational institutions with the permissible

restrictions. Thus during the year under survey, the rights of students, educational

institutions and their staff were harmoniously interpreted in a liberal manner with a

few exceptions.

II RIGHT TO EDUCATION

No mandamus for introduction of moral science in curriculum

Should the children pursuing their education from classes I to XII be saddled

with a separate course of moral science? Can the court provide remedies for such

perceived grievances as the petitioner has about the dominant presence of materialism?

In Santosh Singh v. Union of India3 the Supreme Court rejected the prayer for a writ

mandamus for introduction of moral science in school curriculum. Petitioner, an

advocate-on-record practicing before Supreme Court, invoked the jurisdiction of the

court under article 32 for seeking a mandamus for introduction of moral science as a

separate subject in school curriculum, “in order to inculcate moral values and nurture

national character in the national interest”. The court found that while there can be no

dispute about need of providing value based education, what form this should take

and manner in which values should be inculcated ought not to be ordained by court.

Court singularly lacks expertise to do so. Petitioner has a grouse about what she

describes as pervading culture of materialism in our society. Jurisdiction of the Supreme

Court under article 32 is not a panacea for all ills but a remedy for violation of

fundamental rights. Remedies for such perceived grievances as petitioner has about

dominant presence of materialism must lie elsewhere and it is for those who have

competence and constitutional duty to lay down and implement educational policies

to deal with such problems. The court found that whether children pursuing their

education from classes I to XII should be saddled with a separate course of moral

science is not for court to decide. A matter such as the present one to which a solution

does not rest in a legal or constitutional framework is incapable of being dealt with in

terms of judicially manageable standards. The writ petition was thus dismissed.

The court was of the opinion that morality is one and, however, important it

may sound to some, it still is only one element in the composition of values that a just

society must pursue. There are other equally significant values which a democratic

society may wish for education to impart to its young. Among those is the acceptance

of a plurality and diversity of ideas, images and faiths which unfortunately faces

3 (2016) 8 SCC 253.


global threats. Then again, equally important is the need to foster tolerance of those

who hold radically differing views, empathy for those whom the economic and social

milieu has cast away to the margins, a sense of compassion and a realisation of the

innate humanity which dwells in each human being. Value based education must

enable our young to be aware of the horrible consequences of prejudice, hate and

discrimination that continue to threaten people and societies the world over.

Courts are concerned with issues of constitutionality and legality. It is difficult

to perceive how matters to which solutions may traverse the fields of ideology, social

theory, policy making and experimentation can be regulated by this court such as by

issuing a mandamus to enforce a scheme of instruction in a particular subject in school

education. Should a subject be taught at all? Should a set of values or a line of enquiry

and knowledge be incorporated as a separate subject of discourse in an educational

system? Would a horizontal integration of a given set of values across existing subjects

better achieve a desirable result? Is it at all desirable to impose another subject of

study upon the already burdened school curriculum? Supreme Court found that it is

unrealistic for the court to assume that it can provide solutions to vexed issues which

involve drawing balances between conflicting dimensions that travel beyond the legal

plane.

Court not to order compulsory religious education

While the apex court had cleared air on the issue of ordering compulsory moral

education, a division bench of the High Court of Allahabad (Lucknow Bench)

considered the plea in a Public Interest Litigation (PIL) to introduce compulsory

religious education in Hindu Front for Justice Thru. Secy., Ranjana Agnhihotri v.

Union of India.4 It held that court cannot impose any particular policy upon the State

to impart any form of religious education. It is for the concerned legislative assembly

having competence, to decide introduction of imparting religious education as it is a

matter of policy. The court has also held that the issue of religious education must be

governed by secular ethos of Constitution as reflected in articles 25 and 51-A. No

direction regarding introduction of compulsory religious education, can be passed in

PIL. Amreshwar Pratap Sahi J, in his opinion held, “Courts cannot impose any

particular policy upon State to impart any form of religious education. It is for

concerned legislative assembly having competence to decide matter of policy to

introduce imparting of religious education along with its manner. No instruction

regarding introduction of compulsory religious education, can be passed in Public

Interest Litigation.” Vijay Laxmi J, while concurring with the said main judgment has

expressed her opinion that the religious education in India is to be governed by secular

ethos of Constitution contained in articles 25 and 51-A. Secularism cannot be practiced

by adopting complete neutral approach towards religion but based on mutual

4 AIR 2016 All 179.


understanding and respect for each other’s religious faith, mutual distrust can be

eliminated. There is no state religion and state must not be partial to any one religion.

Education for persons with disabilities

In Reena Banerjee v. Govt. of NCT of Delhi,5 the Supreme Court considered the

provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995 relating to mentally challenged persons and the

need to establish accommodation homes and rehabilitation of inmates. The court has

held that the appropriate government is not only required to establish such homes but

also to create an environment to impart education to the inmates as predicated in

chapter V of the said Act.

Permissibility of photocopying copyrighted material for teaching

Photocopying of copyrighted material for the purpose teaching and learning

has been a complex issue. In Chancellor, Masters & Scholars of University of Oxford

v. Rameshwari Photocopy Services6 a division bench of the High Court of Delhi

considered the issue as to whether right of reproduction of any work by a teacher or a

pupil in course of instruction is absolute and not hedged with condition of it being a

fair use under the copyright law. The court was dealing with an appeal against the

judgement of the single judge bench under the Copyright Act, 1957 with regard to the

permissibility of photocopying entire books/copyrighted material. The dispute before

the single judge concerned photocopying of pages from copyrighted publications of

plaintiffs; namely (i) Oxford University Press; (ii) Cambridge University Press, United

Kingdom; (iii) Cambridge University Press India Pvt. Ltd.; (iv) Taylor & Francis Group,

UK and (v) Taylor & Francis Books India Pvt. Ltd. First defendant/Rameshwari

Photocopy Services has a shop licensed to it within precincts of Delhi School of

Economics (University of Delhi). The professors imparting teaching in Delhi School

of Economics had authorized preparation of course packs and Rameshwari Photocopy

Services was entrusted with task of photocopying pages from books published by

plaintiffs, and after binding same, to supply them to students charging 50 paisa per

page. The case of plaintiffs/appellants was that inclusion of specific pages of its

publications by Rameshwari Photocopy Services, under the authority of Delhi School

of Economics, amounts to institutional sanction for infringement of its copyright.

The course packs, which contain no additional material apart from photocopies of its

copyrighted publications, were being used like textbooks and therefore, compilations

prepared were competing with publications of plaintiffs. Anticipating that defence

would be predicated under section 52(1)(i) of Copyright Act, 1957, plaintiffs have

pleaded that section 52(1)(i) was not applicable since reproduction by Rameshwari

Photocopy Services, with assistance of Delhi School of Economics, could not be

classified as reproduction by a teacher or a pupil in course of instruction.

5 (2017) 2 SCC 94.

6 2016 (235) DLT 409.


The court has found that the reasoning by single judge with respect to course

packs on the strength of section 52(1)(a) of Copyright Act, 1957 was probably intended

to support the interpretation placed by single judge to section 52(1)(i). The reasoning

was that for purposes of private research, private study and criticism if a single

individual could copy a copyrighted work then it made no difference if the same

activity was done in plural. The division bench found that this reasoning overlooks

that even if a single individual were to use a copyrighted work for private research,

private study and criticism, the use would be subject to ‘fair dealing’ because clause

(a) expressly uses the said expression and thereby limits contours of use. The court

further found that the single judge has not discussed this aspect i.e., applicability of

fair dealing if offending activity was covered by section 52(1)(a) of Copyright Act,

1957. Concededly, course packs were claimed to be material used during course of

instruction and therefore photocopying copyrighted material i.e. reproduction had to

be determined with reference to clause (i), and clause (a) has no relevance.

The division bench found another triable issue of fact. Visiting the premises

given on a licence to respondent no.1 from where work of photocopying was carried

on, the local commissioner who visited premises on August 18, 2012 found apart

from offending course packs eight books were photocopied back to back. There were

four back to back copies of one book, three photocopies of another book, two of third

and one each of other five. On the basis of this, the court permitted the plaintiffs to

amend plaint and plead the said fact giving opportunity to defendants to file written

statement to amended plaint. Issue would then arise whether photocopying of entire

books would be a permissible activity. The court disposed of the appeal declaring law

as above and setting aside impugned judgment and decree which had held that no

triable issue on fact arose. Suit was restored for trial on issue of fact and for which

parties would be permitted to lead expert witness testimony. Having restored suit and

identifying triable issue warranting evidence, the court was not inclined to grant interim

injunction to appellants but directed the respondent no.1 to maintain a record of course

packs photocopied by it and supplied to students.

The court discussed the distinction between reproduction and publication.

Publication need not be for benefit of or available to or meant for reading by all

members of community. A targeted audience would also be a public. But, a publication

would have element of profit, which would be missing in case of reproduction of a

work by a teacher to be used in course of instruction while imparting education to

pupils. That apart, if reproduction includes plural, it cannot be held that making of

multiple copies would be impermissible. It happens in law that footprints of one

concept fall in territory of other but that does not mean that former should be restricted.

Concerning the argument that there cannot be an intermediary when use of

copyrighted material post reproduction takes place in the course of instruction, the

court relied on the common sense argument that neither the teacher nor the pupils are

expected to purchase photocopiers and photocopy the literary work to be used during

course of instruction in the class room. A place where a photocopying machine, with

a man behind to photocopy would be identified. Whether the teacher identifies the

place and asks the man in question to photocopy the material and pay money for


photocopying and then, while handing over the photocopied material to the pupils

seek reimbursement or the teacher tells the pupils to get the work photocopied whether

individually or collectively, would not matter. The core of the activity being the same

- photocopying. The court found that the argument concerning use of an agency is

thus irrelevant.

Basic infrastructure in schools part of children’s right to education

A division bench of the High Court of Uttarakhand in a PIL considered the

fundamental right of children to education under article 21A of the Constitution of

India article 21-A and reiterated the right of children to get free and compulsory

education stating that the state government was duty bound to provide basic

infrastructure in schools in the case of Deepak Rana v. State of Uttarakhand.7 Though

the reports submitted by Secretary of School education department had shown details

of finances spent and grants received, there were no details mentioned regarding the

issue of infrastructure provided in schools. The court observed that the facilities

provided in schools were primitive and not conducive or healthy for students. The

lack of infrastructure in schools had resulted in lowering of educational standards.

Hence the court directed the state to provide all schools with requisite infrastructure

facilities and to construct hygienic toilets also for boy and girl students separately.

Court also directed that sufficient water purifiers to be installed and mid-day meals to

be provided.

Examination at elementary level only for evaluation and not to pass or fail

The High Court of Rajasthan (Jaipur) through a division bench considered the

permissibility of conducting examinations at the elementary level under the provisions

of the Right of Children to Free and Compulsory Education Act (35 of 2009) (RTE,

2009) and found that such examinations are not prohibited under the Act if they are

only for evaluation and gradation of student and not to declare him pass or fail in

Rajendra Kuntal v. State of Rajasthan.8 Section 30 of the Act prohibits requiring any

child to pass in Board Examination till completion of elementary education. But

evaluation is not excluded. For grant of certificate of completion of elementary

education, evaluation is necessary, the manner of evaluation is in the discretion of the

competent authority within the parameters laid down under section 29(2) of the Act

2009. The court found that the notification on October 31, 2015 was only for the

purpose of inviting applications for a test for evaluation and gradation of students of

class VIII who are to be awarded a certificate of completion of elementary education.

No minimum cut off marks are prescribed. No student will be declared failed or passed.

They will only be graded for grant of certificate of completion of elementary education.

Irrespective of performance, each student would be entitled to be promoted in next

7 AIR 2017 (NOC) 930 (UTR.).

8 AIR 2016 Raj 60 (Jaipur Bench).


class i.e., class IX. According to the court, the evaluation test in issue cannot in the

circumstances, by any stretch of imagination, be held to be traumatic to the children

or deleterious to their academic growth and learning.

Wide publicity to be given for right to education law

In Prakash Kapadia v. State of Gujarat9 a division bench of the High Court of

Gujarat considered the failure in the proper implementation of the provisions of the

RTE, 2009. People were not made aware of the rights of children and their parents

under the Act. The court directed that wide publicity needed to be given by the state

through print media, TV etc, more particularly during the end of, and in the beginning

of academic year within a period of six months initially. Furthermore, state legal

services authority would also have important role to play when they hold legal literacy

camps.

It would also be open to any child/children or their parents/guardians to approach

before the state commission for protection of child rights under section 31(3) of the

Act for ventilating the grievance and if such grievance is raised, appropriate action

shall be taken for inquiring into the complaints as per section14 of the Protection of

Child Rights Act, 2005 and further action under section 15 of the Protection of Child

Rights Act shall be taken in accordance with law read with the section 31(3) of the

RTE, 2009.

The court was dealing with a PIL against the alleged improper implementation

of RTE, 2009. It found that the case of each deprived student vary from facts to facts

and the consequential direction would also be different. Therefore in exercise of PIL

jurisdiction high court cannot segregate each case and examine the matter.

Benefits of right to education not to be limited to urban areas or subjected to any

hierarchy

A division bench of the High Court of Allahabad in Ajay Kumar Patel v. State

of U. P.10 considered the validity of the government order under the RTE, 2009

stipulating that only where district basic education officer finds students belonging to

weaker sections who are unable to obtain admissions in aided schools or government

run schools due to unavailability of seats then only such students are entitled to obtain

admission against 25% seats earmarked in unaided institutions. The court found that

such policy creates hierarchy in availment of benefits envisaged under section 12(1)(c)

of the Act. The objective of section 12(1)(c) of Act is to bring children belonging to

weaker section into main stream of education by allowing them access to facilities

and means of learning provided in unaided institutions. The court found that the

government order was ultra vires and liable to be quashed. The court also observed

that ambit of the provisions of section 12(1)(c) cannot be restricted to urban areas

thereby depriving rural population access to better education.

9 AIR 2016 (NOC) 345 (Guj.).

10 2016 (3) ALJ 493.


Government not to limit children belonging to disadvantaged group and

weaker section to those of BPL families only

A division bench of the High Court of Rajasthan in Abhyutthanam Society v.

State of Rajasthan11 considered the validity of the notification by the Government of

Rajasthan by which the government in effect amended and rewritten the definitions

of ‘Child belonging to disadvantaged group’ and ‘child belonging to weaker section’

in the RTE, 2009 considering only such of children whose parents are included in list

of BPL family. The court found that under the notification dated March 28, 2016, the

state government was not competent to re-write the definition of section 2(d) of the

Act, 2009 of ‘child belonging to disadvantaged group’ in the manner that suits the

appropriate government and by eliminating the group of socially and educationally

backward class and weaker sections whose applications in sizable numbers for

admission had been reduced which is almost half of the earlier academic years and it

cannot be ruled out that it can be one of the indirect way to support private schools.

It was not the case of the respondents authorities that the children belonging to

weaker section and disadvantaged group admitted in the previous years were exceeded

25% of the strength of the class, in reference to the notifications on March 29, 2011

and the other sections of the society who are last in queue, as alleged, remain deprived

from seeking admission under the Act, 2009. On the contrary, the application forms

which have been received for admissions in the current academic year 2016-17 are

1,59,063, which is even less than the admissions made in the last three academic

years i.e., 2,16,110 for 2013-14; 1,73,916 for 2014-15 & 1,65,940 for 2015-16,

pursuant to the earlier notification on March 29, 2011 and this fact can easily be

inferred from the material on record that the major section of the socially and

educationally backward class of the child belonging to the disadvantaged group has

been eliminated and it further supports that the process of admission which has been

initiated pursuant to the notification on March 28, 2016 of children belonging to

disadvantaged group and weaker section of the society, it may leave the 25% of the

strength to the extent unfilled and obviously the unfilled seats will revert back to the

private schools to admit the students according to their own criteria and by this indirect

method the mandate of law, as enshrined under article 21A of the Constitution can

easily be frustrated.

The court also found that the benefits under the right to education law are

available to ‘child belonging to disadvantaged group’ as constituted one class and

‘child belonging to weaker section’ as constituting another class. There may be some

cases of over-lapping but for availing benefits under the Act, it is not necessary that

child must satisfy both the said tests.

11 AIR 2016 Raj 164 (Jaipur bench).


Navodyaya vidyalaya not to deny admission on the plea of age

In Principal, Jawahar Navodaya Vidyalaya v. Abhay Chaudhary (minor)12 a

division bench of the High Court of Uttarakhand considered the provisions of the

RTE, 2009 and the rules thereunder to find whether for admission to standard VI in a

specified category school viz., Navodaya Vidyalaya the right to education equally

applies or not as to other schools and found that the specified category schools are no

exception. The court found that the denial of admission by the said school by raising

objection about age of student was not proper.

The court found that the intention of the legislature apparently is to facilitate

the fulfilment of the promise contained in article 21A to make education a fundamental

right. It was, therefore, apparent that no student should be denied admission on the

basis of objection raised about the age. The Act provides that for the purpose of

admission, the age is to be determined on the basis of the birth certificate issued

under the provision of the Births, Deaths, Marriages Registration Act or on the basis

of such documents, which have been prescribed in the Rules. The rules provide, that

reliance can be placed on the documents, which are mentioned therein, which include

hospital or Auxiliary Nurse and Midwife (ANM) register record, Anganwari record

and also a declaration of the age of the child by the parent or guardian. In addition to

this section 14 makers it unambiguously clear that no child is to be denied admission

in the school for lack of age proof. The provisions of section 14 and rule 13 are

undoubtedly applicable to the appellants’ school. Therefore, disregarding of this

procedure while referring the matter for medical opinion and acting on the same to

deny admission to the writ-petitioner would be impermissible and contrary to the

mandate of the Act and the rules. The court concluded that the provisions of the

Juvenile Justice Act and the Rules would become inapplicable in view of the specific

provisions contained in the Education Act and the Rules.

Child to be admitted irrespective of age.

The High Court of Delhi through a single judge bench considered whether a

child could be refused to be admitted under the provisions of RTE, 2009 on the ground

that child was aged about 10 years and could not be admitted to class I being above

six years in Siddharth International Public School v. Motor Accident Claims Tribunal.13

The court found that the child seeking admission not only belonged to the DG category,

but was also a person with disability and he resided within three kilometers distance

of the petitioner-school. Thus the child was entitled to admission to the school. The

discrepancy in his date of birth is due to poverty, ignorance and backwardness of his

relatives and cannot be ground to refuse him admission. According to the court section

4 of the Act, permits admission of child in an appropriate class, irrespective of age. If

the submission of petitioner is accepted, then those children who had either not been

12 AIR 2016 (NOC) 562 (Utr.).

13 2016 (6) ADR 71.


admitted to a school initially or had left studies midstream would never be able to

join/rejoin any school and make use of their fundamental right to free and compulsory

education. The court also rejected as not tenable the plea that admission would have

disastrous consequences for the general students already studying in class 1 and held

that on the contrary, such admission would make the general students more sensitive

and humane as they would appreciate the challenges faced by a student with disability

and poverty. Directions were issued to either deploy special educators or to hold classes

for physically challenged children on ground floor or to provide barrier free

environment.

Child had lost his left leg below the knee, when he met with an accident with a

bus. Father of child died a few months after his accident on account of cancer. Mother

of child works in a local factory/workshop that manufactures plastic spoons and earns

Rs 5000/- p m. Child speaks conversational Hindi and can understand and answer all

questions in Hindi. He can also count in Hindi from numeral 1 till numeral 30 and he

remembers the English alphabets A to Z. According to the field officer of respondent

director of education the child will pick up education quite quickly, if he is admitted

in class 1. Even though the court found that Motor Accident Claims Tribunal (MACT)

did not have the powers to give directions in this regard, directions for the child’s

admission to the school were upheld.

New school building and other amenities part of right to education

A single judge of the High Court of Manipur considered the content of the right

to education under the provisions of the RTE, 2009 and article 21A of the Constitution

of India and found that the school building was unusable as it was neither repaired

nor renovated since its establishment in N. G. Ningshok v. State of Manipur.14 The

school fell down after breaking apart and collapsed. No new school building was

constructed by the state government till date. The representation to headman of village

by parents was pending. The court found that the school failed to discharge their

duties rendering the right to education of children meaningless. Authorities were

directed to construct school building, kitchen for mid-day meal cooking, toilets and

provide library books, magazines and newspapers to school.

III STUDENTS RIGHTS

Collective efforts required to avoid unfair means in exams

The examination is always considered as one of the major means to assess and

evaluate candidate’s skills and knowledge be it a school test, university examination,

professional entrance examination or any other examination. Candidate’s fitness for

his further assignment whether in studies or employment is, therefore, judged on the

basis of his performance in the examination. It is for this reason, the examination is

14 AIR 2017 (NOC) 25 (MPR).


considered as a common tool around which the entire education system revolves. It is

in this context that the Supreme Court stressed on the importance of collective efforts

required to avoid unfair means in Nidhi Kaim v. State of Madhya Pradesh.15 This was

a case where appellants were found guilty for clearing their MBBS entrance

examination by adopting unfair means of mass copying, consequently their admissions

were cancelled even after passing of four years.

The court noticed that examination malpractices, academic fraud or cheating in

the examination is as old as the examination itself. Study made by the educationist

has revealed that these malpractices are gradually on the rise across the world and has

caused a threat to public trust in reliability and credibility to the system as a whole.

These malpractices occur within and outside the examination halls and are perpetrated

by the candidates, staff and other external agencies before, during and after the

examination. Various kinds of strategies are innovated and then applied to enable the

candidate to clear the examination any how. It has, therefore, destroyed the piousness

of the examination. The apex court opined that it is the collective responsibility of the

government (central/states), educational bodies/Institutions to ponder over and evolve

a uniform policy in a comprehensive manner to firmly deal with such activities in the

larger public good. The court expressed its hope that effective remedial steps would

be taken in that regard.

Drug abuse and school curriculum

In Bachpan Bachao Andolan v. Union of India16 the Supreme Court directed to

adopt specific content in school curriculum regarding the drugs, alcohol and substance

abuse amongst children and also to adopt specific content in school curriculum under

aegis of New Education Policy (NEP). Petitioner had sought intervention of the

Supreme Court for a mandamus to Union of India to formulate and implement a

national action plan for children on issue of drugs, alcohol and substance abuse amongst

children. Union government stated that a national policy on drug demand reduction is

being finalized.

The court expressed its view that the importance of adopting a holistic solution

to deal with issues pertaining to alcohol, tobacco and drug abuse in the school

curriculum has to be adequately emphasized. The court noticed that the entire issue

was pending consideration before the government. However, the court indicated that

rather than resting on an “implied inclusion” of such an important subject within an

extant head or topic, it would be appropriate if the competent authorities consider

how children should be protected from the dangers of substance abuse. These are

matters which should not be brushed under the carpet. The authorities should consider

how children should be sensitised (having due regard to the age and stage of the

child) of the dangers of drug use, the necessity to report drug use and the need to

develop resistance to prevailing peer and social pressures.

15 (2016) 7 SCC 615.

16 (2017) 1 SCC 653.


Exemption from tuition fees in Delhi schools for not being solvent

The High Court of Delhi through a single judge bench considered the claim for

exemption from tuition fee of students on the ground that their parent was not solvent

and directed the head of the school to decide the claim under rule 158 of Delhi School

Education Rules, 1973 in Suman Kumar Choudhary v. S.S. Mota Singh Senior

Secondary Model School.17 The Petitioner (an advocate working with a law firm and

earning a sum of Rs.8,000/- per month) was the parent of two young children who

were admitted in class VII and VI to respondent no.1 school. The petitioner contented

that he was not in a position to afford fee that was payable for his wards to respondent

no.1. Since, continuation of petitioner’s wards in respondent No.1 school, on account

of default in payment of fees was under threat, the petition was filed to direct school/

defendant no.1 to allow/permit children to attend their respective classes to continue

their education unconditionally without any hindrance and discrimination. The court

found that since petitioner claimed that he was not financially solvent, provisions of

Rule 158 of 1973 Rule would apply. Rule 158 provided that the head of the school

may exempt deserving students, whose parents or guardians are not financially solvent

to pay the fees specified by the rules, from payment of the whole or one-half of such

fees up to a limit of twenty per cent of the total number of students on the rolls of the

school.

The court directed that in order to gain exemption from fee, wholly or in part,

he would have to produce, in first instance, relevant material before head of school

(principal of respondent no.1 school) who would have to pass an order after considering

state of solvency of petitioner. The court disposed of the petition with a direction to

the principal of respondent no.1 school to take a decision in the matter.

Non-declaration of results of students for unrectified deficiencies of college not

proper

In Indore Christian College, Indore v. State of M. P.18 a division bench of the

High Court of Madhya Pradesh (Indore Bench) has found that non declaration of

results of students of college by university on mere technical ground of deficiencies

not rectified by college was not proper. The Indore Christian College, Indore was

given affiliation by Bar Council of India 126 years back and it has been imparting

education for L.L.B examination to students since then. The college had deposited

the default amount as directed by BCI. The affiliation of the college was approved for

the next session also. College had complied with all necessary formalities. Hence the

non-declaration of results under section 24 of the M. P. Vishwavidhalaya Adhiniyam

(22 of 1973) was not proper.

Rustication of student without opportunity of hearing is bad

A division bench of the High Court of Orissa found that the order of rustication

of the student was passed merely on the basis of report of invigilator without giving

17 2016 (227) DLT 203.

18 AIR 2017 MP 4 (Indore Bench).


opportunity of hearing to student or without holding any inquiry in Himanish

Mohapatra v. Vice Chancellor, Siksha Anusandhan University.19 Hence the court

declared that it was violative of the principle of natural justice and liable to be set

aside. The court held that as per the maxim ‘audi alteram partem’, every affected

party must be given a chance to present his case to avoid arbitrariness and illegality.

Prescription of minimum age limit of 17 years for admission in foreign medical

institutions proper

The High Court of Allahabad through a division bench examined the validity of

the prescription of minimum age limit of 17 years for admission in Foreign Medical

Institutions in Ankit Chaturvedi v. Union of India through Secretary (Health).20

According to the Graduate Medical education Regulations (1997) the eligibility

requirement for taking Admission in an Undergraduate Medical course in a Foreign

Medical Institution is the minimum age of 17 years. The court found that the

prescription of minimum age limit of 17 years is based on a rational foundation. It is

neither arbitrary nor unreasonable. The qualifying examination being higher secondary

or class-XII examination, ordinarily, a student would not have completed the

examination before completing the age of 17. That proceeds on the basis that even if

admission is taken at the age of five (though, in the present age, admission to primary

classes is granted at the age of six), students would thereafter pursue 12 years of

education. Ordinarily speaking, the age requirement is so structured as to allow a

student to have completed a full 12 years of study for the purpose of completing the

higher secondary education.

The court also noticed that a student in order to seek entry to a medical course

should have attained a certain degree of maturity. Maturity and experience are not

unrelated to age and, in fact, conventional wisdom would also indicate that maturity

and experience are functions of age. Aberrations or exceptions do not define the ambit

of constitutional validity. Hence the court found that the constitutional validity of a

legislative measure or subordinate legislation has to be determined on the basis of a

generality of application and not on the basis of exceptions.

IV ADMISSION TO EDUCATIONAL INSTIUTIONS

National Eligibility cum Entrance Test (NEET) for MBBS course

The issue of National Eligibility cum Entrance Test (NEET) has taken a few

convoluted but important turns during the year under survey. Earlier, a three-judge

bench of the Supreme Court through the judgments and order dated on July 18, 2013

passed in Christian Medical College v. Union of India21 had struck down as being

19 AIR 2016 Ori 185.

20 AIR 2016 All 126.

21 (2014) 2 SCC 305.


ultra vires of Constitution the Common entrance examination for admission into

medical and dental colleges known as National Eligibility cum Entrance Test (NEET).

The bench was divided and the majority view on behalf of Altamas Kabir CJ and

Vikramajit Sen J prevailed against the minority view of Anil R. Dave J.

Review petitions were filed by Medical Council of India against the judgment

of the Supreme Court dated July 18, 2013 passed in Christian Medical College v.

Union of India22 whereby Common entrance examination for admission into medical

and dental colleges known as National Eligibility cum Entrance Test (NEET) was

struck down as being ultra vires of Constitution. The review petitions were placed

before a three-judge bench and notices were issued and applications for oral hearing

were allowed on October 23, 201323 and thereafter on January 21, 2016 these review

petitions were ordered to be heard by a five-judge bench.

By the order dated April 11, 2016 in Medical Council of India v. Christian

Medical College Vellore24 the five-judge bench allowed the review petitions and

recalled the judgment dated July 18, 2013 Christian Medical College Vellore v. Union

of India25 reported in stating that the bench did not propose to give detailed reasons at

that stage so as to see that it may not prejudicially affect the hearing of the matters.

However, it was stated by the court:26

Suffice it to mention that the majority view has not taken into consideration

some binding precedents and more particularly, we find that there was no discussion

among the members of the bench before pronouncement of the judgment.

In view of this recalling, the NEET which was quashed came alive. Thereafter

a number of parties including minority unaided medical colleges approached the

supreme court seeking exemption from NEET. All those cases were disposed of

insisting on NEET. Thus the court allowed conducting of NEET for the academic

year 2016-17. To reduce the hardships of students who could not appear in the NEET

I the court allowed NEET II. In Sankalp Charitable Trust v. Union of India27 a three

judge bench of the Supreme Court issued directions to conduct National Eligibility

cum Entrance Test (NEET) for admission to MBBS Course throughout country for

academic session 2016-17 in pursuance of notifications dated December 21, 2010

issued by Medical Council of India and Dental Council of India. The court has further

clarified that notwithstanding any order passed by any court earlier with regard to not

holding NEET, this order shall operate. The court did not agree with contention of

counsel representing those who are not parties to this petition that in view of judgment

passed in Christian Medical College, Vellore,28 it would not be proper to hold NEET

22 (2014) 2 SCC 305.

23 (2014) 2 SCC 392.

24 (2016) 4 SCC 342.

25 (2014) 2 SCC 305.

26 Id., para 10.

27 (2016) 7 SCC 487.

28 (2014) 2 SCC 305.


and this order should not affect pending matters. The reason was that said judgment

was already recalled on April 11, 2016 and therefore, notifications on December 21,

2010 are in operation as on today. The court also relied on the five judge bench decision

upholding the similar common entrance test and related regulations in the state of

M.P. and also the directions for an oversight committee in Modern Dental College

and Research Centre v. State of Madhya Pradesh.29 In the said case, in additions to

the directions to constitute an oversight committee above the Medical Council of

India, it was observed with regard to NEET and Common Entrance Examinations

(CET)that there was no violation of right of autonomy of the educational institutions

in the CET being conducted by the state or an agency nominated by the state. The

right of a State to do so is subject to a central law. Once the notifications under the

central statutes for conducting the CET called ‘NEET’ become operative, it will be a

matter between the states and the Union, which will have to be sorted out on the

touchstone of article 254 of the Constitution.

Common Entrance Test is a reasonable restriction

A five judge constitution bench of the supreme court found that the law enabling

the State to conduct common entrance test was in the interest of securing higher

standards of medical education so that quality doctors are trained leading to the

advancement in the health sector of the nation, in Modern Dental College and Research

Centre v. State of Madhya Pradesh.30 In this case the provisions of M.P. Niji Vyavasayik

Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam,

2007 were under challenge mainly by the unaided private medical and dental colleges.

The court noticed that article 41 of the Constitution contemplates that, “The

State shall, within the limits of its economic capacity and development, make effective

provisions for securing the right to work, to education......”. Article 41 does not

prescribe an age group for which this right is to be secured. Primary objective of the

State as laid down in article 41 is to ensure that quality higher education is imparted

by educational institutions and to ensure excellence in it. The Act of 2007 is in

furtherance of the constitutional obligation imposed upon the state in the form of

directive principles of state policy. The words “the state shall within the limits of its

economic capacity...” in Article 41 empowers the state to permit private educational

institutions to be established and administer themselves. The hard reality is that private

educational institutions are a necessity in the present day context.

According to the court, the right to be treated fairly and to get admission through

a non-arbitrary, non-discriminatory, fair and transparent procedure is a fundamental

right of the students under article 14. Any law which creates an artificial classification

between private unaided institutions and other institutions and creates a disparity in

the matter of admission whereby a meritorious student could be denied admission to

29 (2016) 7 SCC 353.

30 (2016) 7 SCC 353.


pursue higher education in a private unaided institution solely because such institution

has an unfettered right to choose its own students without following a uniform and

transparent admission procedure would be violative of the rights of the aspiring students

guaranteed under article 14. Right of the students to admission in private unaided

medical colleges is a right of equality in opportunity. On many occasions, this has led

to a conflict between fundamental rights of private educational institutions on the

one hand and the rights of students and public at large on the other. The court also

referred to para 137 of the judgment in P.A. Inamdar,31 where the court had observed

that if the admission procedure adopted by private institutions fails to satisfy all or

any of the triple test of a fair, transparent and non exploitative admission procedure,

then admission procedure can be taken over by the State substituting its own procedure.

The court relied on its earlier decisions in this case.32

Reservation in admissions in private unaided institutions

In the above mentioned case of Modern Dental College and Research Centre v.

State of Madhya Pradesh33 a five judge bench of the Supreme Court has also held that

it was permissible to reserve seats for SC/ST/OBC categories even in the admission

to private unaided medical colleges. The provisions of M.P. Niji Vyavasayik Shikshan

Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 had

provided for reservation of seats for the scheduled castes, scheduled tribes and other

backward classes which were upheld by the high court. The main arguments of the

appellants, on this issue, was that reservation in private sector is unknown to the

constitutional scheme and the same has been held to be so by the Supreme Court in

P.A. Inamdar case. The court noticed that the Parliament has amended the Constitution

and introduced article 15(5). The said article 15(5) reads, “15 (5) Nothing in this

article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from

making any special provision, by law, for the advancement of any socially and

educationally backward classes of citizens or for the Scheduled Castes or the Scheduled

Tribes insofar as such special provisions relate to their admission to educational

31 P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537.

32 T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481; Islamic

Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697; P.A.

Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537. It also referred to the

decisions in The Gujarat University & Anr. v. Shri Krishna Ranganath Mudholkar & Ors.,

[1963] Supp.1 SCR 112; R. Chitralekha & Anr. v. State of Mysore & Ors. (1964) 6 SCR 368;

Government of Andhra Pradesh & Anr. v. Medwin Educational Society & Ors. (2004) 1 SCC

86, State of T.N. and Anr. v. Adhiyaman Educational and Research Institute and Ors. (1995)

4 SCC 104; Visveswaraiah Technological University & Anr. v. Krishnendu Halder & Ors.

(2011) 4 SCC 606; Ambesh Kumar (Dr) v. Principal, L.L.R.M. Medical College, Meerut and

Ors. (1986) Supp SCC 543; State of T.N. and Anr. v. S.V. Bratheep (minor) and Ors. (2004) 4

SCC 513.

33 (2016) 7 SCC 353.


institutions including private educational institutions, whether aided or unaided by

the State, other than the minority educational institutions referred to in clause (1) of

Article 30.”

The court noted from the judgment of the high court that having regard to the

provisions of clause (5) of article 15 of the Constitution, there was no serious challenge

laid to section 8 read with rules 4(2), 7 and 15 of the 2008 Rules which provided for

reservation. In fact, the counsel for the appellants conceded that they had not challenged

the 93rd Constitutional amendment vide which article 15(5) was inserted into the

Constitution. The court found that in any case, there was hardly any ground to challenge

the said constitutional amendment, which has already been upheld by a Constitution

bench judgment in Pramati Educational and Cultural Trust.34 The only other argument

raised was that a reading of the reservation provisions in Rule 7 of the 2009 Rules

would show that it would be difficult to work out said percentage having regard to the

fact that the number of seats in the postgraduate dental and medical courses in different

specialised disciplines are few. The high court had successfully dealt with this argument

by appropriately demonstrating, by means of charges, that not only was it possible to

work out extent of reservation provided for different categories, sufficient number of

seats were available for general categories as well. Thus the supreme court did not

find any merit in the challenge to the reservation of seats for SCs/STs and OBCs, etc.

which was in consonance with article 15(5) of the Constitution.

Weightage of marks for working in remote and/or difficult areas not reservation

The Supreme Court considered whether giving weightage of marks to those in-

service candidates who have worked in remote and/or difficult areas of the state is a

reservation in State of Uttar Pradesh v. Dinesh Singh Chauhan.35 The court found

that regulation 9 Clause (III) of Post Graduate Medical Education Regulations, 2000

does not envisage reservation for in-service candidates in respect of Post Graduate

“Degree” Courses. This proviso postulates giving weightage of marks to “specified

in-service candidates” who have worked in notified remote and/or difficult areas in

State-both for Post Graduate “Degree” Courses as also for Post Graduate “Diploma”

Courses. Further, weightage of marks so allotted is required to be reckoned while

preparing merit list of candidates. This provision even if read liberally does not provide

for reservation for in-service candidates, but only of giving a weightage in the form

of incentive marks as specified to the class of in-service candidates (who have served

in notified remote and difficult areas in the state).36

34 (2014 ) 8 SCC 1.

35 (2016) 9 SCC 749.

36 The court relied on the earlier decisions in Snehelata Patnaik (Dr.) v. State of Orissa (1992)

2 SCC 267; State of Kerala v. T.P. Roshana (1979)1 SCC 572 and MCI v. State of Karnataka

(1998) 6 SCC 131.


The court was of the view that the imperative of giving some incentive marks to

doctors working in the State and more particularly serving in notified remote or difficult

areas over a period of time need not be underscored. For, the concentration of doctors

is in urban areas and the rural areas are neglected. Large number of posts in public

health care units in the state are lying vacant and unfilled in spite of sincere effort of

the state government. This problem is faced by all states across India. After due

deliberations and keeping in mind the past experience, Medical Council of India has

framed regulations inter alia providing for giving incentive marks to in-service

candidates who have worked in notified remote and difficult areas in the state to

determine their merit. The regulation, as has been brought into force, after successive

amendments, is an attempt to undo the mischief. The court explained that the real

effect of regulation 9 is to assign specified marks commensurate with the length of

service rendered by the candidate in notified remote and difficult areas in the State

linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation

for determining merit of the candidates for admission to the Post Graduate “Degree”

Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified

Doctors will be attracted to opt for rural service, as later they would stand a good

chance to get admission to Post Graduate “Degree” Courses of their choice. Secondly,

the rural health care units run by the public authority would be benefitted by doctors

willing to work in notified rural or difficult areas in the state. Hence the court held

that a regulation such as this subserves larger public interest. The court distinguished

the decisions in Satyabrata Sahoo and others v. State of Orissa and State of M.P. and

v. Gopal D. Tirthani.37 The court also referred to the decisions in AIIMS Students

Union v. AIIMS38 and Sudhir N. v. State of Kerala.39

Admission in NRI quota without ensuring suitability not permissible

Some students were admitted for MBBS course without proper sanction by

MCI. Submission of the college was that the said admissions were taken by an entrance

conducted by the body created by association of private colleges in the light of P.A,

Inamdar and T.M.A. Pai Foundation40 cases to fill 15% quota of private colleges, that

is, the NRI quota. In Medical Council of India v. Vigyan Bharati Charitable Trust

(Regd)41 the Supreme Court clarified that admission to MBBS in NRI quota without

ensuring suitability was impermissible. The court held that the liberty granted by

TMA Pai’s case and the subsequent order by this court to the private medical colleges

to fill up 15% of the available seats in an academic year under the NRI quota is not an

absolute liberty. It is subject to certain limitations. One of them is the assessment of

the suitability of the candidate on the basis of some transparent examination

37 (2003) 7 SCC 83.

38 (2002) 1 SCC 428.

39 (2015) 6 SCC 685.

40 (2002) 8 SCC 481.

41 2016 (9) SCALE 49.


process.The observations with regard to this in P.A. Inamdar and T.M.A. Pai

Foundation were clarified. The appeal was allowed and the impugned interim order

of the high court was set aside and the writ petition stood dismissed.

NRI quota in Medical admission subject to merit

A division bench of the High Court Karnataka considered the amended provisions

regarding the NRI quota in admissions to MBBS in private medical colleges in the

state of Karnataka in Karnataka Professional Colleges Foundation v. Medical Council

of India, New Delhi.42 The court found that the right created by the apex court in

favour of NRI quota by the decision in P.A. Inamdar was not absolute. That right

needed to be read subject to fulfilling of eligibility criteria as per regulation framed

by Medical Council of India from time to time. Amended regulation 5(5) has layed

down criteria of merit in NEET which has been put to life by subsequent order of

apex court. The court insisted that the criteria of merit cannot be diluted by the court.

Non-resident Indian candidate to be an Indian who resides abroad

A division bench of the High Court of Himachal Pradesh has held that admission

in NRI quota can be given to a non-resident Indian candidate who originally belongs

to India however, resides in abroad in Manpreet Singh v. Chaudhary Sarwan Kumar

HP Krishi Vishvavidyalaya.43 Only an NRI candidate shall be eligible for being

considered against seat reserved for NRI quota and not any other candidate. Petitioner-

candidate did not produce photocopy of his passport or any certificate to show that he

belonged to NRI category. Petitioner did not reside abroad neither he could be termed

as ward of any NRI as he could not produce any valid adoption deed. The court found

that the petitioner was rightly refused admission by university in NRI quota.

Centralized counselling for medical admission in deemed universities

The Supreme Court vacated the interim order of the high court staying the

decision of the government to conduct centralized counselling even for admission to

MBBS course in deemed universities in State of Maharashtra v. D.Y. Patil Vidyapeeth.44

The high court had stayed the letter dated August 9, 2016 issued by the Government

of India through the Ministry of Health and Family Welfare, the government resolution

dated August 20, 2016 passed by the State of Maharashtra and the consequential

notice dated August 21, 2016 of the State of Maharashtra whereby the government

had decided that the centralised counselling shall be conducted by the state government

according to merit list of NEET test for admission in the MBBS curse in the state. The

Supreme Court vacated the interim order passed by the high court without disturbing

the students already admitted. However it was clarified that only this year the remaining

42 2016 (4) AKR 847.

43 AIR 2016 (NOC) 698 (HP).

44 (2016) 9 SCC 401.


seats will be filled by centralized counselling conducted by committee of state

government comprising at least one representative of deemed private universities. It

was directed that considering seminal issue coming on each year the high court shall

not permit to withdraw writ petition and decide expeditiously on day to day hearing.

The court also clarified that the order was passed in exercise of powers under article

142 of the Constitution and insofar as admission process of subsequent years is

concerned, it shall depend upon the outcome of t2he central issue raised in the writ

petitions.45

Centralised entrance test to be followed by centralised state counselling

In State of Madhya Pradesh v. Jainarayan Chouksey 46 a five judge constitution

bench of the supreme court observed that the mandate of the constitution bench

judgment in Modern Dental College case was to hold centralized entrance test followed

by centralized state counselling by State to make it one composite process. In view of

this, the court directed that admissions to all medical seats shall be conducted by

centralized counselling only by state government and none else. If any counselling

has been done by any college or university and any admission to any medical seat has

been given so far, such admission shall stand cancelled forthwith and admission shall

be given only as per centralized counselling done by the state government. The court

took into consideration the statement of the additional solicitor general that the state

government was ready to undertake entire process afresh and that it would be completed

by September 30, 2016 which was the last date for admission. The court further

observed that it was a proper course of action inasmuch as it will enable private

institutions to send their representatives at place of counselling as per information

which may be displayed by counselling authority forthwith at its website. The court

did not accede to the prayer of applicant/state government of Madhya Pradesh to take

action against contemnors.

Candidate passing 9th and 10th standards appearing privately in one year not

entitled admission to LLB

A division bench of the High Court of Madras in S. R. Deepak v. Tamil Nadu

Ambedkar Law University, Chennai47 considered the rejection of the petitioner’s

candidature for 3 years LLB course on the ground that he had not fulfilled the basic

qualification of obtaining 10+2 certificate as a regular student. Rules of legal education

had prescribed the same as the eligibility criteria. The court found that the candidate

had passed the 9th and 10th standards in one year by appearing privately and hence

could not be held to have complied with said requirement. Therefore the rejection of

his candidature was proper.

45 The court relied on the decisions in Modern Dental College and Research Centre v. State of

Madhya Pradesh (2016) 7 SCC 353, State of Madhya Pradesh v. Jainarayan Chouksey

Contempt Petition (C) No. 584 of 2016 in civil appeal no. 4060 of 2009, decided on Sep. 22,

2016, Sankalp Charitable Trust v. Union of India (2016) 7 SCC 487.

46 (2016) 9 SCC 412.

47 AIR 2016 Mad 69.


Non-declaration of result on admission to college not allotted in counselling

In Vivekanand Jhariya v. State of Madhya Pradesh48 a division bench of the

High Court of Madhya Pradesh found that no fault could be found with action of the

university in not declaring the result of a student on his admission to a college which

was not allotted to him in counselling. The petitioner-student did not take admission

in the institution which was allotted to him in counselling. Without going through the

process of counselling, the student secured admission in respondent-education

institution. The institution also granted admission to the student knowing fully well

that he has not been allotted their institution in counselling. Therefore the admission

of the student in that educational institution was found illegal.

No pass certificate for illegal admissions beyond approved seats for general

nursing

A division bench of the High Court of Orissa in Deepika Rani Sethi v. Union of

India49 considered the entitlement of students of General Nursing Midwifery and

Auxiliary Nursing Midwifery who were admitted on seats beyond the approved ones.

The nursing school was affiliated to Indian Nursing Council and state government.

The court found that the admissions of candidates beyond the approved seats were

illegal and therefore those candidates were not entitled to the pass certificates. Instead

the court ordered payment of compensation of Rs 1,00,000/- per candidate.

Primary schools deemed to be mixed schools not to deny girls admission

In Jayasree v. Director of Public Instruction, Thiruvananthapuram50 a single

judge of the High Court of Kerala found that refusal of admission to the daughter of

the petitioner in lower primary school for want of permission from educational

authorities was not proper. Under Kerala education Act (6 of 1959) and rule 12 of

Kerala education Rules (1959) all primary schools whether it be lower or upper shall

be deemed to be mixed school and admission shall be open to boys and girls alike.

Therefore there was no necessity to take permission of any educational officer to

grant admission to girl student in primary school.

V DEGREE AND QUALIFICATION

No Cancellation of Intermediate certificate for simultaneous passing in two

examinations

In Kuldeep Kumar Pathak v. State of Uttar Pradesh51 the Supreme Court set

aside the action and order of the UP Board of High School and Intermediate

48 AIR 2017 (NOC) 36 (MP).

49 AIR 2017 (NOC) 173 (Ori).

50 AIR 2016 (NOC) 630 (Ker).

51 (2016) 3 SCC 521.


Examination in cancelling and confiscating the intermediate certificate for the

simultaneous appearance in two class X examinations. The cancellation was for the

reason that the appellant had appeared and passed simultaneously in two examinations

of class X conducted by two different matriculation boards, first by the UP Board and

other of sanskrit board. Respondent UP Board of High School and Intermediate

Examination had passed the order for cancellation of Intermediate result and

confiscation of intermediate certificate without serving any notice and affording an

opportunity of hearing. Representation of appellant against the said order to director

was also dismissed and writ petition and intra court writ appeal against the same was

also dismissed. The apex court found that no provision or regulation has been placed

to show that appearance in two class X examinations simultaneously in the same year

was in violation of any rule or regulation. The court held that the impugned order

passed by respondent board was null and void in addition to violation of natural

justice.

Whether ‘Sahityaalankar’ is equivalent to graduation degree?

In State of Bihar v. Sanjay Kumar52 the Supreme Court examined the validity of

“Sahityaalankar” degree from Deoghar Vidyapith as equivalent to the graduation degree

for the post of librarians/teachers in the schools run by local bodies under the

Government of Bihar. The relevant rules had prescribed graduation degree with 45%

marks from a recognized university. Government in the light of a judgment passed by

high court reviewed the “Sahityaalankar” degree conferred by Deoghar Vidyapith

and notified that the such degree was not a degree equivalent to graduation degree.

The respondent a holder of “Sahityaalankar” degree from Deoghar Vidyapith

challenged the validity of Rule and notification. The high court allowed his writ and

passed direction to redo the selection process allowing the respondent. In appeal it

was found that the impugned notification was confirmed in a subsequent judgment

passed by the high court and impugned notification was in consonance with the original

circular whereby the “sahityaalankar” degree was valid only for the purpose of Hindi

examination and not at par with graduation or equivalence. In view of this, the matter

was remitted back to the high court for a fresh consideration.

Whether degree can be retained if admission gets cancelled eventually

In Nidhi Kaim v. State of Madhya Pradesh53 the appellants before the Supreme

Court were found guilty for clearing their MBBS entrance examination by adopting

unfair means of mass copying, consequently their admissions were cancelled even

after passing of four years by the Board of Madhya Pradesh Government. Though the

two judge bench found that the cancellation was correct and legal the judges differed

on the result of that finding as to whether the concerned students could be allowed to

retain the degree or the training though had obtained in pursuance to such admissions.

52 (2016) SCC 33.

53 (2016) 7 SCC 615.


54 AIR 2016 SC 588.

55 (2012) 5 SCC 628.

Jasti Chelameshwar J has held that while it is a salutary principle based on

public policy not to permit the retention of ‘property’ obtained by fraudulent means,

the application of the said principle becomes a matter of doubtful utility to the society

in the context of the acquisition of knowledge by adopting fraudulent means examined

from the point of view of the public interest. In the context of property (economic

gains), the application of the principle works tos the benefit of the rightful owner. But

in the context of acquisition of knowledge, nobody would benefit by the application

of the rule and would therefore serve only a limited public purpose. It was found that

some 634 youngsters, who have already completed their training in medicine (or about

to complete) and whose knowledge could have otherwise been utilized for the benefit

of the society, would be simply rendered useless for the society in the sense their

knowledge cannot be utilized for the welfare of the society. Another important

consideration was that most of (if not all) the appellants, whatever be their respective

role, if any, in the tampering of the examination process, must have been ‘juveniles’

as defined under the Juvenile Justice Act.

In view these facts, Chelameshwar J preferred to permit the appellants to

complete their study of medicine and become trained doctors to serve the nation. But

at the same time he was of the view that the society must receive some compensation

from the wrongdoers and hence he preferred them serving the Indian Armed Forces

subject to such conditions and disciplines to which the armed forces normally subject

their regular medical corps.

However Sapre J found that the appellants are not entitled for any equitable

right of retention of their degree or training except if state government may allow

them for age relaxation for re-appearing in the competitive examination. In view of

the divergence of opinion in terms of separate judgments pronounced by the two

judges, the registry was directed to place the papers before the Chief Justice of India

for appropriate further orders.

VI EDUCATIONAL INSTITUTIONS

Reduction in seats as penalty on medical college for disregarding orders of the

court

In Medical Council of India v. JSS Medical College54 the court found that despite

the judgment and orders passed by the Supreme Court in the case of Medical Council

of India v. JSS Medical College,55 the college had permitted the students to continue

their course of MBBS. Therefore in order to send a strong message to the JSS Medical

College and other medical colleges, the court directed that for the next academic year,

i.e., 2016-17, the JSS Medical College shall be permitted to admit only 150 students

as against the sanctioned strength of 200.


Since the college has also not complied with the orders passed by the Supreme

Court and has permitted the students to continue their studies, the court found it

appropriate that the JSS Medical College might be directed to deposit an amount of

Rs.5,00,00,000/- (Rupees five crores only) in the registry of the court within four

weeks and the amount so deposited towards costs shall not be recovered in any manner

from any student or adjusted against the fees or provision of facilities for students of

subsequent batches.

However, considering the benefit of students who were affected by judgment

passed by the Supreme Court as a consequence to stop their course despite the fact

that they have already pursued 4 and 1/2 years of their MBBS course, the court directed

that notwithstanding the decision of this court in Medical Council of India, the students

may be allowed to complete their course and obtain a degree in case they successfully

complete the course clarifying that that order was being passed only on peculiar facts

of the case.

Liability to pay back wages on aided institution if termination against mandatory

provisions.

On whom did the liability rest to pay the back wages in the case of a termination

by aided institution without complying mandatory provisions of law? Should it be on

the aided institution or the aid giving authority or on both? In Educational Society,

Tumsar v. State of Maharashtra56 the appellant/society was running an aided institution/

school which is provided aid to the extent of 100% by State of Maharashtra (respondent

no.1), including salaries payable to teachers and other staff employed by school.

Services of respondent no. 4 were terminated by appellants/society. The school tribunal

was pleased to set aside termination with a direction to reinstate respondent no. 4 and

also pay back wages for intervening period. This was upheld by the high court. The

Supreme Court considered the issue as to who is to ultimately bear this financial

burden, namely, whether the appellant out of its own pocket or is it to come from the

state which is granting financial aid to the school. It held that the manner in which

action was taken by the appellant against respondent no. 4 and the findings of the

tribunal thereupon, it is the appellant who is obligated to pay back wages to respondent

no. 4. An aided school is bound to follow dictate of relevant provisions of applicable

rules etc. for conduct of departmental enquiries and termination of services of an

employee present thereto. School tribunal while holding the termination to be illegal

gave a specific finding to the effect that the appellant no. 2, who initiated enquiry,

was not lawfully empowered to do so without decision of enquiry committee being

supported by managing committee. It was further found that no enquiry committee as

per rules was constituted. Findings of school tribunal are also to effect that mandatory

provisions of law were not followed. It is, therefore, a case where appellants acted

without jurisdiction and without adhering to provisions of the Act and the rules. State

56 (2016) 3 SCC 512.


government/education officer had no role to play in passing order of termination and

school authorities acted without jurisdiction thereby transgressing their powers to

terminate. Specific findings to this effect are recorded by school tribunal. For these

reasons, even when education officer was impleaded as a respondent in appeal filed

by respondent no. 4, school tribunal consciously did not give any direction for payment

of these back wages by education department. The court hence dismissed the appeals.

However, the court reiterated the position that as per normal principle, whenever

a terminated employee of an aided school challenges the termination and termination

is held to be illegal by a competent judicial forum/court and order is passed for payment

of back wages etc., the government is supposed to bear the said burden. The reason

for the same is that such back wages or any other payment are in the nature of salary

for the intervening period or other compensation in lieu thereof which is to be paid to

the employee who would have earned these benefits had he remained in service. In

that eventuality, obviously, the government/ education department would have paid

those benefits in terms of financial aid provided to such a school. However, if there is

a specific provision contained in any statute which contains contrary position, then

such provision would prevail upon the aforesaid general rule. Likewise, if there is

any administrative order which is contrary to the aforesaid general rule, the said

administrative order shall prevail as in that situation, it would be treated that the aid is

given subject to the conditions contained in such administrative order.

Non-holding of the election of the managing committee of the college.

In Radhey Raman Gupta v. Mahesh Chandra57 the Supreme Court found that

no election was conducted despite the expiry of the term of the managing committee

of the college. The court noted the contention of appellant that despite expiry of

terms no initiative was taken for election of managing committee. The Director of

Education, Government of Uttar Pradesh was directed to personally oversee the

elections to the managing committee at all stages including the preparation of electoral

rolls and conclude the proceedings expeditiously and at any rate, within a period of

six months. The court modified the impugned judgment to the above extent.

Entitlement of a surplus generating university for tax exemption

Is a university entitled for exemption from paying income tax when it is neither

directly nor substantially financed by Government and it generated substantial surplus?

This was considered by the apex court in Visvesvaraya Technological University v.

Assistant Commissioner of Income Tax.58 The court found that during a short period

of a decade i.e. from the year 1999 to 2010 the appellant university had generated a

surplus of about Rs.500 crores. There was no doubt that the huge surplus has been

57 (2016) 12 SCC 427.

58 (2016) 12 SCC 258.


collected/accumulated by realizing fees under different heads in consonance with the

powers vested in the university under section 23 of the VTU Act. The difference

between the fees collected and the actual expenditure incurred for the purposes for

which fees were collected was significant. In fact the expenditure incurred represented

only a minuscule part of the fees collected. No remission, rebate or concession in the

amount of fees charged under the different heads for the next academic year(s) had

been granted to the students. The court held that it was not entitled for exemption

under section 10(23-C)(iii-ab) Income Tax Act, 1961.59

Quality of medical education at its lowest ebb

A five judge constitution bench of the Supreme Court took notice of the fact

that the quality of medical education in India is at its lowest ebb. The bench was

considering the validity of the Madhya Pradesh legislation providing for Common

Entrance Test, fee fixation and reservation in admissions to professional educational

institutions in the case of Modern Dental College and Research Centre v. State of

Madhya Pradesh.60 The court noticed that the Central Government itself had appointed

a group of experts headed by Ranjit Roy Chaudhury vide notification dated July 07,

2014 to study the Indian Medical Council Act, 1956 and to make recommendations.

The said Committee gave its report on September 25, 2014 suggesting reforms in the

regulatory oversight of the medical profession by the Medical Council. The

recommendations covered the subject of overseeing under graduate and post graduate

medical education as well as other related issues. The court took notice of the fact

that even the Parliamentary Standing Committee on Health and Family Welfare in its

92nd report on ‘The functioning of Medical Council of India’ presented to the Rajya

Sabha and the Lok Sabha on March 8, 2016 has gone into the matter. The Committee

examined the existing architecture of the regulatory oversight of the medical profession

that is the MCI. It was observed that the MCI was repeatedly found short of fulfilling

its mandated responsibilities. Quality of medical education was at its lowest ebb, the

right type of health professionals were not able to meet the basic health need of the

country. Products coming out of medical colleges are ill-prepared to serve in poor

resource settings like primary health centre and even at the district level. The medical

graduates lacked competence in performing basic health care tasks. Instances of

unethical practices continued to grow. The MCI was not able to spearhead any serious

reforms in medical education. The MCI neither represented the professional excellence

nor its ethos. Nominees of Central Government and state governments were also from

59 The court relied on the decisions in Commissioner of Income-tax, Bangalore v. Indian Institute

of Managemen, (2014) 49 Taxmann.com 136 (Karnataka); Queen’s Educational Society v.

Commissioner of Income Tax (2015) 8 SCC 47; CIT v. Surat Art Silk Cloth Manufacturers’

Assn.(1980) 2 SCC 31; American Hotel and Lodging Association Educational Institute v.

Central Board of Direct Taxes (2008)10 SCC 509 and Islamic Academy of Education v.

State of Karnataka (2003) 6 SCC 697.

60 (2016) 7 SCC 353.


corporate private hospitals which are highly commercialized. They were also found

to be violating value framework and indulging in unethical practices such as carrying

out unnecessary diagnostics tests and surgical procedures in order to extract money

from hapless patients. The electoral processes brought about a lot of compromises

and tend to attract professionals who may not be best fitted for the regulatory body.

Regulators of highest standards of professional integrity and excellence could be

appointed through an independent selection process. The committee concurred with

recommendation of the Ranjit Roy Chaudhury Committee Report that regulatory

structure should be run by persons selected through transparent mechanism rather

than by election or nomination. The Central Government had no power to disagree

with the MCI though the government was the main stakeholder in shaping the health

schemes. The government should have power to give policy directives to the regulatory

body. The existing system of graduate medical education was required to be re-invented.

The admission process was not satisfactory as majority of seats in private medical

colleges were being allotted for capitation fee. The system keeps out most meritorious

and underprivileged students. The post graduate seats were being sold in absence of

transparent and streamlined process of admission. It also noted deficiency in the

teaching faculty and in the regulation of professional conduct of doctors. Taking note

of corruption in the MCI it was recommended that expeditious action should be taken

to amend the statute and enact a new legislation. Current system of inspections was

found to be unsatisfactory. The court noticed that the expert committee report

mentioned above was yet to be acted upon by the government. Hence the court directed

the Central Government to consider and take further appropriate action in the matter

at the earliest.

Education as occupation subject to reasonable restrictions

The Supreme Court through a five judge bench declared that the fundamental

right to education as occupation is subject to reasonable restrictions in Modern Dental

College and Research Centre v. State of Madhya Pradesh.61 The court considered and

rejected the challenge to the constitutional validity of MP Niji Vyavasayik Shikshan

Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 which

was challenged on the ground it imposed restrictions on the private unaided

professional educational institutions. The high court of Madhya Pradesh had upheld

the validity and repelled the challenge. The Supreme Court found that Madhya Pradesh

Act, 2007 was enacted for “the regulation of admission and fixation of fee in private

professional educational institutions in the State of Madhya Pradesh and to provide

for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled

Tribes and Other Backward Classes”. The court found that it was thus in furtherance

of the constitutional obligation imposed upon the State to ensure equality of opportunity

in admission to meritorious candidates who seek to pursue the medical education.

61 (2016) 7 SCC 353.


Restrictions on education as occupation and their proportionality

In Modern Dental College and Research Centre62 testing the reasonableness of

the permissible restrictions on the fundamental right to run educational institutions,

the constitution bench of the supreme court examined the question as to what criteria

is to be adopted for a proper balance between the two facets viz. the rights and

limitations imposed upon them by a statute. The court found the concept of

‘proportionality’ as a proper criterion. The court has put it pithily that when a law

limits a constitutional right, such a limitation is constitutional if it is proportional.

The law imposing restrictions will be treated as proportional if it is meant to achieve

a proper purpose, and if the measures taken to achieve such a purpose are rationally

connected to the purpose and such measures are necessary.

The exercise which is to be taken is to find out as to whether the limitation of

constitutional rights is for a purpose that is reasonable and necessary in a democratic

society and such an exercise involves the weighing up of competitive values, and

ultimately an assessment based on proportionality i.e., balancing of different interests.

The court has reiterated that this Doctrine of Proportionality is enshrined in

article 19 itself when we read clause (1) along with clause (6) thereof. While defining

as to what constitutes a reasonable restriction, the supreme court in plethora of

judgments has held that the expression ‘reasonable restriction’ seeks to strike a balance

between the freedom guaranteed by any of the sub-clauses of clause (1) of article 19

and the social control permitted by any of the clauses (2) to (6). It is held that the

expression ‘reasonable’ connotes that the limitation imposed on a person in the

enjoyment of the right should not be arbitrary or of an excessive nature beyond what

is required in the interests of public. Further, in order to be reasonable, the restriction

must have a reasonable relation to the object which the legislation seeks to achieve,

and must not go in excess of that object as held in P.P. Enterprises v. Union of India.63

At the same time, reasonableness of a restriction has to be determined in an objective

manner and from the standpoint of the interests of the general public and not from the

point of view of the persons upon whom the restrictions are imposed or upon abstract

considerations. The high court in its judgment had analysed the provisions of the Act

and found that provisions for merit based admissions and procedure for fee fixation

did not violate fundamental right of the private institutions to conduct admissions

and to fix fee. The Supreme Court agreed with the said view and held that the provisions

relating to admission as contained in the Act and the Rules are not offensive of article

19(1)(g) of the Constitution.

Fee fixation a permissible regulation to stop unreasonable surplus

In Modern Dental College and Research Centre v. State of Madhya Pradesh64

the Supreme Court held that the power granted to the authority to fix the fees even in

62 Ibid.

63 (1982) 2 SCC 33.

64 (2016) 7 SCC 353.


unaided private medical colleges was a permissible regulation. Referring to earlier

decisions the court found that in exercise of their “right to occupation”, private

institutions cannot transgress the rights of the students. According to the court, the

Act does not give unbridled power to the authority to determine the fee. Determination

of fee has to be based on the factors stipulated in section 9 of the Act. Further, an

opportunity of appeal is also provided for in the Act 2007 to the aggrieved. Fundamental

rights of colleges to run their administration, includes fixation of fee. However, such

right in turn has to be balanced with the rights of the students, so that they are not

subjected to exploitation in the form of profiteering. The court thought it fit to remind

itself that though right to establish and manage educational institution is treated as a

right to carry on ‘occupation’, which is the fundamental right under article 19(1)(g),

the court in T.M.A. Pai Foundation had also cautioned such educational institution

not to indulge in profiteering or commercialisation. That judgment also completely

bars these educational institutions from charging capitation fee. The court noticed

that it was conceded by the appellants themselves that commercialisation and

exploitation is not permissible and the educational institutions are supposed to run on

‘no profit, no loss basis’. It was also recognised that cost of education may vary from

institution to institution and in this respect many variable factors may have to be

taken into account while fixing the fee. It was also recognized that the educational

institutions may charge the fee that would take care of various expenses incurred by

these educational institutions plus provision for the expansion of education for future

generation. At the same time, unreasonable demand cannot be made from the present

students and their parents. For this purpose, only a ‘reasonable surplus’ can be

generated.

No commercialization or profiteering since education is charitable

Following the ratio laid down by the supreme court in its earlier decisions by

the benches of five, seven and eleven judges, in the cases of Unni Krishnan, P.A.

Inamdar, and T.M.A. Foundation respectively, the supreme court reiterated the principle

in Modern Dental College and Research Centre v. State of Madhya Pradesh65 that

profiteering and commercialization of education are prohibited in any educational

activity. The court found that the basic thread of reasoning in the those judgments is

that educational activity is essentially charitable in nature and that commercialization

or profiteering through it is impermissible. The said activity subserves the looming

larger public interest of ensuring that the nation develops and progresses on the strength

of its highly educated citizenry.

The court took notice of the fact that with liberalization, government has

encouraged establishments of privately managed institutions. It is done with the hope

that the private sector will play vital role in the field of education with philanthropic

65 (2016) 7 SCC 353.


approach/ideals in mind as this activity is not to be taken for the purpose of profiteering,

but more as a societal welfare. The court found that the contention raised on behalf of

the appellants that the private medical colleges had absolute right to make admissions

or to fix fee was not consistent with the earlier decisions of the supreme court. Neither

merit could be compromised in admissions to professional institutions nor could

capitation fee be permitted. To achieve these objects it is open to the state to introduce

regulatory measures. The court was also unable to accept the submissions that the

state could intervene only after proving that merit was compromised or capitation fee

was being charged. As observed in the earlier decisions of the Supreme Court, post-

audit measures would not meet the regulatory requirements. Control was required at

the initial stage itself.

Occupation of education not at par with other economic activities

The Supreme Court the further stressed the necessity to bear in mind that the

occupation of education cannot be treated at par with other economic activities in

Modern Dental Collee and Research Centre.66 In this field, state cannot remain a

mute spectator and has to necessarily step in order to prevent exploitation, privatization

and commercialization by the private sector. The court noticed as pertinent that even

in respect of those economic activities which are undertaken by the private sector

essentially with the objective of profit making, while throwing open such kind of

business activities in the hands of private sector, the state has introduced regulatory

regime as well by providing regulations under the relevant statutes..

Legislative competence of a state with regard to higher education

In Modern Dental Collee and Research Centre67 the five judge bench of the

supreme court while considering the constitutional validity of M.P. Niji Vyavasayik

Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam,

2007 passed by the Madhya Pradesh Legislature has upheld the legislative competence

of the state legislature to enact the law. In view of the schedule VII list I entry 66 in

the Constitution of India with the expression ‘Co-ordination’ and ‘determination of

the standards’, the `co-ordination’ and `determination of the standards in higher

education’ are the preserve of the Parliament and are exclusively covered by entry 66

of Union List. The court considered issue is whether the subject matter of admissions

was covered exclusively by entry 66 of list I, thereby the states having no legislative

competence whatsoever to deal with the subject of admissions or determination of

fee to be charged by professional educational institutions.

According to the court while entry 66 list I dealt with determination and

coordination of standards, on the other hand, the original entry 11 of list ii granted the

states the exclusive power to legislate with respect to all other aspects of education,

66 Ibid.

67 Ibid.


except the determination of minimum standards and coordination which was in national

interest. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976,

the exclusive legislative field of the state legislature with regard to Education was

removed and deleted, and the same was replaced by amending Entry 25, List III,

granting concurrent powers to both Parliament and state legislature the power to

legislate with respect to all other aspects of education, except that which was

specifically covered by entry 63 to 66 of the list I. The court has over ruled the decision

in Bharti Vidyapeeth (Deemed University) v. State of Maharashtra68 (more specifically

the observation in that case to the effect that the entire gamut of admissions was

covered by list I entry 66. A.K. Sikri J delivered the judgment on behalf of the bench

and R. Banumathi J gave a concurring opinion.

Quality of medical colleges to be ensured

In Medical Council of India v. Kalinga Institute of Medical Sciences(KIMS)69

the Supreme Court insisted on the necessity of ensuring quality of institutions for

medical education fulfilling the requirement to safeguard the health of people. It was

held that unless the concerned ministries in the Government of India take a far more

proactive role in ensuring that medical colleges have all the necessary facilities, clinical

materials, teaching faculty, staff, accommodation etc. the health of the people of our

country will take a hit in the coming years due to inadequately educated doctors.

Quality in medical education is equally important, if not more, than quantity. To

introduce transparency and accountability in the medical colleges, the report or

assessment of the Inspection Team should be put up on the website of the concerned

medical college as also on the website of the MCI so that potential students are aware

of what is likely to be in store for them. Similarly, the decision of the Central

Government on the report should be put up on the website of the concerned medical

college as also on the website of the MCI.

The MCI should in consultation with the Central Government prepare a Standard

Operating Procedure for conducting an inspection as required by the Medical Council

of India Establishment of Medical College Regulations, 1999. The Standard Operating

Procedure should be finalized within a period of six weeks from today and should be

accessible on the website of the MCI.

The Supreme Court observed that granting admission to students in an

educational institution when there is a serious doubt whether admission should at all

be granted is not a matter to be taken lightly. First of all the career of a student is

involved - what would a student do if his admission is found to be illegal or is quashed?

Is it not a huge waste of time for him or her? Is it enough to say that the student will

not claim any equity in his or her favour? Is it enough for student to be told that his or

68 (2004) 11 SCC 755.

69 (2016) 11 SCC 530.


her admission is subject to the outcome of a pending litigation? These are all questions

that arise and for which there is no easy answer. Generally speaking, it is better to err

on the side of caution and deny admission to a student rather than have the sword of

Damocles hanging over him or her. There would at least be some certainty.

Medical education must be taken very seriously and when an expert body certifies

that the facilities in a medical college are inadequate, the courts are not equipped to

take a different view in the matter except for very cogent jurisdictional reasons such

as mala fides of the Inspection Team, ex facie perversity in the inspection report,

jurisdictional error on the part of the MCI etc. Under no circumstance should the high

court examine the report as an appellate body - this is simply not the function of the

high court

The recent inspection report conducted by independent expert professors of

MCI found non-condonable deficiencies in 18 factors, accordingly found KIMS was

not entitled to enhance 50 students for academic year 2015-16 but the high court

allowed the admissions to be taken under the shelter of an interim order passed by the

high court. The high court under article 226 of the Constitution was certainly not

tasked to minutely examine the contents of the inspection report and weigh them

against the objections of KIMS in respect of each of its 18 items. Supreme court

found that the high court plainly exceeded its jurisdiction in this regard in venturing

into seriously disputed factual issues. A perusal of the decision of the high court

clearly indicates that it considered the latest report of the inspection team as if it was

hearing an appeal against the report. In doing so, the high court went into great details

on issues relating to the number of teaching beds in the hospital, the limitations in the

OPD Department, the number of units available in the subjects of general medicine,

pediatrics etc., bed occupancy, number of caesarean sections, discrepancy in data of

major and minor operations, computerization in the institution, number of patients in

the ICU, number of static X-ray machines, deficiency of examination halls, lecture

theatres, library, students hostel, interns hostel, playground etc. Surely, this was not

within the domain of the high court in exercise of its jurisdiction under article 226 of

the Constitution. The Supreme Court was of the opinion that for the fault of KIMS,

the students should not suffer nor should KIMS get away scot free. KIMS must pay

for its inability to introspect and venture into adventurist litigation.

The counsel for KIMS and the students contended that unless this appeal was

dismissed it would result in the students suffering a loss of two years of their studies.

But the court was of the view that if such a situation has come to pass, KIMS is

entirely to be blamed. KIMS was specifically told not to admit students by the Central

Government in its letter dated June 15, 2015. Despite this KIMS persisted in litigation

to somehow or the other accommodate 50 additional students. This was certainly not

with a charitable motive. As an institution that should have some responsibility towards

the welfare of the students, it would have been far more appropriate for KIMS to have

refrained from giving admission to 50 additional students rather than being instrumental

in jeopardizing their career.


Non-grant of affiliation since no Inspection report in time

In Committee of Management Anuragi Devi Degree College v. State of Uttar

Pradesh70 the Supreme Court considered the question of non-grant of permanent

affiliation, in the absence of required Inspection Report within time schedule. The

respondents granted prior permission for provisional affiliation to appellant for a

period of three years w.e.f. July 1, 2012 i.e., for period July 1, 2012 to June 30, 2015

for imparting education in arts faculty for specified subjects. In pursuance to the

government order, Deen Dayal Upadhyay Gorakhpur University, vide its letter on

November 27, 2012 permitted appellant to admit students in various subjects of arts

faculty. Appellant applied on March 10, 2015, to university for constituting an

inspection panel for granting permanent affiliation to the university. University by its

letter on 20, 2015 constituted an inspection panel to submit status report of appellant

as far as infrastructural facilities existing in appellant’s college were concerned.

Regional Higher Education Officer Gorakhpur submitted its inspection report on

November 6, 2015 to the University. As per time schedule prescribed by state

government, inspection report was not received within prescribed date. In the absence

of required inspection report, university did not grant permanent affiliation to appellant

for academic session 2015-16. No appeal was preferred before state government.

Appellant college preferred a writ petition which was dismissed by single judge. The

intra-court appeal also stood dismissed. In the appeal by special leave the Supreme

Court found that the benefit could not be extended as appellants had not maintained

time schedule fixed by state government pursuant to judgments of the Supreme Court.

Therefore, order passed by single judge as well as division bench cannot be found

fault with. However, the court observed that University shall consider application for

affiliation, if not considered already, within a span of four weeks and, if affiliation is

granted, students who had been granted admission shall be treated as students as

admitted for academic session which would be covered by affiliation to be granted in

future.71

Whether a hostel as charitable institution is a consumer under Consumer

Protection Act

In Lourdes Society Snehanjali Girls Hostel v. H & R Johnson (India) Ltd,72 the

supreme court frowned upon the national commission for interfering with the finding

of district forum and state commission that the appellant was a charitable institution

and hence a consumer under the Act. The court found that the appellant is a charitable

70 (2016) 12 SCC 517.

71 The court relied on its earlier decisions in the cases of College of Professional Education v.

State of Uttar Pradesh (2013) 2 SCC 721; Maa Vaishno Devi Mahila Mahavidyalaya v. State

of U.P. (2013) 2 SCC 617; Sunil Oraon (minor) through guardian v. CBSE (2006) 13 SCC

673; Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale (2012) 2 SCC 425 and National

Council for Teacher Education v. Venus Public Education Society (2013) 1 SCC 223.

72 (2016) 8 SCC 286.


institution running a girls hostel at Surat for benefit of Adiwasi children. Society

purchased vitrified glazed floor tiles from respondent no.5 who was a local agent of

respondent no.1/Company for a sum of Rs.4,69,579/-. Said tiles, after its fixation in

premises of hostel, gradually developed black and white spots — Appellant no.1

wrote several letters to respondent no.4 i.e., Sales Executive of respondent no.1-

company, informing about inferior and defective quality of tiles but failed to solve

the issue. Said inaction on part of respondents made appellant-Society to file a

consumer complaint before district consumer forum. District forum appointed a court

commissioner to examine who submitted a report stating therein that tiles were having

manufacturing defect. District forum held that tiles supplied by respondents had

manufacturing defect and respondents committed an unfair trade practice by supplying

such defective tiles and directed respondents to pay to appellants a sum of Rs.2,00,000/

- along with interest @9% p.a. state commission confirmed order passed by district

forum. Respondents filed Revision Petition before National Commission which by

impugned order, reversed findings of district forum and State Commission holding

that appellant-society has failed to establish that it is a consumer within meaning of

section 2(d) of the Act, 1986. Society was in appeal before Supreme Court. The court

found that National Commission has exceeded its jurisdiction in exercising its

revisional power by setting aside concurrent finding of fact recorded by state

commission in first appeal wherein finding of fact recorded by district forum was

affirmed. National Commission has failed to appreciate that appellant-society is not a

commercial establishment rather a registered society helping adivasi students in their

education by providing hostel facilities. Charges, if any, for accommodation in hostel

are for maintaining hostel and not for making profit. Thus, appellant-society is a

consumer within meaning of term ‘consumer’ under section 2(d) of the Act, 1986.

The appeal was allowed and the order of district forum which is affirmed by state

commission is restored. The court distinguished on facts the decision of the National

Commission in M/s Kusumam Hotels Pvt. Ltd. v. M/s Neycer India Ltd.73

State’s say in grant of recognition by NCTE

In State of Rajasthan v. LBS B.Ed. College74 the supreme court considered the

powers of National Council for Teacher Education NCTE under the National Council

for Teachers Education Act, 1993 and held that the Act was enacted to provide for the

establishment of a National Council for Teacher Education with a view to achieving

planned and co-ordinated development of the teacher education system throughout

the country, the regulation and proper maintenance of norms and standards in the

teacher education system and for matter connected therewith.

The court has held that whenever an application is received under the regulations

for grant of recognition, the NCTE shall be guided by its own regulations and the

73 III (1993) CPJ 333 (NC).

74 AIR 2016 SC 4428.


judgments of this court and the state shall remain bound by the principles set out

hereinabove. The court made it clear that the NCTE shall take into consideration the

recommendations and views of the State despite the fact that it has the final say.75

Fees in unaided schools in Delhi to be regulated

In Justice For All v. Govt of NCT of Delhi76 a division bench of the High Court

of Delhi considered whether an unaided private school in Delhi is required to obtain

the prior sanction of the Director of Education before enhancing the fee. A PIL was

filed seeking a direction that no private unaided school in Delhi which has been allotted

land by DDA shall enhance fee without prior sanction of Director of Education (DoE),

Government of NCT. Specific case of petitioner was that whenever land is allotted

by DDA on perpetual lease hold basis for running school, a specific clause is included

in allotment letter itself to effect that school shall not increase rate of tuition fees

without prior sanction of DoE, Delhi Administration and shall follow provisions of

Delhi School Education Act/Rules, 1973 and other instructions issued from time to

time. In spite of said specific term, private unaided schools have been fixing fees at

very high rates, beyond reach of residents of locality, without taking prior permission

of DoE. The court has held that the issue regarding liability of private unaided schools

situated on land allotted by DDA at concessional rates has been conclusively decided

in Modern Schools77 wherein, specific directions were issued qua private unaided

schools situated in land allotted by DDA. Thus the schools cannot indulge in

profiteering and commercialization of school education. The quantum of fees to be

charged by unaided schools is subject to regulation by DoE in terms of power conferred

under section 17(3) of DSE Act, 1973 and he is competent to interfere if hike in fee

by a particular school is found to be excessive and perceived as indulging in

profiteering. The unaided schools are bound to comply with stipulation in letter of

allotment. The letter of allotment issued by DDA stipulates that school shall not increase

rate of tuition fees without prior sanction of DoE. The petition was disposed of with

a direction that respondent no.1/DoE shall ensure compliance of term, if any, in letter

of allotment regarding increase of fees by all recognized unaided schools which are

allotted land by DDA. Respondent no.2/DDA shall also take appropriate steps in

accordance with law in case of violation of such stipulation in letter of allotment by

unaided schools. The court relied on the decision of the Supreme Court in Modern

School.

75 The court relied on the decisions in State of Maharashtra v. Sant Dnyaneshwar Shikshan

Shastra Mahavidyalaya (2006) 9 SCC 1; National Council for Teacher Education v. Shyam

Shiksha Prashikshan Sansthan (2011) 3 SCC 238, St. Johns Teachers Training Institute v.

Regional Director, National Council for Teacher Education (2003) 3 SCC 321, Adarsh Shiksha

Mahavidyalaya v. Subhash Rahangdale (2012) 2 SCC 425, Maa Vaishno Devi Mahila

Mahavidyalaya v. State of Uttar Pradesh (2013) 2 SCC 617.

76 2016 (227) DLT 354.

77 (2004) 5 SCC 583.


Unrecognised private primasry schools also subject to Delhi Education Act

A division bench of the high court of Delhi in Samarth Shiksha Samiti (Regd.)

v. Shakuntala Maggo78 considered whether an unrecognized private primary school

can be treated as beyond the regulative powers under Delhi School Education Act,

1973. Appellant impugned two orders of single judge, on issue relating to applicability

of Delhi School Education Act, 1973 to its unrecognized private primary school. It

was urged, before single judge, in two writ petitions, that provisions of the Act were

inapplicable and terms and conditions stipulated or prescribed, could not be imposed

upon it. The argument of the appellant was that in contrast to its secondary and senior

secondary school establishments, which were recognized by Government of NCT of

Delhi and affiliated to one Board or other and hence regulated by the Act, primary

school was an unrecognized establishment and consequently beyond the pale of

recognition. Therefore, stipulation that terms of employment of appellant’s primary

school had to be aligned with those of employees in schools of Government of NCT

of Delhi did not arise. Single judge, followed a previous single judge’s ruling in

Geeta Radha Krishnan v. St. Anthony’s Girls Senior Secondary School and Social

Jurist79 case. Appellant urged that decision in social jurist was considered later in a

later division bench judgment in Shaheed Udham Singh Smarak Shiksha Samiti80

case. The court found that Shaheed Udham Singh Smarak Shiksha Samiti cannot be

regarded as a binding authority since it did not examine the reasoning which led the

previous division bench in social jurist to hold that unrecognized schools too were

regulated by the Act. Apart from binding nature of Social Jurist, declaration in which

has attained finality, the court found it abhorrent that when State has assured every

child education, which is guaranteed as a fundamental right no less, and fruition of

which has led to enactment of an elaborate mechanism under a special Parliamentary

legislation (Right to Education Act), it can nevertheless be considered perfectly

reasonable to say that some institutions which choose to not be regulated, can be held

to be so. Compliance with law is norm, and violation is deemed deviant, inviting

penal sanction. However, allowing such “outlaws” is to undermine those that abide

by law. In vital area of education, it is not possible to countenance submission of such

outlaws that they stand outside pale of regulation and are to be “let alone” to do what

they please, by way of imparting what they deem to be education, in whatever terms

they choose and through personnel holding such qualifications that they (and not the

law) deem appropriate. While dismissing the appeals the court relied on the decision

in social jurist, a Civil Rights Group v. Govt.of NCT 81 and distinguished the decision

in UGC regulations would override University acts or statutes.

78 2016(229) DLT 1.

79 W P. (C) 68 50/2012. Decided on Aug. 7, 2013.

80 Shaheed Udham Singh Smarak Shiksha Sa Delhi miti v. Santosh Verma, LPA 825/2013 and

connected cases, decided on Aug. 12, 2013.

81 2008 (101) DRJ 484.


A full bench of the High Court of Kerala in D. Radhakrishnan Pillai v.

Travancore Devaswom Board82 found that the UGC Regulations on Minimum

Qualifications for Appointment of Teachers and Other Academic Staff in Universities

and Colleges and Other Measures for the Maintenance of Standards in Higher education

(2010) were adopted by the state government. The universities and affiliated colleges

in the state are bound to comply with the said regulations irrespective of whether

university Acts or statutes thereunder are amended in line with UGC Regulations or

not. The court declared that anything that is in conflict with or repugnant with the

central law and subordinate legislation made thereunder would be void and inoperative.

VII STAFF AND SERVICE CONDITIONS

Claim for preferential appointment crystallized but lost before inception

In Manager, VKNM Vocational Higher Secondary School v. State of Kerala83

the Supreme Court considered the claim for preferential treatment under Kerala

Education Rules, 1959 within the category “on account of termination of vacancies”,

of those whose services were less than one academic year. Fifth respondent worked

in appellant’s school in three different spells between October 1, 1997 and March 11,

1998 for a total period of two months and 19 days. Subsequently, when post of high

school assistant in social science fell vacant in year 2010 consequent to retirement of

a teacher, sixth respondent came to be appointed on June 1, 2010 afresh. Fifth

respondent challenged appointment of sixth respondent by relying upon a rule which

provided for preferential appointment to some categories of qualified teachers who

had the fortune of working earlier in the school. The appellant rejected claim of fifth

respondent by relying upon a division bench decision of High Court of Kerala. Fifth

respondent approached second respondent. Second respondent by its order dated March

31, 2011 rejected her claim. Fifth respondent filed a revision before 1st respondent

and 1st respondent by order dated November 11, 2011 directed fourth respondent/

district education officer to issue necessary formal orders appointing fifth respondent

as high school assistant in appellant school w.e.f. June 1, 2010. Appellant challenged

the order of first respondent by filing a writ petition before High Court of Kerala

contending that fifth respondent would not come within preferential Rule, namely,

Rule 51A and consequently order of 1st respondent cannot be sustained. Fifth

respondent filed a writ petition for implementing order of first respondent. By

impugned judgement passed by full bench of the high court, appointment dated June

1, 2010 in school of appellant came to be set aside at instance of O.T. Indiramma/fifth

respondent. Before the Supreme Court the fifth respondent submitted that right of

fifth respondent to claim preferential appointment got crystallized under unamended

rules and thereby a vested right to claim such appointment was preserved in favor of

82 2016 LAB. I. C. 1584 Full Bench (Ker. HC).

83 (2016) 4 SCC 216.


fifth respondent and consequently amendment to Rule 7-A(3) as well as proviso to

Rule 51A cannot have any implication to prejudice such a vested right already

crystallized in favour of fifth respondent. The Supreme Court found that though prior

to amendment of Rule 7A(3) by notification dated April 16, 2005, fifth respondent

did satisfy unamended Rule 7A(3) by having been engaged in a vacancy as a qualified

teacher for a period of two months, as early as on March 11, 1998, unfortunately for

fifth respondent there was no occasion to raise a claim for any preferential appointment

on basis of fulfillment of such a requirement as it existed then and as provided under

Rule 51A. In fact, between 1998 and 2010 i.e., for nearly 12 years there was no scope

for 5th respondent to raise a claim on that basis. When fifth respondent sought to

enforce her right under Rule 51A as a sea change came into effect by way of an

amendment to Rule 7A(3), which expressly disentitled a qualified teacher to claim to

be categorized under “on account of termination of a vacancy” as such express

prohibition came to be introduced by virtue of amendment to Rule 7A(3), it will have

to be held that submission of fifth respondent that a vested right accrued to her as

early as on March 11, 1998 cannot be countenanced. If one were to be brought under

category of qualified teacher relieved on account of termination of vacancies, amended

Rule 7A(3) required to be satisfied, namely, such engagement was lasted for one

clear academic year as stipulated under Rule 1 and 2A of chapter VII of Kerala

Education Rules. Fifth respondent not having satisfied said requirement there was no

scope to allow her to press her claim under Rule 51A for a preferential appointment.

Having regard to the said legal consequence, relief granted by 1st respondent in order

dated November 26, 2011 cannot be sustained. Hence the court allowed the appeals

and the order of first respondent on November 26, 2011 was set aside and appointment

of 6th respondent was restored. The court relied on its earlier judgments in State of

Kerala v. Sneha Cheriyan84 and Garikapati Veeraya v. N. Subbiah Choudhry.85

Prior approval before termination of the employee of a school

In Raj Kumar v. Director of Education86 the Supreme Court considered the

provisions of law requiring prior approval of the director of education before

terminating the services of a teacher of private schools in Delhi and found that the

autonomy of private schools needed to be balanced with the protection of employees

against unfair retrenchment. The appellant a driver of DAV school was retrenched by

management without approval of Director School Education, Government of NCT of

Delhi as required under section 8(2) of the Delhi School Education Act. School Tribunal

as well as high court upheld the retrenchment. The apex court reversed it and found

that the retrenchment was illegal being violative of the provisions of DSE Act as well

as of Industrial Disputes Act, 1947 (ID Act).

84 (2013) 5 SCC 160.

85 AIR 1957 SC 540.

86 (2016) 6 SCC 541


Section 8 (2) of DSE Act provides, “Subject to any rule that may be made in

this behalf, no employee of a recognised private school shall be dismissed, removed

or reduced in rank nor shall his service be otherwise terminated except with the prior

approval of the Director.” However, in Frank Anthony School case this provision was

declared by the Supreme Court as inapplicable to Minority-run schools since they

were found to be against their autonomy and right to administration.87

Thereafter in TMA Pai Foundation case there is an observation to the effect

that there could be no reason why the management of a private unaided educational

institution should seek the consent or approval of any governmental authority before

taking any such action in the following words, “In the case of a private institution, the

relationship between the management and the employees is contractual in nature. A

teacher, if the contract so provides, can be proceeded against, and appropriate

disciplinary action can be taken if the misconduct of the teacher is proved. Considering

the nature of the duties and keeping the principle of natural justice in mind for the

purposes of establishing misconduct and taking action thereon, it is imperative that a

fair domestic inquiry is conducted. It is only on the basis of the result of the disciplinary

enquiry that the management will be entitled to take appropriate action. We see no

reason why the management of a private unaided educational institution should seek

the consent or approval of any governmental authority before taking any such

action…”88

Relying on the said observations, High Court of Delhi in Kathuria Public School

v. Director of Education, 89struck down section 8(2) of the DSE as inapplicable even

to non-minority schools in the following words:90

If the aforesaid observations of the Supreme Court in T.M.A. Pai case are taken

to its logical conclusion, it would imply that there should be no such requirement of

prior permissions or subsequent approval in matter of discipline of the staff. Thus,

whether it is for suspension or disciplinary action, the educational institutions would

have a free hand. The safeguard provided is for a judicial tribunal to be set up to

examine the cases.

However in the present case the Supreme Court declared that the decision in

Kathuria Public School case striking down section 8(2) was not good law. While

doing so the court relied on its earlier decision in Katra Educational Society v. State

of Uttar Pradesh91 and found that the observations in TMA Pai case was in a different

fact situation and hence not applicable. Frank Anthony school decision was

distinguished as applicable to a school run by a religious minority under article 30 of

the Constitution. The court found that requirement of prior approval under section

87 Frank Anthony Public School Employees Association v. Union of India (1986) 4 SCC 707.

88 Supra note 86 id., para 64.

89 (2005) 123 DLT 89.

90 Id., para 21.

91 AIR 1966 SC 1307.


8(2) was a procedural safeguard in favor of an employee to ensure that an order of

termination or dismissal is not passed without the prior approval of the director of

education. This was to avoid arbitrary or unreasonable termination or dismissal of an

employee of a recognized private school.

Since admittedly no prior approval was taken by the management of the school

before retrenchment, the termination was set aside. In addition to this the court found

that the retrenchment was also bad and illegal since it did not comply with the

mandatory requirement of serving the notice under section 25F(c) of the ID Act upon

the Delhi State Government.

Even though the present case has to some extent solved the confusion occurred

due to the related observations in the TMA Pai case, the manner in which the present

two judge bench distinguished those observations of an eleven judge decision by

relying on the observations of a five judge decision in Katra Educational Society can

be questioned. However the much needed stress to balance the autonomy of private

educational institutions with the required protection of the employees is a welcome

one. It has also clarified that the requirement of serving the notice on the governmental

authorities before retrenchment under section 25F(c) of the ID Act is not merely

directory but mandatory. Another important reiteration of law is with regard to the

entitlement of back wages once a termination is set aside as illegal. This decision may

set at rest the tendency to limit or curtail this entitlement of the employees or workmen

as if entitlement to back wages was a bounty at the discretion the court or tribunal.

The court categorically quoted and reiterated the recent decision in this regard in

Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya 92 wherein it was

held as under:93

The very idea of restoring an employee to the position which he held before

dismissal or removal or termination of service implies that the employee will be put

in the same position in which he would have been but for the illegal action taken by

the employer. The injury suffered by a person, who is dismissed or removed or is

otherwise terminated from service cannot easily be measured in terms of money. With

the passing of an order which has the effect of severing the employer-employee

relationship, the latter’s source of income gets dried up. Not only the employee

concerned, but his entire family suffers grave adversities. They are deprived of the

source of sustenance. The children are deprived of nutritious food and all opportunities

of education and advancement in life. At times, the family has to borrow from the

relatives and other acquaintance to avoid starvation. These sufferings continue till the

competent adjudicatory forum decides on the legality of the action taken by the

employer. The reinstatement of such an employee, which is preceded by a finding of

the competent judicial/quasi-judicial body or court that the action taken by the employer

is ultra vires the relevant statutory provisions or the principles of natural justice, entitles

92 (2013) 10 SCC 324.

93 Id. at 344.


the employee to claim full back wages. If the employer wants to deny back wages to

the employee or contest his entitlement to get consequential benefits, then it is for

him/her to specifically plead and prove that during the intervening period the employee

was gainfully employed and was getting the same emoluments. The denial of back

wages to an employee, who has suffered due to an illegal act of the employer would

amount to indirectly punishing the employee concerned and rewarding the employer

by relieving him of the obligation to pay back wages including the emoluments.

Furthermore, the court referred to its decisions in Babu Verghese v. Bar Council

Of Kerala & Ors.,94, and Bombay Union of Journalists v. The State of Bombay.95

Exemption from Ph.D. for professors prior to date of AICTE notification

In Jiji K.S. v. L.B.S. Center for Science & Technology96 the Supreme Court has

found that despite the striking down of relaxation in the requirement of Ph. D. for

professors granted by Rule 6-A(1) of Kerala Technical Education Services

(Amendment) Rules, 2004, those appointed prior to 5/3/2000 would stand exempted

from the requirement as per the AICTE notification dated 5/3/2000. Original appellant-

Shaji T.L. was appointed as lecturer on November16, 1989. At that point of time, he

possessed a degree qualification of Bachelor of Architecture. In 1994, he acquired

post-graduate degree, namely, M.Tech. On July 15, 1998 he was promoted as Assistant

Professor and subsequently, on June 4, 2009 further promoted as professor as per

special rule 6A(1), which relaxed possession of required qualification, namely, Ph.D.

In batch of writ petitions which were dealt with by single judge, challenge was to the

whole of the said amended Rule 6A. Single judge struck down the whole of special

rule 6A on the footing that the said amended sub-rule conflicts with prescription of

minimum required qualification by way of norms set down by AICTE in its notification

on March15, 2000 and consequently, said amended sub-rule cannot be sustained.

Said conclusion affirmed by division bench in impugned judgment. Appellants in

appeal by special leave. The apex court held that the notification having been issued

under section 10(1)(i) of AICTE Act that prescribed minimum required qualification

as from date of notification, namely March 5, 2010, whatever protection provided in

the said paragraph for those who were already designated as professors will also hold

good, which benefit, should be extended to appellants without prejudice to rights and

94 (1999) 3 SCC 422

95 AIR 1964 SC 1671. It has overruled the decision of the High Court of Delhi in Kathuria

Public School v. Director of Education, 113 (2004) DLT 703 (DB) and it relied on its decisions

in Katra Educational Society v. State Of Uttar Pradesh., AIR 1966 SC 1307, TMA pai

Foundation v. State of Karnataka (2002)8 SCC 481, The Principal & Ors. v. The Presiding

Officer & Ors. (1978) 1 SCC 498 and Mackinon Mackenzie & Company Ltd. v. Mackinnon

Employees Union (2015) 4 SCC 544.

96 2016 (5) SCALE 4.


contention of the first appellant. Having regard to the paragraph (ii) of notification

March 5, 2010 of AICTE, namely, that prescription of possession of Ph.D. as minimum

required qualification for anyone to be appointed, promoted and designated as professor

on and after March 5, 2010, such prescription will have no effect on those who are

designated as professors prior to the said date. Since appellants are holding post of

professors as from June 4, 2009, said relaxation contained in latter part of said

paragraph (ii) should ensure to their benefit de hors prescription contained in sub-

rule (i) of special rule 6A. Thus the court held that the status of appellants is protected

in their present post of Professors solely by virtue of paragraph (ii) of notification

dated March 5, 2010.

Termination of a temporary fixed term appointment of a lecturer

In Pragati Mahila Samaj v. Arun97 the Supreme Court found that termination

of a temporary fixed term appointment of a lecturer was legal under the provisions of

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,

1977. Appellant no.2, a girls college, is run by appellant no. 1, which is a registered

trust/society at Bhandara. Appellant no. 2 published an advertisement on June 23,

1996 inviting application for posts of Lecturers. Respondent no.1 was selected and

was accordingly given appointment for post of lecturer in geography as part-time

lecturer. Appointment was temporary and for a fixed period. It came to an end by

efflux of time. In academic session 1997-1998, another advertisement was issued and

vide appointment order on July 21, 1997, respondent no. 1 was appointed as part-

time lecturer in geography on temporary basis upto April 30, 1998. Services of

respondent no.1 were terminated w.e.f. April 30, 1998. Challenging order of

termination, respondent no.1 filed an appeal before University and College Tribunal,

Nagpur. The tribunal dismissed the appeal and upheld termination order, opining that

respondent no.1 was not appointed on a regular basis but his appointment was only

on temporary/ad-hoc basis and it was for a specified term as a part-time lecturer.

Respondent no.1 filed a writ petition. By the impugned judgment, single judge allowed

writ petition, set aside order passed by tribunal in appeal and quashed termination

order, holding that advertisement nowhere said that appointment was temporary. It

was also held that since appointment was made on the basis of selection and interview

and hence it has to be held as permanent. Direction was issued to reinstate respondent

no.1 in service but without paying him any back wages for long intervening period. In

appeal the Supreme Court found that it was clear from the advertisement that post of

lecturer for geography was advertised as a part-time post. approval for appointment

was accorded by concerned authority vide letter on March 21, 1998 as it is without

adding any more rights. Taking these facts into consideration and keeping in view

law laid down in Hindustan Education Society’s case, appointment of respondent no.

1, whether first or second, since inception remained a “temporary appointment as

97 (2016) 9 SCC 255.


part-time lecturer” for a fixed period and did not result in “permanent appointment”

on the post of Lecturer. It also did not create any right in favour of respondent No. 1

so as to enable him to claim regularization in service. The court allowed the appeal

and restored the order of the Tribunal. The court relied on the decision in Hindustan

Education Society v. SK. Kaleem SK. Gulam Nabi 98

Education tribunal not a necessary party before high court

In M.S. Kazi v. Muslim Education Society99 the Supreme Court held that the

tribunal constituted under the Gujarat Secondary Education Act, 1972 was both an

original and an appellate adjudicating forum: an original forum to decide disputes

under section 38(1) and an appellate forum under section 39(5).

Appellant was employed as an Assistant Teacher in a school conducted by first

respondent, a minority institution. Upon a departmental inquiry, Appellant was

dismissed from service. Appellant moved Gujarat Higher Secondary Education

Tribunal for challenging order of dismissal which was dismissed. Appellant instituted

a special civil application under articles 226 and 227 of Constitution before high

court. Single judge of high court dismissed writ petition on merits. Division Bench

by impugned judgment held that appeal was not maintainable, holding that where a

special civil application is described as one under articles 226 and 227 and court or

tribunal whose order is impugned is not made a party, application would not be

maintainable. The Supreme Court found that the tribunal is not required to defend its

orders when they are challenged before high court in a special civil application under

articles 226 and 227. Lis is between management and a member of its teaching or

non-teaching staff, as case may be. It is for person aggrieved to pursue his or her

remedies before tribunal. An order of tribunal is capable of being tested in exercise of

power of judicial review under articles 226 and 227. When remedy is invoked, tribunal

is not required to step into arena of conflict for defending its order. Hence, tribunal is

not a necessary party to proceedings in a Special Civil Application. High court was in

error in dismissing LPA on ground that it was not maintainable. Order of Division

Bench is set aside and LPA is restored before high court for disposal on merits.100

Migration of reserved category to unreserved after concession in marks

The Supreme Court in Vikas Sankhala v. Vikas Kumar Aggarwal101 has held

that RTE, 2009 National Council for Teacher Education (NCTE) is competent to lay

down the minimum qualifications which a person needs to possess to make him eligible

for appointment as a teacher. The question had arisen as to whether reserved category

candidates, who secured better than general category candidates in recruitment

98 (1997) 5 SCC 152.

99 (2016) 9 SCC 263.

100 The court referred to the decision in Jogendrasinhji Vijaysinghji v. State of Gujarat (2015) 9

SCC 1.

101 (2017) 1 SCC 350.


examination, can be denied migration to general seats on basis that they had availed

relaxation in Teacher Eligibility Test (TET). The court found that no concession

becomes available to reserved category candidate by giving relaxation in pass marks

in TET insofar as recruitment process is concerned. It only enables them to compete

with others by allowing them to participate in selection process. In this backdrop,

irrespective of circular dated May 11, 2011, migration from reserved category to general

category shall be admissible to those reserved category candidates who secured more

marks obtained by last unreserved category candidates who are selected, subject to

condition that such reserved category candidates did not avail any other special

concession. The court clarified that concession of passing marks in TET would not be

treated as concession falling in the said category.102

The court clarified the constitutional philosophy thus, “When Constitution

envisages equal respect and concern for each individual in society and attainment of

goal requires special attention to be paid to some, that ought to be done. Giving of

desired concessions to the reserved category persons, thus, ensures equality as a leveling

process. It is a duty cast upon State, by Constitution, to remedy effects of “societal

discrimination”.103

Relaxation of 5% marks for reserved categories in TET valid.

The Supreme Court in V. Lavanya v. State of Tamil Nadu104 considered whether

under Right of Children to Free and Compulsory Education Act, 2009 whether

relaxation of 5% marks for reserved categories in TET amounts to change in criteria

of selection of teachers after selection process commenced and whether it was

permissible.

The court found that appearing in TET is synonymous to obtaining eligibility.

By obtaining pass marks in TET a candidate is not said to have been recruited. Marks

obtained in TET accounts only for 60% in final selection and rest 40% is covered by

academic performance. By granting relaxation of 5% marks in TET for reserved

categories only, eligibility criteria is neither altered nor any prejudice is caused to

appellants. Contention of appellants that state government cannot legally alter selection

criteria after conducting exam does not find force. Relaxation afforded to reserved

category candidates has in no way eliminated appellants from selection process; rather

a fair opportunity has been provided to other candidates who can legitimately compete

with appellants. The court relied on it decision in Tej Prakash Pathak. v. Rajasthan

102 The court relied on the decisions in K. Manjusree v. State of Andhra Pradesh (2008) 3 SCC

512 and Jitendra Kumar Singh v. State of Uttar Pradesh (2010) 3 SCC 119.

103 The court also relied on the decisions in State of Madhya Pradesh v. Kumari Nivedita Jain

(1981) 4 SCC 296; M. Nagaraj v. Union of India (2006) 8 SCC 212; Dr. Jagadish Saran v.

Union of India (1980) 2 SCC 768.

104 (2017) 1 SCC 322.


High Court.105 The court also relied on Excise Commissioner U.P., Allahabad v. Ram

Kumar106 and M. Ramanatha Pillai v. State of Kerala.107

The court found that granting relaxation to SC/ST, OBC, physically handicapped

and de-notified communities is in furtherance of the constitutional obligation of the

State to the under-privileged and create an equal level-playing field. After referring to

clause 9 of the NCTE Guidelines, the High Court of Madras had held that the

Government of Tamil Nadu has acted in exercise of the powers conferred under clause

9 of the guidelines issued by the NCTE. The supreme court found that Madurai Bench

was not right in quashing G.O.(Ms.) No.25 dated February 6, 2014 on the ground that

such relaxation “based upon the theory of social justice is actually destructive of the

very fabric of the social justice”. It was found that the judgment of the Madurai Bench

has not kept in view the constitutional obligation of the State to provide equal level-

playing field to the under privileged. In consonance with the M. Nagaraj case, an

affirmative action taken by state government granting relaxation for TET would not

amount to dilution of standards and hence the view taken by the Madurai Bench was

set aside.

The Supreme Court also held that adoption of grading system for selection of

teachers was proper and that the equivalence of academic qualifications is a matter

for experts and courts normally do not interfere with decisions of government based

on recommendations of experts. It is the prerogative of state-authorities to formulate

a system whereby weightage marks is decided with reference to actual marks secured

by each candidate. As no arbitrariness is proved on the part of the respondents, in

formulating grading system, court cannot interfere with same. The appeals were thus

dismissed. The court relied on the decision in University of Mysore v. CD Govinda

Rao108 and Mohd. Sujat Ali v. Union of India.109

For re-employment of laboratory assistant no parity with teachers

A division bench of the High Court of Delhi in Amar Singh Chauhan v. Govt. of

NCT of Delhi110 considered the issue of re-employment of laboratory assistant after

retirement on the plea of parity with teachers and found such a claim unsustainable.

Petitioner, a laboratory assistant, was denied re-employment for a period of two years

post his retirement on ground that a laboratory assistant was not at par and cannot be

equated with teachers/teaching staff, who were/are entitled to post retirement re-

105 (2013) 4 SCC 540.

106 (1976) 3 SCC 540

107 (1973) 2 SCC 650. The court further relied on the decisions in M. Nagaraj and Others v.

Union of India (2006) 8 SCC 212; State of Madhya Pradesh and Anr. v. Kumari Nivedita

Jain and Others (1981) 4 SCC 296; Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and

Ors.,2016 (10) SCALE 163.

108 (1975) 3 SCC 76.

109 1964 (4 ) SCR 575.

110 2016 (230) DLT 94.


employment. The court found that the petitioner, who was working as a laboratory

assistant, could not be equated with and claim parity with teachers under Delhi School

Education Act, 1973. The court found that teachers, sub-categorized as primary school

teachers, trained graduated teachers, post graduate teachers etc. form separate and

distinct cadres, whereas the cadre of the laboratory assistants is independent. The

court rejected the contention that the petitioner at the request of the principal or superior

had taken classes, though he was a laboratory assistant.

Relaxation of qualification of vice-principal by managing committee not

permissible

In Binu Chaudhary v. Lt. Governor of Delhi,111 a division bench of the High

Court of Delhi found that under the School Education Rules, 1973 for the appointment

as vice-principal of school relaxation of qualification by Managing Committee was

not valid. Appellant was aggrieved by judgment of single judge, declaring that her

selection as Vice-Principal of Nutan Marathi Senior Secondary School was contrary

to rules framed for purpose under Delhi School Education Act and Rules, as appellant

did not hold a B. Ed qualification. The court found that the power to relax requirement

of having to possess a B.Ed. degree was that of concerned authority. Rule 97 states

that relaxation of any essential qualification for recruitment of any employee would

not be given effect to by any recommendation of selection committee or Managing

Committee “unless such recommendation has been previously approved by the

Director”. In view of these clear stipulations, the court held that the previous approval

of Director was essential.

Assistant Teachers (Music) entitled to Promotion as Principal (Primary School)

Is an Assistant teacher (Music) entitled for promotion to the post of Principal

(Primary School)? In Kiran Jain v. North Delhi Municipal Corporation112 a division

bench of the Delhi High Court considered this and found plea of difference in

educational qualification unsustainable. Petitioners who were Assistant Teachers

(Music) sought promotion to the post of Principal (Primary School) under the

Recruitment Regulations. Tribunal held that petitioners cannot seek promotion to the

post of Head Master/Head Mistress (Primary School), re-designated as Principal

(Primary School) under the extant Recruitment Regulations, since as per the Regulation

in vogue, post of Assistant Teacher (Music) was not a feeder cadre for promotion as

Principal (Primary School). However the high court found that the Recruitment

Regulations treat different categories of assistant teachers equally and all of them are

eligible for consideration for promotion to the post of Principal (Primary School).

The promotional post was not reserved and confined to Assistant Teachers (Primary)

or Assistant Teachers (Nursery). Further, in the year 2007, about 100 Assistant Teachers

111 2016 (156) DRJ 76.

112 2016 (230) DLT 318.


from categories other than Assistant Teachers (Nursery) and Assistant Teachers

(Primary) were promoted and appointed as Principal (Primary School). Court found

that the said promotions were not de hors and contrary to the Recruitment Regulations.

The court rejected the plea of respondent no.5 that Principal (Primary School) is also

required to hold and take classes and accordingly, Assistant Teachers (Music), Assistant

Teachers (Physical Education), etc. are not eligible for being promoted as Principal

(Primary School). According to the court, teaching is not confined to reading and

writing, it has to be wholesome and a wide spectrum exercise including fields like

music, physical education, art, etc. Moreover, the recruitment regulations, which are

clear and binding, do not differentiate between the different categories of assistant

teachers. Thus Assistant Teachers (Music) are eligible and can be considered for

promotion to the post of Principal (Primary School).

Order of extension not to postpone date of superannuation

The full bench of the High Court of Allahabad in Shashi Prabha Dwivedi v.

State of U. P.113 has held that the continuance on a post on the basis of an order of

extension would not have the effect of either extending or postponing the date of

superannuation. The court was considering the provisions of section 19 of U. P. Basic

education Act (34 of 1972) and rule 29 of the U P Basic education (Teachers) Service

Rules (1981). The question related to the effective date of superannuation in a case

where the teacher continuing in service even after date of superannuation on the basis

of extension order. The court found that the said order of extension would not change,

extend or postpone the date of superannuation. Teacher cannot claim further extension

in service on basis of change/amendment to academic session. The date of

superannuation remains intact and unchanged, irrespective of the amendment to the

academic session. R. 29 of Rules provided age of 62 years as date of superannuation.

It is not possible to read it as 64 years merely on the basis of the extension given to

teacher to continue on post. In the instant case teacher had attained the age of

superannuation i.e., 62 years prior to July 1, 2013 and was continuing in service till

June 30, 2015 only on the strength of being a Presidential Awardee. Teacher has not

attained the age of superannuation, that is 62 years, post April 1, 2015 but had attained

the same in the year 2013-14. Merely because in year 2014 G. O. directed to commence

academic session from April 1, 2015 to March 31, 2016 and date of retirement of

teacher falling in midst of May to June, she cannot claim further extension in service

till March 31, 2016. The court found that she had been rightly retired on June 30,

2015.

Bifurcation of posts by court not permissible

In Nina Devi v. State of Jharkhand,114 a division bench of the High Court of

Jharkhand has held that the bifurcation of posts out of 120 vacancies of primary

113 2017 (1) ALJ 726 (Full Bench): 2017 Lab. I.C. 921 (All.HC).

114 2017 (2) AJR 120.


trained teachers by court to accommodate petitioner was not permissible. The

advertisement was for the post of primary trained teachers, but the petitioner was

possessing qualification for the post of physical trained teacher.

VIII MINORITY EDUCATIONAL INSTIUTIONS

Whether brahmo samaj is a religious minority to be decided by the Central

Government.

In Brahmosmj Education Society v. State of West Bengal115 a five judge

Constitution bench of the Supreme Court was considering the writ petitions by Brahmo

Samaj Education Society, Calcutta for a declaration to effect that Brahmo Samaj is a

separate and distinct religion by itself, a religious minority and a religious denomination

within meaning of Article 25, 26 and 30(1) of Constitution of India. The court allowed

the petitioners to withdraw writ petitions with liberty to approach Central Government

for a declaration that petitioner Brahmo Samaj is a religious minority. The court refered

to the provisions of the National Commission for Minority Educational Institutions

Act, 2004.

The petitions were initially heard and disposed of by a bench of three Judges of

the Supreme Court by an order on May 5, 2004. The said judgment had held that even

without declaring the Brahmo Samaj as a religious minority, they would have the

same autonomy to appoint teachers since their right to administer included the right

to appoint teachers. The operative part of the order passed by the court was in the

following words:

...only a person who has qualified NET or SLET will be eligible for

appointment as a teacher in an aided institution. This is the required

basic qualification for a teacher. The petitioners’ right to administer

include the right to appoint teachers of their choice among the NET/

SLET-qualified candidates.

Aggrieved by the view taken by the Supreme Court, the State of West Bengal

filed review petition in 2005 which was allowed by the court in terms of an order on

July 31, 2008, whereby the order passed in the writ petitions was recalled and the writ

petitions were directed to be listed for hearing again before a Constitution Bench.

Thus these writ petitions came up before the five judge constitution bench for final

hearing and disposal.

The court permitted the petitioners to withdraw the writ petitions to enable

them to approach the Central Government for a declaration to the effect that brahmo

samaj is a minority religious community. It was noticed by the court that in terms of

115 2016 (3) SCALE 300.


section 2(c) of the National Commission for Minority Educational Institutions Act,

2004 the expression “minority” used in the said enactment means a community notified

as such by the Central Government. Since the power to declare a community as a

minority community under the said enactment is vested with the Central Government

the petitioners were allowed to approach the government for being notified as a

“minority” within the meaning of the said Act.

The court directed that in case a representation to the above effect is made by

the petitioners within a period of six weeks, the Central Government may have the

same examined at an appropriate level and take a final decision under intimation to

the petitioners as expeditiously as possible but preferably within a period of one year

from the date the representation is received. During the interregnum the interim

arrangement made by the Court in terms of the order dated April 2, 1984 as continued

by the order dated July 31, 2008 passed in the review petitions should continue for a

period of one year.

Same Regulatory measures in minority-run institutions as in non-minority

In Modern Dental College and Research Centre v. State of Madhya Pradesh116

a five judge Constitution Bench of the supreme court made a general observation as a

clarification with regard to minority run institutions. The case related to regulatory

measures introduced by the state of M.P. in the admission to professional educational

institutions including medical colleges in the matters of common entrance test, fee

fixation authority and reservation in favour of SC/ST/OBC students. The clarification

went as follows:

“It would be necessary to clarify the position in respect of educational institutions

run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation,

with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, it

becomes clear that insofar as such regulatory measures are concerned, the same can

be adopted by the State in respect of minority-run institutions as well. Reliance placed

by the appellants in St. Stephen’s College v. University of Delhi may not be of much

help as that case did not concern with professional educational institutions.”

This clarification appears to be problematic. The court’s clarification can be

interpreted to mean that the regulatory measures permissible under article 19 and 30

are the same. The concerned regulatory measures are treated and discussed as

restrictions on the fundamental right to run educational institutions as occupation

subject to the provisions of clause 6 of article 19. Are they squarely applicable to the

institutions under article 30? At least one of the restrictions or regulations under

challenge, that is, reservation in favour of SC/ST/OBC, is not applicable to them at

all, in view of the ratio of TMA Pai Foundation case (eleven judges) and Ahmedabad

St Xavier’s (nine judges) cases and additionally being covered by the exception carved

116 (2016) 7 SCC 353.


out the under article 15(5) itself. The danger of the melting away of the distinction

between the rights under article 19 (1) (g) and article 30 (1) has been effectively

stopped by the Parliament in its constituent power by providing in article 15(5) an

exception to the minority educational institutions referred to in clause (1) of article

30. Moreover, there is no detailed and separate discussion with regard to the relevant

facts as are related to minority run institutions nor any discussion of the legal points

or issues necessitating the clarification as above. Such an exercise would have saved

the court from making a clarification in ignorance of the provisions of article15(5)

exempting minority run institutions and the relevant ratio in TMA Pai Foundation

case (eleven judges) and Ahmedabad St Xavier’s (nine judges) cases.

Superannuation rule applicable to principal of minority run schools in Delhi

A division bench of the High Court of Delhi in CBSE v. Mount Carmel School

Society117 considered the permissibility of extension of the term of employment of

the principal of an unaided minority educational institution beyond the superannuation

age under rule 110(2) of the Delhi School Education Rules, 1973. The matter related

to the continuation of respondent no.2 as principal of senior secondary school run by

respondent no.1 beyond age of 60 years. Though respondent no.2 attained age of 60

years, respondent no.1 by resolution granted extension of 5 years in recognition of

her contribution as a founder principal and vast experience of 29 years of teaching

and administration. However, the CBSE treated said extension as an irregularity and

on that ground rejected application of respondent no.1 for approval as directed by

Director of Education/GNCTD to dispense with services of respondent no.2.

Respondent nos.1 and 2 filed W.P.(C) contending that petitioner no.1/respondent No.1

is an unaided minority institution which receives no grant from Government of NCT

of Delhi or any other government authority and therefore CBSE has no right or

jurisdiction to interfere with running and administration of said school. Single Judge

did not agree with plea of CBSE that issue involved was squarely covered by decision

in Frank Anthony Public School and allowed writ petition thereby setting aside

impugned orders and holding that Rule 110 of DSE Rules prescribing retirement age

does not have any application to schools run by petitioner No.1/respondent No.1. in

appeal by CBSE the court found that the decision in Frank Anthony Public School

cannot be distinguished on the ground that while rendering said judgment there was

no occasion for Supreme Court to consider position with respect to key post of Principal

in an unaided minority school and whether provisions of Chapter IV of DSE Act

would continue to apply to such post and consequently whether Chapter VIII of DSE

Rules would apply. Such interpretation would virtually nullify ratio laid down by

Supreme Court. Consequent to law declared in Frank Anthony Public School,

provisions of DSE Rules, 1973 corresponding to section 8(1), 8(3), 8(4), 8(5), section

9, 10 and 11 shall also be applicable to unaided minority institutions. The court found

117 2016 (227) DLT 373.


that the Rule 110 providing for retirement age which corresponds to Section 8(1) of

DSE Act is applicable to unaided minority institutions in terms of law laid down in

Frank Anthony Public School. Ratio laid down in Frank Anthony Public School stands

good and is binding and that it is not open to this court to go beyond law so declared

on any ground whatsoever. Therefore, following ratio laid down in Frank Anthony

Public School, retirement age prescribed under Rule 110 of DSE Rules, 1973 is

applicable to respondent no.1 institution. Consequently, the appeal was allowed and

the action of respondent no.1 in granting extension to respondent no.2 was declared

illegal being contrary to Rule 110 of DSE Rules, 1973.118 The court found that there

could be no dispute about the principles of law laid down by the Supreme Court that

the minority educational institutions shall have the freedom to appoint teachers of

their choice.

In Frank Anthony Public School, it was declared that section 12 of DSE Act is

discriminatory and void except to the extent it makes section 8(2) inapplicable to

unaided minority institutions. Section 8(2) which provides that no employee of a

recognized private school shall be dismissed, removed or reduced in rank except with

the prior approval of the Director, was excluded because it was found to be interfering

with the rights of minorities to administer their educational institutions. It was made

clear by the Supreme Court that the provisions of chapter IV, except section 8(2), do

not encroach upon any rights of minorities to administer their educational institutions

and thus it was concluded that sections 8(1), 8(3), 8(4), 8(5), 9, 10 and 11 of DSE Act

do not encroach upon any right of minorities to administer their educational institutions

and therefore they are applicable to unaided minority institutions.

The court found that consequently, the provisions of section 8 (2) in chapter IV

of the DSE Act regarding dismissal, removal or reduction in rank of employees continue

to be inapplicable to unaided minority institutions and all other provisions of chapter

IV i.e., section 8(1), section 8(3), section 8(4), section 8(5) as well as section 9 which

provides that the employees of a recognized school shall be governed by code of

conduct that may be prescribed, section 10 which provides for scales of pay and

allowances and etc. of the employees of a recognized private school and section 11

which provides for constitution of Delhi School Tribunal for the purpose of disposal

of an appeal preferred under the DSE Act shall be applied to unaided minority

institutions.

118 The court relied on the decision of the Supreme Court in Frank Anthony Public School

Employees Association v. Union of India (1986) 4 SCC 707; Sindhi Education Society v.

Chief Secretary, Govt. of NCT of Delhi & Ors. (2010) 8 SCC 49 was distinguished on facts.

The court also referred to the decisions in Management Committee of Montfort Senior

Secondary School v. Vijay Kumar (2005) 7 SCC 472; G. Vallikumari v. Andhra Education

Society (2010) 2 SCC 497; Secretary Malankara Syrian Catholic College v. T. Jose (2007) 1

SCC 386 and St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717.


Jain High School a minority institution

In Jain Kanya Pathshala High School, Arrah and others v. State of Bihar and

others119 a division bench of the High Court of Patna considered the recognition of a

Jain School as a minority institution under article 30 of the Constitution of India in

the context of the Bihar Non-Government Secondary Schools (Taking Over of

Management and Control) Act (33 of 1982). The director of secondary education on

inspection, recognised the school to be having characters of minority institution. The

recognition was to be granted after fulfilling of certain conditions. The court has held

that such school cannot be held as general school. The court also directed that the

school was to be granted status of minority institution as it already fulfilled all requisite

conditions.

Students not to insist on right to free education in a minority institution

In Nidhi Kaushik v. Union of India120 a single judge of High Court of Allahabad

considered the right of a child to insist on free education under the provisions of the

RTE, 2009 and found that the students cannot insist on free education as matter of

right in private minority institution whether aided or unaided.

Minority schools not to deny promotion to children up to elementary level

In Sobha George Adolfus v. State of Kerala121 a single judge bench of the High

Court of Kerala considered whether minority run schools whether aided or unaided

can be made to comply with the mandate of not holding back any child in any class

till the completion of elementary education as provided under section 16 of RTE,

2009 even though the said act is not applicable to them. The court found that the

denial of promotion up to elementary school level in minority schools would amount

to denial of fundamental rights of the child, as it would have a direct bearing on the

right to life of the child guaranteed under article 21 of the Constitution.

The child upto the elementary school level is in the process of evolving a

personality. In this formative period, the child conditions his learning skills without

discretion. The fixation standard upto elementary school in section 16 of RTE Act is

obviously by taking into account adolescence of the children. On pubertal changes,

adolescents become more independent and would be in a position to assess their own

ability and can mould themselves to correct the defects existing in their performance.

Any denial of promotion before reaching the age of discretion would have an impact

on their emotional state and feelings, and in that sense, it amounts to negation of

‘best interest value’ horizontally affecting right to life of the child.

The state under article 21A of the Constitution is obliged to provide free and

compulsory education upto the age of 14 years. Thus, there may not be any difficulty

119 AIR 2017 (NOC) 134 (Pat.).

120 2016 (6) ALJ 156.

121 AIR 2016 Ker 175.


in holding that, even an unaided educational institution imparting education to the

children upto the age of 14 years is discharging a state function. Thus, a writ petition

would be maintainable as against a private body which discharges a state function of

imparting education to the children upto the age of 14 years.

Right to education is implicit in right to life and article 21A has to be understood

as a species of larger genus of rights protected under article 21 of the Constitution of

India. Fundamental right can be enforced even as against a private minority school.

Minority educational institution claiming protection under article 30(1) cannot

hold back any child in any class upto elementary education. No minority can be heard

to say that to protect their identity, they have a right to trample upon the rights of

other which are asserted or claimed not in derogation of goals of article 30(1) of the

Constitution. No right of minority will be affected if a child is ordered to be promoted

to a higher level class. The protection as envisaged under the Constitution is to protect

the minority character of the education institution. Therefore, when denial of others’

rights by such institutions have no nexus or relation with the object of the protection,

court has to denounce upon such claim. Therefore, protection under article 30(1) is

not available to a minority educational institution to hold back any child in any class

upto elementary education.

The child was illegally held back from promotion to 7th standard by school.

School authorities refused to promote the child in spite of direction from Government

and Kerala State Commission For Protection of Child Rights. However, the court

found that after repeating the year the child was promoted 7th standard and it would

not be proper to direct his promotion to 8th class without his being in that class. Hence

the only remedy available then is to order compensation for the violation of the

fundamental rights. School authorities were directed to pay compensation of Rs 25,000/

- and cost of Rs 10,000/-

Refusal to pay salary by minority institution not proper

In Momin Matin Ahmad Mobin Ahmad v. State of Maharashtra122 a division

bench of the Bombay High Court (Aurangabad Bench) permissibility of a minority

institution to refuse payment of salary on the ground that direction to absorb the said

teacher was ultra vires as the institution was minority institution. A teacher of a minority

institution was absorbed on the direction of education officer by minority institution.

The salary of that teacher was not paid on the ground that direction to absorb the

teacher was ultra vires as institution was minority institution. The court found that

the education officer issued said directions on the basis of order of high court in

earlier petition. The teacher absorbed and discharging duties for considerable period.

Minority institution absorbed similarly placed persons and also paid salary. The refusal

to pay salary was not proper. Minority institution was directed to submit salary bills

for release of salary

122 2016 (3) ABR 245 (Aurangabad Bench).


Discharge of manager of minority institution without hearing

In Bimla Lal v. State of U. P.123 a single judge of the High Court of Allahabad

has found legal and proper the order of discharge of the manager of minority institution

from service passed by Bishop since the manager was found to have indulged in

fraudulent practice. Prior opportunity of hearing was not necessary since there was

no provision for notice or opportunity of hearing in scheme of administration before

discharge and the manager was holding the office till further notice and not for fixed

tenure. The court found that there was no violation of principles of natural justice and

the order of discharge was not stigmatic. Moreover, though the manager of minority

institution was discharged following allegations of fraud, discharge was not on account

of being guilty but to pave way for free and fair enquiry. Enquiry committee was

constituted to look into said allegations and manager would be given full opportunity

to defend herself. Therefore the order of discharge was not punitive.

IX CONCLUSION

Education law had its march with firm conviction that education alone is the

foundation on which a progressive and prosperous society can be built. During the

year under survey, the apex court gave leadership in cleaning up the cobwebs in the

system of education at the same time protecting and defending the constitutional

rights of all concerned. Different high courts in the states followed suit. The courts

were rightly worried about the commercialization and profiteering in the field of

education. The apex court through a five judge bench felt the need to reiterate that

education is essentially a charitable activity and profiteering and commercialization

are prohibited in it.124 In the same case it was reminded that the occupation of education

cannot be treated at par with other economic activities. Hence the State cannot remain

a mute spectator and has to necessarily step in, in order to prevent exploitation,

privatization and commercialization by the private sector. The courts have emphasized

the necessity of ensuring equitable access. For example, one of the high courts has

declared: 125

So fundamental is education to a society - it warrants the promotion of

equitable access to knowledge to all segments of the society, irrespective

of their caste, creed and financial position. Of course, the more indigent

the learner, the greater the responsibility to ensure equitable access.

The fundamental right of children to education under article 21A of the

Constitution and under the provisions of RTE, 2009 got expansive interpretation with

123 2016 (2) ALJ 551; 2016 LAB.I.C.1819 (All. HC).

124 Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 SCC

353.

125 Chancellor, Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services,

2016 (235) DLT 409.


regard two issues and problems which have sprung up in the course of the

implementation of these rights. It was laid down that the government has no power to

limit the children belonging to disadvantaged group and weaker section to those of

BPL families only disentitling them from admission within the 25% of admissions in

unaided private schools.126 Navodyaya Vidyalayas were directed not to deny admission

on the plea of age.127 It was also categorically declared that a child could not be refused

to be admitted on the ground of over age.128 Examinations if conducted at the

elementary level can only be for evaluation and not to pass or fail.129 Right to education

was interpreted to include proper school building with needed amenities.130 It would

necessarily include basic infrastructure.131 It was also interpreted that the denial of

promotion up to elementary school level is a denial of fundamental rights of the child

guaranteed under article 21 of the Constitution and even the minority run schools

also are obliged to comply with it even though the RTE, 2009 may not apply to those

schools.132 The Supreme Court wanted the concerned authorities to adopt specific

content in school curriculum regarding the drugs, alcohol and substance abuse amongst

children.133 In addition to this the importance of adopting collective efforts required

to avoid unfair means was emphasized.134

In tune with the constitutional mandate of bringing about substantive and real

equality in the field of education, a five judge bench of the Supreme Court has held

that it was permissible to reserve seats for SC/ST/OBC categories even in the

admissions to private unaided professional colleges.135 The courts approved of giving

weightage of marks in admission to post graduate courses to those in-service candidates

who have worked in remote and/or difficult areas of the state.136 The apex court

approved as permissible the granting relaxation of in marks to SC, ST, backward

classes, physically handicapped, de-notified communities etc since the purpose of

relaxation was to increase the participation of candidates belonging to backward classes

in State’s pool of teachers.137 At the same time the courts have bemoaned the fact that

126 Abhyutthanam Society v. State of Rajasthan, AIR 2016 Raj 164 (Jaipur Bench).

127 Principal, Jawahar Navodaya Vidyalaya v. Abhay Chaudhary (minor), AIR 2016 (NOC)

562 (UTR.).

128 Siddharth International Public School v. Motor Accident Claims Tribunal, 2016 (6) ADR

71.

129 Rajendra Kuntal v. State of Rajasthan , AIR 2016 Raj. 60 (Jaipur Bench).

130 N. G. Ningshok v. State of Manipur, AIR 2017 (NOC) 25 (MPR).

131 Deepak Rana v. State of Uttarakhand , AIR 2017 (NOC) 930 (UTR.).

132 Sobha George Adolfus v. State of Kerala and others AIR 2016 Ker 175.

133 Bachpan Bachao Andolan v. Union of India (2017) 1 SCC 653.

134 Nidhi Kaim v. State of Madhya Pradesh (2016) 7 SCC 615.


353.

136 State of Uttar Pradesh v. Dinesh Singh Chauhan (2016) 9 SCC 749.

137 V. Lavanya v. State of Tamil Nadu (2017) 1 SCC 322 .



353.

the quality of medical education in India is at its lowest ebb and required all concerned

to take urgent steps remedy the malaise.138 Thus the year under survey would be

remembered for the purposive and expansive interpretation of the education law at

the same time adapting the legal provisions to the fast changing circumstances and

problems of the country and society.

14 education law

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