Orissa High Court
Hrithik Mohanty vs Kendriya Vidyalaya Number Two ... on 22 July, 2016
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.10083 of 2016
In the matter of an application under Article 226 of the Constitution of
India.
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Hrithik Mohanty .... Petitioner
Versus
Kendriya Vidyalaya No.2,
Bhubaneswar & others .... Opp. Parties
For Petitioner ... Mr. Mahendra Ku. Sahoo, Advocate
For Opp. Parties ... Mr. A.K. Dash, Advocate
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 20.07.2016 : Date of judgment: 22.07.2016
Dr. A.K.Rath, J Justice R.C. Patnaik (as he then was) in Narayan Sahoo and
others v. State of Orissa and others, 1989 (II) OLR 394 while classifying the
litigants proclaimed:
"By and large, common man is not litigation-minded nor he
is averse to litigation. Litigation is not his pursuit, his
hobby. Sometimes, however, he inherits litigation and
willy-nilly pursues it. Often, however, a litigation is thrust
on him..."
The petitioner belongs to last category. Lackadaisical attitude
exhibited by the opposite parties in fixing cut off marks in Mathematics
and Science over and above the Comprehensive Grade Point Average
obtained by the applicant in CBSE/Class-X for admission into Class-XI
Science stream in the academic Session 2016-17 compelled him to
approach the portals of this Court as a last resort.
2. Sans details the case of the petitioner is that Kendriya
Vidyalaya No.2 Bhubaneswar is imparting education upto Class-XI. The
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School is affiliated to Central Board of Secondary Education (hereinafter
referred to as "the CBSE"). It is guided by the rules and regulations of the
CBSE. The CBSE conducts final examination. All the Kendriya Vidyalayas
including opposite party no.1 are controlled and administered by Kendriya
Vidyalaya Sangathan, New Delhi, a creature of the Central Government,
(hereinafter referred to as "the KVS"). The KVS used to follow the
instructions issued by the CBSE in the matter of admission/class
promotion and final examination. Opposite party no.2, after introduction
of Comprehensive Grade Point Average (in short, "CGPA"), revised the
admission guidelines in consonance with the CBSE norms applicable with
effect from the academic session 2014-15 onwards. The admission
guidelines were communicated to all KVS. The practice was followed in the
matter of class promotion/admission from a lower class to higher class in
the same school. The authorities of the KVS decided to follow the
guidelines for admission which was introduced for the sessions 2014-15
and 2016-17. Accordingly, KVS issued admission guidelines for the
academic session 2016-17, vide Annexure-1. Part-A of Clause-9 of the
guidelines provides for the method of admission into Class-XI. The merit
list is prepared as per CGPA obtained by the applicant in CBSE/Class X
result in every school. Clause 9(b) provides for allotment seats to the
applicant as per the rank in the merit list prepared in accordance with
Clause 9(a). The minimum student strength shall be 40 and maximum 53.
Till the vacancies in respect of a stream are available, the students of their
own school are to be accommodated. While the matter stood thus, the said
guideline was changed and accordingly the admission notice was issued
by the opposite party no.1 on 30.5.2016, vide Annexure-2. The notice
provides for admission into science streams as follows:
"(1) Science Streams (with Maths).
(i) A minimum of B1 Grade in Maths;
(ii) A minimum of B1 Grade in Science
(iii) A minimum of 7.6 CGPA.
A student has to secure minimum B1 grade in
Mathematics and B1 grade in Science. Over and above
he has to secure 7.6 CGPA."
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3. The petitioner asserts that he has secured 7.8 CGPA in the
examination conducted by CBSE, 2016. He has secured B2 grade in
Mathematics and Science respectively. Despite securing 7.8 CGPA, he has
been debarred from making application for Science with Mathematics in
view of the minimum cut off marks provided for Science and Mathematics.
With this factual scenario, this writ petition has been filed.
4. Pursuant to issuance of notice, a counter affidavit has been
filed by the opposite parties 1 to 4. The sum and substance of the case of
the opposite parties is that Kendriya Vidyalaya No.2, C.R.P.F.,
Bhubaneswar, opposite party no.1, is controlled by the rules framed by the
KVS. The school has its own guidelines and admission procedure. The
CBSE used to conduct examination and declare result. The CBSE has no
control over the internal administration with regard to admission process
of KVS. Opposite parties follow the CBSE syllabus for admission into
different classes. The KVS is controlled by own guidelines and same is
changed by the authorities for the betterment of the students. The KVS has
amended its admission guideline to improve the standard of education and
to produce the better students in future looking into the educational
background of the State. Therefore, the opposite parties issued the
amended rules for admission for the academic session 2016-17.
Accordingly, the students are eligible to be promoted from Class-X to
Class-XI if he or she secures B1 grade in Mathematics and B1 grade in
Science with minimum 7.6 CGPA and Science without Mathematics if the
student secures B1 grade in Science with at least 7.6 CGPA. The opposite
parties have the authority to amend the admission guideline. The old
students who have secured grades with cut off range are also promoted
and allowed to take admission according to the option. No students of the
school have been deprived of taking admission into the higher class i.e.
from Class-X to Class-XI. The admissions are strictly on merit. In the
instant case, the petitioner has secured 7.8 CGPA. But then, he has
secured B2 grade in Mathematics and B2 grade in Science. Therefore, he is
not eligible for admission for Science with Mathematics. He has been
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offered Commerce stream according to his eligibility. The guardians of
some of the students have written to KVS, New Delhi for liberal
consideration, but the same has not been accepted. Opposite party no.1 is
not the authority to override the guidelines issued by KVS.
5. Heard Mr.M.K. Sahoo, learned counsel for the petitioner and
Mr. A.K. Dash, learned counsel for the opposite party no.1.
6. Mr. Sahoo, learned counsel for the petitioner, submits that the
impugned restriction so far as Mathematics and Science streams are
concerned providing B1 grade in the said subjects has not been imposed
by the CBSE authorities. Further, the admission of a student in Class-XI
in the school is not a fresh admission. The same is a promotion. The
petitioner is a student of Class-X in the opposite party no.1-school and as
such no restriction can be imposed. Therefore, the impugned notification
suffers from vice of arbitrariness. The impugned restriction is contrary to
the law laid down by the apex Court in the case of Principal, Kendriya
Vidyalaya and others v. Saurabh Chaudhary and others, (2009) 1 SCC
794. The restriction is arbitrary and illegal inasmuch as the same does not
project any rational goal to achieve. Further, restriction was not there in
the previous order. There is no justification to provide the cut off marks in
Science and Mathematics over and above the cut off marks provided to the
Science stream. Further, as per the admission guideline, one section of
Class-XI shall be the maximum 53 students. Last year, as per the
permissible strength three sections were there in Class-XI Science stream
for the own students of the opposite party no.1-school. In the present
session, at best 159 students can be accommodated on the basis of their
ranking prepared on merit. He further submitted that the petitioner is a
National Sports awardee. He got national certificate granted by KVS. As per
the previous practice, a candidate, who is a participant in KVS National
Sports, is to be awarded 0.6 CGPA in addition to his/her total grade point
obtained in Class-X. In view of the same, the additional mark has to be
provided to him. He further submitted that 191 students of opposite party
no.1-school had appeared at the Class-X CBSE Examination, 2016. All the
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students have passed. Out of them, 47 students secured CGPA-10, 62
students secured CGPA-9 to 9.9, 37 students secured CGPA-8.4 to 8.9.
The petitioner comes within the zone of admission into the Science stream
with Mathematics, but he has been illegally deprived of admission.
7. Per contra Mr. Dash, learned counsel for the opposite parties,
submitted that the CBSE has no control over the internal administration of
KVS. The KVS follows the CBSE syllabus. The CBSE conducts the
examination. The KVS has to frame guidelines for providing
admission/promotion. Opposite party no.1-school is controlled by the
guidelines issued by the KVS. To improve the standard of education,
keeping in view the future of the students and their educational
background, the opposite party no.1 has issued the guidelines for
admission for the academic session 2016-17. Accordingly, the students of
the opposite party no.1-school are eligible for promotion from Class-X to
Class-XI in Science stream with Mathematics provided he/she has secured
B1 grade in Mathematics and B1 grade in Science with minimum 7.6
CGPA. The students, who have secured less grade below the cut off marks
have been allowed to take admission in other streams. No students have
been deprived of promotion to the next higher class. Since the petitioner
has secured B2 grade in Science and B2 grade in Mathematics and 7.8
CGPA, he is not eligible to get admission in Science with Mathematics. He
has been offered Commerce stream according to his eligibility.
8. Before proceeding further, it is apt to state here the guidelines
for admission for Class-X and XI for the academic session 2016-17 issued
by the KVS. Clause-9 of Part-A of the guideline is quoted hereunder;
"9. ADMISSION FOR CLASS X AND XII
Admissions to class X & XII, other than KV students, will be
entertained subject to availability of vacancies. Such
admissions to class X and XII will be considered by the
Deputy Commissioner of the Region concerned, only if, the
average strength in class X/XII is below 40. This will further
be subject to the following conditions:
i) The child has been in the same course of studies i.e. in a
CBSE-affiliated school.
ii) For Class X, the child must have obtained not less than
6.5 CGPA in class IX (CGPA be calculated as per formula
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applied by CBSE in class X). For admission to class XII, 55%
marks in class XI examination is mandatory.
iii) The child should OTHERWISE be eligible as per KVS
admission guidelines.
iv) The combinations of subjects opted by the student are
available in Kendriya Vidyalayas."
9. Clause 9(I)(a) of Part-C of the guidelines provides that the
merit list will be drawn/prepared as per CGPA obtained by applicant in
CBSE/Class X results in every School.
10. The opposite party no.1-school has issued admission notice on
30.5.2016, vide Annexure-2, for admission into Class-XI for the session 2016-17. Clause-1 of the notice deals with Science Streams (with Mathematics). The same is quoted hereunder;
"(1) Science Streams (with Maths)
(i) A minimum of B1 Grade in Maths.
(ii) A minimum of B1 Grade in Science.
(iii) A minimum of 7.6 CGPA."
11. In Principal, Cambridge School and another v. Payal Gupta (Ms) and others (1995) 5 SCC 512, the apex Court held that once a student is given an admission in any educational institution by making an application, he is not required to submit fresh application forms after he passes a class for his admission to the next higher class. The admission of the students to the next higher class after passing Class-X cannot be construed to a fresh admission/re-admission in the Higher Secondary School Examination and the Class-X cannot be regarded as a terminal examination for those who want to continue their study in eleventh and twelfth classes of the said school.
12. In Principal, Kendriya Vidyalaya and others v. Saurabh Chaudhary and others, (2009) 1 SCC 794 the question arose as to whether it is permissible for laying down a cut off mark. The apex Court in paragraph-18 held thus:
"18. One can have no objection to a school laying down cut off marks for selection of suitable stream/course for a student giving due regard to his/her aptitude as reflected from the Class X marks where there are more than one stream. But it would be quite unreasonable and unjust to 7 throw out a student from the school because he failed to get the cut off marks in the Class X examination. After all the school must share at least some responsibility for the poor performance of its student and should help him in trying to do better in the next higher class. The school may of course give him the stream/course that may appear to be most suitable for him on the basis of the prescribed cut off marks."
13. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, it is open to the school laying down cut off marks for selection of suitable stream/course giving due regard to his/her aptitude as reflected from Class X marks where there are more than one stream. In the instant case, the school in question is imparting different courses for the students. Thus the school can fix a cut off mark for selection of a suitable stream/course for a student in a particular stream.
14. So far as the Science stream is concerned, minimum 7.6 CGPA has been provided. But then the question arises as to whether the opposite parties can fix cut off marks in the subjects Mathematics and Science over and above CGPA.
15. In Budhan Choudhry and others v. State of Bihar, AIR 1955 SC 191, the Constitution Bench of the apex Court in paragraph-5 of the report held :
"It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."8
16. In E.P. Royappa v. State of Tamil Nadu and another, AIR 1974 SC 555, the apex Court in paragraph-85 held thus:
85. xxx xxx xxx Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined"
within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
17. Does the sub-classification withstand the test enumerated in Budhan Choudhry (supra) ? To put in other words, whether it is permissible to create a class within a class in the matter of promotion a student to Class-XI in the same School ?
18. On the anvil of the decisions cited supra, the case of the petitioner may be examined. The admission notice issued by the opposite party no.1 provides the eligibility criteria for admission to Class-XI Science and Commerce. It stipulates that in order to be eligible for admission into Science stream with Mathematics, a student must secure a minimum of B1 Grade in Mathematics, B1 Grade in Science with 7.6 CGPA. Admittedly the petitioner has secured 7.8 CGPA with B2 grade in Mathematics and Science in Class-X in CBSE Examination, 2016. Does it imply that he is less meritorious than the student who has secured only 7.6 CGPA with B1 grades in Mathematics and Science ? A student who has secured B2 in Mathematics and Science does not mean that he cannot excel in Class-XI Examination. The stand of the opposite parties is that the admission guideline has been amended to improve the standard of education and to produce the better students in future looking into the education 9 background of the State. Neither any study was undertaken, nor any survey was made. No material has been produced before this Court that fixing the cut off marks in the subjects-Mathematics and Science over and above the CGPA would result in producing more brilliant students. Rather fixing the cut off marks in Mathematics and Science over and above CGPA will debar a meritorious student, who has secured 7.8 CGPA. In the name of improvement of standard of education and to produce the better student in future looking to the education background of the State, the opposite parties cannot debar a student from taking admission into Class XI in their whim and caprice. The classification is illegal and suffers from the vice of arbitrariness. The same has resulted in discrimination against some of the students and the object achieving meritorious students would not be achieved.
19. In view of the aforesaid analysis, the writ application is allowed. The opposite party no.1 is directed to admit the petitioner in Class-XI Science stream. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
The 22nd July, 2016/Pradeep