Calcutta High Court (Appellete Side)
Ns 2016 Netai Bhadra vs State Of West Bengal & Ors on 5 October, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 1 05.10. WP 13292(W) of 2016 ns 2016 Netai Bhadra.
Versus State of West Bengal & ors.
Mr. Prantick Ghosh, Mr. Siddhartha Sarkar .... For the petitioner.
Mr. Sadhan Kr. Halder, Mr. Abdus Salam ... for the State.
Mrs. Chama Mookherji, Mr. Rananjay Chatterjee, Mr. Priyankar Mukherjee .... For Calcutta Boy's School.
Calcutta Boy's school is a well-known school in Calcutta. The main school is at S. N. Banerjee Road. There are two other units of the school, one at Beliaghata and one at Baruipur. The school also has a unit at Asansol. The petitioner's son is a student of standard 4 in the Beliaghata unit of the school.
The main unit of the school which is situated at S. N. Banerjee Road had some vacancies in standard 4 and accordingly invited applications from candidates who intended to participate in the selection test. The petitioner's son was issued the application form and was permitted to take the selection test. He was successful and was included in the list of candidates selected for admission to the 2 main unit of the school. However, when the petitioner went to deposit the requisite fees, he was not allowed to do so by the school authorities. The reason cited by the school authorities was that the school has a declared policy that transfer between branch campuses in the same city is not permitted. In short, the petitioner's son was denied admission. Being aggrieved, the petitioner has filed this writ petition for a writ of mandamus directing the school authorities to admit his son.
Learned counsel appearing in support of the application submits that once the petitioner's son has been selected for admission, he having been successful in the admission test, he cannot be denied admission. He has acquired a right to be admitted in the main branch of the school. The stand of the school authorities is not tenable in law. The school authorities were aware that the petitioner's son was a student of the Beliaghat unit of the school. With such knowledge, the school issued admission test form to the petitioner's son and allowed him to take the admission test. Now that the petitioner's son has successfully cleared the admission test, he cannot be 3 denied admission.
Appearing on behalf of the school authorities Mrs. Mookherji, learned counsel,
submitted that it is a stated policy of the Calcutta Boy's School that there would be no transfer of a student from one unit of the school to another unit in the same city. Such policy is posted in the notice board of the school round the year. It is not credible that the petitioner was not aware of such policy of the school. The school is a minority school and has the right to administer and manage its affairs in the manner they deem fit. The petitioner's son in spite of having cleared the admission test and in spite of finding a place in the selected students' list, did not acquire any indefeasible right to get admission in the main unit of the school. Mrs. Mookherji relied on a seven-Judge Bench judgment of the Hon'ble Apex Court in the case of P. A. Inamdar and others Versus State of Maharashtra and others reported in (2005) 6 Supreme Court Cases
537. She relied on paragraphs 93 and 132 of the judgment which read as follows:
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"93. The employment of expressions 'right to establish and administer' and 'educational institution of their choice' in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can, as a matter of its own free will, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the free will of the minority educational institution admitting students belonging to a non- minority community is, as spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution.
132. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community 5 from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1)."
Mrs. Mookherji also relied on an unreported decision of a learned Single Judge of the Punjab and Haryana High Court in the case of Deva Singh Versus The Kurukshetra University wherein, at paragraph 13 of the judgment it was held as follows:
"13. Mr. Jawahar Lal Gupta also referred to the Division Bench judgment of the Allahabad High Court in Ramesh Chandra Chaube v.
Principal Bipin Behari Intermediate College, Jhansi, AIR 1953 All 90. And on the basis of that judgment argued that there is no guarantee in the Constitution that if a student is studying in any institution then he has right to continue his education in that particular institution even though he may not be acceptable to the authorities of the institution even though he may not be acceptable to the authorities of the institution. The Allhabad High Court went to the length of holding that the Principal of a 6 College can without communicating the reasons inform a student studying in the College that he cannot be admitted to the College during the next session where the Principal Comes to the conclusion that such an action is necessary in the interest of discipline among students. It was held that such an action is necessary in the interest of discipline among students. It was held that such an action of the Principal is not hit by Article 29(2) and the High Court will not interfere under Article 226 with the action taken by the Head of an educational institution. Whatever may or may not be the said about informing a student in advance about informing a student in advance about the decision to refuse him admission in the next course, it appears to me to be elementary that the Head of an institution can always refuse admission to a student to a new course where such authority comes to the conclusion that such action is necessary in the interest of discipline among the students. In any event grant of relief under Art. 226 of the Constitution being discretionary, it would in my opinion be permitting the 7 abuse of the provisions of the Constitution if students excluded from admission by educational institution on the grounds of the type referred to above are thrust on those institutions by High Courts in the purported exercise of their extraordinary jurisdiction under Article 226."
In short, Mrs. Mookherji submitted that since the petitioner's son has no legal right to be admitted to the main unit of the Calcutta Boy's School, nor the petitioner has any legal right to have his son admitted in the main unit of the school, no writ of mandamus will lie. In any event, it is not that the petitioner's son is deprived of right to education since he has been studying in the Beliaghata unit of the Calcutta Boy's school for the last 4/5 years. The Beliaghata unit is an integral part of the main unit, although it may have a different management for day- to-day affairs. The functioning and operation of the Beliaghata unit is closely monitored by the Governing Body of the school. Hence, it is not that the standard of education is inferior in the Beliaghat unit or that the education of the petitioner's son will suffer in any manner.
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In reply, learned counsel Mr. Ghosh appearing for the petitioner, submitted that according to the petitioner the main unit of the school has a higher standard and that is why the petitioner wants to shift his son from the Beliaghata unit to the S. N. Banerjee Road unit of the school. Further, the school authority should have held a common admission test for all the units and depending on the result of the students taking the admission test, they could be assigned to different units in order of merit. He reiterated that it would be extremely unfair to the petitioner's son not to grant him admission, although he qualified in the admission test and his name was included in the list of selected candidates.
I have considered the rival contentions of the parties. It is not disputed that the Calcutta Boy's School is a minority educational institution within the meaning of Article 30 of the Constitution of India. It is well-settled and would also appear from the judgment of the Hon'ble Apex Court referred to above that a minority institution has complete right to administer its affairs as it deems fit and proper and in the best interest of the institution. Government or 9 any outside interference in the running of such institution is not generally permissible. The authorities are entitled to administer the affairs of the institution in accordance with the policies framed by the Managing Committee. So long as an action of the school authorities is not tainted with mala fides or is not malicious or vindictive the Courts do not interfere. The Courts will not normally go into the question of whether the policy followed by the school is wise or otherwise. In the instant case, no case of mala fide on the part of the school authority has been made out.
It is also established law that selection of a candidate for admission to an educational institution does not vest that candidate with any absolute right of getting admission. The factum of selection only indicates that the candidate is otherwise eligible for admission but there may be several reasons why such admission may not be granted to the candidate. This may include administrative reasons. In the absence of an indefeasible right or a right recognised by law, the Court cannot issue a writ of mandamus or a direction on the school authority to admit the petitioner's son in the main unit of the school. 10
The school authorities have stated in no uncertain terms in the affidavit-in-opposition that allowing the petitioner's son to take the admission test was a mistake on the part of the school authorities in view of the declared policy of the school that there would not be a transfer of a student from one unit to another unit in the same city. In paragraph 3(ix) of the affidavit-in-opposition, the school authorities have stated as follows:
"3(ix). That admittedly vacancy did not arise in the Calcutta Boy's School Main Branch and a notice to that extent was put up on the Notice Board and Website of the Main Branch only.
The writ petitioner's Ward was already on the roll of the Calcutta Boy's School, Beleghata and was not eligible to apply as per the pronounced policy of the School authority. The writ petitioner was aware of this policy. However he did apply and due to inadvertent mistake of the attending staff, the candidature was not rejected on the threshold. An administrative oversight does not give any legal right to a person otherwise having no legal right."11
It is not possible to accept that the petitioner was not aware of the aforesaid policy of the school. Notice of such policy has been posted on the Notice Board of the school and remains posted there throughout the year. Further, the petitioner's son has been a student of the Beleghata unit of the same school for the last five years. It is not credible that the petitioner as a responsible parent and an educated citizen was not aware of such an important policy of the school where his son has been studying for the last five years.
I am inclined to accept the case of the school authority that it was by mistake that the petitioner's son was permitted to take the admission test. A mistake on the part of the school authority cannot vest the petitioner or his son with any right. Article 14 of the Constitution does not envisage a negative right. The petitioner cannot encash on an erroneous action on the part of the school authority. It is true that the school authority should have been more careful and ought not to have permitted the petitioner's son to participate in the admission test in the first place. However, such an error cannot confer 12 a benefit on the petitioner which he otherwise not entitled to in law. The Court has to give due importance to a stated policy of a minority institution like the Calcutta Boy's School particularly when the Court is of the view that such policy is not unreasonable or arbitrary. Calcutta Boy's school is one of the most well-known schools in the city and seats in the school are in high demand. The petitioner's son is already being imparted education at the Beliaghata unit of the school and if the school authorities have refused to admit the petitioner's son in the main unit following its aforesaid declared policy, the Court sees no reason to interfere with such decision of the school authorities.
While I can appreciate the sentiment of the petitioner, I am unable to grant any relief to him. However, I will also expect that filing of the writ petition by the petitioner will not affect the petitioner's son in any adverse manner and the petitioner's son shall continue to receive the same cordial treatment as he is now receiving from the teachers at the Beliaghata unit of the school.
In view of the aforesaid, this application fails 13 and is hereby dismissed without, however, any order as to costs.
( Arijit Banerjee, J. )