Delhi High Court
Ms. Payal Gupta vs Lt. Governer Of Delhi, The Director Of ... on 8 August, 1994
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
JUDGMENT D.P. Wadhwa, J.
1. The petitioner, a girl student, who passed Class X examination of the Central Board of Secondary Education (C.B.S.E.) from the Cambridge School, Ring Road, Srinivaspuri, securing 44.6% marks in aggregate, seeks admission to Class XI in the same school in which admission has been denied to her on the ground that she did not secure 50% marks in aggregate as per the school circular dated 4th October 1993. This circular was addressed to the parents of the students by the Principal of the School stating that admission to Class X was not automatic but a fresh admission even for those students who would pass Class X from the Cambridge School itself and that minimum qualifying percentage for being considered for admission for students who passed Class X from Cambridge School would be in the region of 50% in aggregate. It is also mentioned that in addition to that the conduct of the students should be satisfactory, and it was, therefore, stressed on the parents that all students of Cambridge School interested in admission to Class XI should make sure that they get at least 50% marks and maintain good conduct. This circular is challenged before us in this petition and a declaration is sought that denying admission to the students who passed Class X C.B.S.E. Examination 1994 with less than 50% marks was illegal, without any legal basis, arbitrary and violative of Article 21 of the Constitution, and a further declaration is sought that the respondents have no power to deny admission under the Delhi School Education Act and the Rules, 1973 (for short 'the Act' and 'the Rules'). A writ of mandamus or any other writ, order of direction is sought commanding the respondents to ensure admission of the petitioner to Class XI of the Cambridge School.
2. There are four respondents, being respectively, (1) Lt. Governor of Delhi, (2) The Director of Education, (3) The Manager, Cambridge School, and (4) The Principal, Cambridge School. Originally when the petition was filed there were four petitioners, all students of Cambridge School, who had secured less than 50% marks in aggregate in Class X examination of C.B.S.E. and sought admission to Class XI. Another writ petition (CWP No. 2977/94 - Reema Goyal and Others v. Lt. Governor of Delhi and Others) was also filed in which there were about 10 students all similarly situated. That writ petition was withdrawn as the school authorities scaled down the aggregate of 50% marks to 45% which was the position a year earlier in the school. In this writ petition as well two students withdrew on similar ground. One or two students in writ petition No. 2977/94 of Reema Goyal and Others and one in this petition had secured about 35% marks in aggregate, and they said that they will either reappear in the examination papers in which they have failed or would seek admission elsewhere.
3. The present petition has been pressed by Payal Gupta, the first petitioner in this petition, though, as noted above, she secured 44.6% marks in aggregate. Mr. Bhat, learned counsel appearing for the petitioner, said that the stand of the fourth respondent, the Principal, should not be rigid and the figure 44.6% could have been rounded upon 45% for the petitioner to get admission in Class XI of the school. He said that the mother of the petitioner was a kidney patient and was on dialysis and her father was a Government servant and it would be impossible for the girl to get admission in any other school in view of the situation regarding admission in public schools as existing in Delhi today. This was not agreed to by Mr. Kaul, learned counsel appearing for the school. He said the impugned circular under which a student was required to secure a minimum of 50% marks in aggregate in Class X examination was related to 45% as this circular was issued in mid session and in the earlier year a condition was stipulated that those students securing less than 45% marks in aggregate in Class X examination would not be admitted to Class XI in the school, and that circular was not challenged and the students who got less than 45% marks in aggregate would seek admission in schools elsewhere.
4. The question that arises for consideration is, could the school deny admission to its own students to Class XI who has secured less than a percentage of marks in aggregate (45% in the present case) as prescribed by the school authorities in Class X examination held by the C.B.S.E. which is a public examination ?
5. It is an admitted fact that the Cambridge School is an unaided recognised school under the Act. Under clause(s) of Section 2 of the Act, "public examination" means an examination conducted by the Central Board of Secondary Education, Council for Indian School Certificate Examinations or any other Board which may hereafter be established for the purpose, and recognised by the Administrator or any other officer authorised by him in this benefit and under clause (u), "school" includes a pre-primary, primary, middle and higher secondary school, and also includes any other institution which imparts education or training below the degree level, but does not include an institution which imparts technical education. Section 16 deals with admission to recognised schools, and under sub-section (3) thereof, admission to a recognised school or to any class thereof shall be regulated by rules made in this benefit. Section 19 deals with affiliations and this section is as under :-
"19. Affiliations.
(1) For the purpose of any public examination every recognised higher secondary school shall be affiliated to one or more of the Boards or Council conducting such examination and shall fulfill the conditions specified by the Board or Council in this behalf.
(2) The students of recognised higher secondary schools shall be prepared for, and presented to, the public examinations or such other form of evaluation held or made for the students of such schools.
(3) The students of every recognised middle school shall be prepared for, and presented to, such public examination as may be held by the Directorate of Education, Delhi, for the students of such schools.
(4) Every student of a recognised primary school shall be prepared for, and presented to, the public examination held by a local authority competent to hold such examination for the students of such schools."
Chapter XII of the Rules deals with admission to recognised schools. Rules 138, 144 and 145 are relevant and may be set down as under :-
"138. Admission to failed students not to be refused -
A student who fails at any public examination shall not, on that account, be refused re-admission in the school or class by the school from which he had appeared at such examination."
"144. Power to issue departmental instructions.
6. The Director may issue instructions with regard to any matter, not covered by this Chapter, relating to admission to aided schools.
"145. Admission to recognised unaided school -
(1) The head of every recognised unaided school shall regulate admissions to a recognised unaided school or to any class thereof either on the basis of admission test or on the basis of result in a particular class or school.
(2) Subject to the provisions of sub-rule (1) the provisions of this Chapter shall, so far as may be, apply to admission to a recognised unaided school as they apply to admission to an aided school."
7. Relying heaving on sub-rule (1) of rule 45, Mr. Kaul said that the impugned circular is valid and percentage of marks fixed by the Principal for admission to Class XI is wholly within his domain and this Court cannot interfere in writ jurisdiction in the discretion exercised by the Principal of the School. Mr. Kaul also said that even Director of Education under the Act has no power to issue any direction to the Principal to the contrary on the question of admission to a recognised unaided school. Mr. Kaul in this connection was criticising the memorandum issued by the Director of Education to the Principal that school had to admit its own children in Class XI without any criteria of pass percentage. In this the Director said that any candidate who had passed was eligible for admission. This circular dated 9th June, 1994 was issued by the Director of Education to the head of the school of all recognized/private/unaided schools, Delhi/New Delhi, regarding regulation of admission of students to recognized/private/unaided schools. In this the Director of Education said as under :-
"Sir/Madam, It has been brought to the notice of this Directorate by some aggrieved parents that their wards who have passed out of class Xth from a particular school, are being refused admission to class XIth of the same school.
All schools should ensure that their own eligible students are not denied admissions. A serious view will be taken in case these instructions are not being complied with Yours faithfully.
Sd/-
(Shakti Sinha) Director of Education."
8. Mr. Kaul relied upon a Bench decision of this Court in Kumari Renuka Khurana and Others v. Delhi Administration and Others, , in support of his submission that the Director of Education had no power to issue instructions laying down eligibility condition for admission in recognised unaided schools. In that case the petitioners were the candidates of Nursery Teachers Training Part I who had been given admission by the Institute of Child Education after having undertaken admission test. They completed their education. The Director of Education by his letter informed the Principal, Institute of Child Education, that these petitioners were not eligible for admission and that irregular admission had been done in spite of earlier letter whereby the Principal was required to act as per public notice regarding admission. In the public notice issued by the Director an eligibility condition was imposed that in the previous examination the candidate should have obtained 50% marks in aggregate and that only such candidates would be eligible for being admitted in the Nursery Teachers Training Course. The Director therefore, informed the Principal that the candidates, who had been admitted on taking the admission test and had completed the education, should not be permitted to take final examination unless admissions were rectified according to the eligibility condition imposed by him. The facts in the case of Kumari Renuka Khurana were entirely different than in the present petition. The students after having taken admission test and after completing their education were being stopped from appearing in the final examination as they had not obtained 50% marks in aggregate though they, however, qualified the admission test. It was not a case of admission/readmission in the same very school and rather in a different institute altogether. The whole controversy in that petition was, therefore, as to whether such a condition could be imposed by the Director regarding admission in respect of recognised unaided schools. After examining the provisions of rules 144 and 145 the court held that rule 144 would be subject to rule 145, and particularly sub-rule (2) of rule 145. The court held that the Director of Education could not impose the eligibility condition of 50% marks in aggregate, and further held as under :-
"There are no such limitations on the power of the head of the recognised unaided school that he can regulate admission on the basis of admission test confining that test to the candidates having 50% marks in aggregate in the senior secondary examination. If the power under Rule 145 is conferred on the head of the recognised unaided school, then that would mean that candidates who have passed senior secondary examination would be eligible for undertaking the admission test. Even if such a power is vested in any authority, then, it would be vested in the head of the recognised unaided school because the power of regulation is conferred on such a head of the recognised unaided school. So, in exercise of this regulating power vested in the head of a recognised unaided school, such like eligibility condition for undertaking admission test can be laid down by the head of the recognised unaided school. If any instructions are issued by the Director under Rule 144, it would affect the power of the head of the recognised unaided school. That regulatory power is not in any way controlled by sub-rule (2) of Rule 145."
9. As seen above, the facts in the case of Kumari Renuka Khurana were entirely different than in the present petition. There cannot be any quarrel with the proposition that the Director of Education cannot issue any directions to a recognised unaided school and it is for the head of every such school to regulate admissions to the school or to any class thereof "either on the basis of admission test or on the basis of result in a particular class or school." But then this power to regulate admission by the Principal of any recognised unaided school would be subject to rule 138. In fact rule 138 puts fetters on the power of the Principal given to him under sub-rule (1) of rule 145. We may also note the observations of Lord Halsbury in Quinn v. Leathem, 1901 Law Reports (Appeal Cases) 495. (at page 506) :-
"Now, before discussing the case of Allen v. Flood, (1898) A.C. 1, and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides."
10. We, therefore, do not think that much advantage can be drawn by Mr. Kaul from the case of Kumari Renuka Khurana.
11. We are also of the opinion that rule 145 cannot be invoked by the school authorities to deny admission to its own students who had passed Class X examination which is a public examination. Mr. Kaul said admission to Class XI is not akin to promotion, but it is readmission of a student to the school and school authorities can prescribe minimum percentage of marks secured in Class X examination for readmission to Class XI, and that the school authorities can adopt the result of a public examination for regulating admission to Class XI. We do not agree with such an interpretation. Public examination cannot be equated with an admission test, or result in Class X be made basis for admission or readmission to Class XI in the same school. It is correct that, under rule 144, Director has power to issue instructions with regard to any matter not covered by Chapter XII of the Rules relating to admission to aided schools, and that he cannot issue any such directions to an unaided recognised school, but then the Director can call upon a recognised unaided school not to refuse admission to a student who has passed Class X in a public examination, as that would not amount to regulating admission "either on the basis of admission test or on the basis of result in a particular class or school." Under rule 138, a clear distinction has been drawn that a school cannot refuse readmission to a student who appeared in a public examination from that school but failed at any public examination. A student who passed the public examination cannot be at any disadvantageous position for getting admission/readmission to the higher class. We do not think that the approach adopted by the school authorities in denying admission to its own student to Class XI who passed Class X in a public examination is correct irrespective of the marks obtained by the student.
12. Mr. Kaul took us through various reports given in 1970s that scheme of education (10+2+3) has been introduced with the main object of giving purposeful diversity to the education so that there is no aimless pursuit of certain academic courses, and that the object was also that academic courses beyond the 10th class should be limited to the brightest students alone so that the weaker students have avenues in the vocational courses. He said this would naturally imply selection on the basis of academic achievements which was best reflected by result of the class X examination held by the Central Board of Secondary Education. He said general education was to end on completion of Class X and only the students with certain academic achievements were liable to be admitted to Class XI. Mr. Kaul also in this connection referred to the report of the Education Commission 1964-66, popularly known as Kothari Commission, which also, he said, emphasised the segregation of specialised education of Class XI and XII from general education till Class X. There reports at best give recommendations. They are not statutory in nature. Today even for a job as one of a lower division clerk, the minimum qualification is graduation. We in Delhi all know how difficult it is to get admission in any school much less a public school. It will appear to us that there it a race in some public schools to admit only those students in Class XI who secured good marks in Class X examination so that the school can put forward a better result and can claim to be one of the best schools in Delhi. This approach again to our mind is wrong. Take the case of the present petitioner before us. She has been studying in the Cambridge School since Kindergarten and, thus, studied in this school for eleven years when she took Class X examination. She has been denied admission merely on the ground that she did not secure 45% marks in Class X examination and secured only 44.6% marks. No attempt appears to have been made to find out as to why the petitioner could not come up to the expectation of the school authorities when for eleven long years she was under their charge. Who is to be blamed for this ? The school, the student or the parents ? The school has not shown us the performance of the petitioner for all these eleven years while she was studying in the school. Merely because she secured 44.6% marks in Class X she could not be thrown out on that ground. It is not that continuation of education after Class X, when a student passes Class X examination is barred by any provision of law. The school authorities have also not informed us as to what vocational course the petitioner would be better suited, and from which institute in Delhi or near about she can get admission to such vocational course. The school cannot abdicate its responsibility. It is really astonishing for us to hear arguments coming from the school authorities that a student can get admission in any other school, and the school wants to achieve very high standard having the best students. We were also told that no student from any other school has been admitted in Class XI, but who can stop the school from admitting such a student. Prior to 1993-94 academic session there was no such restriction placed on a student for getting admission to Class XI unless a student has secured a certain percentage of marks in Class X examination. In 1993-94 session it was 45%. Now for 1994-95 session it is 50%. Regulating admission would also not mean an arbitrary action on the part of the school authorities. They are subject to writ jurisdiction of this Court under Article 226 of the Constitution. For the next academic year it could be more than 50% and so on. The school authorities cannot be permitted to do so at their whims and fancies. If we have to depend upon the recommendations of various bodies, it will be more appropriate if a law is passed fixing the pass marks at 50% in aggregate in Class X for admission to Class XI. A student, who passes Class X examination in a public examination, is entitled to admission to the next higher class, i.e. Class XI. If a school is recognised, a Higher Secondary School having classes up to XII, and a student who gets into the school at Kindergarten level reasonably expects that he will be promoted to every class till the last class in the school provided he maintains a good behavior. In the present case it appears that the school itself has fixed the pass marks of Class X at 50% for admission to Class XI in the school. This does to appear to be founded on reasonable and valid basis.
14. We were also told that the fee charged by the Cambridge School from a student in Class X is Rs. 350/- per month apart from other charges while in a Government school the fee is about Rs. 11/- per month. Even for a Kindergarten class we were told the Cambridge School charges the same fee per month. If a student after paying such a high fee in the Cambridge School and studying for eleven years is unable to secure 45% marks in aggregate in Class X examination, that would perhaps show failure on the part of the school authorities to an extent and this failure cannot be a stand for throwing out a weak student and asking him or her to continue study in another public school, may be even a Government school.
15. During the course of hearing we were told that in some schools studies in Class XI start without waiting for the result of Class X examination as admission to Class XI is a matter of course for all those students who pass in the public examination of Class X. The school authorities in the present case cannot shut the door to a student who passes Class X though securing less marks. We see no justification for the school authorities to adopt such a course.
16. Mr. Kaul also said that a student can seek admission in National Open School if he secures less marks in aggregate than the one prescribed by school authorities for admission to Class XI. A National Open School does not hold regular classes. The Government of India had set up the National Open School Society, an autonomous and registered body, on 23rd November 1989 to cater to the education needs of school dropouts and working adults and housewives and socially disadvantaged sections, through distance education at the school stage. National Open School, therefore, cannot be compared to a regular school.
17. The question whether a writ could lie against a recognised unaided school is no longer res integra. It was contended by Mr. Kaul that the Cambridge School was not a State and that it was run by a society registered under the Societies Registration Act. Jurisdiction of this Court under Article 226 of the Constitution is not confined to the authority which is a State within the meaning of Article 12 of the Constitution. In Kuldip Mehta v. Union of India and Others, 1993 (2) Delhi Lawyer 196, this Court has taken the view that Article 226 also speaks of directions and orders which can be issued to any person or authority. In that case a writ was issued against a public limited company which had nominees on its Board of Directors from the National Textile Corporation Limited, a Government company. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and Another, , referring to the scope of Article 226 of the Constitution, the Court observed as under :-
"This article is couched in article is in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wise language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Court can also issue directions, orders or writs other that the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be evolved."
18. In Unni Krishnan, J.P. and Others etc. etc. v. State of Andhra Pradesh and Others etc. etc., , the Court observed that private educational institutions merely supplement the efforts of the State in educating the people, and that it was not an independent activity. It further said that no private educational institution could survive or subsist without recognition and/or affiliation and that the bodies which granted recognition/affiliation were the authorities of the State, and these private educational institutions were under same obligations as enjoined upon the recognizing/affiliating authority and would, thus, be a State. The Cambridge School which is a recognised school under the Act and the Rules would, therefore, certainly be amenable to the writ jurisdiction of this Court.
19. We, thus, hold that an unaided recognised school cannot of its own fix a criteria of not admitting its own students to Class XI unless they secured certain minimum percentage of marks in Class X examination which is a public examination. Needles to say, the Director of Education has supported the stand of the petitioner. Any such criteria would be arbitrary, unreasonable and irrational. Accordingly, this petition is allowed. A direction is issued to respondents 3 and 4 to admit the petitioner to Class XI of their school. Petitioner will also be entitled to costs. Counsel fee Rs. 1,000/-. Rule is made absolute.