Arvind Kumar Sharma vs Central Board of Secondary Education and Another

R.R.K. Trivedi, J.—In both the aforesaid writ petitions, the controversy and the questions of fact and law involved are identical and thus both the writ petitions may be decided by a common judgment. Counter and rejoinder affidavits have been exchanged between the parties and learned Counsel for parties have agreed that the petitions may be decided finally at this stage. Writ Petition No. 28320 of 1995 shall be the leading case.

Institution Maharshi Patanjali Vidya Mandir, Allahabad was established in 1988. It Is recognized by and affiliated to Central Board of Secondary Education, Delhi. This institution imparted education upto Class X. However, in 1994 it was permitted to start Class XI. The institution is run by a registered Society known as Maharshi Patanjali Vidya Mandir Samiti, Allahabad. It does not receive any grant or financial assistance from the Central or State Governments. The case of Petitioner Arvind Kumar Sharma is that he was admitted in Class VI of this Institution in the year 1990 after successfully completing the Entrance Examination. Since then the Petitioner continued to be a regular student. In March, 1995, he appeared in the Examination conducted by the Central Board of Secondary Education. He was declared pass. However, he could secure only 52% marks. He applied for admission in Class XI. The Institution, however, held an Entrance test in which the Petitioner appeared but he was not selected for admission. Then father of the Petitioner approached the principal and pleaded that as Petitioner is a product of and regular student of the Institution, he should be given preference In the matter of admission than the outsiders. However, this request was not accepted. Aggrieved by refusal of admission, the Petitioner has approached this Court under Article 226 of the Constitution and filed Writ Petition No. 28320 of 1995 and has prayed for a direction to Respondent No. 2 to admit him in class XI (Bio-Science).

Case of Petitioner Sanjay Sahu is that in the year 1989, he was admitted in Class V in the Mann Public School, Holambi Khurd, Delhi-82 which is affiliated to Central Board of Secondary Education, New Delhi. Petitioner studied there up to Class VII. Thereafter, he sought admission in the year 1992 in Maharshi Patanjali Vidya Mandir, Allahabad. Petitioner was asked to appear in the Entrance Examination which he competed successfully and thereafter he was enrolled as a regular student. In March, 1995, he appeared in the Examination held by the Central Board of Secondary Education which he has passed. However, he could secure only 50% marks. Rest of the facts are identical like in the earlier petition that he appeared in the Entrance Examination but he has been refused admission. Aggrieved by the refusal, Writ Petition No. 28652 of 1995 has been filed.

Respondents have filed counter-affidavit in both the aforesaid petitions and have contended that as the Institution Maharshi Patanjali Vidya Mandir is a private Institution and is not getting any aid or financial assistance from the Central or State Governments and no infringement of any statutory right or violation of Statute has been alleged, the writ petition is not legally maintainable. It has been further submitted that the Central Board of Secondary Education has framed Examination Bye-laws and in Chapter 3, Bye-law 6 (ii), it has been provided that a student who has passed the secondary or an equivalent examination of a recognised Board/University may be admitted in Class XI by the Principal without getting approval of the Board. It is contended that under the aforesaid Bye-law, the students who have passed Class X from other schools, if they apply for admission in Class XI, they have to be considered. It has been further submitted that Maharshi Patanjali Vidya Mandir being a reputed institution attracts many students of other institutions. In the relevant year, there were about 134 applicants seeking such admission and on account of the above Bye-law of the Board, the institution had no option except to prepare a merit list after holding Entrance Examination and to select 50 students. It is submitted that there is only one Section in Class XI in the Science group. After the Entrance Examination, a merit list was prepared and 52 students have been selected of whom 35 students were from their own institution and 17 students were outsiders. It has been submitted that the students of the Institution have been given weightage of 5%. The Petitioners'' merit fell far below the average 65% and hence they could not be selected for admission. It has been further contended that the institution is fully entitled to hold Entrance test which is necessary for maintaining the academic discipline and excellence and no interference is called for by this Court under Article 226 of the Constitution of India. It has been further submitted that at the time the Petitioners were given admission, there was no question of giving any assurance that they will be allowed to complete their education upto the last academic class available in the institution and Petitioners have no right to claim admission. It is also submitted that the length of the course of study has been divided in four stages:

(i) Primary education (from class I to V);

(ii) Secondary Education (from VI to X);

(iii) Senior Secondary Education (Classes XI and XII);

(iv) Higher education.

It is contended that the Petitioners were admitted at the stage of Secondary Education. Their right may be confined to complete education upto that stage. Upto Class X, there is a general education but from class XI onwards several courses of study start. There are groups like : Literary Group, Science Group, Commerce Group, Agriculture Group. Technical Group, etc. Maharshi Patanjali Vidya Mandir has been recognized only for Science Group, hence the students who are grouped for Maths and Science have been given preference. The best way of Judging the capability of the students offering Science group Is to base their selection on the basis of marks secured by them in English, Maths and Science and also on Entrance test. Merit list has been accordingly prepared In which Petitioners stood far below and could not be selected The test held was fair and impartial and the Petitioners cannot have any grievance against the same. From appraisal of the contentions raised by the parties, the following important questions arise for consideration:

(1) Whether the writ petitions filed by Petitioners under Article 226 of the Constitution of India against Maharshi Patanjall Vidya Mandir, which is unaided private institution, is not legally maintainable?

(2) Whether a student who has once been given admission in the institution has an indefeasible right to continue as student of such institution until he leaves it after passing the last academic class available there ?

(3) Whether the institution has a right to regulate the admission by holding "Entrance test at different stages and can deny admission to its own students ?

Shri Anil Kumar Yadav, learned Counsel appearing for the Petitioners, has submitted that once a student has been given admission in an educational institution, he is not required to seek fresh admission in the next higher class after passing a particular class. He has right to complete his education from the same Institution. Reliance has been placed by the learned Counsel on a judgment of Hon''ble Supreme Court in case of The Principal, Cambridge School and another Vs. Ms. Payal Gupta and others, . Learned Counsel has further submitted that institution Maharshi Patanjali Vidya Mandir is an institution duly recognized by the Central Board of Secondary Education, Delhi which in turn is recognized and controlled by the Central Government through the Ministry of Human Resources and Development. The institution is discharging public function by imparting education as contemplated under Article 41 of the Constitution of India and, therefore, it is an authority within the meaning of Article 226 of the Constitution of India. The institution is carrying out an important public function directly connected with the life and development of human being and the writ petition is legally maintainable against it''s arbitrary and discriminatory acts. Reliance has been placed in a judgment of learned single Judge of this Court in case of Purnima Banerjee v. Council for the Indian School Certificate Examination, New Delhi and Ors. 1995 (1) UPLBEC 265.

Shri M. C. Dwivedi, learned Counsel appearing for the Respondents, on the other hand, submitted that the institution being very reputed attracts many students of other institutions also and due to lack of resources and limited space, only one Section in Science subject has been started and considering the limited space available, it became necessary to hold Entrance Examination. It has also been submitted that with a view to promote academic discipline, a regulatory measure of admission was adopted to admit students on merit alone which was based on fairness. The policy of Entrance test for students seeking admission In Class XI is perfectly justified. Only 52 students have been selected. Outside students with aggregate of 70% and above marks were placed In the merit list and the internal students were given a weightage of 5%. It has been lastly submitted that even if no outside student was given admission in Class XI in Science, the two Petitioners had no chance of their admission from amongst the students who had passed Class X Examination from the institution on account of their poor merit. In the present case, there is no infringement of any statutory right or any other right and the writ petition is not legally maintainable.

Reliance has been placed in cases of Aley Ahmad Abidi Vs. Dist. Inspector of Schools, Allahabad and Others, ; Commissioner, Lucknow Division and Others Vs. Kumari Prem Lata Misra, .

Learned Counsel has further submitted that the learned single Judge while deciding the case of Purnima Banerjee placed reliance in case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, and case of Vidya Dhar Pande Vs. Vidyut Grih Siksha Samiti and Others, . Learned Counsel has submitted that both the aforesaid cases of the Hon''ble Supreme Court and that of the learned single Judge are distinguishable from the facts of the present case. In the present case, the institution is run by a private body and is not receiving any kind of grant or financial assistance from the State or the Central Government and no mandamus can be issued against a private body as held by Full Bench of this Court and the Hon''ble Supreme Court.

I have considered the submissions made by the learned Counsel for parties. The first question to be considered is as to whether the Respondent institution is discharging any public functions affecting large section of the Society. Hon''ble Supreme Court in case of Miss. Mohini Jain Vs. State of Karnataka and others, has already held that the right to education is concomitant to fundamental rights enshrined under Part III of the Constitution. This view has been expressed by Hon''ble the Supreme Court alter interpreting and reading together Articles 21, 38, 39A and 39F, 41 and 45 of the Constitution of India. The question is whether in case this right to education of an individual, by action of a private institution imparting education is affected, a writ can be issued to such institution or not. Hon''ble Supreme Court in Anandi Mukta Sadguru case referred to above, after discussing the case law on this point, concluded in para 21 in the following words:

Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law. Professor De Smith states : ''To be enforceable by mandamus, a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act, 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach injustice wherever it is found'', Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the Appellants on the maintainability of the writ petition.

The aforesaid view was expressed by Hon''ble Supreme Court before its judgment in case of Miss. Mohini Jain. After the judgment of Hon''ble Supreme Court in Mohini Jain case, the complexion and position of law with regard to the educational institutions stands altogether changed. If a private body or private institution has chosen to impart education to the public at large, they have chosen to deal with right to education which has been held to be a fundamental right as declared by Hon''ble Supreme Court. Any unfair, arbitrary or illegal act which affects prejudicially the right to education shall be subjected to scrutiny of the Court. The educational institutions on the basis of mere technicalities that they are private bodies, cannot be allowed to play freely with this important fundamental right directly connected with the development of the human life, according to their wish and whims. If their action is prejudicial to the right to education of any individual, in my opinion, he may approach this Court for issuing appropriate direction and the writ petition is legally maintainable. I am in respectful agreement with the judgment in case of Purnima Banerjee. The contention of the learned Counsel for Respondents that the cases are distinguishable cannot be accepted.

Now the next question is as to whether once the Petitioners have been given admission in the institution, have they indefeasible right to continue their study in such institution uninterruptedly until they complete their education upto the last class available there. In the case of The Principal, Cambridge School and another Vs. Ms. Payal Gupta and others, . it was contended before Hon''ble the Supreme Court that after the student passed a particular class, there is fresh or readmission to the higher class even in the same school. The Hon''ble Supreme Court rejected this argument in the following words:

...We are unable to persuade ourselves to accede to this proposition. If it were so, the Appellant school would have supported the contention by producing various applications made by the parents or guardians of students for such fresh admission or readmission from one class to the next higher class, but no such material was placed either before the High Court or before this Court. It may, however, be pointed out that it is common knowledge that once a student is given an admission in any educational institution by making an application in the manner prescribed by Rule 135, he is not required to submit fresh application forms after he passes a class for his admission to the next higher class Once a student is given admission in any educational institution, the same continues class after class until he leaves the school. In these facts and circumstances, it is difficult to accept that after a student passed his tenth class of a public examination, his admission to the next higher class, i.e. eleventh class would be a fresh or readmission.

In the present case, the contention raised on behalf of the Respondents is identical that admission to class XI will be a fresh admission. However, in view of the legal position pronounced by Hon''ble Supreme Court mentioned above, the contention cannot be accepted. Petitioners were entitled for admission as a matter of right. If a student is given admission, he is entitled to complete his education from that particular institution. He cannot be left to face uncertainty after passing each and every class. In the present case, Petitioners were admitted in Vth and VIth class. They continued to be regular students of the institution for number of years. They have been refused admission when they sought it for class XI. This right has been denied to the Petitioners on the ground that the Respondent No. 2 was obliged to consider the applications of the outsiders In view of Bye-law 6 (ii) of Examination Bye-laws of 1990 framed by Central Board of Secondary Education. Bye-law 6 (ii) reads as under:

A student who has passed the secondary or an equivalent examination of a recognised Board/University may be admitted in class XI by the Principal without getting approval of the Board. Such a student should also furnish Migration Certificate in addition to his marks sheet/qualifying certificate issued by the Board/University concerned. The cases coming from abroad after passing examinations whose equivalence has not been established may be referred to the Board by the Principals with full details and documents and their recommendations.

From perusal of the aforesaid Rules, it is clear that it is only permissive and it leaves it open to the Principal to admit any student in class XI who has passed Examination of X standard conducted by any other Board or Examination. It does not create any obligation on the Principal to admit outsiders and ignore the claim of their own students. Reliance placed on the aforesaid Bye-laws is wholly misplaced and is not helpful to the Respondents.

Learned Counsel for the Respondents has submitted that the judgment of Hon''ble Supreme Court referred to above is distinguishable as it was dealing with the provisions of Education Act. However, the observations of the Hon''ble Supreme Court, as mentioned above, are of general application and cover the present situation.

Learned Counsel for Respondents has further submitted that even if the admissions to Class XI are confined to the students of the institution alone, as there is only one section, Petitioners could not be accommodated. The Respondents selected total 52 students out of which 35 students are from the institution and 17 students have been selected from outside. However, Respondents have not the figure of the students who had passed Class X and sought admission to Class XI. In absence of this figure, the contention cannot be accepted. In my opinion, the institution can be entitled to permit admission to the outsiders only after accommodating its own students.

Now the last question Is as to for what relief the present Petitioners are entitled. The writ petitions were entertained on 29.9.1995. This Court passed an interim order to the following effect:

In the meantime, I by means of this interim mandamus direct the Respondent No. 2 to admit the Petitioner in Class XI Bio-Science in Maharshi Patanjali Vidya Mandir, Allahabad or to show cause within three weeks. It is further directed that Petitioner shall be permitted to attend the said class.

Petitioner''s contention is that he had been attending class regularly but he has not been allowed to appear in the examination on the ground that there is no such direction by the Court. The contention of the Respondents, on the other hand, was that Petitioners though attended classes for some time, subsequently they stopped coming and they have not attended the classes.

In my opinion, as there was a categorical direction by this Court to allow Petitioners to attend classes, the ends of justice shall be met if the Respondents are directed to hold examination for the two Petitioners separately for class XI in the month of July itself and if they pass it, they should be allowed admission in Class XII, otherwise they shall be allowed admission in class XI and shall be allowed to pursue their studies.

For the reasons stated above, both the writ petitions succeed. Respondent No. 2 is directed to hold examination of both the Petitioners separately for Class XI within the month of July, 1996 and in case they pass this examination, they shall be allowed admission in Class XII, otherwise if they are willing, they shall be given admission in Class XI and shall be allowed to pursue their studies further. However, there will be no order as to costs.