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2010 DIGILAW 433 (BOM)

Raunak s/o Ajaykumar Gandhi v. Bharatiya Vidya Bhavan's Bhagwandas Purohit Vidya Mandir

2010-03-18

P.D.KODE, S.A.BOBDE

body2010
JUDGMENT S.A. BOBDE, J. Rule returnable forthwith. Heard the learned Counsel for the parties by consent. 2. By these petitions, the petitioner students challenge their denial of admission to the XIth standard by the Bharatiya Vidya Bhavan (hereinafter referred to as "Bhavans") though the petitioners have studied in the Bhavans from the Ist standard to Xth standard. All the petitioners have successfully completed their Xth standard examination. The petitioner in Writ Petition Nos.2696/09, 2777/09 and 2758/09 obtained 82%, 79% & 88% marks respectively in aggregate. In the Bhavan's school in Civil Lines, the respondent Bhavan has fixed the cut-off percentage for admission to the XIth standard as 70% in total aggregate for the Commerce Stream and 85% in total aggregate and 85% and above in Maths and Science for the Science stream. 3. The Bhavans at Nagpur runs two schools, one at Civil Lines, Nagpur and the other at Shrikrishna Nagar, Wathoda at Nagpur. In both the schools, education is imparted from Nursery and then from the 1st standard to the Xth standard and from XIth to the XIIth standard in accordance with the 10 + 2 pattern of education under the Central Board of Secondary Education. The Bhavan's obtained permission for imparting education in the XIth & XIIth standards in their schools in the year 1994. Since the introduction of the XIth & XIIth classes in the Bhavans at Nagpur, students have been admitted from 1st to the Xth standard and from the XIth to the XIIth standard separately under different prospectuses meant for the first ten classes and the last two classes. 4. Each of the petitioners pursued his studies upto the Xth class in the Civil Lines school and having obtained the cut-off marks in their respective stream applied for admission to the XIth standard in the Civil Lines school. Two of the petitioners have secured admission in the Shrikrishna School at Wathoda. One of the petitioners has secured admission in some other school. The third petitioner did not make any application to the Shrikrishna Nagar School at Wathoda but has secured admission in some other school. 5. Two of the petitioners have secured admission in the Shrikrishna School at Wathoda. One of the petitioners has secured admission in some other school. The third petitioner did not make any application to the Shrikrishna Nagar School at Wathoda but has secured admission in some other school. 5. The main contention advanced on behalf of the learned Counsel for the petitioners is that the petitioners were granted admission to one school, namely, at Civil Lines in which education is imparted right from the Nursery to the XIIth standard and, therefore, the respondent school cannot discontinue the petitioners' career in the school after passing of Xth standard and grant admission for the XIth standard to some students of the same school along with students of other schools though, in accordance with the merit. It is the contention of the learned Counsel for the petitioners that after passing of Xth standard a right of admission is conferred on the students for continuing study in the XIth standard and said right cannot be defeated by adoption of a method of admission in the XIth standard for which the students are required to compete with students of other schools. 6. Shri M.G. Bhangde, the learned Senior Counsel for the respondent Bhavans, submitted that the two schools run by the Bhavans at Civil Lines and Wathoda are separate schools and in each school admission is granted by the Bhavans on the clear understanding, as expressly stated in the prospectus that the students will be admitted from the Nursery to the Xth standard and at another stage from XIth standard to the XIIth standard. In fact, the learned Counsel points out that there are two prospectuses, one for the first ten classes and another for the two classes thereafter. According to Shri M.G. Bhangde, the learned Senior Counsel for the respondent Bhavans, at no point of time after course for the XIth & XIIth standards were allowed for the respondent school, the respondent school ever admitted students for all 12 years and in fact, this position was known to the petitioners also, who were granted admission sometimes in the year 1997. It is, therefore, necessary to examine the right, if any, which the students such as the petitioners possess for being admitted to the XIth standard in the same school in which they studied uptill Xth standard. 7. It is, therefore, necessary to examine the right, if any, which the students such as the petitioners possess for being admitted to the XIth standard in the same school in which they studied uptill Xth standard. 7. At the outset, it must be noted that whether a student is entitled to secure admission automatically to the next higher class would depend on the principle of academic years for which he has secured admission in the first instance. Undoubtedly, there is a right to be promoted and to secure admission in the next higher class upon passing, if the student has been admitted on the understanding that he is being granted admission for a certain number of years which includes the next higher class. In this case, such a right can be said to exist in the students in the first two classes of the Nursery as one unit and first ten classes, i.e. from Ist to Xth. It is pointed out on behalf of the petitioners that admission test is prescribed after Vth standard for entry into the VIth standard but no issue arises in this case for considering the right of continuity of education at said stage since all the petitioners are seeking admission to the XIth standard. 8. For admitting students to the XIth standard, the respondent school follows the practice of prescribing a certain cut-off for percentage of marks and considering application for students from all schools and granting admission to such students purely on the basis of merit. Thus, whether the student has passed out from its own school or from some other school, he or she is granted admission on the basis of the marks obtained in the Xth standard examination irrespective of the school of his/her origin. Thus, each of the petitioners has not obtained admission in the XIth standard since apparently students from other schools have obtained more marks than them at the Xth standard. The issue is whether the Bhavans is entitled to adopt a different procedure for admission of students after the Xth standard, i.e. to the XIth standard by inviting applications from students in other schools. This question has been answered by the Supreme Court in T.M.A. Pai Foundation and others vs. State of Karnataka and others reported in (2002) 8 SCC 481 . This question has been answered by the Supreme Court in T.M.A. Pai Foundation and others vs. State of Karnataka and others reported in (2002) 8 SCC 481 . While considering the case of private unaided non-minority educational institution, such as the Bhavans school, the Supreme Court laid down in paragraph 55 of the judgment as follows :- "55. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan case the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a prerequisite." "But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged." 9. We accordingly find that the Bhavans has right to adopt its own method for granting admission to students in the XIth standard since it is part of the autonomy which the Bhavans possess as a private educational institution. The learned Counsel for the petitioners, however, relied on the judgment of the Madras High Court in the case of D. Aravinth & others, etc. v. State of Tamil Nadu & others reported in AIR 2007 Madras 300 for submitting that the judgment in T.M.A. Pai's case does not apply to the present case as it did not apply to the case before the Madras High Court and that there is no such autonomy to a private unaided educational institution. We, however, find that the decision of the Madras High Court has no application to the case before us. It appears that in Madras case the students had completed the entire education upto Xth standard and had thereafter submitted their applications to join in XIth standard. However, to their shock and surprise, the school started admitting the students who had studied in other schools by receiving huge donations. In that context, the Madras High Court rejected the argument that the school must be entitled to adopt any policy for admission to the XIth standard higher secondary stream and observed that the judgment in the T.M.A. Pai Foundation case is not relevant in said fact situation. In that context, the Madras High Court rejected the argument that the school must be entitled to adopt any policy for admission to the XIth standard higher secondary stream and observed that the judgment in the T.M.A. Pai Foundation case is not relevant in said fact situation. The Madras High Court held that the students who had studied from the 1st to Xth standard cannot be denied admission to the XIth standard solely on the basis that there are two different and distinct streams governed by two different regulations. It is obvious that the judgment of the Madras High Court is distinguishable from the case before us since admission is not being denied to the students only on the basis that there are two different and distinct streams governed by two different regulations. The admission process adopted by the respondent school does not exclude or prevent students of the same school from applying for the XIth standard. Such students are certainly entitled to apply and are also entitled to have their claim considered on merit. The only difference being that the students from other schools are also permitted to apply and have their candidature considered on merit. We do not see the vice of arbitrariness or any illegality in the procedure adopted by the respondent school. 10. The learned Counsel for the petitioners next submitted that the respondent school is bound to grant preferential treatment to the students who have passed out from that school in view of the Circular No.01 dated 29.7.2009 of the Central Board of Secondary Education by which certain guidelines are issued. One of the guidelines reads as follows :- "ADMISSION OF STUDENTS : (a) Rule 12 "Admission in the school affiliated to the CBSE shall be made without any distinction of religion, race, caste, creed, place of birth or any of them. As regards reservation for SC/ST students is concerned, it shall be governed by the Education Act/Rules applicable to the State/U.T. where the school is situated". (b) It is noted that some schools are giving preference to outside students for admission in Class XI on the basis of higher marks which should be avoided to prevent unhealthy competition. As regards reservation for SC/ST students is concerned, it shall be governed by the Education Act/Rules applicable to the State/U.T. where the school is situated". (b) It is noted that some schools are giving preference to outside students for admission in Class XI on the basis of higher marks which should be avoided to prevent unhealthy competition. First preference for Class XI admission shall be given to own students on the basis of common admission criteria evolved by the school." There is no doubt that the aforesaid guideline recommends preference for Class XIth admission to students of the same school on the basis of common admission criteria evolved by the school. It is, however, apparent from the circular that it is only issued as a guideline and not as a mandatory rule in pursuance of any enacted law. In any case, it is clear that the Circular will not divest a private unaided non-minority institution from the right to admit students as recognized by the Supreme Court in T.M.A. Pai's case (cited supra). 11. We thus fund that the procedure and methodology adopted by the respondent school for admitting students to the XIth standard is within the right conferred on it by law as an autonomous institution. The admission under this procedure is on the basis of merit, there is no illegality in permitting students from other schools to apply for admission to the XIth standard which is an independent stage of the 10 + 2 pattern of education and the right to reject candidates on the ground of merits is reasonable. In T.M.A. Pai's case (supra), the Supreme Court has observed as follows :- "65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in St. Stephen's College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. It is for this reason that in St. Stephen's College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19 (6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons." 12. We would like to observe that the respondent school has now adopted a different procedure from the academic year 2010-11 which accommodates their own students to the XIth standard. In this view of the matter, we see no merit in these petitions which are hereby dismissed. Rule is discharged with no order as to costs.