This monthly update for the
month of August, 2012 is being provided to the recipient solely for the purpose
of his/her/its information. It is meant to be merely an informative summary and
should not be treated as a substitute for considered legal advice. This update
covers:
(i)
case laws relating to
higher and school education in India, which could have an impact on the operations
of entities engaged in this sector decided by various courts and tribunals in the month
of August, 2012. Please note that the coverage of case laws in this update is
restricted to the Supreme Court, various high courts and the National and State
consumer disputes redressal commissions. We have not included cases involving
service matters and taxation; and
(ii)
update on any new
regulation, circular or other notification passed by any of the University
Grants Commission (“UGC”), the
Distance Education Council (“DEC”)
and the All India Council for Technical Education (“AICTE”), which could have an impact on the operations of educational institutions issued during
the month of August, 2012.
1.
Case Laws
1.1.
Supreme Court
1.1.1. Satyprata Sahoo and
Ors. v. State of
Orissa and Ors., decided on August 03, 2012.
Facts:
The appellants, who
had appeared in the Entrance Examination for Post-Graduate (Medical) Selection
2012, Odisha challenged the validity of Clause 11.2 of the Prospectus for
selection of candidates for Post-Graduate (Medical) Courses in the Government
Medical Colleges of Odisha for the Academic Year, 2012 (“Prospectus”)on the ground that it violated Article 14 of the
Constitution of India. Clause 11.2 of the Prospectus provided for an additional
weightage for candidates who were in employment of Government of
Odisha/Government of Odisha undertaking / Government of India public
undertaking located in Odisha and had worked in rural/tribal/backward areas,
while applying through the category of direct candidates. The appellants had
cleared the entrance exam on merit under the open category, and were aggrieved
by the additional weightage.
Ruling
and Order:
(a) The
Court referred to the decisions of State
of M.P. and Ors. v. Gopal D. Tirthani
and Ors.[1] and Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical College[2]
and held that the abovementioned judgments indicate the fact that this Court in
various judgments had acknowledged the fact that weightage could be given for
doctors who have rendered service in rural/tribal areas but that weightage
would be available only in in-service category, to which 50% seats for PG
admission had already been earmarked. The question was whether, on the strength
of that weightage, in-service candidates can encroach upon the open category
candidates.
(b) The
Court held that direct category/open
category is a homogeneous class which consists of all categories of candidates
like those who are fresh from college; who have rendered service after MBBS in
Government or private hospitals in remote and difficult areas like hilly areas,
tribal and rural areas and so on. The Court ruled that candidates from the open
category have to compete on merit, subject to the rules of reservation and
eligibility. Candidates of in-service category cannot encroach upon the open
category and vice-versa.
(c) The
Court ordered the State of Odisha and the
Medical Council of India to take urgent steps to re-arrange the merit list and
to fill up the seats of the direct category, excluding in-service candidates
who got admission in the open category on the strength of weightage, within a
period of one week from the date of the judgement and give admission to the
open category candidates strictly on the basis of merit.
1.1.2. Rajan
Purohit and Ors. v. Rajasthan University of Health
Science and Ors., decided on August 30, 2012.
Facts:
On 15.12.2007 at a meeting held under
the Chairmanship of the Secretary, Medical Education, Government of Rajasthan
(“Secretary”), it was decided that
85% of the seats in the medical and dental colleges in the State of Rajasthan
would be filled through the Rajasthan Pre-Medical Test 2008 (“RPMT- 2008”) for the academic year
2008-09, and the remaining 15% seats would constitute non-resident Indian (“NRI”) quota which will be filled by the
colleges. The Director of Geetanjali Medical College and Hospital (“the College”) in his letter dated
18.12.2007 to the Secretary explained that the College cannot participate in
the admission procedure and cannot give consent for taking the students from
the RPMT-2008 till the College received the clearances from the Medical Council
of India (“MCI”).
The Government of India, Ministry of
Health and Family Welfare, then issued a permission letter dated 16.09.2008 for
establishment of the College with an annual intake capacity of 150 students
with prospective effect from the academic year 2008-2009 under Section 10A of
the Indian Medical Council Act, 1956.
After counselling, 16 seats were
filled up by students from PC-PMT conducted by the Federation of Private
Medical and Dental Colleges of Rajasthan and 101 seats were filled up from
amongst candidates who had passed the 10+2 examination and 23 seats of the NRI
quota were filled up by the College. Some of the candidates who were selected
through the RPMT-2008 and placed in the waiting list of candidates for
admission to the MBBS seats in the medical colleges in the State of Rajasthan
filed writ petitions before the Rajasthan High Court, Jaipur Bench, praying for
a direction to the College to consider and give them admission in the MBBS
course in the College against the 85% seats of the 150 seats on the basis of
their merit in RPMT-2008 by holding counselling and further praying that no one
should be admitted against the 150 seats from any source other than the
RPMT-2008. The present appeal arose out of an order of the division bench of
the Rajasthan High Court.
Ruling
and Order:
(a)
The Court held that in the absence of a consensual
arrangement between the College and the State Government, the College was not
under any legal obligation to admit students to 85% of the MBBS seats in the
academic years 2008-2009 on the basis of the results of RPMT-2008. The Court
referred to a series of letters exchanges between the College and the Secretary
and the College and the Rajasthan University of Health Sciences and held that
there was in fact no consensual arrangement between the College and the State
or the University that the College will admit students from the merit list or
wait list of RPMT-2008. Hence, the direction of the High Court to the College
to consider and admit students from the merit list or wait-list of RPMT-2008
was set aside.The Court quoted the judgment in P.A. Inamdar[3],
wherein the Supreme Court had taken the view that all institutions imparting
same or similar professional education can join together for holding a common
entrance test satisfying the triple tests of the admission procedure being fair,
transparent and non-exploitative.
(b)
As the College had not conducted a competitive entrance
examination for determining the inter-se merit of the students who had applied
to the College for admission into the MBBS Course of the College in accordance
with Regulation 5 (2), of the Medical Council of Education Regulations on
Graduate Medical Education, 1997 (“MCI
Regulations”), the principle of merit as the basis for selection for
admission in the profession courses laid down by the Supreme Court in T.M.A. Pai Foundation[4] case and as explained in the P.A. Inamdar case had not been followed.
(c)
The Court directed the students who had obtained admission in
the Collegeshould not be disturbed from pursuing their MBBS course, subject to
the condition that they would each pay a sum of Rs. 3 lakhs within a period of
three months from the date of the judgement to the State Government which would
be used for improvement of infrastructure and laboratories of the Government
medical college of the State and for no other purpose.
1.2. High
Courts
1.2.1 G. H. Raisoni College of Engineering & Management and others v. All India Council for
Technical Education and others, decided on August 09, 2012 by the Bombay
High Court.
Facts:
The petitioners conduct three institutions of higher
education: (i) a college of engineering and management; (ii) an institute of
engineering and technology; and (iii) an institute of management and research.
The All India Council for Technical Education (“AICTE”) rejected an application filed by the petitioners for
enhancement of the intake capacity of existing courses, declined permission for
commencement of new courses and rejected an application for conversion of the
existing institute into a technical campus.
The matter was thereafter taken before the standing appellate
committee. The said committee noted that there was a deficiency on two counts,
viz., senior faculty was not available; and (ii) cadre ratio was not
maintained. The proposal for conversion to a technical campus was recommended
by the said committee subject to a
verification of cadre ratio and senior faculty. The standing appellate
committee found upon verification once again that senior faculty in the cadre
of professors and associate professors was not available and the cadre ratio
was not maintained. Aggrieved by this decision, the petitioners filed a writ
petition under Article 226 of the Constitution of India.
Ruling and Order:
(a)
The Court observed that in exercise of its statutory powers,
AICTE has framed the All India Council for Technical Education (Grant of
Approvals for Technical Institutions) Regulations 2011 (“Regulations”). Regulation 4.1 of the Regulations, provides that all
promoters of technical institutions or polytechnics shall require the prior
approval of the AICTE inter alia for
(i) establishing a technical institution or technical campus; and (ii)
conversion of an existing approved institution into a technical campus.
Similarly Regulation 4.2 provides for a prior approval of the AICTE for (i) extension of existing approval; (ii)
introduction of new courses; and (iii) change in intake capacity, among other
matters.
Further the All India Council for Technical Education
(Pay Scales, Service conditions and Qualifications for the Teachers and other
Academic Staff in Technical Institutions (Degree) Regulations 2010, prescribe
the ratio of 1 : 2 : 6 as a cadre ratio for the strength of professors,
associate professors and assistant professors in an undergraduate college.
(b) The Court held that when
AICTE assesses the maintenance of the faculty strength or the cadre ratio in
relation to the current intake capacity that would certainly be a relevant
consideration in determining as to whether a request for an enhancement of the
sanctioned intake capacity should be granted. It is only when an institution
has duly complied with norms in relation to the current intake capacity that it
would be permissible to consider an application for a further enhancement of
the intake capacity. The Court held that if an institution seeks to enhance its
intake capacity it must be able to demonstrate to AICTE that it has fulfilled
all the required norms in relation to its current intake capacity. The court
dismissed the petition holding that AICTE was justified in declining permission
to enhance the sanctioned intake capacity, to introduce new courses and for
conversion to a technical campus in the present case as the norms were not
fulfilled.
1.2.2 Sau. Laxmibai Shantaram Doke Samajvikas Prathisthan and Others v. The State of
Maharashtra (Through its Secretary, The Department of School Education &
Sports), Mantralaya, Bombay – 32 and Others, decided on August 17, 2012 by
the Bombay High Court (Aurangabad Bench).
Facts:
The Petitioner had started a Marathi medium primary
school in 2008 and subsequently Marathi medium secondary schools. The
petitioner had sought permission for the schools after establishing the same
from the state government. However, the same was denied. The petitioner filed a
writ petition seeking to declare part of Section 18(1),18(5),19(1) and 19(5) of
the Right of Children to Free and Compulsory Education Act,2009 (“RTE Act”) ultra vires and violative of Article 19(1) (g) of the Constitution
of India and Section 19(2) of the RTE Act itself.
Ruling and Order:
(a)
The court referred to the following observations of the
Supreme Court in Society for Unaided
Private Schools of Rajasthan v. Union
of India[5]:
“The right to establish an educational
institution has now been recognised as a fundamental right within the meaning
of Article 19(1)(g), but that right is subject to the provisions of Articles
19(6) and 26(a). The constitutional obligation of the State to provide for free
and compulsory education to the specified category of children is coextensive
with the fundamental right guaranteed under Article 19(1) (g) to establish an
educational institution.
The fundamental right to establish an
educational institution cannot be confused with the right to ask for
recognition or affiliation. The exercise of a fundamental right to establish
and administer an educational institution can be controlled in a number of
ways. Indeed, matters relating to the right to grant of recognition and/or
affiliation are covered within the realm of statutory right, which, however,
will have to satisfy the test of reasonable restrictions.”
(b)
The Court observed that when Sections 18 and 19 of the RTE Act
are read together, it becomes clear that schools already established cannot
continue to function after expiry of the
time limit prescribed by the RTE Act to report compliance with the same.
The Court also ruled that new schools have to comply with the obligations cast by
the schedule of the RTE Act from the beginning. The Court rejected the
challenge to the validity of Sections 18 and 19 of the RTE Act.
1.2.3 shabad Welfare Society v. Union of India and Anr., ordered on July
18, 2012 by the Delhi High Court.[6]
Facts:
The issue raised in this
public interest litigation filed by the Shabad Welfare Society was that inspite
of directions of the All India Council for Technical Education (“AICTE”) through public notices issued from
time to time, directing various technical institutions to stop running
unapproved courses, the said institutions were still going ahead with
those unapproved courses.
Order:
The Court disposed of the writ petition with the
direction to AICTE to undertake thorough inquiry and investigation into the matter,
preferably within a period of four months. The Court also directed that outcome
of the said investigation in the form of status report should be filed in the Court
along with a copy to the Shabad Welfare Society.
1.3. National Consumer Disputes & Redressal
Commission
1.3.1. University of
Delhi v. Mohd. A.M. Abel Karim, decided on August 06, 2012.
Facts:
Respondent No. 1
- Mohd. A.M. Abel Karim, was registered for Ph. D. degree
course at the Mathematics Department, University of Delhi. According to him,
there was unexplained delay on the part of the opposite parties (“OPs”) in the issue of the Ph. D. Degree
to the complainant. The OPs including the petitioner-University also cancelled
his registration for Ph. D. Course on 13.10.2003 without any just or sufficient
cause or even informing him about the same. The complainant lodged a complaint
before the District Forum for compensation/damages to the tune of Rs.10 lakh
alleging that the aforesaid acts of OPs amounted to deficiency of service. The order
of the Commission was passed in the revision petition filed by University of
Delhi (through its registrar) against the order dated passed by the Delhi State
Consumer Disputes Redressal Commission Delhi (“State Commission”) by which the State Commission allowed the appeal
of the respondent No.1 herein and set aside the order passed by the District
Forum, North Tis Hazari, Delhi dismissing the complaint of the respondent No.
1.
Ruling and Order:
(a) The National Consumer Disputes Redressal Commission (“Commission”) found the ratio laid by
the Supreme Court in the case of Bihar
School Examination Board v. Suresh Prasad Sinha[7]
to be fully applicable to the present case. In the aforementioned case, the
Supreme Court held as under:
“…a candidate who participates in the examination
conducted by the Board, is a person who has undergone a course of study and who
requests the Board to test him as to whether he has imbibed sufficient
knowledge to be fit to be declared as having successfully completed the said
course of education; and if so, determine his position or rank or competence
vis-a-vis other examinees. The process is not therefore availment of a service
by a student, but participation in a general examination conducted by the Board
to ascertain whether he is eligible and fit to be considered as having
successfully completed the secondary education course. The examination fee paid
by the student is not the consideration for availment of any service, but the
charge paid for the privilege of participation in the examination. The Consumer
Protection Act, 1986 (“Act”) does not intend to cover discharge of a statutory
function of examining whether a candidate is fit to be declared as having
successfully completed a course by passing the examination.”
(b) The Commission held that the respondent No. 1 cannot be regarded as a
consumer qua the dispute in question
regarding evaluation of his thesis and award of Ph.D. degree and hence the
complaint is not maintainable under the Consumer Protection Act, 1986. The
impugned order, therefore, was set aside and the revision petition disposed of
accordingly with no order as to costs.
1.3.2. Shaheed Bhagat Singh Public
School and Ors. v. Anoop
Singh,
decided on August 16, 2012.
Facts:
Shri Anoop Singh (“Complainant”) got his two sons admitted
to Shaheed Bhagat Singh Public School (“School”),
Kanheli Mor, Rohtak. At the time of admission, Shri Anoop Singh was informed
that the School was affiliated to the Central Board of Secondary Education (“C.B.S.E”). The Complainant deposited
Rs.60,000/- i.e. Rs.30,000/- each for both his sons. After a lapse of one year, it transpired that
the School had conducted the examination under the National Institute of Open
Schooling. The respondent also charged
Rs.3500/- for registration of 9th class.
The Complainant filed a complaint against the respondent before the
District Forum, which dismissed the complaint.
The Complainant preferred an appeal before the State Commission which
allowed the complaint. Aggrieved by the order of the State Commission, the
School preferred this revision petition.
Ruling and Order:
Based on the facts,
the Commission held that the school had committed an Unfair Trade practise by
misrepresenting that the school was affiliated to C.B.S.E. The Commission
further held that the malafides on
the part of the school stood fully established and hence dismissed the
petition.
1.3.3. K Rajendran v. Principal, CSI Ewart
Marticulation Higher Secondary School, decided on August 06, 2012.
Facts:
The
petitioner filed the present appeal against the order of the State Commission
which held that a sum of Rs.25,000/- paid by the complainant to the School was
by way of a voluntary donation and, hence, no deficiency in service could be
attributed to the School in not refunding the said amount.
The
petitioner was coerced to pay Rs.25,000/- towards the CSI Ewart Matriculation
Higher Secondary School’s (“School”)
“New Auditorium Project (NAP)”, at the time of admission of his ward. In addition to the aforesaid amount, he was
also required to pay Rs. 5,220/- towards tuition fee and special fees, which included
Rs. 2,500/- towards Building Fund.
Despite seeking, clarifications from the School regarding these payments,
the petitioner did not receive any response and by his letters dated 05.07.2001
and 18.07.2001 he requested refund of Rs.25,000/- that he had paid for
admission of his daughter. In response,
the School authorities replied through their advocate that the complainant was
not entitled to refund of the aforesaid Rs.25,000/- because he had paid it as a
donation.
Ruling and Order:
(a)
The National
Commission (“Commission”) relied on
the copy of the slip that petitioner had produced which was issued by the
School and held that a plain reading of the slip clearly showed that the
so-called donation of Rs.25,000/- for the New Auditorium Project was a
pre-condition for acceptance of the tuition fees. The Commission ruled that the element of
coercion in collecting the “donation” for the New Auditorium Project of the
School is evident from the slip.
(b)
The
Commission directed the respondent School (through its Principal) to refund to
the petitioner Rs.25,000/- that it had collected from the petitioner through
coercion as a pre-requisite for admission of his second daughter to the LKG
class in February, 2001 along with interest at the rate of 9% per annum from
the date of deposit till realisation, within four weeks of the date of the
order. In addition, the School was also directed to pay Rs.5,000/- as cost to
the petitioner within the said period.
1.4. State
Consumer Disputes & Redressal Commission
1.4.1. Ashish Soni v. C.G.Institute of Medical
Science (CIMS) and Anr., pronounced on August 01, 2012 by Chattisgarh State
Consumer Disputes Redressal Commission, Pandri, Raipur.
Facts:
It was averred by the
student (“Complainant”) that despite
being informed of the contrary, the C.G. Institute of Medical Sciences did not
refund the fee deposited by him. It was also stated by the Complainant that he
was entitled to refund of the fees as he was unable to undertake the course
owing to medical reasons as per the medical certificate required to be
submitted to C.G. Institute of Medical Sciences.
On the other hand,
the C.G. Institute of Medical Sciences stated that the Complainant had
deposited the amount at his own willingness and did not pursue study of the
course without any reasonable cause. Hence, refund of the amount would have
been contrary to prescribed rules. C.G. Institute of Medical Sciences also averred
that the medical certificate produced by the Complainant did not indicate that
he was not able to pursue studies due to medical impediment. The District
Forum, having perused the documents produced before it and heard arguments of
parties, had allowed the complaint partly as per the impugned order.
Ruling and Order:
(a) The State Commission (“Commission”)
held that there was nothing on record to show that C.G. Institute of Medical
Sciences had demanded medical certificate from the Complainant. The Commission
further held that the Complainant failed to produce any other evidence to show
that he had developed any such medical impediment, which would prevent him to
pursue the course studies.
(b) The Commission also found that as per the receipt, the amount of
Rs.15,000, collected by C.G. Institute of Medical Sciences, was towards admission
fee and not towards tuition fee/study course etc. Further, the C.G.
Institute of Medical Sciences did not deny the right of admission to the Complainant
in the B.P.T course rather the Complainant had abstained from the study course
on his own, taking shelter of medical ground.
(c) The Commission further held that the Complainant had absented himself
from the study course, by taking shelter of medical ground without any
conclusive and supportive evidence. The Commission set aside the judgement of
the District Forum and also dismissed the complaint of the Complainant.
2. Regulations
2.1. All India Council for Technical Education
(“AICTE”)
2.1.1. Regulations
for Performance Appraisal of Technical Departments in University, 2012
The AICTE notified the All India Council for Technical Education
(Information for Maintenance of Standards and Conduct of Inspection of
Technical Entities of Universities) Regulations, 2012 (“Regulations”) vide
notification no F.No.S.O. 37-3/Legal/ /2012 dated June 25, 2012. These
Regulations shall apply to “technical entities”, which means technical
institutions/ department/ schools/ campuses of universities, deemed to be
universities, private universities, state universities or of any other
university declared under any provision of state or central government from
time to time.
The salient features of Regulations
are summarised below:
a) Technical
Entities are required to upload information, as prescribed by the AICTE,
failing which, the relevant Technical Entities shall not be entitled for any financial or any other kind of
assistance from the AICTE. The Regulations also empower the AICTE to take any
such action as it may deem fit against defaulting Technical Entities.
b) The AICTE may also cause
an inspection of the Technical Entities to verify the information furnished by
them and to ascertain the standards of technical education.
c) In the event that
there are Technical Entities are not maintaining the standards of technical
education as prescribed by the AICTE and/or not following the norms/standards/
policies laid down by the AICTE from time to time for maintaining the standards
of the technical education, the AICTE shall publish the names of such Technical
Entities on its official website. It is also prescribed that Technical Entities
shall be given an opportunity to present their case to the AICTE.
d) In addition, AICTE shall
also report its findings along with its recommendations in respect of the Technical
Entities to the Central and/or State Government concerned, the University
Grants Commission and the relevant accreditation bodies/agencies in India for
necessary action at their end.
2.2. University
Grants Commission (“UGC”)
The UGC has not issued any
circulars or regulations relating to universities in the month of August, 2012.
However, according to an article[8]
published on the Times of India website on August 15, 2012, the UGC has
finalized regulations through which foreign institutions would be able to come
to India in collaboration, partnership or in twinning arrangement with local
educational institutions.
[6] This order was reported in an article on the website of The
Financial Express on August 12, 2012 (http://www.financialexpress.com/news/hc-asks-aicte-to-probe-if-colleges-running-unapproved-courses/987405/0)
and other newspapers as well.
