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Thursday, September 20, 2012

Education Alert- August 2012


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.



[1] (2003) 7 SCC 83.
[2] (1986) 3 SCC 727.
[3] (2005) 6 SCC 537.
[4] (2002) 8 SCC 481.
[5] (2012) 6 SCC 1.
[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.
[7] (2009) 8 SCC 483.

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