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Thursday, September 20, 2012

Education Law Alert July 2012

This monthly update for the month of July, 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 July, 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 July, 2012.
1.                  Case Laws
1.1.            Supreme Court
1.1.1.      Medical Council of India v. Rama Medical College Hospital and       Research Centre, Kanpur and Anr., decided on July 4, 2012.
Facts:
The Medical Council of India (“Council”) filed a Special Leave Petition and two other Special Leave Petitions claiming that the permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis. Along with the aforementioned petitions, three Writ Petitions were filed by private institutions claiming the right to increase their admission capacity, contending that once permission had been granted under Section 10A of The Indian Medical Council Act, 1956 (“Act”) to establish a new medical college/institution, the question of having to take fresh permission each year for any subsequent steps to be taken after grant of such permission till the fifth year of the course was completed, did not arise.
Rulings of the Court:
(a)    The Court ruled that the learned single judge and the division bench of the high court erred in arriving at the finding that once permission had been granted under Section 10A of the Act, it would amount to grant of recognition and thereafter, the medical college/institution, was free to enhance the number of seats without the permission either of the Council or the Central Government. The Court held that the position was quite clear that in terms of the scheme of the Act and the Establishment of Medical College Regulations, 1999 (“Regulations”) framed by the Council, it is the Central Government which is empowered to grant recognition to a medical college or institution on the recommendation made by the Council. The role of the Council in the grant of recognition to a medical college/institution is recommendatory and the Council has no power to grant recognition to a medical institution. Such power lies with the Central Government. 
(b)   The Court also held that the admission capacity cannot be increased without the permission of the Central Government. Section 10B (3), in no uncertain terms, provide that where any medical college increases its admission capacity in any course of study or training, except with the previous permission of the Central Government. No medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity, shall be a recognised medical qualification for the purposes of the Act.
1.1.2.      Asha v. Pt. B.D. Sharma University of Health Sciences and Ors., decided on July 10, 2012.
Facts:
Ms. Asha (“Appellant”) had sat for medical entrance examination for MBBS, BDS and BAMS that were to be held in the first week of July, 2011. She successfully cleared the examination. Later, in the first counseling, the Appellant was not admitted to MBBS Course as she was lower in merit. Consequently, she took admission in the BDS Course on that very day.
Thereafter, a declaration was made by the Respondents about a second counseling. The Appellant participated again in the counseling but her name and roll number was not declared by the Respondents for the admissions. However, when the list of allocation of seats was displayed, it came to light that, the candidates who ranked below her in the merit list had been admitted to the MBBS course. On the above facts, the learned single judge of the high court of Punjab and Haryana at Chandigarh directed the Respondents to admit the Appellant to the MBBS course. Upon appeal, the Division Bench of that Court overturned the judgment of the single judge.
Rulings and Order of Court:
(a)    The court ruled that relaxation of the Rule of Merit for reason of non-appearance is not permissible and that there was no dispute that the Appellant was present at the place and on the date of the second counseling.
(b)   The Court also ruled that the Appellant was not at fault and that she pursued her rights and remedies as expeditiously as possible, and that the cut-off date could not be used as a technical instrument or tool to deny admission to meritorious students. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate.
(c)    The Court while directing the Respondent to grant admission to the Appellant in MBBS course for the academic year 2012–13, observed that she had not been diligent in attending her classes in the BDS course to which she was admitted. The Court also stated the admission would be granted on the condition that the Appellant shall pursue the course from the beginning. 

1.2.      High Courts
1.2.1.   Govt. of NCT of Delhi v. Bharti Vidyapeeth & Ors, decided on July 13, 2012 by the Delhi High court.
Facts:
The Bharti Vidyapeeth's College of Engineering, New Delhi (“R-3”) and Bharti Vidyapeeth's Institute of Computer Applications and Management (“R-4”) were colleges set up by Bharti Vidyapeeth (“Respondent”), which is a deemed university under the University Grants Commission Act, 1956 (“UGC Act”). R-3 and R-4 were affiliated to the Guru Gobind Singh Indraprastha University (“GGSIPU”). The Delhi Development Authority (“DDA”) allotted land to R-3 and R-4 at pre-determined rates in accordance with the then existing rules and due to the said proposal being sponsored by the Government of NCT of Delhi (“GNCTD”). In sponsoring the said proposal, the GNCTD had imposed certain conditions on R-3 and R-4 and the said colleges had agreed to abide by the same by giving affidavits to the said effect.
Subsequently, the Ministry of Human Resource Development issued a notification declaring R-3 and R-4 as constituent colleges of the Respondent-university for the purposes of the UGC Act from the date of disaffiliation of the same from GGSIPU. When GGSIPU refused to grant disaffiliation, the respondents approach the Delhi High Court seeking a writ of mandamus directing GGSIPU to grant disaffiliation to R-3 and R-4. The case was an appeal from the judgment of single judge allowing the writ petitions preferred by respondents.
Rulings and Order:
(a)    The division bench came to the conclusion that the issue at hand is whether GNCTD was entitled to keep an institution, which had been granted land at concessional rates by the DDA upon the sponsorship of GNCTD, under its control and supervision.
(b)   The Court ruled that R-3 and R-4 were bound to comply with the conditions and undertakings provided by them in respect of allotment of the land, even though the same were not included in the lease deed executed with DDA, in line with the judgment of the Delhi High Court in Social Jurist, a Lawyers’ Group v. GNCTD[1]. The court further observed that once it is held that R-3 and R-4 remain bound by the undertaking given by them at the time of allotment, it has to be held that upon non-compliance by them of the same, the land would be liable to be forfeited.
(c)    The court held there was no need for adjudicating whether the GNCTD and GGSIPU can withhold disaffiliation of R-3 and R-4 or not, because once notification to them under Section 3 of the UGC Act has been issued, it was for the said colleges to decide whether they want to disaffiliate at the cost of forfeiting the land or want to continue being affiliated to GGSIPU.
(d)   The court therefore allowed the appeals and set aside the Judgment of the single judge and the writ petitions. The writ petitions filed by Respondents were dismissed.
(e)    The court clarified that in the event of Respondent Colleges choose to avail of the notification under Section 3 of the UGC Act without disaffiliating from the GGSIPU and/or without furnishing the undertaking as demanded by the GNCTD and GGSIPU, they will forfeit the land allotted to them and the DDA and GNCTD would be entitled to take action for dispossession there.
1.2.2.   Padmashree Dr. D.Y. Patil Medical College, Navi Mumbai v. Union of India & Ors, decided on July 19, 2012 by the Bombay High Court.
Facts:
The petitioner college (“Petitioner”) had challenged a decision of the Board of Governors of the Medical Council of India (“Council”), whereby the board rejected an application made by the petitioner seeking an increase in the seats for the M.B.B.S. degree course from 150 to 250 for academic year 2012-13. One of the reasons set forth for rejecting the application was that the Essentiality Certificate issued by the State Government on March 29, 2011 stated that the daily average out patient department (“OPD”) strength was 1878. As per the Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and increase of Admission Capacity in any Course of Study or Training (including a Postgraduate course of Study or Training) Regulations, 2000, for increasing the intake capacity to 250 students, the daily OPD strength should not be less than 3000.
On March 6, 2012, the Petitioner addressed a communication to the Union Minster for Health and Family Welfare, stating that the State Government had on February 29, 2012 made necessary changes in the Essentiality Certificate by correcting the OPD strength to 3127 and on this ground sought a reconsideration of the decision by the Board of Governors. On May 21, 2012, the Board of Governors of the Council issued a communication stating that the earlier decision taken by the Council and communicated on February 17, 2012 would stand.
Rulings and Order:
(a)    The Court referred to the decisions of the Supreme Court in K.S. Bhoir v. State of Maharashtra[2] and Dental Council of India v. S.R.M Institute of Science and Technology[3] in which it was settled that the regulations that lay down the eligibility criteria to be complied with for making an application and an Essentiality Certificate, should be accompanied with the application made by a medical college for increase in its admission capacity. The court stated that the Petitioner could not have been ignorant of the requirement of obtaining an Essentiality Certificate in the prescribed form and of the requirement that in order to qualify for an enhancement of the admission capacity to 250 students, among other conditions, an average OPD attendance of 3000 per day was required.
(b)   The court further ruled that the original application  submitted by the Petitioner was clearly incomplete and deficient in failing to comply with the mandatory norms provided for in the regulations and at the submission of second application they were late as per the time lines mentioned by the Council. The last date for the receipt of the scheme was September 30, 2011 for academic year 2012-13. On February 29, 2012, the Petitioner sought to rectify the deficiencies in the application upon the State Government issuing a corrigendum accepting the responsibility of the students in the event that the Petitioner failed to create infrastructure resulting in a stoppage of admission and by stating that the average OPD strength is 3127. This was much after the scheduled date for the submission of a complete application and could not have been entertained for Academic Year 2012-13.
(c)    The Court said that having regard to the time lines, which have been prescribed by the Council, the exercise of the writ jurisdiction under Article 226 of the Constitution would not be appropriate or proper. The time schedules are prescribed by an expert body after due deliberation and thought and their sanctity has to be preserved and recourse to the writ jurisdiction cannot be permitted to obviate compliance with such requirements.
(d)   The Court further ruled that it is necessary to implement the time schedule in its true spirit and substance and it is not even advisable to keep some windows open to meet a particular situation of exception. The schedules should be applied in strict sense and cannot be moulded to suit the convenience of some economic or other interest of any institution.
(e)    The court negated the writ jurisdiction under Article 226 of the Constitution and dismissed the Petition.
1.2.3    Dayaram Dagdoba Maske v. The State of Maharashtra, Through Secretary, Higher & Technical Education Department, Mantralaya, Mumbai-32 and Ors., decided on July 25 by the Bombay High Court
Facts:
Respondent 4 published advertisements calling applications to fill in the posts of assistant professors in various subjects including public administration. The candidate was required to posses (i) a masters degree with at least 55% marks, (ii) NET/SET clearance. However, candidate who had been awarded a Ph.D. degree in accordance with the UGC (minimum standards & procedure for award of Ph.D.) Regulations, 2009 (“Regulations”) were exempted from the NET/SET requirement.
The Petitioner had NET/SET clearance and a Ph.D. degree before the last date prescribed for making of application while Respondent 6 did not have the NET/SET clearance and also she was conferred with a Ph.D. degree on 20.01.2011, which was after the last date for submission of application. The selection committee consisting of seven members, including respondent 7, interviewed the aspirants. Respondent 7 was Respondent 6’s guide for the Ph.D. degree. The appointment of Respondent 6 as Assistant Professor is questioned by the Petitioner while also alleging bias or mala fides on part of the selection committee.
Rulings and Order:
(a)    The Court mentioned the decisions of the Supreme Court in Ashok Kumar Sonkar v. Union of India[4] wherein it was held that possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. It was also held that if an appointment is irregular, it can be regularized. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity.
(b)   The Court also relied upon the case of Ashok Kumar Sharma and others v. Chander Shekhar and another[5], (Review Petition) where the Supreme Court had reaffirmed the proposition that when an advertisement inviting applications required the qualification to be possessed on the date of submission of the application, allowing candidates who do not fulfill the said requirement but acquired the requisite qualification later albeit before the holding of interview to appear for interview, is impermissible.
(c)    The Court held that Respondent 6 did not possess essential qualification of NET/SET. In addition, the Ph.D. degree which she had acquired after the last date prescribed for making of applications, was irrelevant. The court held that selection process was marked by apparent illegality and it was sufficient to doubt the bona fides and transparency of the selection process owing to the fact that respondents 7 to 10 overlooked the absence of essential qualifications in respondent 6. This fact was also conveniently ignored by respondent 2 (University) and, respondent 3( an authority in said University conferring the doctorate) while approving the aforesaid selection and extending approval. The Court rejected the prayer of Petitioner to direct issuance of an appointment order to him as also the prayer of Respondent 6 to consider her case for regularization due to subsequent acquisition of Ph.D.
(d)   The court quashed and set aside the proceedings of the selection committee held on 10.6.2011. The selection and appointment of Respondent no. 6 in pursuance thereof as also appointment order dated 14.6.2011 issued to her were set aside. The respondent nos. 2 to 5 were directed to constitute a new and impartial selection committee for conducting those interviews afresh as per law. Petitioner or any other person earlier discharging duties of the post of Assistant Professor were allowed to continue to do the same till newly selected incumbent became available after the fresh interviews. The process of interviewing the candidates who were present and had participated in the interviews on 10.6.2011 were to be completed within a period of three months from the date of the judgment.
1.2.4    Social Jurist, A Civil Rights Group v. Govt. of NCT of Delhi and Anr., decided on July 13, 2012 by the Delhi High Court
Facts:
The present case was a public interest litigation filed by Social Jurist for filling up on approximately 1400 seats in Rajkiya Pratibha Vikas Vidyalayas (“RPVVs”).  The RPVVs are government schools where bright and promising children already studying in government schools are provided an opportunity to excel. The selection of such students was conducted at Class VI stage by way of a screening test.
After the passage of the Right of Children to Free & Compulsory Education Act, 2009 (“RTE Act”), there was litigation challenging the conduct of such tests by RPVVs. It was consequently decided by the state government that education, admissions / transfers in RPVVs would be started from Class IX level only and to utilize the space so gained by curtailment of classes below that level to accommodate more students of poor and down trodden strata of the society at the level class IX onwards in the RPVVs.
As a consequence of the above change, the petitioner contended that about 1400 seats which earlier existed in RPVVs in Class VI to VIII should be restored as the same would ease the over-crowding in the other government schools. It was also contended that the admission process to RPVVs in Class VI had to be random as under the RTE Act and cannot be by way of selection.
Rulings and Order:
(a)    The court said that it was unable to accept the argument that the 1400 odd seats in Classes VI to VIII (which are a part of elementary education) need to be restored with admission thereto on random basis and not by selection as provided by Section 13 of the RTE Act. If any and all, as distinct from only bright and talented students were to be admitted to RPVVs, RPVVs will cease to have the cutting edge environment and the advantage they enjoy; also no purpose will be so served by transferring students, in Class VI, from one school to another. There must have been a rationale in, while establishing RPVVs, providing for admission on selection basis in Class VI and not in Class IX. A child by the time reaches Class IX is generally found to have become set in his ways and difficult to mould; the spark / talent in a child in Class V can be extinguished by the time reaches Class IX, if not provided the right environment and may not be capable of rekindling.
(b)   The Court mentioned the ruling of the Supreme Court in State of Punjab v. Ram Lubhaya Bagga[6] wherein notice was taken of the limited resources available with the government and of the justifiability of optimum use thereof and the need for distribution of the scarce resources to achieve and accomplish desired results including by prioritization.
(c)    The Court also held that the argument of discrimination also was not available with the Petitioner. Though right to elementary education cannot be denied by adopting a screening procedure but providing better opportunities and education to those amongst the elementary level students who show the potential and the spark cannot be said to be discriminatory.
(d)   The Court further held that the selection process for admission to Class VI in RPVVs was from Government, Government Aided, Municipal, Cantonment Board schools, all of which have a provision for completion of elementary education. The RTE Act has thus not vested any right in a child already admitted to a school, to be transferred to RPVVs and that being the position, transfer by way of selection to RPVVs cannot be said to be prohibited by RTE Act.
(e)    The Court, in exercise of its extraordinary jurisdiction :
(i)     striked down the order dated 17.06.2010 (supra) of the NCPCR;
(ii)   held that RPVVs cannot be compelled to make admissions on random basis in Class VI by transfer of children already studying in Government, Government Aided, Municipal, Cantonment Board schools to RPVVs;
(iii) held that the procedure for admission to RPVVs in Class VI as earlier existing is not violative of Section 13 of the RTE Act;
(iv) directed the GNCTD to restore the admission in Class VI through selection to RPVVs from the next academic year onwards;
(v)   ordered GNCTD to within 15 days take a decision whether any admissions to the current year can be made by holding of selection process and if possible to hold the same, to avail of the existing infrastructure in RPVVs and to prevent a gap year.
1.4.      State Consumer Disputes & Redressal Commission
1.4.1.   The Incharge, Lovely Institute of L.T. & Management v. Ms. Priya Shukla, decided on July 18, 2012 by H.P. State Consumer Disputes Redressal Commission, Shimla.
Facts:
Appellant was aggrieved by the order of Learned District Consumer Disputes Redressal Forum, where Priya Shukla (Respondent) had filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against The Incharge, Lovely Institute of L.T. & Management (Appellant), alleging that she had taken admission in BBA in the institute run by the Appellant and when after enquiring from the Appellant, on a number of times as to when the classes would begin; she did not get any positive response, she required the appellant to refund the money which she did not receive. The learned District Forum had allowed the complaint and had ordered the Appellant to pay compensation and litigation expenses.
Ruling and Order:
(a)    The State Commission (“Commission”) found that evidence on record showed that the Respondent suppressed true facts while making the complaint and filing a rejoinder. She denied that initially she had taken admission in Hotel Management Course and later-on changed it to BBA.  
(b)   The Commission ruled that it was clear that not only the Respondent was guilty of suppression of facts, but it was also made out that she, herself was not interested in pursuing even the changed course of BBA and that is why, she wrote to the University, for the refund of money. As a result of it, appeal was allowed and impugned order was set aside and the complaint filed by the respondent was dismissed.
2.         All India Council for Technical Education (“AICTE”)
2.1.      Grievance Redressal Regulations, 2012
The AICTE has issued Advertisement No. PG/ 07(01)/2012 dated July 5, 2012 calling upon technical institutions to mandatorily comply with and implement the All India Council for Technical Education (Establishment of Mechanism for Grievance Redressal) Regulations, 2012 (“Regulations”) to ensure transparency in admissions, to prevent unfair practices and to provide a mechanism to students for redressal of their grievances. The Regulations were notified vide notification no F.No.37-3/Legal/ /2012 dated May 25, 2012.[7]
The Regulations inter alia provide for the following:
(a) Appointment of an Ombudsman, by Technical Universities for the purpose of redressal of grievance of students, parents and others.
(b)  The Ombudsman shall be a person who has been a judge not below the rank of a District Judge or a Retired Professor who has at least 10 years experience.
(c)  The Ombudsman shall not have any interest, personal, professional or financial, with the University.
(d)  Establishment of a Grievance Redressal Committee in each Technical Institution approved by AICTE.
(e)  Establishment of a Registry, by each Technical Institution approved by AICTE, where an aggrieved student or person may make an applicant seeking redressal of grievance.
(f) All AICTE approved Technical Institutions/Technical Universities shall publish detailed information including name, address etc. regarding the constitution of the Grievance  Redressal Committee, the Ombudsman and its registry etc. on their website (public domain), prospectus and Notice Boards for wide publicity.
(g)  The University and the Technical Institution concerned shall provide detailed information regarding provisions of grievance redressal mechanism, Ombudsman and the duties and rights of students in their prospectus prominently.
(h) The aggrieved students, their parents and others may approach the Grievance Redressal Committee of the Institution in the first instance and if they are not satisfied with the decision of the Committee, they may send their appeals to the Ombudsman directly.
(i)   The Ombudsman shall exercise its powers to hear grievances and ensure the disposal of the same within one month of the receipt of the appeal.


[1] MANU/DE/7403/2007.
[2] (2001) 10 SCC 264
[3] (2004) 9 SCC 676
[4] (2007) 4 SCC 54
[5] (1997) 4 SCC 18
[6] (1998) 4 SCC 117
[7] Please note that the said regulations have been uploaded on the website of AICTE in the month of July, 2012 and were consequently not covered in our monthly update of May, 2012. 

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