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.
[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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