This monthly update for the
month of September, 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 September, 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 September, 2012.
Supreme Court Cases
1.
Society for Unaided Private Schools of
Rajasthan v. Union of India, decided on September 18,
2012.
Facts:
The above case was
a review petition filed against the judgment of the Supreme Court upholding the
constitutional validity of the Right of Children to Free and Compulsory
Education Act, 2010 dated April 12, 2012.
Order:
The
Supreme Court dismissed the review petitions stating that they were liable to
be dismissed both on the grounds of delay in filing the review petition as well
as on merits.
2.
Bhawna Garg and Anr. v. University
of Delhi and Ors., decided on September 05, 2012.
Facts:
The respondent, Delhi University, had
issued a Bulletin of Information for admissions to the under-graduate degree
courses for the academic session 2011-2012 (“Bulletin”). The Bulletin stated that 30 out of 150 seats in Lady
Hardinge Medical College (“LHMC”)
and 6 out of 200 seats in Maulana Azad Medical College (“MAMC”) in the MBBS course were reserved for the nominees of
Government of India (“NGOI”). The
appellants applied as female general category candidates and also took and
cleared the Delhi University Medical and Dental Entrance Test (“DUMET”). However, on account of their
lower rank in the merit list of candidates who cleared the DUMET, the
appellants were not admitted to any of the seats in the three government
medical colleges under the Delhi University. Appellants filed writ petitions
before the High Court of Delhi praying for a direction to quash the Bulletin
insofar as it provided for filling up of 30 seats out of the 150 seats in the
MBBS course in LHMC by NGOI and praying for a direction to the authorities to
fill up these 30 MBBS seats earmarked for the NGOI for the academic session
2011-2012 from the general category candidates and the appellants be considered
for such admission to the 30 seats as general category candidates. Before the
High Court, the appellants contended that the reservation of as many as 30 seats
in the MBBS course in LHMC was violative of Article 14 of the Constitution and
that the procedure adopted by the Government of India in nominating the
candidates for the 30 seats without holding a common entrance test for
determination of their merit was contrary to the Medical Council of India
Regulations on Graduate Medical Education, 1997 (“MCI Regulations”). The High Court declined to grant relief to the
Appellant and hence they appealed to the Supreme Court.
Ruling and Order:
The
Court observed that Central Government had reserved 260 seats in the MBBS
course for the central pool and had classified the sources from which
admissions were to be made to these 260 seats on geographical and other basis.
The Court referred to its earlier judgment in Kumari Chitra Ghosh and Anr. v. Union
of India and Ors.[1]
and held that it had not been shown by
the appellants that the classification of the sources from which admissions
were to be made had no rational nexus with the objects sought to be achieved by
the policy of the Central Government. Hence, the validity and constitutionality
of the policy of the Central Government to reserve some seats on geographical
and some other rational basis could not be questioned.
The
Court while referring to Kumari Chitra
Ghosh’s case held that the appellants did not have any right to challenge
the nominations made by the Central Government as they did not compete for the
reserved seats and had no locus standi
in the matter of nomination to such seats. The court however directed that with
effect from the academic year 2012-2013, no admission should be made to any of
the seats reserved for NGOI in LHMC, MAMC and University College of Medical
Sciences (UCMS) of any student who fails in the DUMET.
High Courts Cases
1. Anamol Bhandari (Minor) Through His Father/Natural Guardian v. Delhi Technological University, decided
on September 12, 2012 by the Delhi High Court.
Facts:
Delhi
Technological University (“DTU”)
provided 10% concession of marks in the minimum eligibility requirements for
candidates belonging to Scheduled Casts/Scheduled Tribes (“SC/ST”), and relaxation of 5% to People with Disabilities (“PWD”). As the minimum eligibility for
admission in DTU was 55%, the petitioner, a disabled person, was not considered
for admission in DTU owing to his marks. The Petitioner had filed a petition
questioning the different treatment to the two categories.
Ruling and Order:
The Court noted that the Disability Act, 1995 (“Act”)
places responsibility on the society to make adjustments for disabled people so
that they overcome various practical, psychological and social hurdles created
by their disability. The Act places disabled people with disabilities at par
with other citizens of India in respect of education, vocational training and
employment.
The Court
referred to the judgement of the Supreme Court in A.I. Confederation of Blind & Anr. v. U.O.I. & Another[2],
wherein it was held that since PWDs belonging to SC/ST categories enjoyed the
relaxation which is provided to SC/ST categories, there is no reason not to
give the same benefit/concession to those disabled who are in general category
or other backward class category.
The court in the present case held that, the people suffering from
disabilities are equally socially backward, if not more, as those belonging to
SC/ST categories and therefore, as per the constitutional mandates, they are
entitled to at least the same benefit of relaxation as given to SC/ST
candidates. The Court further held that that the provision giving only 5%
concession in marks to PWD candidates as opposed to 10% relaxation provided to
SC/ST candidates was discriminatory and PWD candidates were also entitled to
same treatment.
2. Chetna Karnani v. University of Delhi and Others, decided
on September 12, 2012 by the Delhi High Court.
Facts:
The University
of Delhi (“University”) revised the
criteria for admission for those students who were seeking admission under
sports quota. The new criteria inter alia prescribed a test of
physical fitness. The petitioner, a chess player, filed the writ petition
before Delhi High Court challenging the physical test under the new criterion.
Ruling and Order:
The court held that physical fitness is a
mandatory requirement in any sports, be it outdoor or indoor. Though games like
carom or chess do not involve any physical activity but it also requires a
certain level of physical fitness and stamina to bear the mental stress and
strain of competing.
The Court opined that the present criteria
was justified for the outdoor games and few indoor games as well like badminton
or table tennis but it may not be entirely rationale to have this criteria for
game like chess. Therefore, Court directed the University to reconsider the
matter in the light of observations made in this judgement and to make physical
fitness standards for such games.
3. Richa Kaushik v.
State of Himachal Pradesh through
Principal Secretary Health to the Government of Himachal Pradesh, Shimla and Ors., decided on September 05, 2012 by the High Court of Himachal
Pradesh at Shimla.
Facts:
The petitioner was enrolled in the
specialty of oral pathology in postgraduate degree course in H.P. Government
Dental College and Hospital, Shimla. After deposit of fee by the petitioner,
one person who had been already admitted in first counselling to undergo
postgraduate course in periodontics, surrendered her seat. Against the said
seat surrendered, admission was straightaway given to respondent nnumber 5, who
ranked lower in merit than the petitioner, without notifying the same. The
petitioner made a representation to the university highlighting therein that
she being higher in merit should have been given an opportunity to change her
specialty and admission in periodontics in preference to the respondent number
5 who was lower in merit.
Ruling
and Order:
The Court referred to the following procedure
under the prospectus:
“In case of any vacancy arising on or after
25.5.2012 for any reason, the vacancy position will be displayed on the college
notice board on 25.5.2012 (afternoon) and finally on 30.5.2012. The available vacancies
will be filled-up purely on merit from amongst the candidates desiring the
change of subject/specialty and thereafter from the waiting list.”
The Court held that in view of the above
procedure the college was bound to put up a notice which would enable
candidates desiring the change of subject/specialty the first opportunity to
fill that seat and only after that would such a seat be filled from amongst the
candidates from the waiting list. There was negligence on the part of the respondents.
The Court further held
that to allow the 5th respondent to pursue the course in periodontics
would not only be harsh and oppressive to the petitioner, but would also be a
misplaced sympathy towards the 5th respondent and nothing else. The
petitioner being higher in merit as compared to the 5th respondent
would be deprived forever from undergoing a course of her choice.
The Court quashed and set aside the admission
of the 5th respondent in the course of periodontics with a direction to convene a meeting of the
counselling committee within 24 hours of the receipt of a copy of the judgment
and to take a decision on the representation made by the petitioner in the
light of the observations made in the case and to allot the seat in the
specialty of periodontics in 3rd Respondent-College to the petitioner in
exchange of the seat in the specialty of oral pathology occupied by her in the
said college which may be offered simultaneously to the 5th Respondent pursuant
to the option she exercised to accept any available seat.
4. K.S. Homeopathic Medical College v. Union of India, decided on
September 04, 2012 by the Madhya Pradesh High Court.
Facts:
The petitioner in April 2010 submitted an
application under Section 12A of the Homeopathy Central Council Act, 1973 for
the purpose of grant of recognition to run a homeopathic medical college. The
inspection team noticed some deficiencies during inspection and the petitioner
was provided with an opportunity to furnish explanation. Thereafter, the
appropriate authority rejected the application of the petitioner in regard to
grant of approval to start a new homeopathic medical college. The petitioner
filed a petition in the High Court against the aforementioned order.
Ruling
and Order:
The Court took note of the procedure followed
by the appropriate statutory body and held that the appropriate authority had
considered the reply of the Petitioner and the documents objectively and
recorded its finding. The Central Government had applied its mind and come to
the conclusion that it was not possible to grant approval. The Court dismissed
the petition and held that the action of the authority was neither arbitrary
nor illegal.
5. Shri Ganesh B.Ed. College v. State of M.P. and others,
decided on September 03, 2012 by the High Court of Madhya Pradesh.
Facts:
The students who had been admitted
to the petitioner colleges for the academic session 2008 – 09 directly without
taking recourse to selection through counselling as was the mode prescribed
under clause 3.3 of Appendix 7 of National Council for Teacher Education (“NCTE”) regulations, which specifies
norms and standard for secondary teacher education leading to B. Ed Degree,
were not permitted to write examinations. The petitioner colleges prayed for
necessary directions in respect of the students admitted to the academic
session 2008 – 09.
Ruling
and Order:
The Court observed that in the a division
bench of the same high court had in Jawaharlal
Nehru College v. Barkatullah
University and Others, directed the state government in coordination with the
western regional committee and respective examining bodies, i.e., universities,
to take a decision within a period of one month in respect of admissions made
for the academic session 2008-09 as to whether the same was in consonance with
the regulations framed by the NCTE and the statutory policy framed by the State
Government, if any, and whether the students had been imparted the teaching in
accordance with the norms laid down by the NCTE. After ascertaining the above,
the examining body, i.e., respective universities should hold special
examinations for the students of the year 2008-09 who are found eligible in
pursuance to the enquiry conducted, within a period of 30 days from the date
the State Government takes a decision in furtherance to above direction and
shall declare the result within a period of 15 days thereof.
The Court while observing the identical controversy involved in the
present case and the aforementioned case, disposed of all the matters directing
that the judgment in Jawaharlal Nehru
College case should be applicable to the present cases as far as it was
applicable.
6. Surendra Hemant Education & Social Welfare Society, Patna v. Union
of India & Anr., decided on Septemeber 03, 2012 by the Delhi High
Court.
Facts:
The Appellant had first approached
the Medical Council of India (“MCI”)
for permission to establish a medical college vide communication dated August 10, 2005, but was inter alia asked to obtain affiliation
with a university and to remove certain other deficiencies, as well as to
obtain an essentiality certificate from the state government. Such an
essentiality certificate dated October 03, 2006 was issued in its favour by the
state government and it also obtained consent of affiliation from a university.
However, the appellant was still not granted the permission to set up a medical
college, compelling it to prefer a writ petition under Article 32 of the
Constitution of India to the Supreme Court.
The said writ petition was however
disposed of on February 11, 2010 with leave to the petitioner to approach the
High Court. The writ petition from which the present appeal arose was filed in
the High Court and was disposed of by the single judge of the high court
without adjudicating on the correctness of the refusal of the MCI to grant
permission to the appellant for setting up a medical college observing that the
appellant having admittedly not applied to the MCI for permission after the
year 2007-08 and having also not obtained essentiality certificate and
affiliation, no relief in the writ petition could be granted.
Ruling
and Order:
The Court held that the possibility of the
ground realities having changed in the last six years since the appellant
claimed to have applied for permission to establish a medical college could not
be be ruled out and the infrastructure earlier available could not be presumed
to be there at the present day also. Hence the petition had become infructuous
and the remedy of the appellant was to apply afresh to the MCI.
The Court dismissed the appeal while noting
that in case the appellant had earlier been issued Essentiality Certificate,
the Appellant, while making a fresh application to the MCI shall not be
required to obtain the Essentiality Certificate again.
Consumer Cases
1. Blobsyn Business School v. Mayuri Ghosh, decided on
September 25, 2012, by the State Consumer Disputes and Redressal Commission,
West Bengal.
Facts:
The respondent paid the first admission fees for the Post Graduate
Programme in Management (“P.G.P.M.”).
Subsequently, she sent an e-mail for refund of the admission fees of
Rs.35,000/- and also sent a letter by the same date which was duly received by
the O.P. and again reminded the Admission Co-ordinator on 30.6.09 for refund of
the amount. When no refund was received by the respondent from the appellant
institute, she approached the district forum. The District Forum allowed the
case on contest without any cost, directing the appellant to refund the course
fee of Rs.35,000/- to the Complainant within a period of 30 days from the date
of the order.
Ruling and Order:
The State Commission referred to the judgement of the National Consumer
Disputes and Redressal Commission in COMED-K
v. Smt T. Nagamani[3]
wherein it was held that a circular of the University Grants Commission dated
23.4.07 stated that the entire fee collected from the student after deduction
of processing fee of not more than Rs.1,000/- shall be refunded to the student
withdrawing from the programme. The aforementioned judgement also stated that
the National Commission, in a catena of judgments, had directed the educational
institutions to refund the fees of students who left the college and got
admission in some other institutions.
The State Commission held that the Appellant was required to refund to
the Respondent the admission fees of Rs.35,000/- minus Rs.1,000/-. It further
held that it was imperative and incumbent upon the Appellant to do so.
2. Principal, D.A.V. (P.G.)
College and another v. Madan Mohan Bahuguna, decided on September 19, 2012, by the State
Consumer Disputes Redressal Commission Uttarakhand, Dehradun.
Facts:
In the academic year 1992-93, the Complainant had taken admission in D.A.V. (P.G.) College, Dehradun in B.Sc. and had deposited the fee before commencement of the examination. The principal of the college issued a provisional admit card to the complainant. However, the result of the complainant was not declared. The complainant contacted the university and he was told that his examination form had not been forwarded to the university. The Complainant filed a consumer complaint before the District Forum, Dehradun. It was pleaded that the marks secured against roll number as per the provisional admit card by the college principal, had been transferred against roll number issued by the university and the complainant’s result has been declared and the mark-sheet had been sent to the complainant. The District Forum, on an appreciation of the material on record, allowed the consumer complaint. Aggrieved by the said order, the appellants filed an appeal in the State Consumer Disputes and Redressal Commission (“State Commission”).
In the academic year 1992-93, the Complainant had taken admission in D.A.V. (P.G.) College, Dehradun in B.Sc. and had deposited the fee before commencement of the examination. The principal of the college issued a provisional admit card to the complainant. However, the result of the complainant was not declared. The complainant contacted the university and he was told that his examination form had not been forwarded to the university. The Complainant filed a consumer complaint before the District Forum, Dehradun. It was pleaded that the marks secured against roll number as per the provisional admit card by the college principal, had been transferred against roll number issued by the university and the complainant’s result has been declared and the mark-sheet had been sent to the complainant. The District Forum, on an appreciation of the material on record, allowed the consumer complaint. Aggrieved by the said order, the appellants filed an appeal in the State Consumer Disputes and Redressal Commission (“State Commission”).
Ruling and Order:
The State Commission referred to the following paragraph of the
judgement of the Supreme Court in Maharshi Dayanand
University v. Surjeet Kaur[4] :
“The object of the Consumer
Protection Act (Act) is to cover in its net, services offered or rendered for a
consideration. Any service rendered for a consideration is presumed to be a
commercial activity in its broadest sense (including professional activity or
quasi-commercial activity). But the 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. The fact
that in the course of conduct of the examination, or evaluation of
answer-scripts, or furnishing of mark-sheets or certificates, there may be some
negligence, omission or deficiency, does not convert the Board into a
service-provider for a consideration, nor convert the examinee into a consumer
who can make a complaint under the Act. We are clearly of the view that the
Board is not a ‘service provider’ and a student who takes an examination is not
a ‘consumer’ and consequently, complaint under the Act will not be maintainable
against the Board.”
The State Commission held that the consumer complaint was not
maintainable against the university, as it was not considered a
service-provider as per the aforementioned judgement of the Supreme Court.
Hence the appeal was allowed and the order impugned was set aside.
3. Rai
University (Erstwhile) v. Prapti Poddar, decided on September 10,
2012 decided by the National Consumer Disputes and Redressal Commission.
Facts:
The
Rai University was established as a deemed university under the Chattisgarh Niji Kshetra Vishvavidhayalaya
Adhiniyam No. 2 of 2002. The respondents took admissions in various courses
at Dwarka Campus in the year 2004 and paid the various fees. As a result of the
judgment dated 11.2.2005, of the Supreme Court, universities set up thereunder
including the Rai University ceased to exist.
The
Supreme Court, keeping in view the interests of the students, directed the
state government to take measures to ensure affiliation of the affected
universities to the existing state universities in Chhattisgarh. However the
Rai University was not able to obtain affiliation from any university.
Additionally the Petitioners decided to shift the Dwarka campus to Gurgaon
causing a huge inconvenience and financial loss to the students.
Ruling and Order:
The National Consumer Disputes and Redressal
Commission held that the students were not informed about the shifting of the
campus from Dwarka to Gurgaon when they sought admission in the University of
the Petitioners in the year 2004. Such shifting amounts to deficiency in
service. Moreover, Maharishi Dayanand University, Rohtak had granted ‘One Time
Approval’ for Faridabad and Gurgaon centres only and not for Dwarka.
Regulations
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