This monthly update for the
month of November, 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 November, 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 November, 2012.
Supreme Court Cases
No
relevant cases for the month of November, 2012.
High Court Cases
1. Jatin Singh v. Kendriya Vidyalaya Sangathan, decided on November 09, 2012 by the
Delhi High Court.
Facts:
The
petitioner’s father had applied for admission of the petitioner in Class I in
Kendriya Vidyalalya School (“School”).
The admission was sought under the 25% reserved category of seats for the
children belonging to economically weaker section and disadvantaged group for
free and compulsory elementary education in terms of Section 12(1)(c) of the
Right of Children to Free and Compulsory Education Act, 2009 (“Act”). Admission to the appellant was
denied on the ground that out of the 25% reserved seats, 15% were earmarked for
SC, 7.5% for ST and only 2.5% for the students belonging to the economically
weaker section of the society. Therefore, out of 10 available seats that
represented the reserved seats (25% of total number of seats), only 1 was
reserved for students of the economically weaker section of the society which
was also subjected to a random lottery method to select the candidate. The
petitioner alleged that the process was unconstitutional, illegal and contrary
to the provisions of the Act. The respondent contended that the process of
admission was in accordance to the guidelines framed under Section 35 of the Act
by the Central Government which empowers the Central Government to issue guidelines
to the appropriate Government or the local authority for the purpose of
implementation of the provisions of the Act.
Ruling and Order:
The
Court held that the guidelines issued under Section 35 of the Act cannot
override the provisions of the Act or any right conferred under the Act.
Section 35 is embedded in the Act only for the effective implementation of the
provisions of the Act and not to dilute the rights conferred under it.
The
Court held that definitions of ‘child’, ‘child belonging to disadvantaged
group’ and ‘child belonging to weaker section’ under clauses (c), (d) and (e)
of Section 2 of the Act does not make any disparity among children aged between
6 and 14 years except that it extends the benefit of the Act to children
belonging to disadvantaged and economically backward group.
The
Court further held that though reservation is permissible as provided under
Clause (4) of Article 15 of the Constitution, the same reservation cannot be
made applicable to the 25% of the seats reserved for the children falling under
the definition of Clauses (d) and (e) of Section 2 read with Section 12(1)(c)
of the Act. The Court finally held that the
admission guidelines of the School for admission in Class I that introduced
reservation for SC and ST students to an extent upto 22.5% of the total seats
out of the 25% seats reserved for children belonging to disadvantaged group and
children belonging to economically weaker section, was illegal and contrary to
the provisions of the Act.
Consumer
Cases
1. St. Anthony’s Senior Secondary School v. Richa Gupta, decided on November 01,
2012 by the National Consumer Disputes Redressal Commission.
Facts:
The respondent (through her father)
complained that the appellant school denied permission to the respondent to
attend class IX despite promoting her. The respondent alleged that a donation
of 50,000 rupees was demanded by the appellant. When the father of the
respondent sought to leave the school and asked for the mark sheet and transfer
certificate, the appellant did not provide her the marksheet of Class VIII but
only provided him with the transfer certificate. As a result of this she could
not be admitted to another school and lost one academic year in the process.
The appellant denied the allegations and said that the respondent did not pass
the class VIII examination and was passed only provisionally and that the
marksheet was handed to her when the school results were declared. The
appellant, however, was directed by the State Consumer Disputes Redressal
Commission (“State Commission”),
Delhi to pay 25,000 rupees to the respondent as compensation.
Ruling and Order:
The National
Consumer Disputes Redressal Commission (“National
Commission”) observed that as per the general practice in schools, the mark
sheets are distributed to the students after the declaration of the school
results. Any form of acknowledgement is generally not taken. It was held that
the marksheet must have been submitted to the respondent at the time of the
declaration of the school results. The National Commission further observed
that if the appellant had supplied the school leaving certificate/ transfer
certificate, then the allegation that the appellant refused to supply mark
sheet seems untenable. The National Commission held that the State Commission
erred in directing the appellant to pay 25,000 to the respondent as
compensation.
2. Swami
Vivekanand Institute of Engineering and Technology v. Jatin Singla, decided on November 05,
2012 by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh.
Facts:
The
complainant took admission in the Opposite Party (“OP”) institute through Common Entrance Test (“CET”) counseling and had deposited Rs. 43,480. He surrendered his
seat within 7 days and was entitled to the refund of Rs. 42,480 as per
condition number 12 of the Conditions to Institutes Affiliated to Punjab
Technical University, Jalandhar contained in the brochure issued by Punjab
Technical University, Jalandhar (“Brochure”).
The complainant however was refunded an amount of Rs. 25,000. The OP contended
that the seat of the complainant could not be filled on account of which they
were not liable to refund the complete fee as per the instructions of the All
India Council for Technical Education (“AICTE”).
The District Forum ordered the OP to refund the remaining amount with 7%
interest rate per annum along with Rs. 5,000 as litigation cost.
Ruling
and Order:
The Court
observed that the admission of the complainant was governed by the rules under
the Brochure issued by Punjab Technical University, Jalandhar, wherein it was
stated that if a student surrenders his seat within 7 days then he is to be
refunded the full amount of fees after deducting Rs. 1,000. As the complainant
had surrendered his seat within 7 days, he was entitled the full refund of fees
after a deduction of Rs. 1000. The State Consumer Dispute Redressal Commission
dismissed the appeal of the OP with costs.
3. Mahendra
K. Sharma v. The Registrar, Pravara
Institute of Medical Sciences, Loni, decided on November 29, 2012 by the
State Consumer Disputes Redressal Commission, Maharashtra, Mumbai.
Facts:
The
appellant’s daughter had taken admission in the respondent medical college and
had paid Rs. 1,75,000 as fees. The appellant’s daughter attended college from
July 27, 2004 to September 01, 2004 and on September 02, 2004 she gave
information about the cancellation of her admission and requested for the
refund of fees. The respondent refunded Rs. 22,422 and contended that as the
appellant’s admission was cancelled after August 23, 2004, she was not entitled
to receive any refund except for the amount of security as per the rules and
regulations made for admission in the college. The District Forum held that the
appellant was not liable to refund the fees as the date of cancellation of
admission was after August 23, 2004.
Ruling
and Order:
The State
Commission observed that the information regarding the refund of fees was duly
published on the notice board of the college and hence the appellant and his
daughter could not claim that they were not aware of any such rules framed by
the respondent college. The communication of the aforementioned rules was not
required when the said rules were duly published on the notice board of the
college. The respondent had further refunded the security deposit made by the
appellant as per the rules laid down by it. The State Commission held that
there was no deficiency in service provided to the appellant on the part of the
respondent and upheld the decision of the District Forum.
Regulations
The AICTE, UGC and
DEC have not issued any circulars/ notifications having a bearing on operations
of higher educational institutional during the month of November, 2012.
During the month
of October, 2012 the Ministry of Human Resource Development (“HRD Ministry”) has issued certain
notifications under the Right of Children to Free and Compulsory Education Act,
2009 (“RTE Act”), which are captured
below:
1. Clarification regarding provision of a
playground in a school under the norms and standards of the RTE Act[1]
The HRD Ministry has clarified it is not mandatory for a school to
provide a playground within the school premises. In order to ensure compliance
with the RTE Act, the school management should make arrangement for children to
play outdoor games and other physical activities in an adjoining
playground/municipal park, etc.
2. Guidelines
to ensure non-discrimination of children belonging to weaker section and
children belonging to disadvantaged group (“Children belonging to EWS Category”)[2]
The
guidelines framed by the HRD Ministry impose several obligations on schools to
ensure non-discrimination of Children belonging to EWS Category. Further, state
governments and local authorities are also required to take steps to ensure
compliance with these guidelines by schools under their jurisdiction. The
obligations imposed on schools include:
§ School shall not discriminate or allow or condone any constituent
thereof to discriminate against Children belonging to EWS Category in
admissions or inter alia by breaching
the policy of reservation in admissions or denying benefits that arise from the
enrolment in such school.
§ Schools shall prohibit harassment and victimisation of Children
belonging to EWS Category by its authorities. The guidelines prohibit acts
including (i) announcement or labelling of such students as reserved category
students; (ii) passing of derogatory remarks about their background as a reason
for such student’s under-performance in class; (iii) by treating such students
separately in utilising the sports and other facilities.
§ Schools shall ensure non-segregation of Children belonging to EWS
Category in playgrounds, canteen or any provision of mid-day meal. Further,
schools are also required to ensure that the regular activities of Children
belonging to EWS Category are not disturbed by schools’ decisions. Moreover,
schools shall also ensure that such students are not subjected to forceful
expenditure and that they are allowed to participate in all cultural and sports
events organised by the school.
§ Schools have been obligated to lay down procedures to deal with
complaints of Children belonging to EWS Category. Such complaints must be
decided within a period of 60 days from the date on which such complaint was
made.
§ All measures taken by schools for ensuring non-discrimination and
harassment of Children belonging to EWS Category must be made public.
3. Relaxation in the minimum qualification for
appointment of teachers in the states of Uttarakhand[3]
In exercise of the powers conferred under Section 23(2) of the RTE
Act, the HRD Ministry has given a one-time relaxation to the state of
Uttarakhand up to March 31, 2014. This relaxation applies to the minimum
qualification for appointment of teachers for classes I to V. As per the notification dated October 17,
2012, a person with graduation with at least 50% marks and B.Ed. qualification
or with at least 45% marks and 1-year B.Ed., in accordance with the National
Council of Teacher Education (Recognition Norms and Procedures) Regulations (“Specified Person”) shall be eligible
for appointment as teachers for classes I to V, subject to the following conditions:
§ the state government shall conduct a Teacher Eligibility Test (“TET”) as specified by the National
Council for Teacher Education (“NCTE”)
and those persons who pass the TET shall be considered to be appointed as
teachers for classes I to VIII;
§ the state government shall amend the recruitment rules relating to
teachers’ appointment and provide that the minimum qualifications prescribed by
the NCTE shall be applicable to the state of Uttarakhand;
§ preference shall be given to those who possess the minimum
qualification (as prescribed by the NCTE under Section 23(1) of the RTE Act) and
thereafter consider the Specified Persons;
§ advertisement for appointment of teachers should be given wide
publicity, including outside the state of Uttarakhand;
§ the state government/ school management shall ensure that any
Specified Persons appointed as teachers shall undergo the NCTE recognized six
months Special Program in Elementary Education; and
§ the State shall endeavour to increase the institutional capacity for
preparing more number of qualified persons to be eligible for appointment as
teachers for classes I to V after March 31, 2014 as per the norms laid down by
NCTE.
4. Relaxation in the minimum qualification for
appointment of teachers in the states of Himachal Pradesh[4]
The HRD Ministry has also relaxed the minimum qualification for
appointment of Hindi and Sanskrit teachers for classes VI to VIII in the state
of Himachal Pradesh. The one-time relaxation has been provided to the state up
to March 31, 2014. As per this notification, a person possessing a one year
B.Ed. shall be eligible for appointment as Hindi or Sanskrit teachers subject
to compliance with certain conditions.
The notification imposes conditions relating to TET, amendment of
recruitment rules, and giving preference to persons possessing minimum
qualifications in the manner similar to the notification issued for the state
of Uttarakhand. In addition, in Himachal Pradesh, the state government and
school managements are also obligated to ensure that the persons appointed as
teachers under the relaxed criteria obtain the minimum qualifications
prescribed by NCTE within a period of two years from their date of appointment.
[1] F. No. 1-15/2010 EE 4 (Pt.) dated October 26, 2012.
[2] F. No. 1-15/ 2010 EE4, October 26, 2012
[3] The Gazette of India Extraordinary, New Delhi, October 17, 2012,
S.O. 2512(E).
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