Education
Alert
This newsletter 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 significant legal developments in the field of
higher and school education in India during the month of December, 2012,
including judgments, laws and notifications issued by courts and the regulatory
bodies, as applicable.
Supreme Court Cases
1. Maa Vaishno
Devi Mahila Mahavidyalaya v. State of U.P.,
decided on December 13, 2012.
Facts:
In an earlier case of College
of Professional Education and Ors. v. State
of Uttar Pradesh[1],
the Supreme Court had approved the procedure and terms and conditions of admission,
recognition and affiliation of colleges based on a broad consensus arrived at
by institutions seeking approval and the state government of Uttar Pradesh. The
Court, drawing up a time schedule (“Schedule”)
had fixed a cut-off date for affiliation. The colleges which were affiliated upto
July 7, 2011 only were permitted to participate in the counseling for the
academic year 2011-2012. For the next consecutive academic years, only those
colleges were permitted to participate in the counseling which received
affiliation on or before 10th May of that year. Therefore, the colleges which
did not receive affiliation by the said cut-off date were not to be included in
the counselling. Some colleges belonging to the state of Uttar Pradesh
approached the Supreme Court against the order of universities and authorities
declining to grant them affiliation in view of the cut-off date fixed by the
Supreme Court.
Ruling and Order:
The Supreme Court while placing reliance on various
judgements including the judgement delivered in State of Tamil Nadu and Anr. v. Adhiyaman
Educational and Research Institute and Ors[2]
clarified that the National Council for Teacher Education Act, 1993 (“NCTE Act”) has been enacted by the
Parliament with reference to Entry 66 of List I of Schedule VII of the
Constitution. Entry 25 of List III of the Seventh Schedule is the other Entry
that provides the field for legislation both to the State and the Centre, in
relation to education. The Court held that wherever the State law is
irreconcilable with the Central law, the State law must give way to the Central
law to the extent of repugnancy. Hence, the Central law is supreme in relation
to professional education, including the teacher training programmes. The Court
established the supremacy of Central law to hold that conditions which have not
been satisfied by the colleges, within the ambit and scope of the NCTE Act, the
affiliating body must not give affiliation and inform the NCTE forthwith of the
shortcomings and non-compliance of the conditions.
The Court further held that the requirements which have
been examined and the conditions which have been imposed by the NCTE shall
prevail and cannot be altered, re-examined or infringed under the garb of the state
law. The affiliating/examining body and the State Government must abide by the directions
of NCTE.
The Court, while dismissing the petitions, held that the
relevant Schedules had been prescribed under the Judge made law, no one is
entitled to carve out exceptions to the prescribed Schedule. Anybody who was
found to be defaulting in this behalf would be bound to render himself or herself
liable for initiation of proceedings under the provisions of the Contempt of
Courts Act, 1971 as well as for a disciplinary action in accordance with the
orders of the Court.
2. Parshavanath Charitable Trust and Ors.
v. All India Council for Technical
Education and Ors., decided on December 13, 2012.
Facts:
The appellant, Parshavanath Charitable Trust, established
a college in Thane district in 1994 with the intake capacity of 140 students
with annual approval by the All India Council for Technical Education (“AICTE”) which continued till 2008. The
appellant shifted the college to new premises located at a distance of 300
meters from old location. The appellant applied for a no objection certificate
(“NOC”) from the University of
Mumbai and occupation certificate from Municipal Corporation of Bombay for the
purpose of shifting. The appellant also applied in the regional office of AICTE
for the purpose of shifting college to new premises. The College started its
function at new place without any prior approval from AICTE and without
receiving NOC from the Mumbai University. AICTE appointed expert committee to
inspect new infrastructure of the college and granted an extension of approval
of engineering college for academic years 2008-11 with intake capacity of 280
students, stating that it shall operate only from approved location.
Thereafter, AICTE increased the intake capacity of students from 280 to 360 for
the academic year 2009.
In 2010 the appellants got the show cause notice (“Notice”) from AICTE on the ground that
the college had shifted to another location without obtaining prior approval
from AICTE. As a result of the Notice, the College was not included in
Centralized Admission Process (“CAP”) by state government. In 2011 the college
property was sold in court auction. Subsequently in 2011 AICTE cancelled its
approval and cancellation of approval was challenged by appellant in the Bombay
High Court. The High Court proceeded on the admitted position that the
appellant-college had shifted to the new site without the necessary permission
and further it had no ownership to the land in question at the relevant time.
In view of these facts, the Division Bench of the High Court dismissed the writ
petition with a direction to adjust the affected students in different
colleges. The appellants then moved the Supreme Court.
Ruling and
Order:
The Court held that facts clearly showed that trust had
no title on the land where college infrastructure was built and did not even
have a registered title deed which creates interest in the property. Trust also
failed to obtain NOC which resulted into shifting to the new premises without
complying AICTE rules. Clause 9.22 of the Handbook of Approval Process issued
by the AICTE provides a complete procedure for change of location, station and
the same is permissible subject to compliance with the procedure. It
contemplates obtaining of 'NOC' from the concerned State Government or UT
Administration and affiliating body. The college had shifted to new premises
without any prior approval from AICTE.
The Court imposed a cost of Rs. 50,000 on AICTE stating
that despite the report of the expert committee constituted by AICTE which
clearly found inadequacies in the new premises, AICTE had granted approval to
the college for the academic years 2008-09 and 2009-10. The cost imposed was to
be recovered from the salary of the erring officials/officers involved in this
erroneous approach.
The Court, while dismissing the appeal, and laying down a
schedule for admission (“Schedule”),
gave the following directions:
(i) The grant/refusal of approval and admission schedule
as laid down by the Court should be strictly adhered to by all the authorities
concerned including the AICTE, University, State Government and any other
authority directly or indirectly connected with the grant of approval and
admission.
(ii) No person or authority would have the power or
jurisdiction to vary the Schedule prescribed by the court.
(iii) While dealing with the application for grant of
approval to new colleges or additional seats, the AICTE should inform the
applicant within three weeks from the date of receipt of its application or
date of inspection, as the case may be, the shortcomings/defects, who, in turn,
should remove such shortcomings/defects within 15 days from the date of such
communication or within such period as the AICTE may grant and re-submit its
papers without default. The AICTE or the concerned University or State Government
should take disciplinary action against the person who commits default in
adherence to the Schedule and performance of his duties in accordance
therewith.
(iv) The reports submitted by the Expert Committee
visiting the college should be unambiguous and clear, and should bear the date
and time of inspection and should be sufficiently comprehensive and inspection
be conducted in the presence of a representative of the institute.
(v) The students of the Appellant-college should be
re-allocated to the recognized and affiliated colleges in terms of the judgment
of the High Court; and the AICTE and the concerned University shall ensure that
the academic courses of these students are completed within the balance period
of the academic year in all respects.
(vi) If the appellate authority decides the matter prior
to 30th April of the concerned year and grants approval to a college, then
alone such institution would be permitted to be included in the list of
colleges to which admissions are to be made and not otherwise.
High Court Cases
1. Nishant Gupta v. University of Delhi, decided on December 04, 2012 by the Delhi
High Court.
Facts:
The appellant took admission in Respondent No. 2
college named Dayal Singh College (“College”)
in B.Sc. (Hons.) Mathematics, in 2009. At the end of academic year 2009-10, the
appellant failed to secure minimum requirement of attendance. However, in
accordance to statutes of the Delhi, by giving an undertaking to fulfill the
requirements of attendance next year, he was allowed to give exams but
appellant failed in the said examination and took re-admission as an ex-student
and took the first year exams again in 2011.
The College, during the appellant’s second year, had issued
provisional admit cards on which appellant appeared in three exams and after
that college realized that appellant had failed to secure minimum requirement
of the attendance. Hence, the College did not allow the appellant to sit for
the exams as his total attendance was 44.24 % only in the first and second
year. The appellant’s contention is that the attendance maintained by the
college had not been computed properly. The single judge dismissed his petition
holding that he had not attending the required minimum 66.6% of classes each
year. The appellant then appealed against the order before the division bench
of the High Court.
Ruling and Order:
The court held that as per rules of the University
appellant was not qualified to appear in the examination due to being short of
attendance. The court further held that it was evident that the appellant
attended only 58 classes out of 305 classes in first year. Still he was
permitted to appear in the first year end term examinations but he failed the
same. The appellant did not show any regard for the rules and regulations of
the educational institution and hence did not deserve any leniency from the
court.
The Court, while dismissing the appeal, held that
subject to the appellant fulfilling the attendance criteria, he would be
treated as a student of the second year in the academic session 2012-2013 and
would be entitled to take the second year end term examination to be held in
March-May- 2013.
2. Divya College of Education v. State and Ors., decided on December 06,
2012 by the High Court of Jammu and Kashmir.
Facts:
The petitioner
is a non-government college for B.Ed. which is affiliated to Jammu University
(“University”) with sanctioned
intake of 334 students. The admission of the students in the college is done
through the procedure of Centralized Counseling and students apply directly to
the university and are selected on the basis of a merit list. Students are
allocated seats to the private colleges as per students’ preferences. After the
counseling process, only 18 students opted for the petitioner’s college and 292
seats remained vacant.
To solve the
issue of seats remaining vacant, the University conducted second round of
counseling and admitted 414 students out of which only 3 students opted for
petitioner’s college. The petitioner faced with shortage of students, filled
292 students by its own and intimated the same to the University. The
University ignored the communication and did not regularize the admission of
292 students and returned their fees. Therefore, the petitioner filed a writ
petition asking for the same treatment as was given to other colleges and
sought to regularize 292 students in respect of 414 students admitted by the
University. The writ petition was disposed of on June 4, 2012 with a direction
to the respondents to accord consideration to the petitioner's case having
regard to the treatment given to similarly circumstanced colleges. The University in compliance of the writ
Court order accorded consideration to the petitioner's case for regularization
of 292 students enrolled by it on its own and by an order dated June 29, 2012
rejected the petitioner's claim and directed the bank drafts forwarded by the
petitioner-college with its representation, to be returned to it. The
petitioner has sought for Writ of Certiorari quashing the aforementioned order
and also Writ of Mandamus commanding the respondents to regularize admission of
292 students admitted by the petitioner-college.
Ruling and Order:
The court
held that the petitioner was in violation of university statutes. So a
permission to regularize 292 students was not possible. The Court while, coming
to this conclusion, took into account the University Statute number 4 which
lays down that “No Non-Government college
of education shall make admission of the candidates to the B.Ed. course on its
own. Selection of candidates for all seats in B.Ed. course in each
Non-Government affiliated college of education shall be made by the University”.
The court
looked into the relief and aid for 292 students who gave their fees and took
admission in petitioner’s college and ordered the return of the fee received
from those 292 students.
The
court further held that the University should take a decision so that private
colleges could get fair share from the selections made by the University. It
was also held that the State government should look into the criteria and mode
to give permission and affiliation from the University to establish new private
B.Ed. colleges so that a balance could be maintain between the total intake
capacity and number of candidates in the course. The Court warned that any
reckless increase in intake capacity and permitting new affiliations would make
private institutions like sick industrial units and would compel them to grant
admission in violation of university statutes.
3. Heena Bahal v. University of Delhi and Ors., decided on December 19, 2012 by the
Delhi High Court.
Facts:
The
appellant, a student of B.A. (Hons.) Economics 2nd year, was not
allowed to appear in final year examinations because of shortage in the
attendance in the particular academic year. The contention of the appellant was
that she was not detained according to the list of students that was put up by
the college on May 12, 2012, but, further listing was displayed on notice board
on May 15, 2012 in which her name was in the list of detained students. The
appellant contended that once the admit card was issued for examination, the
University could not deny her from appearing in the examination. She further
alleged that the attendance of a subject which was not chosen by her was also
taken into consideration to calculate her attendance. The respondent contended
that attendance records were placed on the notice board every month and
appellant had never approached for discrepancy of the attendance. The single
judge had rejected the appeal of the appellant and hence she appealed to the
division bench of the High Court
Ruling and Order:
The Court
held that it would not be reasonable for the courts to relax the attendance and
allow students to take the examinations. The Court recognized the power of the
Universities to lay down rules relating to the requirement of minimum
attendance for entitlement of a candidate to take the examinations.
Court
further held that the assumption that even appellant had not taken subject she
claimed she had not, she would have still failed to secure the minimum
attendance requirement of 66.6%. The Court dismissed the appeal.
Consumer Cases
1. Principal, Yugchetna Public School v. Banwari Lal Patel, decided on December 05,
2012 by the State Consumer Disputes Redressal Commission, Chattisgarh.
Facts:
The respondent/complainant complained
that his daughter was admitted to the school of the appellant in 11th
standard along with the required fees. The respondent’s daughter had to leave
school due to ragging and the inconsiderate attitude of the appellant school
when complained of such atrocity on the girl. The appellant had refused to
refund the fees paid by the complainant. The District Consumer Disputes
Redressal Forum (“District Forum”)
had directed the appellant to pay Rs. 28,462 to the respondent along with
interest at the rate of 7% per annum. The appellant then filed an appeal in the
State Consumer Disputes Redressal Commission (“State Commission”).
Ruling and Order:
The State
Commission held that the contention of the appellant, that the respondent’s
daughter had left school not on the mistake of the appellant but on personal
inconvenience of her not being able to adjust in the new atmosphere and was
uncomfortable with the medium of instruction, was wrong. The State Commission
observed that the girl was forced to leave the school because of brutal
behavior by some seniors and the lack on the part of the appellant school to
protect her.
The State
Commission further held that neither the fee structure of the school was
approved by some authority neither could the school show any occurrence of loss
if a student leaves as there was not a fixed quota of students that should be
admitted. The State Commission upheld the decision of the District Forum and
directed the appellant to pay the amount stipulated by the District Forum.
2. Director
General, College of Engineering Roorkee v. Rohit Badoni, decided on December 17,
2012 by the State Consumer Disputes Redressal Commission, Uttarakhand.
Facts:
The respondent/complainant
took admission in the appellant/Opposite Party (“OP”) institute and had deposited Rs. 1,19,500. His admission was
later cancelled on account of non-submission of required documents. The
complainant alleged that the cancellation of his admission was illegal and
demanded refund of the fees paid by him. The District
Consumer Disputes Redressal Forum (“District
Forum”) partly allowed the complaint and ordered the appellant to refund
Rs. 50,000 to the respondent. The OP appealed to the State Consumer Disputes
Redressal Commission (“State Commission”)
for quashing the order of the District Forum while the complainant appealed to
the same State Commission for increasing the quantum of compensation.
Ruling
and Order:
The State
Commission held that although the admission of the complainant was provisional,
the cancellation of the same did not warrant the forfeiture of the entire
amount of the fees paid by him. Also the OP failed to show that the seat after
the cancellation of the admission of the complainant remained vacant for the
academic year and that the OP college had suffered any loss on such account.
The State
Commission held that the cancellation of the admission of the complainant by
the OP college was not unjustified as he had failed to submit his documents at
the right time even after being aware that the failure to do so will enable the
college to cancel his admission. The State Commission thus, without increasing
the quantum of compensation, 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 December, 2012.
NEWS
High
Court directs UGC to stop funding if colleges ignore disabled staff quota
The Delhi High Court has
ordered the University Grants Commission to stop granting funds to all Delhi
University (“DU”) colleges which are
not appointing teachers under the disabled quota. The University rules states
that every college in DU is supposed to reserve three per cent of the total
available posts for people with disabilities. Apart from this the Court has also
directed the colleges to put up a detailed list of what posts and who all have
been appointed under the disabled quota in public domain to ensure
transparency. To comply with these directions, the Court has given DU and its
colleges a period of four weeks.
AICTE
to frame guidelines for technical education through distance mode
The All India Council of
Technical Education (“AICTE”) has been
directed by the human resource development (“HRD”) ministry to prepare the regulatory framework for technical
education offered through the distance mode, which is expected to be prepared
by March 2013. One of the guidelines proposes that the first year degree or
diploma will have to be pursued through formal learning and the rest through
the distance mode. It also proposes that laboratory classes will have to be conducted
face-to-face.
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