Eduacation Alert –
February 2013
- High Court Cases
- Shariq Rehman v. Jamia
Hamdard (Hamdard University) & Ors., decided on February 08, 2013 by the Delhi
High Court.
Facts:
The appellant had applied to the MBBS programme
of the respondent university and appeared for the entrance test. His name
appeared in the fifth selection list under the management quota. After the
counseling, the appellant deposited the requisite fees. However, he was not
allowed by the respondent to attend classes, alleging that he was not eligible
for admission on the day he had filled up the application form. The respondent
alleged that the appellant had not cleared the chemistry paper at the time of
filling up of the application form nor after the re-evaluation of the same.
Accordingly the appellant had not obtained a minimum of 50% marks in aggregate
that was required for admission to the MBBS course. The single judge of the
Delhi High Court dismissed the petition of the appellant. During the pendency
of the petition, a few successful candidates in the management quota were
impleaded as respondents in the writ petition and the High Court directed such
writ petitions to be listed along with the main writ petition for hearing.
Ruling and Order:
The division bench of the High Court noted Regulation
4 (3) of the Medical Council of India Regulations on Graduate Medical Education,
1997 (“MCI Regulations”) which state
that in the matter of admission and selection to medical courses, the admission
in MBBS courses cannot, in any case, be made after 30th September of the year
in which the academic session commences. The Court held that it was not open
for the courts to direct admission after the expiry of the aforesaid deadline.
The court was also of the opinion that if the direction for admission of the
appellant were given then it would be impossible for him to fulfill the condition
of 75% compulsory attendance as mandated by the MCI Regulations. Without taking
a view on the decision of the single judge, the Court dismissed the appeal by
taking into account the aforementioned observations.
The Court, in this case, made a reference to
the judgement of the Supreme Court in the case of Rajan Purohit and Ors. v. Rajasthan
University of Health Science and Ors.[1].
The Supreme Court in the aforementioned case did not cancel the admission of
students who fulfilled the eligibility criteria laid down in Regulation 4, even
though the said admissions were not in line with the method of selection
prescribed under Regulation % of the MCI Regulations.
[1] (2012) 10 SCC 770.
- Social Jurist, A Civil Rights Group v. Government of NCT of Delhi & Anr., decided on February 19, 2013 by the Delhi High Court.
Facts:
The petitioner, in this case, questioned the
guidelines dated November 23, 2010 framed by the Government of India through
Ministry of Human Resources Development, Department of School Education and
Literacy and the order dated December 15, 2010 passed by the Director,
Department of Education, Government of National Capital Territory of Delhi. These
guidelines gave power to unaided schools not receiving any kind of aid or
grants to meet their expenses from the appropriate Government or the local authority,
to formulate their own criteria for admission of children for 75% of seats that
were not allocated to the economically weaker
section (“EWS”) category students
under the Right to Education Act, 2009 (“RTE
Act”).
The petitioners contended that since Section 13(2) of RTE Act prohibits
subjecting a child to screening procedure, all the admissions even to
pre-elementary (pre-primary and pre-school) classes are required to be made
only by a random method and no categorisation of the children in terms of the
objectives of the school or criteria such as sibling, transfer case, single
parent and alumni is permissible, even to the unaided private schools.
The issues that came up for consideration in the case were:
Whether RTE
Act is applicable to pre-school including nursery schools and for education of
children below six years of age?
Whether RTE
Act applies to admission of children in respect of 75% of the seats apart from
25% of the seats for children covered under the definition given in Section
2(d) and 2(e) of the RTE Act?
Ruling
and Order:
The
Court relied on the definition of “child”, “elementary education” and school
under the RTE Act. On the basis of the aforementioned definitions, the Court
held that the RTE Act is applicable only to elementary education from Class I
to VIII and to the children of the age of six years to fourteen years.
Therefore the Court held that the RTE Act is not applicable to only pre-primary
education.
The
Court also held that any guidelines issued under the RTE Act shall not be
applicable to 75% of the admission made to pre-elementary (pre-primary and
pre-school) classes by private unaided schools.
However,
the Delhi High Court recommended to the union government to consider necessary amendments
to the RTE Act to make it applicable to nursery classes as well.
- Consumer Cases
1. Akash Aggarwal (minor) through his father Shyam Sunder Aggarwal v. Bal Mandir Sr. Sec. School
& Ors., decided on February 04, 2013 by the
State Consumer Disputes Redressal Commission, Delhi.
Facts:
The appellant/complainant
complained that his son was admitted to the school of the respondent/ opposite
party (“OP”) in 2005. In 2009, when
the complainant’s son was in class XII, he remained ill from time to time. At
the time of distribution of the admit cards, the complainant’s son along with
some other students were denied admit cards by the principal stating that the
Central Board of Secondary Education (“CBSE”)
did not send the admit cards for want of minimum attendance on the art of the
students. The complainant then instituted a suit at the district court to which
CBSE was made a party. In the district court, CBSE stated that no admit cards
were withheld and the same were sent to OP 20 days before. On the order of the
Court, the Vice-Principal of the OP delivered the admit card. The complainant
alleged that due to the sheer negligence of the OP in not issuing the admit
card, mental agony and harassment was suffered by his son and on account of
this he had secured lesser marks than expected. The OP contended that no
medical certificates were provided except for one which stated that the
complainant’s son was suffering from dengue. It was further contended that in
the civil suit filed by the complainant, CBSE had condoned the shortage of
attendance and hence the complainant was not entitled to any relief. The
District Consumer Disputes Redressal Forum (“District Forum”) had dismissed the complaint filed by the
complainant.
Ruling
and Order:
The State
Consumer Disputes Redressal Commission (“State
Commission”) held that despite
the advance submission of the medical certificate to the school, it had not
taken any step to send the papers and to obtain the condonation for shortage of
attendance. It was the prime duty of the school to forward all medical certificates
to CBSE for obtaining condonation for shortage in the attendance. The State
Commission further observed that the CBSE had already sent the admit cards to
the schools and the same were deliberately not distributed to the students. The
State Commission set aside the decision of the District Commission and directed
the OP to pay Rs 75,000 for as compensation for mental agony, harassment and
sheer suffering, inclusive of all the litigation charges, within 30 days from
the date of the judgement. The State Commission further directed that a copy of
the judgment to be sent to Director, Directorate of Education, Govt. of NCT of
Delhi to initiate proceedings for cancellation of recognition/affiliation of the
OP and also to inform the State Commission.
2. M. P. Bhoj ( Open) University v. S. Narendra, S/o S. Vishnu & Ors., decided on February 06, 2013 by
the State Consumer Disputes Redressal Commission, Andhra Pradesh.
Facts:
The respondent/complainant took
admission in the appellant/Opposite Party number 1 (“OP1”) open university in the M.Sc (Physics) course. The complainant
had paid the requisite fees to OP1 through a study centre (OP2). OP1 issued a
hall ticket through OP2 and the complainant sat for the annual examination.
When the results were announced by OP1, the marks memo sent to the complainant
showed M.Sc (Maths) instead of M.Sc (Physics) as the subject. Even the hall
ticket number was wrong. This discrepancy was brought to the notice of OP1 and
OP2, but it was not solved. OP1 then demanded second year fee and that the same
was paid and the complainant then appeared in M.Sc ( Physics) final examination
but the result of the final year were withheld on account of the discrepancy of
the course appeared in first and second year examination. The complainant
alleged deficiency in service on the part of opposite parties. The District Consumer Disputes Redressal Forum (“District Forum”) partly allowed the complaint and ordered the opposite
parties to pay, jointly and severally, Rs.25,000 towards compensation for
causing mental agony and harassment to the complainant together with costs of
Rs.2,000. OP1 appealed to the State Consumer Disputes Redressal Commission (“State Commission”) for quashing the
order of the District Forum. It contended that there are series of judgment of
National Consumer Disputes Redressal Commission and Supreme Court of India that
a “university” does not render service for consideration in conducting
examination, evaluating papers and declaring results. Hence, an order for
deficiency in service could not be maintained.
Ruling
and Order:
The State Commission referred to
the judgement of the Supreme Court in the case of Bihar School Examination Board v. Suresh Prasad Sinha wherein it was held that function of an education
board is not that of a service provider and therefore a complaint for
deficiency in service would not be maintainable. In view of the aforementioned decision,
the State Commission held that the complainant was neither the consumer within
the definition of Consumer Protection Act nor did opposite parties render any
service. The order of the District forum was set aside.
C.
REGULATIONS
1. Delhi Directorate of Education directs schools to
admit students under EWS category
The Delhi Directorate of Education (“DOE”) on February 26, 2013 issued a
circular (No. F.15 (172)/DE/Act/2010/7099-7113) to schools that took land from
the Delhi Development Authority on concessional rates. The schools were
directed to admit 10% students for all grades in all fresh admissions, above
the entry level, under the economically weaker section (“EWS”) category with immediate effect. It was further directed that
an additional 5% of students, who are wards of the employee of the particular
school, were to be admitted. The provisions of such 15% admission reservation,
was also made applicable to minority schools that had been allotted land by
government agencies.
D.
NEWS
1. Supreme Court seeks opinion of the Centre on
neighbourhood criteria for EWS seats
The Supreme Court, on February 26, 2013, sought the
opinion of the Central Government on the distances within which schools are to
admit EWS category students. The Supreme Court was hearing an appeal by Federation of
Public Schools against a Delhi High Court order that had modified the
government’s notification which mandated that the neighbourhood limit for EWS
children would be the same as general category students. The High Court had held that schools should adopt four distances –
1km, 3km, 6km and beyond; and children should be admitted to the extent of 25
percent on the basis of priority as per the distance.
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Disclamer
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 February, 2013, including judgments, laws and
notifications issued by courts and the regulatory bodies, as applicable. If you
wish to receive more information about any content of this newsletter, please
feel free to contact:
Sarthak
Advocates & Solicitors
A –
35, Sector – 2, NOIDA 201 301
T: +91
120 430 9050
E: mani.gupta@sarthaklaw.com
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