Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Redressal Commission (NCDRC): The Bench of R.K. Agarwal (President and V.K. Jain and M. Shreesha, Members, while taking into consideration a batch of petitions and further referring to several decisions of the Supreme Court, reached to the conclusions that,

“Coaching Classes cannot fall within the definition of ‘Education Institutions’.”

“Any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does not fall within the jurisdiction of the Consumer Fora.”

Facts in the present case are in respect to deficiency of services by an educational institution that is a Dental College for admitting students when it was neither affiliated with the university nor recognized by the Dental Council of India.

Counsel appearing for the complainants stated that the facts in Buddhist Mission Dental College and Hospital v. Bhupesh Khurana, (2009) 4 SCC 473 relate to deficiency of service on account of non-affiliation and that it does not fall within any deficiency rendered during the ‘Course of Education’ being imparted ‘Post Admission’.

OP University has indulged in deficiency of service and unfair trade practice.

Contentions

OPs Counsel placed reliance on Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), and stated that students are not ‘Consumers’ and ‘Education’ is not a commodity and the Educational Institutions are not rendering ‘Service’.

Counsel appearing for the Complainant’s while referred to P. Sreenivasulu v. P.J. Alexander, wherein it was held that Educational Institutions would come within the purview of the Consumer Protection Act, 1986 and that Education is a ‘service’.

Analysis and Decision

Commission addressed the ratio laid down by the Supreme Court in a catena of Judgments with respect to ‘Education’ and ‘Educational Services’ vis-a-vis Consumer Protection Act, 1986.

Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483,

“…Any dispute relating to fault in holding of examination and non-declaration of result by an examinee does not fall within the purview of the Consumer Protection Act, 1986.”

Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159,

“…Supreme Court in the above-stated case examined in detail the jurisdiction of the Consumer Fora to entertain a Complaint with respect to deficiency of service by Educational Institutions.”

While noting the contention that Supreme Court clearly culls down the principles and has emphatically laid down that student is not a consumer and educational institutions are not providing any ‘Service’, Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC) was referred to wherein it was held that,

“…Educational Institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a kind of service, therefore, in matter of admission, fee, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.”

Counsel for the Complainants contended that the ratio of the order has to be interpreted in the sense that it was applicable only to cases which involve ‘Core Education’ services and not all activities which relate to Educational Institutions and that both  Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 and Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, refer to conference of a degree and conduction of an examination, which do not sum up the entire gamut of “Education”.

Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645,

“…Education has never been a commerce in this country and that establishing an Educational Institution can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1)(g), it was held that “Education” in its truest aspect is more a mean and a vocation rather than a profession or trade or business.”

Commission relying on the in Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191, wherein it was held that,

“…while deciding the Law of Precedence has observed that when there is a direct conflict between two decisions of the Supreme Court of co-equal Bench, the subordinate Court must follow the judgments which states the law more elaborately and accurately and that the question whether the decision is earlier or later is not material. In the instant case in Maharishi Dayanand University Case (Supra) the Hon’ble Supreme Court had discussed the law elaborately.”

Thus, the Commission stated that ratio laid down in the last judgment that is Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191 has to be followed. It is significant to note here that the ratio in Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), Prof. K. K. Ramachandran (Supra) and Anupama College of Engineering (Supra) does not address to the aspect of what comprises ‘Core Education’ and whether all activities related to Education/ Educational institutions would be excluded from the purview of the Act.

In view of the above discussion, consumer complaints were dismissed. [Manu Solanki v. Vinayak Mission University, 2020 SCC OnLine NCDRC 7, decided on 20-01-2020]

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J., dismissed a petition filed by a private unaided school, imparting elementary education, challenging the State’s order of closure of the school on the premise that it promotes exclusive religious instruction and admits only students from one particular community thereby posing threat to the secular fabric of society.

The instant case at hand, poses an issue of seminal importance, wherein the question that arises is,

“Do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?”

It has been alleged that the above-mentioned school is functioning without Government recognition or CBSE affiliation and all the students that have been admitted are adherents to Islam.

State Government on noting that the admission in the above school was being provided to only one community and therefore, the order for closure of the school was issued after an inspection. During the inspection it was observed that the syllabus was in accordance to the curriculum prescribed by Millet Foundation Education Research and Development, the presentation on the website of the said foundation clearly states that,

“apart from achieving excellence in temporal education, an attempt is made to promote the individual identity of the pupil based on Islamic Shariah which would necessarily be possible only by imparting religious instruction in institutions.”

High Court’s Analysis

Under Article 28(1) of the Constitution of India, there is a complete embargo on educational institutions wholly made out of State funds, imparting religious instruction. However, our Constitution allows educational institutions having State recognition or funds from the State to give religious instruction with the consent of the guardian.

In accordance with the above, educational institutions are enabled to give religious instruction to minor students with the consent of the guardian. This enabling clause existed in the constitution at a time when elementary education was not declared as a fundamental right. The said clause does not enable schools to give religious instruction of one religion to the exclusion of other religions.

Supreme Court’s Judgment in Aruna Roy v. Union of India, (2002) 7 SCC 368, the Apex Court did not negate religious education based on religious pluralism but it cautioned against religious education based on religious exclusivism.

There is no embargo on educational institutions imparting religious study in the Constitution. Exclusivism in religious study, if promoted by educational institutions will, therefore, have to be tested against the backdrop of the secularist ideal of Constitution.

Further, the Court noted that,

Secularism is part of the wheel that has to drive political democracy in India. Justice Dr D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, “spoke about the transformative character of Constitution as guiding factor of constitutional morality.”

Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve.”

 “Secularism has value in the Constitution as an acknowledgment of the past and as a guide to future generation.”

 Secularism is against the very idea of exclusivism of one religion over others.

Court further noted that, in a multi-religious and multi-cultural society, the students need an educational system that equips them to acknowledge and accept diversity in society. Multi cultural education must reflect upon coexistence for mutual benefit and the nation’s benefit. It must focus on the reduction of prejudices, bias and promotion of democratic values.

Multi cultural education in practice focuses on equity pedagogy by structuring school syllabus, accepting diversity of all in equal measure.

In a secular democratic State, no institution can survive unless the institution follows the virtues of constitutional morality. The idea of secularism in the Constitution is the result of the acceptance of the character of a pluralist society composed by people having diverse interests.

Recognition that is required from the State Government under the RTE Act is for imparting secular education.

Adding to the above, the Court stated that the Constitution does not allow the mixing of secular activities with religious activities.

Referring to the Supreme Court Case, S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein it was held that,

“…mixing up of religion with secular activities, is only based on the broad policy of equal treatment of all religion and maintaining neutrality of public functionaries.”

In regard to the liberty given to parents to choose the value and type p education to be imparted to their child, Court stated that, though the Constitution protects the said liberty, the State has not lost its power to regulate the curriculum of education to ensure guidance in the making of true citizens on the foundation of ideals of Constitution.

Supreme Court in Santosh Singh v. Union of India, (2016) 8 SCC 253, referred to education as an important instrument towards the development of the individual as well as an instrument in nation-building. It is further opined that the acceptance of plurality and diversity of ideas, images, and faith is a result of education.

Exclusivism or preference of one religion over others by State or public functionaries or private bodies, while discharging public functions, strikes at the very root of the fundamental values of our Constitution, namely, secularism.

High Court stated that, Private Schools that are required to have recognition from State must not promote one religion over others.

“In a pluralist society like India, which accepts secularism as the basic norm in governing secular activities including education, there cannot be any difficulty in imparting religious instruction or study based on religious pluralism. What is prohibited is exclusivism.”

Court stated the following with respect to the minority institutions,

“minority institutions cannot shrug off their role as State Functionaries and protect sectarian education under the garb of Articles 29 and 30.”

“If minority institutions are given free hand to promote religion, it would result in denial of admission to such schools based on religion.”

What the Court held?

High Court does not denounce value education moulded on the basis of religious instruction or study. Religious instruction or study is capable of moulding value-based education.

No elementary schools imparting secular education can promote one religion over others.

Thus, it would be open to any private unaided educational institution to approach the Government for permission to impart religious education or instruction based on religious pluralism.

In the present case, the petitioner is imparting religious instruction exclusively following the Islamic religion which cannot be permitted. It offends the fabric of secular society; hence the order of closure of the school is justified. [Trustee, Hidaya Educational & Charitable Trust v. State of Kerala, 2020 SCC OnLine Ker 312, decided on 24-01-2020]

Case BriefsSupreme Court

“If the intent is to achieve excellence in education, would it be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right under Article 30 of the Constitution, while better qualified teachers are available to impart education?”

Supreme Court: The bench of Arun Mishra and UU Lalit, JJ has upheld the constitutional validity of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 that relate to the process of appointment of teachers in an aided Madrasah. While doing so the Court noticed that the legislature has taken due care that the interest of a minority institution will always be taken care of by ensuring that

  1. in normal circumstances, the best qualified and suitable candidates will be nominated by the Commission; and
  2. in case there be any error on part of the Commission, the concerned Managing Committee could not only point out the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section 12 (i) to refuse the nomination on a reasonable ground.

It was argued before the Court that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers as by virtue of the provisions of the Commission Act, the process of appointment of teachers in an aided Madrasah, which was recognised as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act; and that the Commission was empowered under the provisions of the Commission Act to make recommendations which would be binding on the Managing Committee of an aided Madrasah.

The Court, however, wasn’t convinced with the submission and asked,

“if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice? The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted?”

It noticed that the regime put in place by the State legislature ensures that the Commission comprising of experts in the field would screen the talent all across the State; will adopt a fair selection procedure and select the best available talent purely on merit basis; and even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions.

The Court, also noticed that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of.

It was further explained that though the recommendations or nominations of teachers made by the Commission are otherwise binding on the Managing Committees of concerned Madrasahs, but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of ‘error’ as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission. If any such error is pointed out, the Commission will certainly have to rectify and remove the error. The further protection is afforded by Section 12 of the Commission Act, under which the concerned Madrasah could be within its rights to refuse to issue appointment letter to the candidate recommended by the Commission if any better qualified candidate is otherwise available with the managing committee of the concerned Madrasah. Such refusal may also come within the expression ‘any reasonable ground’ as contemplated in Section 12(i) of the Act.

“if the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the Right protected under Article 30(1) of the Constitution.”

[Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah, 2020 SCC OnLine SC 4, decided on 06.01.2020]

Case BriefsHigh Courts

Madras High Court: M. Duraiswamy, J., while addressing a petition that was filed in pursuance of the impugned order of termination of a Polytechnic Principal based on an enquiry under which certain charges were laid down which included the charge of  “indulging in Homo-Sexual activities” with the polytechnic students.

In the present petition, it has been stated that the petitioner was working as the Principal of Dharmapuri District Co-operative Sugar Mills Polytechnic and was suspended by 1st respondent which was further confirmed by the Appellate Authority.

The petitioner was at first suspended by 1st respondent based on a pending enquiry against him under Section 42 of the Special by-laws. The charges laid down against him were all proved except for charge number 3 and 7. Following is the gist of charges against the petitioner:

  1. Misappropriation of funds by preparing bogus vouchers
  2. Misappropriation of funds by refunding lesser amount to the former students
  3. Misappropriation of scholarship amount by paying lesser scholarship amount
  4. Indulged in Homo-sexual activities with the polytechnic students.
  5. Derogatory remarks writing in filthy language against the teaching staff in the notice board and allowed the students to read.
  6. Arranged to refund the fees without any authority and without following the formalities and incurred loss to the Polytechnic.
  7. Failed to inform the students about their selection to the group/trade who attended the interview
  8. Admitted the students for admission in the management quota those who were not the heir of the cane growers/employees.
  9. Deceived the Govt. and management allowing a student for admission in the administrative quota

High Court, considering the above, stated that

Person with such conduct and character who indulged in homosexual activities with the polytechnic students cannot be allowed to continue in employment, that too, as a Principal of a Polytechnic Institute.

Petitioner had also made derogatory remarks, writing in filthy language against the teaching staff in the notice board and had allowed the students to read, which would establish that the petitioner is unfit to continue as the Principal of the Polytechnic Institute.

Bench relied on the case of Avinash Nagra v. Navodaya Vidyalaya Samiti, (1997) 2 SCC 534, wherein it was held that,

“…it is necessary to consider the need for education and the place of the teacher.”

“The citizen, as a duty, should renounce practices derogatory to the dignity of women; value and preserve the rich heritage of our composite culture; protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compass in for living creatures.”

“…the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owed dual fundamental duties to himself and to the society.”

“quality, competence and character of the teacher are, most significant for the efficiency of the education system as pillar of built democratic institutions and to sustain them in their later years of life”

In the above-cited case, the Court stated the following with respect to “Enquiry”:

“Enquiry is not a panacea but a nail on the coffin. It is self-inspection and correction that is supreme.”

 Thus, in the present petition, the Court in view of the above stated that the order of termination of the Principal is proper and no error or irregularity with the same is to be found. [D. Ganesan v. Dharmapuri District Coop. Sugar Mills Polytechnic, 2019 SCC OnLine Mad 9942, decided on 11-11-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Dr DY Chandrachud and Aniruddha Bose, JJ has held that the words “by another year” in Rule 105(1) of Delhi School Education Rules 1973 stipulate that the maximum period of probation permissible is two years.

Amending History of Rule 105 of the Delhi School Education Rules, 1973

Rule 105 of the 1973 Rules, as originally enacted, stipulated that an employee shall be appointed on initial probation for a period of one year which may be extended by the appointing authority “by another year”. No separate provision was stipulated for minority institutions. Two amendments were subsequently incorporated to the 1973 Rules. On 30 January 1985, the Delhi School Education (Amendment) Rules 1984 were notified. 12 By this amendment, Rule 110 of the 1973 Rules was substituted. The Court noticed that the amending history of the 1973 Rules shows that the words “by another year” appearing in the principal part of Rule 105 has not been omitted.

“By another year” – Meaning

The consistent meaning imparted to the word “another” is a single addition or one more. The ordinary and literal construction of the words “another” read with the words “for a period of one year” in Rule 105(1) implies that the appointing authority may extend the period of probation by one additional year.

“The contention that the words “by another year” imply that the appointing authority can extend the period of probation by one year at a time without any limit cannot be accepted as this would amount to rewriting the provision by substituting the words “by another year” with the words “by one year at a time”, which is impermissible in law.”

Hence, the Court said that had the delegate of the legislature intended that there is no limit on the permissible probationary period, the words “by another year” would have been omitted.

The limit placed on the permissible extension of the probationary period draws a balance between the opportunity that must be afforded to a probationer to modify and improve the quality of service and a mandate that the appointing authority of an educational institute hires qualified teachers. To impart a meaning to the words “by another year” that the appointing authority may extend the probationary period one year at a time without a limit will allow an appointing authority to extend the probationary period, with the prior approval of the Director, of a probationer ad nauseum.

Prior approval of Director

The prior approval of the Director, save and except for minority institutions, is mandatory and must be complied with as a condition precedent for the valid exercise of the power to extend the period of probation. The Director is required to assess the determination of the appointment authority and based on that assessment, to decide whether to approve an extension of the probationary period. The provision which mandates that the prior approval of the Director shall be sought before extending the period of probation ensures that the appointing authority may not extend the probationary period without legitimate reason.

Conclusion

  • The words “by another year” in Rule 105(1) of the 1973 Rules stipulate that the maximum period of probation permissible is two years. The limit equally applies to minority institutions covered by the first proviso to Rule 105; and
  • Rule 105(2) stipulates a condition precedent to the issuance of an order of confirmation. The continuation of the services of a probationer beyond the period of probation does not amount to a deemed confirmation of service. It is only upon the issuance of an order of confirmation by the appointing authority that a probationer is confirmed in service

[Durgabhai Deshmukh Memorial Sr. Sec. School v. JAJ Vasu Sena, 2019 SCC OnLine SC 1075, decided on 21.08.2019]

Legislation UpdatesNotifications

The NITI Aayog and the Michael & Susan Dell Foundation (MSDF) today signed a Statement of Intent (SOI) to codify, document and share best practices to improve learning outcomes in public school education through systemic reforms, based on their collective experiences of working with various state governments in India.

The SOI was signed in the presence of Mr. Amitabh Kant, CEO, NITI Aayog, by Mr. Alok Kumar, Adviser (HRD), NITI Aayog and Mr. BarunMohanty, Managing Director (International), MSDF.

The NITI Aayog was established with the core mandate of promoting cooperative and competitive federalism through evidence-based policy reform and knowledge inputs. Since its inception, NITI Aayog has placed learning outcomes as a key focus area for establishing sustainable education systems.

As a part of this push, the School Education Quality Index (SEQI) is being developed to rank states/UTs on educational outcomes, with a high weightage to learning outcomes. Further, NITI is implementing the Sustainable Action for Transforming Human Capital in Education (SATH-E) initiative to induce systemic transformation in Madhya Pradesh, Jharkhand, and Odisha.

Education also forms a crucial component of the Aspirational Districts Programme, which seeks to improve status of education in the most underserved districts of India. Pursuing its mandate of disseminating best practices and knowledge sharing, partnerships with stakeholders in the development sphere are a continuing endeavour of the NITI Aayog.

Under this latest partnership, the NITI Aayog and the Michael & Susan Dell Foundation will document the reforms pursued by various state governments that have initiated systemic reforms in education and have begun to see improved learning outcomes over the past few years. Altogether, nearly 30 million children have been positively impacted across India through the systemic reforms in education in different states.

Under the agreement, a joint team comprising of state leaders, consultants, research agencies and educators shall work together to develop a ‘theory of change’ based on the learnings from the states and will document the impact on the ground by commissioning third-party studies to evaluate the impact of systemic reforms in education.

Improving learning outcomes at scale will require a coordinated and simultaneous effort with both academic and governance reforms. The key findings and takeaways from this exercise will be disseminated to relevant decision-makers and policymakers in other states after a consultative process of validating the same. This will be done through workshops and publications in the coming months.

[Source: PIB]

NITI Aayog

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Law School NewsOthers

“Young India Adhikar March” and the Jamia Chapter of Young India National Coordination Committee organised a Public Meeting titled “State of Education and Employment”.
The Public Meeting was joined by Hundreds of students of Jamia Millia Islamia. This Public Meeting is held at a time when Student-Youth is witnessing organised attack on public funded educational institutions and failure of the present government to create dignified Employment opportunity for youth. Under the banner of Young India more than 50 major Student-Youth movements, union members and organistaions from across the country have formed Young India National Coordination Committee (YINCC).
N. Sachin who teaches at Dyal Singh College, Delhi University and Manisha Sethi, Assistant Professor at Jamia Millia Islamia were two speakers. N. Sachin stressed the need to protect the aspirational value of the students as well as the teachings to preserve public funded education as the caste based lower sections have the education which is cheap as the way to get through the hardships they face and break the social norms. The cost cuttings in the funds of the central universities. He also spoke how privatization of Education will lead to exclusion of students coming from the marginalised community. Manisha Sethi spoke on the recent issues of involving National Investigation Agencies to see which Private University should be given the tag of eminence and in the matters of academic management. She also spoke on the current situations, where universities are expected to make scholars, and not make the students who are socially aware and educated, where it is made sure that their and basically every person’s thinking is limited and the art of questioning is suppressed. She also stressed on the Unlawful Activities Prevention Act which somehow gives the government powers to make anyone or any organisation’s activity unlawful. Sangwari-Group also performed a play as part of Meeting highlighting the issues and challenges the Student-youth is facing today
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J., disposed of a bail application against a juvenile on various grounds stated by the petitioner including the ground for furtherance of his son’s (accused) education.

The facts of the case are the accused was a juvenile at the time of commissioning of the offences. Despite that, he was arrested and was kept in the police lockup.

The petitioner filed a bail application before the Court of Chief Judicial Magistrate. It transferred the bail application of the applicant to the Juvenile Justice Board. The Juvenile Justice Board ordered the respondent to shift the juvenile to the place of safety (observation home). Juvenile Justice Board rejected the bail application filed by the petitioner.

The petitioner contended that the juvenile was preparing for Medical Entrance Examination and the Board instead of adopting reformative approach took resort to a strict view which has not only curtailed his freedom / personal liberty but also caused a great blow to the educational /professional career of the juvenile.

The respondents argued that that son of the petitioner was involved in heinous offence under Sections 354-B/376-D RPC and Section 6 J&K POCFSV and in this regard the FIR should stand registered. The case fell within the ambit of rarest of the rare case, therefore, there was a  rider and embargo for grant of bail to the son of the petitioner.

The Court disposed of the bail application by giving liberty to the petitioner to file a fresh application before the trial court where the challan against the son of the petitioner was pending. It also ordered that any observation made by the Juvenile Justice Board should not come in the way of the trial court in deciding the fresh application. [Vinayak Sharma v. State of J&K, 2018 SCC OnLine J&K 1045, Order dated 24-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Division Bench comprising of Gita Mittal, CJ and Tashi Rabstan, J. directed the respondents to submit the status report on the education provisions that were to be provided to the students of the State.

It was stated that this Court granted time to the respondents to file a status report with regard to the status of infrastructure in the schools situated in rural and urban areas for which on request even the time was extended but still there was a failure to comply with the directions. It has been directed by way of PIL to only dispense funds for “100% saturation of toilets in all schools”. Additionally, provision has been introduced for the provision of drinking water and electricity supply further the Education Department wants to achieve construction of boundary walls in all schools. Plus furniture and other amenities were to be given but in a ‘time-bound manner’.

The Court stated that respondents never gave a time frame regarding till when the infrastructure in schools would be arranged nor any audit of the deficiencies in the infrastructure were submitted. It has been pressed upon that deficiencies in Right to Education cannot be tolerated where it can be clearly seen that Education Department was not concerned about even assessing deficiencies let alone proceeding to supply the same in any planned manner. Accordingly, the Court has demanded the appearance of the respondent where the complete details of deficiencies and time frame of the work to be done to be submitted. [All J&K Ladakh Teacher Federation v. State, 2018 SCC OnLine J&K 1015, Order dated 26-12-2018]

Case BriefsSupreme Court

Supreme Court: In the issue pertaining to the admission of students in MBBS/BDS courses in the State of Maharashtra, the Court, exercising of powers under Article 142 of the Constitution, vacated the Bombay High Court’s order where the decision taken by the Central Government/State Government that the centralised counselling shall be conducted by the State Government, was stayed. However, it was clarified that the vacation of the stay will not disturb the admissions already made by the respondent universities keeping in view that respondents are deemed universities.

Taking into note the fact that the first counselling had already been completed, the bench of Dr. A.K. Sikri and L. Nageswara Rao, JJ said that insofar as second or third counselling is concerned, that shall be a joint exercise which means that it shall be done by the Committee of the State Government which shall include one representative each from these universities. It would be a centralised counselling for all the deemed universities and not university-wise counselling. In the second or third counselling, students will be taken by making a combined list of those who got themselves registered with the State Government as well as the respondent universities. This shall ensure admission of those who are more meritorious but left out but are interested in taking admission in the respondent universities. In this process, it will also be known as to which students are in fact interested in getting admission to the respondent universities.

It was further held that In order to undertake the counselling, all the admission records of the respondent universities shall be handed over to the State Government/Committee forthwith. Considering the fact that it may not be possible to complete the process of admission by September 30, 2016, the Court extended the time to complete the admission by October 7, 2016.

The decision of centralized counselling was taken vide Letter dated August 09, 2016 issued by the Government of India through the Ministry of Health and Family Welfare, the Government Resolution dated August 20, 2016 passed by the State of Maharashtra and the consequential Notice dated August 21, 2016 of the State of Maharashtra. [State of Maharashtra v. D.Y. Patil Education Society, CIVIL APPEAL NO. 9835 OF 2016, decided on 28.09.2016]

Case BriefsSupreme CourtUniversities and Educational Institutions

Supreme Court: In the matter where the selection to the post of Principals to different Colleges in the State of Uttar Pradesh was challenged for alleged violation of Regn. 6 of the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, the bench of Fakkir Mohamed Ibrahim Kalifulla and S.A. Bobde, JJ affirmed the decision of the Allahabad High Court where the selection was set aside and it was directed that the U.P. Higher Education Service Commission shall consider and frame appropriate guidelines for conduct of interview for selection on the post of Principal of Postgraduate/Degree Colleges in accordance with law as mandated by Regulation 6(2) of the 1983 Regulations and further take early steps for filling the vacant posts of Principal of Postgraduate/Degree Colleges in accordance with law.

The State Government enacted U.P. Higher Education Services Commission Act, 1980 to establish a Service Commission for the selection of Teachers which includes the post of Principals for appointment to the colleges affiliated to or recognized by the University under the 1973 Act as there were numerous complaints regarding the selection of candidates for both the post of Teachers as well as the Principals in the post graduate colleges as well as the degree colleges. The High Court had held that there were serious lapses in the procedure followed by the Commission in making the selection for the post of Principals of the Post Graduate as well as Degree colleges in as much as the Regulation 6 of the 1983 Regulation was not strictly followed and that the necessary guidelines under the said Regulation were not formulated both for screening the candidates as well as in the matter of holding the interview, apart from serious violation in the matter of calling of the candidates for interview beyond the prescribed limit as provided under the Regulation 6.

In the present case, initially the Commission decided to limit the number of candidates by fixing the norms. The Commission by fixing the cut-off mark as 34.9 for female candidates 35.1 for male candidates proceeded to process the applications but subsequently the index norms were altered and ultimately it decided to call all the candidates. It was alleged that such variation was adopted by the Commission with a view to favour certain candidates who otherwise did not come within the zone of consideration for participation in the interview.

The Court, considering the facts of the case, held that the High Court was well justified in holding that the changing of the norms while applying Regulation 6(1) for the initial screening thrown considerable doubt about the genuineness in the selection process adopted by the Commission. When greater faith and trust was invested with the Commission and when the Commission breached its own criteria and thereby acted contrary to the standards laid by it, it resulted in an arbitrary selection made by it. [Veerendra Kr. Gautam v. Karuna Nidhan Upadhyay, 2016 SCC OnLine SC 704, decided on 15.07.2016]

Case BriefsSupreme Court

Supreme Court: The matter where the appellants had challenged the order cancelling the admissions to Medical Institutes in the wake of the VYAPAM Scam, has been placed before the Chief Justice of India owing to the split decision given by the bench of J. Chelameswar and A.M. Sapre, JJ on the issue that whether Article 142 of the Constitution be invoked in order to allow the appellants to complete their education to satisfy the demands of justice as the future of 634 students was at stakes.

Chelameswar, J, considering that the knowledge of these appellants would be simply rendered useless for the society in the sense their knowledge cannot be utilized for the welfare of the society, said that the appellants be allowed to complete their education. However, he added that it would serve the larger public interests, by making the appellants serve the nation for a period of five years as and when they become qualified doctors, without any regular salary and attendant benefits of service under the State, nor any claim for absorption into the service of the State subject of course to the payment of some allowance (either in cash or kind) for their survival. He also suggested that they serve the Indian Armed Services and that they be handed over the certificates of their medical degrees only after they complete the abovementioned five years.

Sapre, J., on the other hand, said that no case was made out for passing any directions under Article 142 of the Constitution as grant of any equitable relief may be construed as awarding premium to the appellants of what they did. It would demoralize the meritorious students who could not secure the admission on their merit due to the appellants’ entry in the Colleges by illegal means. He, however, said that the State may consider permitting the appellants and other candidates alike the appellants to appear in the competitive examination whenever it is held and consider granting age relaxation to those candidates who crossed the age limit, if prescribed. He was of the view that it is the collective responsibility of the Government (Central/States), educational bodies/Institutions to ponder over and evolve a uniform policy in a comprehensive manner to firmly deal with such activities in the larger public good. [Nidhi Kaim v. State of Madhya Pradesh, 2016 SCC OnLine SC 547, decided on 12.05.2016]

Case BriefsHigh Courts

Madras High Court: Deliberating upon the grim situation that how the courts have to face cases related to juvenile crimes, matrimonial disputes, and other disputes revealing the moral depreciation in the society, the bench of R. Mahadevan, J., directed the Government to include 108 Chapters/ Adhigarams of Thirukkural (Arathupal and Porutpal) in the curriculum of students between VI- XII Standards in the syllabus for the next academic year, because one of the important objective of education is to build a nation of moral values.

The petitioner, a retired government official contended that in the recent times there has been great deal of moral degradation amongst the youth, which is visible in the rising number of matrimonial disputes, emergence of old age homes etc. The petitioner further added that as a senior citizen it gives him considerable agony to see the moral standards of the society falling so rapidly. The petitioner via his counsel A. Saravanakumar, presented disturbing statistics of juvenile crime rates from 2011. The petitioner therefore stated that inculcating the principles of Thirukkural in school syllabus will have a positive impact on the psyche of students. The respondents however argued that neither the petitioner has a vested right to seek such a change in the syllabus, nor the State has any duty to accede to the request of the petitioner.

On basis of the issues raised and the contentions forwarded, the question that came up before the Court was that whether the state is under any obligation to restructure the syllabus by including Thirukkural under the compelling circumstances and whether the petitioner has a right to seek such relief. The Court observed that the petitioner has sought the writ of mandamus to protect his right to live in an orderly State which according to the petitioner threatened by the increasing number of offences. The Court discussed at length about the Directive Principles and Fundamental Duties enshrined by the Constitution and the principles of Thirukkural. Stating that “where there is a will, there is way” the Government can include 108 Adhigarams of first 2 chapters of Thirukkural in a phased manner, because the Constitution imposes an obligation upon the States to frame policies to preserve the fundamental rights of the citizens. Furthermore Articles 21A and 24 of the Constitution protects the right of the children by mandating the State to frame policies to provide education. The Court further observed that moral values are more important and if they are lost then there is no stopping to the moral degradation of an individual. The principles of Thirukkural would introduce a student to various facets of life and will equip them to deal with them and would give them the “inner strength to withstand any storm”. [S.Rajarathinam v. Secretary to the Government, 2016 SCC OnLine Mad 2373, decided on 26.04.2016]

Case BriefsHigh Courts

Himachal Pradesh High Court– Dismissing the petition filed by the petitioner institute against the order wherein respondent 2 had directed the petitioners to jointly and severally refund the fees taken from private respondents, the bench of Tarlok S. Chauhan, J., observed that private institutions cannot be permitted to operate like money minting institutions; rather it has to be ensured that they comply with all the rules, regulations and norms before they are granted permission to operate within the State of Himachal Pradesh. The innocent people of this State cannot be allowed to be duped any further. The Court referred to State of Maharashtra v. Vikas Sahebrao Roundale, (1992) 4 SCC 435 wherein the Supreme Court observed ‘that the field of education had become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals were establishing such institutions without complying with the statutory requirements’.

The impugned orders were challenged on the ground that respondent 2 had no jurisdiction to entertain the petition, as the dispute relating to Sikkim Manipal University was beyond its territorial jurisdiction and further that the private respondents did not fall within the definition of students, therefore, also their claim before the respondent No. 2 was not maintainable. On the other hand Respondent 2 averred that the petitioner was not authorized to act as franchisee or affiliated Institute of Sikkim Manipal University, therefore, it could not have collected any fee from the students.

After perusal of the relevant guidelines and statutes, the Court noted that the parent institutions shall not establish their study centers/regional centers outside their jurisdiction as specified in the parent institutions Act/MOA. The Court expressed its concern that the mushrooming of private universities has only led to a cut-throat competition leading to misleading advertisements which can only be termed to be persuasive, manipulative and exploitative to attract the widest possible audience. The Court also observed that private institutions have been raising their assets after illegally collecting funds like building fund, development fund, infrastructure fund etc. It is high time that these practices are stopped forthwith and there is a crack down on such institutions. Every education institution is accountable and no one can be assumed to be above the law. The Court directed that the respondent-State should act responsibly by conducting a fresh investigation of all these institutions. [Business Institute of Management Studies v. State of Himachal Pradesh, 2016 SCC OnLine HP 472, decided 27.04.2016]

Case BriefsSupreme Court

Supreme Court: Clearing the confusion over holding the National Eligibility cum Entrance Test (NEET) in pursuance of Notifications dated 21.12.2010 issued by the Medical Council of India and the Dental Council of India, the Court held that NEET should be held and notwithstanding any order passed by any Court earlier with regard to not holding NEET, this order shall operate.

It was contended that in view of the judgment passed in Christian Medical College, Vellore Vs. Union of India, (2014) 2 SCC 305, it would not be proper to hold NEET and this order should not affect pending matters. The 3 judge bench of A.R. Dave, Shiva Kirti Singh and Adarsh K. Goel, JJ rejected the said contention and said that the said judgment has already been recalled in Medical Council of India v. Christian Medical College, Vellore, (2016) 4 SCC 342 and therefore, the Notifications dated 21.12.2010 are in operation as on today. [Sankalp Charitable Trust v. Union of India, 2016 SCC OnLine SC 366decided on 28.04.2016]