Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma, CJ. and Sachin Shankar Magadum J. directed the State Government to provide textbooks in Braille for all specially abled children having visual disabilities within a period of 15 days.

The instant petition in the nature of PIL i.e. Public Interest Litigation was filed on behalf of the children who are specially abled children as in the State of Karnataka, text books are not available in Braille and they have also not uploaded the books on the website in PDF form so that a print out can be taken in Braille.

An interim order was passed last year wherein Additional Government Advocate submitted that the text books in Brailee for Class-I to X of the kannada medium will be available from the next academic year.

The Court thus directed “As next academic year has already been commenced, the State Government is directed to provide text books in Brailee for all special children (visual disabilities) positively within a period of 15 days from today, if the same has not been done”

The matter is next posted for 07-10-2021.[National Federation of Blind v. State of Karnataka, WP No. 52201 of 2019, decided on 17-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Government of Himachal Pradesh has amended Himachal Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2008. The amendment introduces new rates towards financial assistance for the education of the children of the Beneficiary.

 

Key Amendments:

1. Following Rules have been inserted

  • Rule 298: Female Birth Gift Scheme: The Board may provide a sum of Rs. 51000/- only in shape of FDR which may be given to the beneficiary on the birth of his/her female child (upto 2 girls), which will be enchashed at the completion of 18 years of the said daughter. If the girl in whose name an FDR has been made unfortunately dies before attaining the age of eighteen years, the FDR will get transferred to the third girl child of beneficiary if any,  otherwise the entire amount will be paid the nominee.
  • Rule 299: Mentally Retarded Children Benefit Scheme: A financial assistance for the care of mentally retarded or handicapped children with disability of 50% and above beneficiary @ Rs 20000 per year will be provided to him/her on production of valid medical certificate issued by competent authority.
  • Rule 300: Widow Pension: The widow of a deceased beneficiary will be provided a pension of sum of Rs. 1500/- per month after the death of the said beneficiary, provided that she is not employed in any Govt./semi-govt.  or autonomous body under the Government of India/Government of Himachal Pradesh on regular, contract or daily wage basis.
  • Rule 301: Hostel Facility Scheme: A beneficiary will be provided a maximum amount of Rs. 20000/- for the expenses incurred by him/her on lodging, boarding and food of his children living in any hostel.
  • Rule 302: Mukhyamantri Awas Yojna: A beneficiary who is already enrolled either under Pradhan Mantri Awas Yojna or Mukhya Mantri Awas Yojna, will be provided a financial assistance of Rs. 1,50,000 to build his/her home.

2. Rule 281(1) has been modified to provide new rates for financial assistance for education of children of the beneficiary from the Fund.

Case BriefsSupreme Court

Supreme Court: Hearing a series of petitions filed by Class XII students of various Boards, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed all the State Boards to formulate Schemes for assessment of the Students within 10 days.

Though the Court directed that the respective Boards are free to formulate their own Schemes being autonomous and independent bodies, it made clear that the Scheme must provide for a proper mechanism for redressal of dispute or grievance of the students after declaration of results, as has been done in the case of C.B.S.E. and I.C.S.E. Boards.

Class XII students’ evaluation scheme by CBSE and ICSE approved by Supreme Court with two additions: Here’s what we know

The Court said,

“… we are not endorsing the correctness and validity of the proposed Schemes, to be so formulated by the concerned Boards. That will be considered on its own merits, if and when occasion arises.”

The Court, hence, directed the State Boards to

“… ensure that the Schemes are formulated and notified at the earliest and not later than 10 days from today and also declare the results of internal assessment by 31.07.2021, which is the time-line specified for C.B.S.E. and I.C.S.E. Boards in terms of our order dated 22.06.2021 passed in Writ Petition(C) No. 522 of 2021.”

The aforesaid direction applies to all States but the State of Kerala which has already conducted XII standard Examination in the month of April, 2021.

[Anubha Shrivastava Sahai v. Union of India, Writ Petition(s)(Civil) No(s). 620/2021, order dated 24.06.2021]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that,

“… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Let’s have a look at why the Schemes and the decisions of the Boards were challenged:

Decision to cancel the Class XII examinations and declare results on the basis of internal assessment marks as propounded in the Scheme must be set aside and examination must be conducted for academic year 2020-21.

Rejected.

The Argument was rejected on the ground that the Boards have taken decision to cancel the examinations, which according to them, is in larger public interest including the body of students pursuing education with them.

“The fact that other Boards or institutions have been able to conduct examination does not necessarily mean that the Boards before us are bound by that dispensation. The Boards are autonomous Boards and are entitled to evolve their schemes independently.”

The Scheme ought to provide option at the threshold as to whether the student wants to appear in the examination for improvisation of marks, to be conducted by the concerned Board for that purpose. Further, the results of the internal assessment should be declared together with the results of such examination.

Rejected.

“… tweaking the Scheme in any manner, as propounded by the two Boards would result in denial of one option to the students and also delay the declaration of results indefinitely. There would be uncertainty until the examination for improvisation is actually conducted and results are declared.”

The Court explained that if the students are given the option of accepting the internal assessment marks, the results could be declared before 31.07.2021 and despite declaration of those results, they may still have the option of appearing in the examination for improvisation, if they so choose to.

Interestingly, somewhat similar Scheme was adopted in the previous academic year and the body of students accepted the internal assessment results. Hardly, 10 students from I.C.S.E. and 15000 from C.B.S.E. availed of the option to appear in the examination for improvisation of marks.

Past performance of three years of the students is being reckoned for internal assessment in the Scheme propounded by C.B.S.E is unfair and irrational.

Rejected.

The Court refused to take a second look at the Scheme which has been formulated by the expert body which was appointed by the Board consisting of thirteen members after taking all aspects into consideration in order to ensure that no candidate/student is prejudiced.

“… the Scheme intends to rationalize the internal assessment performance and bring semblance of parity amongst the assessment of different schools. This exercise will be undertaken by a broad-based Result Committee.”

Further, the Boards are independent and autonomous bodies and entitled to take their own decision with regard to the affairs of conducting examination by them.

The result should be declared on the same day.

Rejected.

Attorney General sumtted that U.G.C. will be issuing necessary instructions to ensure that the admission process by the colleges and institutions should commence only after the declaration of results by the C.B.S.E. and I.C.S.E., including the State Boards. Hence, ther aforementioned argument was rejected by the Court.

There is possibility of C.B.S.E. schools manipulating the records as the relevant data on the basis of which internal assessment is to be done is not in the custody or in possession of the C.B.S.E.

Rejected.

Stating that the argument was nothing but a vague apprehension, the Court took note of the Attorney General’s submission that the broad-based Result Committee would examine all aspects of the matter and take decision on the basis of registers maintained by the concerned schools, and inspected by the competent authority.

Clarification on conduct of examinations for private, patrachar and second compartment candidates

Examination will be duly conducted in which all these candidates can appear as private candidates and such examination will be conducted between 15.08.2021 to 15.09.2021 and the results would be declared at the earliest so that even these students would be in a position to pursue their further education, if they so desire.

Read the Schemes here

Class XII students’ evaluation scheme by CBSE and ICSE approved by Supreme Court with two additions: Here’s what we know

[Mamta Sharma v. CBSE, 2021 SCC OnLine SC 433, order dated 22.06.2021]


For UOI: Mr. KK Venugopal, Attorney General for India

For CBSE: Mr. Tushar Mehta, Solicitor General of India

For ICSE: Senior Advocate JK Das

For interveners: Senior Advocate Vikas Singh

For Petitioners: Advocates Anshul Gupta and Abhishek Choudhary

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has accepted the schemes presented by CBSE and ICSE for assessment of students who were due to appear in the now cancelled Class XII Board exams.

The Court however, made clear that the scheme must incorporate two aspects:

(i) providing for Dispute Resolution mechanism, in case the students apply for correction of the final result declared by the concerned Boards.

(ii) the time-line to be specified for (a) declaration of the 6 result and (b) the date before which the optional examination will be conducted, subject to conducive situation and logistical constraints.

The Court also rejected the intervenor’s plea that the decision of the CBSE and the ICSE to cancel the examination be re-visited. It, however, gave time to Senior Advocate Vikas Singh to examine the scheme propounded by the concerned Boards and listed the matter on 21st June, 2021. The Court, however, made clear that

“… the concerned Boards are free to notify the final scheme on the above lines and include the two suggestions given by the Court. If any further suggestion is given by Mr. Vikas Singh, learned senior counsel, that matter can be addressed appropriately.”

Key highlights of CBSE’s Scheme

  • Due to cancellation of the Board examinations, the assessment of theory portion of 80/70/60/50/30 marks will be done by the school based on the following:

Class XII: Marks based on Unit Test/Mid-Term/Pre-Board Exam – 40 %

The computation of theory marks for class XII will be based on performance in one or more Unit Test(s)/MidTerm/Pre-Board(s) theory examination. The result committee of the school may decide weightage to be given to each exam based on the credibility and reliability of the assessment.

Class XI: Marks based on theory component of final exam -30 %

Class X: Marks based on average theory component of best three performing subjects out of main 5 subjects – 30 %

This average will be uniformly awarded to all the class XII subjects based on theory weightage. To facilitate ease in entering the theory marks of class X, the Board will provide the marks for the students who have appeared in CBSE class X examinations. For students of other Boards, the schools will have to enter the information based on the class.

  • The marks of Practical/Internal Assessment etc. of class-XII will be on actual basis as uploaded by the school on the CBSE portal.
  • The total marks awarded should be in consonance with the past performance of the school in ClassXII Board Examinations.
  • The computation of theory marks for class XII will be based on performance in one or more Unit Test(s)/MidTerm/Pre-Board(s) theory examination. The result committee of the school may decide weightage to be given to each exam based on the credibility and reliability of the assessment.
  • To ensure standardisation, each school will have to internally moderate the marks to account for the school level variations by using a reliable reference standard.
  • The historical performance of the school, in terms of the best overall performance in the previous three years’ Board examination, will be taken as the reference for moderating the marks assessed by the school for 2020-2021.
  • The subject wise marks assessed by the school for 2020-2021 should be within a range of +/- 5 marks obtained by the students in the school in the subject in the reference year. However, the overall average marks for the school assessed in 2020-2021, for all the subjects, should not exceed the overall average marks obtained by the school by 2 marks in the specific reference year.
  • Once the Result Committee finalizes the marks on the basis of tests/exams, it has to ensure that the marks of students are aligned with the broad distribution of marks provided by the Board. It may be noted that the indicated distribution has to be followed broadly and there may be some difference in terms of number of actual students in each category of the distribution than the one indicated. However, the school subject wise and overall scores should be within the limits provided.
  • Students not satisfied with the Assessment Students who are not satisfied with the assessment, done based on the policy will be given an opportunity to appear in examinations to be conducted by the board when conditions are conducive for holding the examinations. As per this policy, marks scored in later examination will be considered as final.
  • For Private, Patrachar and 2nd chance Compartment candidates etc. Examination will be conducted by the Board as and when the conditions become conducive for conduct of such examinations. The details will be notified in due course.”

Key highlights of ICSE’s Scheme

  1. The components used to arrive at the formula limited to

(i) marks percentage in class X board examinations,

(ii) the Project & Practical Work in the subjects,

(iii) the performance of the candidates in the school examinations in the subjects in classes XI and XII, measured through their best marks obtained in the two years (referred to as raw marks) and (iv) the best performance of the school in the last six years.

  1. The first factor measures the general proficiency of the candidates, the next two factors measure the subject proficiency of the candidates, while the last 5 is a measure of the general quality of the schools the candidates are appearing from.
  2. To arrive at the weights, detailed analyses were performed on the data from the past board examinations from the years 2015 to 2020.
  3. Extensive scenario analyses were done based on different subjects.

[Mamta Sharma v. CBSE, 2021 SCC OnLine SC 430, order dated 17.06.2021]


For UOI: Attorney General KK Venugopal

For CBSE: Solicitor General Tushar Mehta

For ICSE: Senior Advocate JK Das

For Intervenors: Senior Advocate Vikas Singh

Case BriefsHigh Courts

Karnataka High Court: R Devdas, J., disposed of the petition leaving it on  National Law School of India University to approach UGC for attaining the Institutions of Eminence status.

The facts of the case are such that the petitioner National Law School of India University, Bengaluru, is before the Court, aggrieved by a public notice dated 19.07.2016 issued by respondent-UGC by which it has curtailed the physical jurisdiction of the Universities and higher educational institutions in the country in the matter of Open and Distance Learning and provided that in the matter of distance education, a University which is established or incorporated by or under a State Act shall operate only within the territorial jurisdiction allotted to it under the Act and in no case it shall operate beyond the territory of the State where it is located.

Counsel for the petitioner submitted that by placing a restriction on the territorial jurisdiction, the UGC has violated the right of the petitioner under Articles 14 and 19 (1)(g) and the Right to Education under Article 21-A of the Constitution of India. It was further submitted that UGC is established under an Act of the Parliament for maintenance of standard of education in the country, but the impugned public notice, communication and Regulations, 2017 travel beyond the powers of the UGC. It is contended that such restriction is inconsistent with the object and nature of distance education.

Counsel for the respondents relied on judgment Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 submitted that establishment of a University conferring the legal status, but lacking in all the basic requirements, is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution.  It was further submitted that on establishment of the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, the UGC has made provision to create a distinct category of Deemed to be Universities, called ‘Institutions of Eminence Deemed to be Universities’ which would be regulated differently from other Deemed to be Universities so as to evolve into institutions of world class in a reasonable time period.

The Court observed that Regulations framed by UGC to determine standards of education, become part of the UGC Act and the same are applicable to both Open Universities as well as conventional formal Universities and in that respect, the alternative system envisaged under IGNOU Act, was not in substitution of the formal system. The distinction lay rather in the mode and manner of imparting education and hence, any Degree awarded in violation of Regulation-II of the UGC Regulations of 1985 by a University under Open University system, was held to be void.

The Court thus held “Now that the UGC has come up with the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, making provision to create a distinct category of Institutions of Eminence Deemed to be Universities, which would have the benefit of establishing Off-campus centres and Offshore campus, the petitioner University is free to make an application seeking declaration as ‘Institutions of Eminence Deemed to be Universities’.”

[NLSIU v.UGC, Writ Petition No. 63550/2016, decided on 19-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioners: Mr. Adithya Sondhi and B V Nidhishree

Counsel for respondents: Mr. Showri HR and Ms. Madavi

Case BriefsHigh Courts

Rajsthan High Court: The Bench of Dinesh Mehta, J., slammed the ICAI for illegally withholding the result of a young girl-student of 21 years of age due to her alleged derogatory e-mail. The Bench remarked,

“The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution.”

Factual Fulcrum of the Case

On account of unprecedented situation of spread of Covid-19 and imposition of lock-down, the exams due in May, 2020 were cancelled by the ICAI and were re-scheduled to be conducted between 21-11-2020 to 14-12-2020. Owing to the said rescheduling, the Institute gave an option to all those candidates to either appear in the examinations to be held in November, 2020 or opt-out of examinations with a liberty to appear in subsequent examinations in January, 2021.

On 20-11-2020, the petitioner chose to address an e-mail to the office bearers of the Institute. In the said e-mail, the petitioner highlighted the situation of spread of Covid-19 and cautioned that if the examinations were held, it would lead to exponential growth in number of Covid cases. The thrust of her e-mail was only to suggest that online infrastructure be developed so that all levels of CA Examinations be conducted online. Evidently, the petitioner opted out of the November exams and appeared in all the papers/exams held as per above schedule.

On 22-02-2021, as a bolt from the blue, the Dy. Secretary (Examinations) wrote a e-mail informing the petitioner that her result had been put on hold, because of derogatory remarks she had made in her e-mail and an explanation was also sought as to why disciplinary proceedings not be initiated against her for the same. No sooner had the petitioner received the notice than she sent an e-mail expressing her unconditional apology for her inappropriate remarks. Regardless of the aforesaid letter, the institute proceeded to send her a communication with the subject “Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations – November 2020.” Consequently, the petitioner appeared before the examination committee and put forth her explanation, but she was kept uninformed about the order/result of the hearing.

Later on, on surfing the official website on the day of result the petitioner found out that her result had been cancelled, under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS”. On making a query she was informed by the institute that the Examination Committee had reached a conclusion that she was guilty of making derogatory remarks in the captioned examination and thus, her result had been cancelled.

Findings of the Court

Having waded through the record, the Court opined that not only the initiation of proceedings against the petitioner, but also the manner in which, the proceedings had been conducted so also its culmination in cancellation of petitioner’s result suffered from vices. On the perusal of the contentious e-mail sent by the petitioner, the Court said that the same was addressed to Institute’s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail. Further, the Bench remarked,

“There is hardly anything in the e-mail, for which it can be alleged/ considered as or even construed to be derogatory. The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. On the contrary, this Court feels that action of the respondents was rather over bearing or high handed.”

Quoting Voltaire, the Bench said, “With great power comes great responsibility”, thus, the Institute which is adorned with enormous power to elevate or uplift the lives of vulnerable & struggling students, is required to practice greater restraint in invoking its powers especially against the students. The Bench added,

One cannot lose sight of the fact that on receipt of the notice dated 22-02-2021 itself, the petitioner had practically knelt down in subservience before respondent No.2 urging that she regretted her action and would not repeat the same in future.”

But for the reasons best known to the Examination Committee, instead of burrying the hatchet, it literally opened a battle-front and summoned the petitioner to Jaipur to defend her cause. Opining it disturbing that the petitioner was personally heard yet no order was ever communicated to her and that her result was cancelled that too, citing “adopted unfair means”; the Bench held that the actions of the institute were without jurisdiction and against the principles of natural justice on one hand and capricious and arbitrary on the other.

Evidently, the Institute had warned the petitioner of dire consequences, if she further indulged in addressing any such communication to ICAI or any other organization concerning examinations.  Indisputably, the petitioner had not written even a single letter to the Institute or to any other authority after 20-11-2020. The respondent-Institute, therefore bound by its own notice was estopped from initiating any action much less disciplinary proceedings. Hence, the Bench held that the impugned proceedings were fundamentally without any basis besides being arbitrary. Since there was no mentioning or even indication of cancellation of result neither in the e-mail dated 22-02-2021 nor in the subsequent communications, there remains not even an iota of doubt that the impugned order of cancelling the result was inherently illegal, falling foul to Article 14 of the Constitution of India and the same was quashed.

Whether the Examination Committee had the jurisdiction to cancel petitioner’s result?

The moot question, required to be decided was whether the Examination Committee had the jurisdiction to cancel petitioner’s result in the present factual matrix.  Regulation 41 of the Regulations of 1988 revealed that the Examination Committee can initiate disciplinary proceedings in connection with the Examination. The language used therein is unequivocal, leaving no room for ambiguity that an action can be taken if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means. The incidence or the e-mail in question had no nexus or proximity with the examination hall, hence, the proceedings under challenge were void since their inception or very beginning.

The institute’s action of reflecting such mis-information in its official website, in clear contrast with the actual facts is beyond acceptable limits.

The Examination Committee ought to have realized that such casual rather reckless approach involving imputation on reputation may have serious repercussions on emotional or mental equilibrium of a student.”

Verdict

The writ petition was thus, allowed with the cost of litigation quantified at Rs.20,000. On referring the result produced by the institute in a sealed envelope, the Court found out that the petitioner had passed the CA Intermediate Examination. Hence, the ICAI was directed to send original mark sheet and certificate to the petitioner and further, directed the institute to appropriately reflect petitioner’s result on its official portal. Lastly, the Bench warned the ICAI to take criticisms in positive stride, the Court stated,

A professional body like the respondent Institute should introspect and ensure that its over-enthusiasm of attaining professional excellence and endeavors of setting high standards of discipline should not silence rather stifle the speech of a student or its member in the manner that has been done in the present case.”

[Risha Lodha v. ICAI,  2021 SCC OnLine Raj 457, decided on 13-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For Petitioner(s): Adv. Vikas Balia

For ICAI: Adv. Manoj Bhandari and Adv. Anjay Kothari

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ., and Alok Kumar Verma, J., decided over a petition which was filed by the petitioner challenging the legality of the order dated 19-02-2020, whereby she was denied the chance to appear for interview for the post of Assistant Professor (Political Science). She had further prayed that the Uttarakhand Public Service Commission (“the Commission”) should be directed to consider her degree of M.A. in Public Administration as an eligible degree for being appointed on the post of Assistant Professor (Political Science).

The petitioner had done her graduation in the year 2005 with the subjects of English, Economics and Political Science. In the year 2008, she had completed her M.A. in Public Administration. She had also qualified the Uttarakhand State Eligibility Test (USET) in Political Science. Eventually, she had completed her Ph.D. in Political Science. After having completed her studies, she was appointed as a Guest Lecturer in Political Science in the Government Degree College, Jakholi, Rudraprayag. The Commission had advertised post of Assistant Professor (Political Science) in various degree colleges in the State and she had applied for the same. She had appeared in the written examination, and cleared the same however the Commission, refused the petitioner the right to appear in the interview ostensibly on the ground that her M.A. degree was in Public Administration. The petitioner had filed a representation on 11-02-2020, wherein she clearly pointed out that, according to the UGC guidelines issued on 04-07-2018, a degree in Public Administration was deemed to be equivalent to a degree in Political Science. Her representation was rejected by respondent 3. Hence, the instant writ petition was filed.

This Court had directed the Commission to consider the candidacy of the petitioner by order dated 21-10-2020, and to permit her to appear in the interview on a provisional basis. Furthermore, by order dated 08-04-2021, this Court had called for the result of the petitioner which clearly revealed that the petitioner has passed the examination.

The Court observed that undoubtedly, according to the UGC guidelines issued on 04-07-2018, a degree of M.A. in Public Administration was equivalent to a degree of M.A. in Political Science. Therefore, according the UGC, the petitioner would be deemed to be equipped with a degree of M.A. in Political Science. The Court further held that she had a right to be considered for appointment on the post of Assistant Professor (Political Science) as she had already qualified the examination. The Court directed respondent 3 to consider the petitioner’s case for the post of Assistant Professor (Political Science), if she was found to be eligible and suitable for the said post.

[Minakshi Sharma v. State of Uttarakhand, 2021 SCC OnLine Utt 460, decided on 13-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Counsel for the petitioner. : Mrs Prabha Naithani

Counsel for respondent 1 and 2. : Mr. C.S. Rawat

Counsel for respondent 3. : Mr. B.D. Kandpal

Counsel for respondent 4. : Mr. Vikas Pande

Case BriefsSupreme Court

Supreme Court: The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.

The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

On 09.04.2020, an order was issued by the Director, Secondary Education, in the wake of COVID¬19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months.

Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on 07.07.2020 which read as

“The fee chargeable by non¬government schools from the students/guardians after 15th March, the applicable fees at present   and   payment   of   advance   fee   was   deferred   for   3 months, as per the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non-deposition  of fees  during the  said  period, name of such student will not be struck off from the rolls of the school.”

On 07.09.2020, Rajasthan High Court directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments.

On 28.10.2020, the Director of Secondary Education , Rajasthan issued an order stating that the   schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees.

The Supreme Court noticed that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Rajasthan Schools (Regulation of Fee) Act, 2016 including to reduce the same for the academic year 2020¬21 in respect of private unaided schools. However, this does not give licence to the School Management to be rigid and not be sensitive about aftermath of pandemic.

“Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day¬to-day affairs and the basic need of their family made fervent representation to the school Management(s) across the State.” 

The Court explained that, in law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation.

Further, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020-21. Resultantly, the school Management must have saved   overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc.

“Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period.  Being fee, the principle of quid pro quo must come into play.”

However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management.     The Court, hence, assumed that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period.

“… we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for academic year 2020¬2021), would be a case of profiteering and commercialisation by the school Management.”

DIRECTIONS

(i) The school Management of the concerned private unaided school shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019-20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020¬21.

(ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021.

(iii) Regardless of the above, it will be open to the concerned School Managements to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above.

(iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non¬payment of fees, arrears/outstanding   fees   including   the   installments, referred to above, and shall not withhold the results of the examinations of any student on that account.

(v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020¬21 in the above terms, the school Management to consider such representation on case¬to¬case basis sympathetically.

(vi) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable.

(vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment   of   fee/arrears   for   the   academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.

[Indian School, Jodhpur v. State of Rajasthan, 2021 SCC OnLine SC 359, decided on 03.05.2021]


*Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

For appellants: Senior Advocate Pallav Shishodia, Shyam Divan,  Puneet Jain and Romy Chacko

For State of Rajasthan: Senior Advocates Dr. Manish Singhvi and Devadatt Kamat

Mr. Sunil Samdaria, in­person

Advani & Co.Experts Corner

Introduction

Over the past decade, the Indian legal market has demonstrated considerable growth and has in fact, adopted a liberalised approach. With the increase in the number of foreign investors being interested in the Indian market, it becomes all the more dramatic and exciting of an industry for lawyers. Especially young lawyers, that are practising in their formative years, would always be eager to work in a market where there is immense opportunity to learn and gain experience and to be in the midst of a dynamic marketplace. This is one of the primary reasons why Indian lawyers, that have attended law school in foreign countries, choose to come back and practise in India. One cannot ignore that the practical experience that this country has to offer to young lawyers is incomparable with other countries, especially in times such as these, when a number of countries are going through economic downturn, increasing immigration hassles and now the pandemic.

 

At this juncture, it would be worthwhile to briefly share how law students are trained in law schools in countries such as the UK and US. The system of education and the way law students are practically conditioned to become lawyers in foreign countries is significantly different from India. For example, the undergraduate course in law in the UK is a comprehensive three-year programme that is spread across a number of compulsory and optional modules. From the first year onwards, apart from the compulsory modules, law students are at discretion to choose modules of their interest all the way till the end of the degree. The degree programme has its foundational basis in research more than examinations per se. From lectures to tutorials, the coursework is spread across research papers and practical problems. In a nutshell, a law student that has graduated from a university in the UK has been extensively trained in research and practical problem-solving skills. That is one of the biggest perks that a young lawyer would graduate law school with in the UK.

 

Coming back to India to commence practice as a lawyer has its own formalities that one must go through in order to get “qualified” to practise in the country. While each country has its own set of procedures of converting qualifications for a legal professional, it becomes extremely important to have a clear set of guidelines and processes for achieving that target. Unfortunately, the process for a foreign educated Indian lawyer to get qualified in India is not just unclear, but is cumbersome, unstable and uneconomical.

 

Being a foreign educated lawyer practising in India

After graduating law school from a foreign jurisdiction, one must appear for the “qualifying examination for Indian nationals holding foreign degrees” conducted by the Bar Council of India, in order to enrol themselves as advocates on the State Bar Council. The examination is spread across six (6) theoretical papers of 100 marks each, three (3) being open-book examinations and three (3) being closed-book examinations.

 

However, one would assume that this being an examination conducted by the Bar Council of India itself at its office in New Delhi, would be well organised and systematic. On the contrary, however, the examination is coupled with unclear timelines, significant delays in the application processes and outcome of results and unclear guidelines for students appearing for the set of examinations. Just the whole process of applying for the examination and getting a confirmation on your hall ticket takes months altogether, without the authorities giving any clear instructions on the same. It is a waiting game at the end of day, where one must be at the discretion of authorities on when they might hear back on their application. Even on the day of the examination, because the guidelines shared previously were not clear enough, there is confusion in the examination hall as to what precisely are the rules to be followed in writing the examination. It takes approximately 1-1.5 years for completing this qualification process and to be enrolled in the State Bar Council, along with the student paying INR 1.5 lakhs for this set of examinations. Post-clearance of this entire process, one can appear for the All India Bar Examination (AIBE).

 

A lot of students who are well equipped with a legal educational background, some of them even having higher qualifications in law or other subjects, start their training with law firms in India until they hear back on their enrolment as advocates. As a general norm, one is not considered a “lawyer” unless you have your enrolment as an advocate in hand. This being rightly so, the legal professional appearing for these exams has to wait for 1-1.5 years to get qualified as a “lawyer” in the country, irrespective of the academic qualifications or prior work experience. This directly takes a toll on the kind of work that one is engaged with, the retainer fee and the moral empowerment to be treated at par with your peers, during that time.

 

It is important to compare this qualifying examination process to what is conducted in other countries, for advocates in India to be qualified elsewhere. For example, the UK conducts the “Qualified Lawyers Transfer Scheme (QLTS)”, that is a two-tiered examination providing an opportunity for advocates in India to qualify as solicitors in England and Wales. The system is highly organised — not only are dates for applications and examinations announced much in advance, but candidates appearing for the QLTS are also informed about precisely when their result would be announced. One cannot underestimate the importance of knowing what the way forward is, as it helps in planning your professional and academic commitments in an orderly manner. Moreover, there are very coherent guidelines provided for candidates appearing for the QLTS, with no scope for any sort of ambiguity.

 

How can the qualification system be improved for foreign educated Indian lawyers?

 

It is a common notion that lawyers educated from foreign countries have an advantage over their peers in India. Talking from personal experience, that is not true at all. Yes, a few years down the line, when one wants to switch law firms or companies or wants to practise in a niche sector, foreign qualifications do come in handy, complimenting your work experience. However, in the formative years, it takes a lot of time and hard work to be treated at par with your peers. Keeping the qualification system aside, there are other challenges that exist for a foreign educated lawyer to come back and practise in India. Firstly, there is a lot of unlearning and learning that one must be prepared for. At the end of the day, despite the fact one may have studied from a common law jurisdiction, there is a lot to learn about the law in India, procedures in court, general cultural norms at work, so on and so forth. It is easier said than done, and in fact is also time consuming. Secondly, even if one does complete this qualification process and has their enrolment at hand, it is normal for a lawyer to be treated more as a “trainee” compared to their peers. Law firms are also hesitant in recruiting these lawyers, being apprehensive about whether they really know how to carry out their assignments. In a nutshell, even though one may be perfectly qualified as a lawyer, they are not treated as one completely for a couple of months to a year.

 

Whilst it is a part and parcel of switching jurisdictions and it is a mandatory process of learning and practising as a lawyer, this task can be a lot less cumbersome if the authorities in India systemise the means and methods of getting qualified. In fact, a lot of law firms in India are not even aware of such a qualifying process existing for that matter and what it really entails. To come to think of it, a lot of difference would be made if recruiters themselves knew what this qualification process is all about and would be in a better position to understand where their candidates exactly stand and to what is the delay attributable to. At the end of the day, just like any other professional, young lawyers coming to India to practise seek learning, to be treated at par with their peers and equal empowerment, and in fact do not seek anything over and above these bare minimum expectations. It would be extremely helpful if more awareness is spread about this arbitrary, discretionary and unorganised system, and steps are taken to amend faults in what exists as normal procedure today.

 

Conclusion

A large majority of foreign educated lawyers coming to India, find themselves practising in sectors of the legal industry that have a strong connection with international law, such as arbitration, maritime, intellectual property, etc. These are extremely dynamic sectors to work in, where lawyers educated in universities abroad are able to utilise their skill set to the maximum capacity. For example, arbitration is one of most internationalised legal sectors to be a part of, where international norms and standards have to be met in terms of research, drafting, procedure and arguments. It is one of the most advanced fields of law in terms of innovation and flexibility, and is somewhat a comfortable and exciting industry for young lawyers to start their practice with.

 

At this point, considering the speed bumps that foreign educated lawyers in India face, it is critical to understand the importance of a good mentor that one needs to find for themselves in the country. It is extremely important to work with a mentor in your formative years, who understands your educational background, the culture that you have studied in and your specific skill set. While there is a lot to teach and learn, one must be willing to have patience and teach these young formative lawyers about law and procedures in India. I cannot emphasise enough on the importance of a good mentor, who not only appreciates the qualifications and skill set that one comes with, but also is willing to teach and make you grow into a successful lawyer.

 


† Senior Associate at Advani & Co. She can reached at kanika.arora@advaniandco.com

 

 


Expert Talks session with Kanika Arora on Transforming from Foreign Law Qualifications to practising as a Legal Professional in India

 

 

 

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and SenthilKumar Ramamoorthy, J., addressed the concern with regard to the quality of education being compromised in law colleges due to the increasing number of law colleges being opened up.

Instant matter pertained to the mushrooming of law colleges in the State.

It was stated that the standard of education imparted at some of the existing law colleges and the infrastructure available needs to be looked into.

As per the State Bar Council, it has been taking vigilant and sufficient steps, but unless there was uniformity all over the country, whether under the aegis of the Bar Council of India or pursuant to Court Orders, the situation could not be appropriately addressed.

Bench stated that there was substance in what the Bar Council stated since regulation of law colleges in a continuous state allows easy access.

Since orders have been passed earlier pertaining to the present matter hence Bench stated that the only thing that can be said is for the Bar Council to be vigilant as far as this State was concerned, since it cannot go beyond the territorial limits.

Bench expressed that the matter needs to be looked into, in-depth, by the Bar Council and possible orders have to be sought at an all India Level to ensure that the quality is not compromised in course of more law colleges being born in the guise of opportunities being created.

However, High Court held that no mandamus could be issued. Further, since it may not be effective merely to regulate the opening of law colleges within the boundaries of this State as easy access to law colleges across the neighbouring States will always be open, no meaningful order is possible to be issued at this level.

Bench suggested that the petitioner can continue the crusade but he may carry the said request to a different level.[M.D. Ashok v. Tamil Nadu State Government, 2021 SCC OnLine Mad 1289, decided on 23-03-2021]


Advocates before the Court:

For Petitioner: Mr M. Madhuprakash

For Respondents: Mr V. Jayaprakash Narayanan State Government Pleader for respondent Nos.1 and 2

                               : Mr. S. R. Raghunathan for respondent No.3

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ., and S.G. Chattopadhyay, J., decided upon a petition in the nature of Public Interest Litigation which was filed praying that the State authorities be directed to impart primary education to the children of Chakma Community in their mother tongue.

Counsel for the petitioner, Senior Advocate Mr P Roy Barman and Ms N. Ghosh argued that it was universally accepted that absorption of knowledge of a child of a young age was always best in his mother tongue. Attention was drawn towards Article 350A of the Constitution which provides that it shall be the endeavour of every State and local authority to provide adequate facilities for instruction in mother tongue at the primary stage of education to children belonging to linguistic minority groups.

In the previous hearing the Court had requested the State government to conduct a survey through the experts in the field which would cover (i) Approximate number of students of Chakma community studying in various Government primary schools in the State; (ii) A sample survey of how many of these students whose parents would enroll them in a school exclusively imparting education in Chakma medium; (iii) Approximate number of teachers required in different subjects if such a school of sizable students were to be established; (iv) The report may also state the issues concerning availability of text books, if any such attempt were to be made.

The expert committee formed by the State government had formed an opinion that publication of textbooks in all non-language subjects like Science, Mathematics, Social Studies etc. in Chakma language will not be possible to be carried out.

The Court suggested that starting a school of the kind would have multiple considerations of not only availability of resources, of training adequate number of teachers, preparing literature such as textbooks and reading material as also other factors which would not immediately come to the mind of the Court.

The Court not joining an issue with the contentions of counsel for the petitioners that medium of instruction in a child’s mother tongue would ensure the highest absorption and that even otherwise as per Article 350A of the Constitution, the State is required to make an endeavour to provide sufficient facilities for imparting education in a mother tongue at primary level the students of linguistic minorities, left the decision on the State government. Court suggested the petitioner approached the Secretary, Education with full data and details in support of his demands.[Samir Chakma v. State of Tripura, 2021 SCC OnLine Tri 115, decided on 01-03-2021]


Suchita Shukla, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of L. Nageswara Rao and Krishna Murari, JJ., dismissed the instant petition for grant of permission for Medical Colleges after observing infrastructural and faculty deficiencies. The Bench remarked,

“It is clear that gross deficiencies still exist in spite of the affidavits and undertakings filed on behalf of the State of Jharkhand. No action has been taken to improve the situation.”

Central government had identified three Districts in the State of Jharkhand namely Dumka, Hazaribagh and Palamu for establishing new Medical Colleges. Pursuant to which State of Jharkhand was granted essentiality certificates to all the three proposed Medical Colleges. Later on, Medical Council of India (MCI) had, after multiple warnings and assessments revoked the permission for allotment of students to Medical Colleges on the ground of several infrastructural and faculty deficiencies. Consequently, all the three colleges had approached the Supreme Court for grant of permission.

Similarly, a petition was also filed by the students who appeared in NEET, MBBS Examination, on being aggrieved by the decision of MCI not to grant approval for admissions to the three Medical Colleges. The grievance of the Petitioners was that 300 seats out of 580 medical seats in the State of Jharkhand were allotted to the above named three Medical Colleges. If permission was not granted to the three Medical Colleges for making admissions for the academic year 2020-2021, the chances of the Petitioners pursuing medical course would reduce.

The Bench observed that establishment of Medical Colleges at Dumka, Palamu and Hazaribagh was an initiative taken by the State of Jharkhand to bolster the availability of medical seats in the State which would increase the number of Doctors in the State. However,

“Perusal of the facts mentioned above would show that not much interest has been taken by the State in ensuring that the necessary faculty, infrastructure and other facilities are improved.”

On 20-08-2019, an affidavit was filed by government of Jharkhand that certain deficiencies had been rectified and the remaining shall be rectified within a period of three months. However, in the inspection conducted by the MCI to consider the renewal of permission for MBBS second batch of students for the academic year 2020-2021 gross deficiencies were found to exist in all the three Medical Colleges. Considering the above mentioned, the Bench said that permission could not be granted for allotment of students to Medical Colleges which lack the necessary infrastructure and facilities.

Observing that gross deficiencies still exist in spite of the affidavits and undertakings filed on behalf of the State of Jharkhand and no action had been taken to improve the situation, the Bench directed state to rectify all the deficiencies that had been pointed out by the MCI at the earliest and make an application for renewal of permission for admission of the second batch of MBBS students for the academic year 2021-2022.

In the light of above, the instant petition was dismissed.

[Dumka Medical College v. Medical Council of India, 2021 SCC OnLine SC 122, decided on 16-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a major win for Private Schools in the State of Rajasthan, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed the School Managements to collect fees for the academic year 2019-2020 as well as 2020-2021 from the students, equivalent to fees amount notified for the academic year 2019- 2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th August, 2021.

Noticing that the hearing in the matter is likely to take some more time, the Court passed ‘interim directions which will address the concerns of all parties in some measure’.

In the order that came as a big blow to the parents as most of the classes in the year 2020 have been conducted online due to the outbreak of COVID-19 pandemic, the Court, in order to balance the interest of the Schools and the parents, further passed the following interim directions:

  1. The Management shall not debar any student from attending either online classes or physical classes on account of non-payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account.
  2. Where the parents have difficulty in remitting the fee in terms of this interim order, it will be open to those parents to approach the school concerned by an individual representation and the management of the school will consider such representation on a case-to-case basis sympathetically.
  3. The above arrangement will not affect collection of fees for the academic year 2021-2022, which would be payable by the students as and when it becomes due and payable, and as notified by the management/school.
  4. In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non-payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student.

The Court, however, clarified that the above arrangements would be subject to the outcome of the matters pending before the Court including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings.

The Court also directed the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st March, 2021.

The matter will now be taken up for hearing on February 15, 2021.

[Gandhi Sewa Sadan Rajsamand v. State of Rajasthan, 2021 SCC OnLine SC 70, order dated 08.02.2021]

Case BriefsSupreme Court

Supreme Court:  The 3-Judge Bench comprising of L. Nageswara Rao*, S. Abdul Nazeer and Indu Malhotra, JJ., dismissed the appeal filed by Chintpurni Medical College and Hospital for seeking permission for admitting students for the academic year 2021-2022. The Bench stated,

“There is no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years.”

Background

Government of India granted letter of permission to the Appellant-College on 30-06-2011 for intake of 150 students in MBBS course for the academic year 2011-2012. As the inspections carried out by the Medical Council of India revealed gross deficiencies of the teaching faculty, clinical material and the other physical facilities in the medical college, it recommended that renewal of permission should not be granted to the Appellant-College for the academic years 2012-2013 to 2014-2015 which was accepted by the government.

Meanwhile, on 18-09-2014 in the case of Hind Charitable Trust Shekhar Hospital Private Ltd. v. Union of India, (2015) 2 SCC 336, this Court permitted private medical colleges whose application for renewal of permission was disapproved to make admissions, subject to the undertaking by the President/Chairman and Secretary of the Medical College that there was no deficiency existing in the medical college. Pursuant to which the Appellant-College submitted an undertaking that there was no deficiency existing in the facilities and that in the event of any deficiency being found in the inspection, the bank guarantee of Rs.9.5 Crores should be forfeited. Consequently, the Appellant-College was permitted to admit students for the academic year 2014-2015.

After noticing gross deficiencies, government debarred the Appellant-College for two years i.e. 2017-2018 and 2018-2019 from admitting students and allowed Medical Council of India to forfeit the bank guarantee. Students who were admitted in the first Appellant-College during the years 2011-2012, 2014-2015 and 2016-2017 were shifted to other colleges.

Thereafter, the appellant requested Medical Council of India to permit admission of 150 students in MBBS course for the academic year 2019-2020 which was rejected by the Council. Aggrieved by the same, the Appellant filed a petition in the High Court of Delhi which was dismissed.

Observation and Decision

The Bench observed the findings of High Court that there was no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years. The Bench clarified the order of High Court stating that the Court had merely allowed the appellants to pursue their request for permission for the academic years 2019-2020 and 2020-2021. It did not mean that the appellants were entitled to admit students for the academic year 2019-2020 without an inspection. The Bench stated,

A bare look of inspections conducted from the years 2011-2012 had made it clear that the Appellants had not utilized the opportunities given to them to rectify the deficiencies in the past.

In the view of above, the instant appeal was dismissed and findings of the High Court were upheld. The Bench further clarified that the appellant-College should be entitled for admissions for the academic year 2021-2022 only if renewal of the recognition is granted to the appellant-College and it is found that there are no deficiencies like infrastructure, clinical, teaching faculty and other facilities. [Chintpurni Medical College and Hospital v. Union of India, 2021 SCC OnLine SC 45, decided on 28-01-2021]


Kamini Sharma, Editorial Assistant has put this story together. 

*Justice L. Nageswara Rao has penned this judgment

Conference/Seminars/LecturesLaw School News

Institute of Law, Nirma University is organising International Symposium in association with South Asia Network for Justice Education (SANJE) on 8th and 9th February 2021.

Law education largely focuses on legal market trends and providing services in which community needs of justice is often undermined in the legal education process. Looking at the present scenario of access to justice resources in India, the need is felt to create a cadre of lawyers who act as justice professionals. This requires thorough grounding and grooming of young promising law students during the course of their law education. We attempt to build a team of law clinicians and multidisciplinary professors along with justice educationists who help law students to develop diverse perspectives on the justice needs of the community. This requires organised efforts through a network of justice educators who can deliberate design, develop and deploy innovative strategies and transformative pedagogies. In this regard, the problem is not just the absence of justice education, but more fundamentally it is the absence of important information, including techniques, examples, support, and even guidance, that could encourage attempts to bring about justice education. Bringing about justice education requires a massive change from traditional ways of teaching.

The Symposium focuses on empowering all like-minded law teachers, legal aid professionals, and paralegal, teachers from other allied disciplines, and build the community of clinicians who design and engage budding justice professionals through innovative pedagogy for a just and sustainable society.

Schedule:

Date – 8 February 2021

Time- 7: 30 PM – 9:00 PM

Theme: Educating future lawyers for a just & sustainable society, Promoting social justice through performing arts

Moderator: Prof. (Dr.) Varsha Ganguly, Professor, Institute of Law, Nirma University, Ahmedabad.

Resource Persons:

  • Prof. (Dr.) Srikrishna Deva Rao, Vice-Chancellor, National Law University, Delhi.

  • Prof. (Dr.) Lisa Radtke Bliss, Associate Dean, Experiential Education and Clinical Programs, Georgia State University, Georgia.

  • Prof. (Dr.) Catherine F. Klein, Director, Columbus Community Legal Services Catholic University, Washington DC.

  • Prof. (Dr.) Sarasu Esther Thomas, Registrar, and Professor of Law, National Law School of India University, Bengaluru.

Date: 9 February 2021

Time: 7: 30 PM – 9:00 PM

Theme: Clinical legal education – Best practice standards and interdisciplinary model, Education 4.0 justice initiatives, Quality assessment tools,

Moderator: Prof. (Dr.) Purvi Pokhariyal, Dean & Director, Institute of Law, Nirma University, Ahmedabad.

Resource Persons

  • Prof. (Dr.) Susan L. Brooks, Associate Dean, Experiential Learning & Clinical Professor, School of Law, Drexel University.

  • Prof. (Dr.) Asha Bajpai, Former Professor and Visiting Faculty at the Tata Institute of Social Sciences, and Institute of Law, Nirma University.

  • Prof. (Dr.) M R K Prasad, Professor of Law, V.M. Salgaocar College of Law, University of Panaji, Goa.

  • Prof. Abhayraj Naik, Advisor, Consultant and Researcher based in Bengaluru; Visiting Faculty at Azim Premji University, Bengaluru.

Who can register: Academicians, Research scholars, LL.M. students, any PG student studying Law, Education, Arts, Fine Arts, Management, Social Sciences and Humanities, Social Work, and any relevant faculty.

Registration Link: HERE 

For any queries contact email id: arpit.sharma@nirmauni.ac.in

High Courts

Delhi High Court: On 21st December, 2020, the Government of NCT of Delhi submitted in Court that elections of the School Management Committee (SMC) will be held within 2 months of school reopening. On 1st July, the Delhi Government had issued a circular by which SMCs were to be reconstituted through a draw of lots instead of elections right in the middle of the pandemic which was challenged by the petitioners as being opposed to the Right To Education Act. After the first hearing of this case, the Government issued a new circular (dated 16.07.20) adding information regarding tenure of  SMCs constituted by the draw of lots method. This information was missing from the impugned circular dated 01.07.20.  The new circular added that the SMCs constituted by the draw of lots method was only a ‘stop gap’ arrangement and elections to reconstitute SMCs would be held ‘after normalcy returns’. However, what ‘normalcy’ meant remained ambiguous.

Ms. Garima Sharma, the counsel appearing for the petitioners, pressed that the respondents commit to reconstitute the SMCs via elections within a fixed timeframe after school reopening. After seeking instructions from the Department of Education, the Government of NCT of Delhi, represented by Advocate Gautma Narayan, submitted that they will conduct elections to reconstitute SMCs within 2 months of school reopening. The same has been recorded in the order. The petitioners were satisfied with the submission made.  The bench of Navin Chawla, J. binding the respondents to the statement made disposed of the petition.

A SMC Meeting In Progress

This comes as a big relief to the petitioners who feared that the constitution of SMCs, by an opaque, exclusionary method such as draw of lots, if went unchallenged could become the norm and could take away the opportunity for parents to participate in choosing who will represent them in SMCs. SMCs are an important platform for parents to effect change inside a government school as they constitute 75% of the committee and SMCs have significant oversight and administrative roles and responsibilities.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 21-12-2020]

Click to access Note-On-The-Gaps-In-Current-SMC-Constitution-Ciricular_1-1.pdf


Nilufer Bhateja, Associate Editor has put this story together 

Also read: Delhi HC| Reconstitution of Delhi School Management Committees postponed till next hearing

Case BriefsSupreme Court

Supreme Court: In a case where an Engineering College was not able to introduce a new course despite receiving AICTE’s approval, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has upheld the power of Universities to fix norms for the grant of affiliation. The Court said,

“While universities cannot dilute the standards prescribed by AICTE, they certainly have the power to stipulate enhanced norms and standards.”

Controversy

The Division Bench of the Kerala High Court had directed the Vice Chancellor of the APJ Abdul Kalam Technological University to reconsider the application for affiliation of a new B.Tech course, submitted by Jai Bharath College of Management and Engineering Technology, a self-financing Engineering College, solely on the basis of the extension of approval granted by the All India Council for Technical Education.

With a view to regulate technical education in the State, the State of Kerala enacted the APJ Abdul Kalam Technological University Act, 2015.

The Engineering College in question is a self-financing Institution which was earlier offering B.Tech courses in five disciplines with an annual permitted intake of 60 students in each of the disciplines. After closing the course in one particular discipline, the Engineering College applied in February/March-2020 seeking approval of the AICTE for starting a new course in “Artificial Intelligence and Data Science” with a permitted annual intake of 60 students, from the Academic Year 2020¬21. AICTE granted approval for the same.

However, based on Government Order dated 22.06.2019 and the resolution of the University’s Syndicate, the subcommittee of the University did not recommend the grant of affiliation to the College in question for the proposed new course.

Relevant Government Order

The Government order dated 22.06.2019 directed that permission for starting new courses in Engineering shall be granted only if three conditions are satisfied namely:

(i) that the college should have NBA accreditation;

(ii) that the admission of students in the previous academic years should have been more than 50% of the sanctioned intake; and

(iii) that the new course should be innovative.

Syndicate’s impugned decisions

University’s Syndicate, in it’s decision dated 04.02.2020 fixed the following norms for the grant of affiliation to new programs based on the recommendation of the Academic Council:

(i) that at least one of the existing programs should have NBA accreditation;

(ii) that the average annual intake of the institution for the previous three years should be more than 50% of the sanctioned intake;

(iii) that the proposed programme should have AICTE approval and NOC from State Government; and

(iv) that the proposed programme should have industry demand/employment potential.

Later, the Syndicate, though decision dated 24.06.2020 fixed the following criteria:

(i) that the Institution should have more than 50% pass for the outgoing students at the time of application for affiliation;

(ii) that the Institution should have most recent academic audit overall score of “Good”; and

(iii) that the Institution should have three years average intake of more than 50% of the sanctioned intake.

Analysis

Syndicate’s power to prescribe norms and standards for affiliation

In the case on hand, the Court noticed that the power to lay down norms and standards and the power to affiliate to itself the Colleges, flow out of clause (iii) and (iv) of Section 8 of the APJ Abdul Kalam Technological University Act, 2015. This power is exercisable by University in accordance with the provisions of the Act, the Statutes, Ordinances and Regulations. It is the very same Section 8 which confers power upon the University to make Statutes, Ordinances and Regulations, under clause (xxvi).

Section 30(1) vests upon the Syndicate, the executive powers of the University, including the general superintendence and control over the institutions of the University. Sub¬section (2) of Section 30 lists out the powers available to the Syndicate, subject to the provisions of the Act and the Statutes.

Thus, the source of power for the Syndicate to prescribe norms and standards for affiliation, is Section 30(2) which begins with the words “subject to the provisions of the Act and the Statutes”. So, if there is something in the Act or the Statutes which regulates or controls the power of the Syndicate, then the Syndicate may be bound by such prescription. But if there is nothing in the Act/Statutes or if there are no Statutes at all, then it cannot be said that the power itself is unavailable. What is important to observe is that the power of the Syndicate to propose norms and standards flows out of the Act and not out of the University Statutes. Therefore, the absence of Statutes, till they were made for the first time on 07.08.2020, did not mean that the power under Section 30(2) could not have been exercised.

It was, hence, noticed that the Kerala High Court erred in thinking that in the absence of the Statutes, recourse was available only to the Vice Chancellor under Section 14(6), overlooking for a moment that the power under Section 30(2)(iii) would not become otiose due to the absence of the Statutes.

“The absence of the Statutes (till 07.08.2020) would only mean the absence of Statute-stipulated conditions and procedure for affiliation, but not the absence of the very power of the Syndicate flowing out of Section 30(2)(iii).”

Even assuming for a moment that the absence of the Statutes would take one automatically to Section 14(6), the inference drawn therefrom by the High Court may not be correct.  Section 14(6) says that in the absence of a Statute, it is the Vice Chancellor who has the power to regulate any matter which is required to be regulated by Statutes or Regulations. It cannot be interpreted to mean that the Syndicate itself will be powerless in the absence of the Statutes and that the Vice Chancellor will have the power.

In any case, the language of Section 14(6) is such that the Vice Chancellor may first regulate the matter by issuing directions and thereafter submit the same “as soon as may be” for the approval of the Board of Governors or other authority or body concerned. By virtue of Section 30(2)(iii), the Syndicate can be taken to be the “other authority” referred to in Section 14(6). If we do so, it can be seen that it was the Syndicate, chaired by the Vice Chancellor which took the impugned decisions in its meetings held on 04.02.2020 and 24.06.2020 and hence the prescription of norms by the Syndicate, chaired by the Vice Chancellor cannot be said to be ultra vires the Act.

“After all, the norms which the Colleges have objected to, merely seek to ensure that at least 50%   of the outgoing students had passed their respective courses and that the Institution should have the most recent academic audit overall score of “Good”, apart from having an actual intake of more than 50% of the sanctioned intake in the preceding three years on an average. We fail to understand how colleges can demand affiliation for creating additional courses, when the pass percentage of outgoing students is less than 50% and the Colleges could not even have an average intake of more than 50% of the sanctioned intake in the preceding three years.”

Role of the Universities vis-à-vis AICTE

The law is now fairly well settled that while it is not open to the Universities to dilute the norms and standards prescribed by AICTE, it is always open to the Universities to prescribe enhanced norms. Even the State Government can prescribe higher standards than those prescribed by AICTE.

Though AICTE has reserved to itself the power to conduct inspections and take penal action against colleges for false declarations, such penal action does not mean anything and does not serve any purpose for the students who get admitted to colleges which have necessary infrastructure only on paper and not on site. The Regulations of the AICTE are silent as to how the students will get compensated, when penal action is taken against colleges which host false information online in their applications to AICTE.

“Ultimately, it is the universities which are obliged to issue degrees and whose reputation is inextricably intertwined with the fate and performance of the students, that may have to face the music and hence their role cannot be belittled.”

The Ministry of Human Resources Development of the Government of India launched an initiative in September 2015, known as National Institutional Ranking Framework (NIRF), for ranking institutions including universities in India. The ranking is based on certain parameters such as:

(i)Teaching, Learning and Resources;

(ii) Research and Professional Practice;

(iii) Graduation Outcomes;

(iv) Outreach and Inclusivity; and

(v) Peer Perception.

Hence,

“No State run university can afford to have a laid-back attitude today, when their own performance is being measured by international standards. Therefore, the power of the universities to prescribe enhanced norms and standards, cannot be doubted.”

[APJ Abdul Kalam Technological University v. Jai Bharath College of Management and Engineering Technology, 2020 SCC OnLine SC 1015, decided on 10.12.2020]


*Justice V. Ramasubramanian has penned this judgment. 

For University: Senior Advocate Chander Uday Singh
For respondent college: Advocate S. Krishnamoorthy
For State: Advocate Priyanka Prakash
For AICTE: Advocate Anil Soni

For intervenors: Senior Advocates C. Arayama Sundaram, Gopal Sankaranarayanan and P.S. Narasimha

Case BriefsSupreme Court

Supreme Court: In a case where a Medical College illegally denied admission to a candidate to Post-Graduate Medical Specialty course of MS for the academic year 2020-2021, the bench of L. Nageswara Rao* and Hemant Gupta, JJ has directed the College to pay a compensation of Rs. 10 lakhs to the candidate and to reserve a seat for her for the next academic year.

 

SC directs a Medical College to pay 10 lakhs compensation to a candidate for illegally denying her admission

Brief Background

Respondent was given provisional admission a seat in Kamineni Academy of Medical Sciences and Research Centre, Hyderabad under Management quota. According to the provisional allotment order, Respondent No.1 was required to report before the Principal of the Medical College by 04:00 PM on 30.07.2020. In case of failure to report within the prescribed time, the provisional selection shall be automatically cancelled.

According to the Respondent, in spite of her approaching Medical College along with her father on 29.07.2020 and 30.07.2020 for submission of certificates and payment of tuition fees as well as college fees, the admission was not completed. On 30.07.2020, the last date for admission into PG Medical Courses was extended till 30.08.2020. She then made an attempt to meet the Chairman of the Medical College on 07.08.2020 but was not permitted to meet the Chairman.

Subsequently, another candidate who was 2000 ranks below the Respondent was granted admission.

The High Court for Telangana directed the National Medical Commission/ Medical Council of India to create or sanction one seat in MS (General Surgery) for the Respondent and further directed the Medical College to grant her admission to the in MS (General Surgery) course.

Analysis

Contradictory stands by the Medical College

A perusal of the counter affidavit filed by the Medical College showed contradiction in the pleadings. On one hand, it is stated that Respondent and her father did not approach the College either on 29.07.2020 or 30.07.2020 for the purpose of admission. However, in it’s counter the Medical College has also stated Respondent had approached the College on 29.07.2020 to enquire about the admission procedure and the requisite fee.

The Court, hence, noticed that there was no reason to believe that Respondent did not approach the Medical College for admission, especially after paying the University Fee on 29.07.2020.

Admission to a candidate 2000 rank below the Respondent

The last date for admission to the PG Medical Courses for the academic year 2020-2021 was extended from 30.07.2020 to 30.08.2020. Another candidate, who is 2000 ranks below the Respondent, was granted admission on 11.08.2020 to the seat which was provisionally allotted to Respondent.

The Court noticed that there was nothing on record to show that the Medical College followed the procedure prescribed by the Regulations for filling up the seat due to non-joining. As the last date for admission has been extended beyond 30.07.2020, there was sufficient time for the Medical College to inform the Respondent to come and join in the seat that was allotted to her provisionally. In case of refusal by Respondent to join, it was incumbent upon the Medical College to have followed the merit list and offered the seat to doctors who were immediately ranked below the Respondent.

“The manner in which Respondent No.2-College acted in depriving admission to Respondent No.1 and giving admission to Respondent No.5 on 11.08.2020 is deplorable. The Managements of the Medical Colleges are not expected to indulge in such illegalities in making admissions to Medical Courses.”

High Court’s direction for creation of a seat

The Court reiterated that directions cannot be issued for increasing annual intake capacity and to create seats. The annual intake capacity is fixed by the Medical Council of India (now National Medical Commission) which has to be strictly adhered. Admissions to Medical Colleges cannot be permitted to be made beyond the sanctioned annual intake capacity of a medical college.

A balancing act of granting relief to both the candidates  

The Court found itself in a catch 22 situation where it could neither direct the Medical College to grant admission to the Respondent for this academic year as the last date for admissions was 30.08.2020, nor could it cancel the admission of the other candidate who was allotted the Respondent’s seat as he might not have known about the denial of admission to Respondent illegally.

Disapproving the practice of the Medical College in picking up students for granting admission without following the merit list, the Court refrained from disturbing the admission granted to the other candidate.

However, considering that the Respondent has lost one precious academic year for no fault of hers, the Court directed that

  1. she has to be compensated with Rs.10 Lakhs to be paid by the Medical College within a period of four weeks from the date of the decision.
  2. one seat in MS (General Surgery) course from the Management Quota of the Medical College for the next academic year (2021-22) shall be granted to her.

[National Medical Commission v. Mothukuru Sriyah Koumudi,  2020 SCC OnLine SC 992, decided on 07.12.2020]


*Justice L. Nageswara Rao has penned this judgment 

For the candidate: Advocate K. Parameshwar
For National Medical Commission: Advocate Gaurav Sharma
For the Medical College: Advocate Siddhant Buxy
Law made Easy

Under the Constitution


This right guarantees free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Constitution of India.

  • Free education’ means that no child, other than a child who has been admitted by his or her parents to a school, shall be asked to pay any kind of fee/charges/expenses which may prevent him or her from pursuing and completing elementary education.
  • Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age groups.

Under the Right to Education Act, 2009


Focus:

  • Providing elementary education to a child (6-14 years) who does not/could not go to school. Such child to be admitted in age appropriate class and has the right to receive special training.
  • Seeks to provide children right to seek transfer from a government or govt. aided school to another such school in order to complete elementary education. Such child also has right to immediately seek a transfer certificate (TC).
  • Mandates non-minority private unaided schools to reserve at least 25% of their entry level seats for children belonging disadvantaged sections to create a more integrated and inclusive schooling system.
  • Mandates the appropriate government and local authorities to provide for children’s access to elementary schools within the defined area or limits of the neighbourhood.
  • Lays down the responsibilities of the State and Central government for carrying out provisions of the act.
  • Constitution of a School Management Committee (SMC). The role of this committee to manage, monitor and support a school in its functions.
  • Indicates that within 3 years from the date of commencement of the act, the appropriate government and local authority shall insure that the Pupil Teacher Ratio (PTR) is maintained in each school.

Ensures:

  • Compulsory and free education for all.
  • Special provision for special classes.
  • Minimum standards.
  • Admission for all.
  • Quality and quantity of teaching.
  • All-round development.
  • By the people, for the children.

Objectives:

  • Ensure that every child below the age of 14 gets free and compulsory education.
  • Curb the problem of illiteracy.

Ensure personal growth and in turn growth of the country.


This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai