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PETITIONER: THE PRINCIPAL CAMBRIDGE SCHOOL & ANR

       Vs.

RESPONDENT: MS. PAYAL GUPTA & ORS.

DATE OF JUDGMENT21/08/1995

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) BHARUCHA S.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR  118            1995 SCC  (5) 512  JT 1995 (6)   101        1995 SCALE  (4)811

ACT:

HEADNOTE:

JUDGMENT:                 THE 21ST DAY OF AUGUST, 1995 Present:           Hon’ble Mr. Justice S.P. Bharucha           Hon’ble Mr. Justice Faizan Uddin           Hon’ble Mr. Justice S.B. Majmudar Mr. Bhimrao  Naik, Sr. Adv. and Mr. M.P. Jha., Adv. with him for the Appellants. Mr. S.R. Bhat, Adv. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA                 CIVIL APPELLATE JURISDICTION                CIVIL APPEAL NO. 5664 OF 1994 The principal Cambridge School and another v. Ms. Payal Gupta & Ors.                           JUDGMENT Faizan Uddin, J.      1. According  to the  appellants, the  Central Board of Secondary Education  introduced 10+2  scheme of education in the year 1977 providing general education up to the level of 10+2 class,  visualizing two distinct stages one up to class x and  the other  up to  class XII so that the students with certain competence  should  alone  pursue  education  beyond class x. The applellant, Cambridge School, New Delhi, with a view to  achieve the  aforesaid objective and to upgrade the academic standard  of each student through special programme prescribed a  cut  off  level  of  50  per  cent  marks  for admission to  class XI of the said school. Consequently, the Principal appellant  addressed a circular dated 4.10.1993 to the parents  of the  students stating  that the admission to class X  would not  be automatic  but a  cut off  level  was prescribed by  the Cambridge  School to  the effect  that  a student of  class  X  must  obtain  50  per  cent  marks  in

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aggregate  in   the  Board  examination  for  being  granted readmission in  class XI. In other words it would be a fresh admission even  for those  students who  passed class X from the Cambridge  School itself  obtaining minimum  marks of 50 per cent in aggregate as the qualifying percentage for being considered for  readmission in  class XI. A similar circular was again  issued in February, 1994. As a consequence of the said circulars,  after declaration  of results of class X by the Central  Board of  Secondary Education will students who secured marks  less than 50 per cent in aggregate were asked to obtain their school leaving certificates. It appears that the parents of such students who had secured marks less than 50 per  cent in  aggregate approached  the Deputy  Education Officer who  by his letter dated 13.6.1994 directed that all students of class X should be admitted into class XI without any pass  percentage. But  the school  authorities took  the stand  that  no  such  direction  could  be  issued  by  the Directorate  of   Education  since  the  power  to  regulate admission under  Delhi School  Education Act,  1973 and Rule 145 of the Delhi School Education Rules vests in the head of the school.      2. In  the facts  and circumstances  aforementioned the respondent herein  and three other students of the Cambridge School filed  the Civil  Writ Petition  No. 2788/1994 in the High Court  of Delhi  challenging the legality and propriety of the  circulars aforementioned  prescribing cut  off marks for admission to XI class in the said school. A batch of ten students had  also filed a Civil writ Petition No. 2977/1994 [Reema Goyal  &  Ors.  Vs.Lt.  Governor  of  Delhi  &  Ors.] challenging the  validity of  the said circulars prescribing the cut  off marks  for admission  to class  XI. In the mean while Civil Writ petition No. 2977/1994 was withdrawn as the school authorities  said down  the aggregate  of 50 per cent marks to 45 per cent and the students admitted in the school except one or two students who had secured about 35 per cent marks in  aggregate but  they also  withdrew their  petition with a  view to either reappear in the examination to secure 50 percent  marks or  would seek  admission  in  some  other school. On  the writ petition filed by the respondent herein and three others, two students had secured 45 per cent marks and, therefore,  they were  covered by  the decision  of the school  in   scaling  down  the  aggregate  percentage  and, therefore, they also withdrew their petition and one student who had  secured about  35 percent  marks also  withdraw his petition with  a view  to either reappear in the examination or to  seek  admission  elsewhere.  The  respondent  herein, however, pursued  the petition  as she  had secured 44.5 per cent marks  in aggregate and was not allowed to continue her studios in class XI in appellant’s school.      3. The case of the respondent before the High Court was that the  Principal and  the  school  authorities  were  not justified to  deny admission  to its  own students  who  had passed class  XI examination  which is  a public examination and as  neither the  Act nor the Rules prescribe any cut off level of  marks for promotion to XI class in the same school after passing  class X examination and, therefore the act of issuance of  the impugned  circulars was  arbitrary, illegal and without  authority. The  appellant  contested  the  said petition by  contending that the Education Commissions while recommending  general   education  at  the  secondary  stage suggested that  it  should  be  followed  by  two  years  of diversified and  vocational education and, therefore, it was necessary to  prescribe  a  cut  off  level  of  marks.  The appellant further  took the  stand that  when a candidate is admitted to  class XI  it is a fresh admission and in fact a

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case of readmission and not merely a case of promotion which is apparent  from the  scheme of  10+2 examination. The High Court, however,did  not agree  with the  stand taken  by the appellant and  took the  view  that  an  unaided  recognised school cannot of its own fix a criteria of not admitting its own students  to class XI unless they secure certain minimum percentage of marks in class X examination which is a public examination and  if a  school lays down any such criteria it would be  arbitrary, unreasonable  and irrational.  The High Court,  therefore.  directed  the  appellant  to  admit  the respondent herein  to class  XI of their school which led to the filing of the present appeal.      4.  Learned   counsel  appearing   for  the   appellant vehemently urged  before us  that Rule  145 of  Delhi School Education Rules.  1973 distinctly  provides that the Head of any unaided  recognized school  shall regulate admissions to the school or to any class thereof on the basis of admission test or  on the  basis of  result of  a particualr  class or school and the said rule thus not only takes within its fold the cases of readmission but the cases of promotion are also covered and,  therefore, the  issuance of  circulars by  the Principal of  the school  who is  the need  of  the  school, prescribing the  criteria for readmission to class XI was in conformity with  the ambit  and scope  of Rule  145 and,  as such, the  Principal was  fully within his powers in issuing the  aforementioned   corculars.  Learned  counsel  for  the appellant sought  to support  his arguments  by  an  earlier decision rendered  by a  Division Bench  of the  Delhi  High Court in  the case  of Km.  Renuka Khurana  & Ors. Vs. Delhi Administration [44 (1991) Delhi Law Times 634]      5. In  view of the facts and circumstances stated above the short  question that  arises for  our  consideration  is whether the  Head of  a private unaided school has the power to regulate admission by prescribing the criteria of cut off level of  marks under  Rule 145  and on  that basis may deny admission to  the students of its own school to class XI who had passed  class X,  Central Board  of Secondary  Education with marks  less than  50 per  cent in  aggregate. A further question may arise whether in the aforementioned situation a student who  passes class  X would  be entitled to automatic promotion to the next higher class i.e. XI class or it would be a  case of  fresh or readmission to the next higher class in the same school.      6. There  is no  dispute that  the appellant, Cambridge School is  an unaided recognised school under the provisions of Delhi  School Education  Act, 1973 (hereinafter the Act). At the  very out-set it may be stated that Section 16 of the Act deals  with admission to recognised schools. Sub-section (3)  of   Section  16  contemplates  that  "admission  to  a recognised school or to any class thereof shall be regulated by rules made in this behalf". Further Section 28 relates to the rule making power of the Administrator and clause (q) of sub-section (2)  of Section  28 relates  to the  rule making power of  the Administrator  for admissions  to a recognised school. In pursuance to the aforementioned rule making power the Delhi  School Education  Rules,  1973  (hereinafter  the Rules) were framed. Chapter XII of these Rules relate to the admission to  recognised schools  which contains Rule 131 to Rule 145.  Rule 131  to 134 deal with admissions of students in aided  schools and  are not  relevant for  the purpose of this appeal as the appellant school is an unaided recognised school. Rule  135 prescribes  the manner  of  admission  and contemplates that  no student  shall be  admitted unless  an application in  the prescribed  form signed by his parent or guardian has  been submitted to the school. Rule 136 relates

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to the  entry of the name of the students on the roll of the school on the date on which he first attends his class. Rule 137 contemplates  that admission  shall ordinarily  be  made once a  year and  shall not be made after 31st day of August of the year except under certain circumferences permitted by the Director.  Rules 139  to 143  are not  relevant for  the purposes of  this appeal. Rule 138, 144 and 145 are relevant and the same read as under:-      "138. Admission  of failed  students not      to be refused A student who fails at any      public examination  shall not,  on  that      account, be  refused re-admission in the      school or class by the school from which      he had  appeared  at  such  examination.      Power     to      issue     departmental      instructions.  The  Director  may  issue      instructions with  regard to any matter,      not covered by this Chapter, relating to      aided schools.      145  Admission   to  recognised  unaided      schools-      (1) The head of every recognised unaided      school shall  regulate admissions  to  a      recognised unaided  school       to  any      class thereof  either on  the  basis  of      admission test or on the basis of result      in a particular class or school.      (2) Subject  to the  provisions of  sub-      rule (1), the provisions of this Chapter      shall,  so  far  as  may  be,  apply  to      admission to a recognised unaided school      as they  apply to admissions to an aided      school."      A reading  of sub-rule (2) of Rule 145 reproduced above will go  to show  that all  the provisions  of  Chapter  XII shall, so  far as  may be apply to admission to a recognised unaided school  as they  apply to  admission in aided school with the distinction that in the  case of aide schools it is the Director  who can  issue instructions with regard to any matter not  covered by Chapter XII relating to admissions to aided school  while in  the case of admissions to recognised unaided schools  it is  the head  of the  recognised unaided school who  is authorised  to regulate such admissions. That being so,  the provisions of Rule 135 will apply in the case of admission  to aided as well as unaided schools. Rule 135, as said  earlier, directs  that no student shall be admitted to an  aided school  unless an application in the prescribed from signed  by his parent or guardian has been submitted to such a  school. Learned  coursel for the appellant therefore contended that  after the  student passes a particular class there is  fresh or  readmission to  the higher class even in the same  school. We  are unable  to persuade  ourselves  to accede to  this proposition.  If it  were so.  the appellant school would  have supported  the  contention  by  producing various applications  made by  the parents  or guardians  of students for such fresh admission from one class to the next higher class  but no  such material was placed either before the High  Court or  before this  Court. It  may, however, be pointed out  that it is common knowledge that once a student is given  an admission  on any  educational  institution  by making an  application in the manner prescribed by Rule 135, he is  not required  to submit fresh application forms after he passes  a class  for his  admission to  the  next  higher class, Once  a student  i given admission in any educational institution the  same continues  class after  class until he

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leaves the  school. In  these facts  and circumstances it is difficult to  accept that  after a  student passes his tenth class of  a public  examination his  admission to  the  next higher class  i.e.  eleventh  class  would  be  a  fresh  or readmission.      7. Further  it may  be seen  that Rule  138  reproduced above contemplates  that even  a student  who  fails  at  by public examination  hall not,  on that  account, be  refused readmission in  the school or class by the school from which he had  appeared at such examination. If a student who fails at any public examination could not be denied readmission in the school  or class  then it  is beyond comprehension as to how a  student who  passed the  public  examination  can  be denied admission  in a  higher class in the same school from which he  had appeared  at such  examination. That being so, the right  of student to continue his studies further in the higher class,  in the  same school, after passing any public examination, cannot be worse than the right of a student who fails at  any such public examination. The scheme of the Act and the  Rules made  thereunder and  a combined  reading  of Sections 16(3),  28(2) (a) and Rules 135.137 and 138 will go to show that once a student is admitted to a school the same admission continues  class after  class until  he passes the last examination  for which the school gives training and no fresh admission  or readmission  is  contemplated  from  one classes to  the other.  Therefore,  in  a  Higher  Secondary School such as the one in question, the examination of tenth class cannot be regarded as a terminal examination for those who watt  to continue  their study  in eleventh  and twelfth classes of  the said  school. No  separate criteria has been laid down in the rules for the students  passing class X and wishing to  continue their  studies in  eleventh and twelfth classes.      8.Now coming  to the provisions of sub-rule (1) of rule 145 which is the sheet anchor of the appellant’s case, we do not find  anything in  the said  rule which  contemplates or requires fresh  or readmission  of a  student  in  the  same school after the passes an examination from the said school. That the  class X  examination is  a public examination does not make  any difference.  The question of an admission test or the  result in  a particular class or school for purposes of  admission   would  arise   only  if  a  student  of  one institution goes  for admission  in dome  other institution. The question  of admission  test on the basis of result in a particular class  will not be taken into account in the case of a  student of  the same  school  who  passes  the  public examination. Learned counsel for the appellant was unable to produce or  show any provision in the Act or the Rules which specifically  contemplates   that   readmission   or   fresh admission is  necessary to  every next  higher class after a student passes  out a particular class nor he could show any provision of  law authorising  the head  of  an  educational institution to  prescribe a  cut  off  level  of  marks  for continuance of  further studies  in higher class in the same school by a student who passes a public examination.      8.The decision  rendered by  the Division  Bench of the High Court  in the  case of  Km. Renuka  Khurana (supra) and relied on  by the  learned counsel for the appellant. ie not of any  assistance to the appellant as the question of power of the  Director to  issue instructions  to unaided  schools alone was the point in controversy and the question of power of Head of the school to regulate admission on either of the two basis  i.e. on  the basis of the test or on the basis of result in  previous class  was not directly in issue. It was not a  case of  admission or  readmission in the same school

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but in a different institution altogether.      9. In view of the above discussion the appeal fails and is hereby dismissed. No order as to costs.