REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6487       OF 2008 [Arising out of SLP (C) No.19554 of 2007]

Principal, Kendriya Vidyalaya & Ors. … Appellants

Versus

Saurabh Chaudhary & Ors. … Respondents

J U D G M E N T

AFTAB ALAM, J.

1. Heard counsel for the parties.

2. Leave granted.

3. The appeal  arises  from a controversy about  admission of  a boy to

class XI in the school from where he appeared and passed in the class X

examination held by the Central Board of Secondary Education (CBSE) in

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the  academic  year  2007-08.  The  school  declined  to  give  him admission

because his marks were lower than the cut off fixed for admission to class

XI in the admission guidelines for the school.  The boy, represented by his

father took the matter to the Madras High Court in Writ Petition No.22472

of 2007. Before the High Court, in support of the boy’s claim for admission

reliance was placed on the decision of this court in  Principal, Cambridge

School vs.  Payal  Gupta,  1995  (5)  SCC  512   and  the  decisions  of  the

Calcutta High Court in Debashish Kr. Gupta vs. State of West Bengal, AIR

1999 Cal. 300 and the Madras High Court in D. Aravinth vs. State of Tamil

Nadu, (2007) 4 M.L.J. 400. The Madras High Court  upheld the student’s

claim and by judgment and order dated August 16, ’07 directed the school

from where he passed the class X CBSE examination to admit him to class

XI.  This appeal is taken against the judgment of the Madras High Court.

4. The relevant facts are few and may be stated thus.  The boy, Saurabh

Chaudhary, was earlier a student of Kendriya Vidyalaya (Central School),

C.L.R.1 up to class VIII. Thereafter, he moved to Kendriya Vidyalaya No.2

(Central School No.2), AFS, Tambaram, Chennai because his father shifted

his  residence from Tiruvanmiyur to Medavakkam. He passed the class X

CBSE examination from Central School No.2, AFS, Tambaram. The boy is

a sports person and he is said to have won a trophy in cricket and five gold

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and  six  silver  medals  in  athletics.  Unfortunately  he  was  unable  to  give

matching results  in studies.  His marks in the class  X CBSE examination

cannot be said to be very good by current standards.  His marks were as

follows:      

“English :     80/100

 Hindi : 70/100

 Mathematics : 39/100

 Science :         46/100

 Social Science : 50/100”

He was,  however,  declared  pass  without  difficulty,  33% being  the  pass

marks for the CBSE examination. He wanted to continue in class XI that

school,  taking  Physics,  Chemistry  and  Mathematics,  comprising  science

stream with  Mathematics  but  was  denied  admission  because  his  class  X

marks were lower than the cut off prescribed in the guidelines for admission

to class XI in those subjects in Central Schools.

5. Coming now to the school, Central School No.2, AFS, Tambaram, is

one of a large number of schools established and run by Kendriya Vidyalaya

Sanghathan. The Sangathan is an autonomous body set up by the Ministry

of  Human Resources  Development  and registered  as  a  society  under  the

Societies Registration Act, 1860. All the Central Schools are governed by

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the  regulations  and  guidelines  framed  by  the  Sanghathan.  Here  it  is

important  to  note  that  in  Central  School  No.2.  AFS,  Tambram  science

stream with Mathematics is the only course being taught in classes XI and

XII.  But  there  are  other  Central  Schools  in  Chennai  where  apart  from

science  stream  with  Mathematics  other  courses  in  Commerce  and

Humanities streams are also available. It is also relevant to note that though

the boy was denied admission in Central School No.2 AFS, Tambram, he

was  offered  admission  in  another  Central  School  in  other  courses

commensurate to his class X marks.

6. Mr.  Patwalia  learned  Senior  Counsel  appearing  for  the  appellants

submitted  that  the  three-judge-bench  decision  of  this  Court  in  Principal

Cambridge School vs.  Payal Gupta (supra) had no application to the facts

of the case in hand and the High Court was in error in up holding the claim

of the respondent  student  on the basis  of that  decision.  Learned Counsel

submitted that in Payal Gupta what came under consideration was a circular

issued by the principal of a private unaided school in Delhi fixing cut off

marks  for  admission  in  class  XI  for  the  students  passing  the  class  X

examination  from the  school.  On  behalf  of  the  school  the  circular  was

defended by contending that rule 145 of the Delhi School Education Rules,

1973 framed under the Delhi School Education Act, 1973 gave to the head

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of  the  recognised  unaided  school  the  power  and  authority  to  regulate

admission to the school or to any class in the school and the circular was

issued in exercise of that authority. This Court on examining the relevant

provisions (rules 138, 144 and 145 of the Delhi School Education Rules,

1973) came to conclude that the head of an educational institution had no

authority 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. Mr. Patwalia submitted that the circular issued by the principal

of the school in question in  Payal  was held invalid because there was no

legal  sanction behind it  but  the case in hand related to a Central School

where admissions were governed by ‘regulations’ and ‘guidelines’ framed

by  the  Sanghathan.  This,  according  to  him,  was  a  material  difference

between  Payal  and the  case  in  hand.  Mr.  Patwalia  placed before  us  the

guidelines for admission to class XI as framed by the Sanghathan and also

referred to decisions of three High Courts in which a distinction was made

between  the  decision  in  Payal  and  similar  cases  arising  from  Central

Schools  and  the  action  of  the  Central  School  authorities  in  declining

admission to class XI to a student passing the class X CBSE examination

from the same Central School was upheld on the basis of those guidelines.

Mr. Patwalia relied upon a single judge decision of the Agartala Bench of

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the Gauhati High Court in Rahul Kumar Kashyap (Das) vs. Union of India

& Ors.,  2001 Indlaw Guw 112,  a Division Bench decision of  the Orissa

High Court in  Maheshwari Mohapatra & Anr. vs.  Mahanadi Coal Fields

Ltd. & Ors. 2005 Indlaw Ori 25 and a  Division Bench decision of the Delhi

High Court  in  M. I.  Hussain vs.  N. Singh & Ors., 2005 Indlaw Del 1120.

7. The second point of distinction between Payal and the case in hand,

according to  Mr.  Patwalia,  is  that  in  the  reported  decision  the  school  in

question had altogether denied admission in the next higher class to one of

its  students  passing the class  X CBSE examination and he was asked to

collect the school leaving certificate and to leave the school.  But in the case

in  hand the respondent  student  was offered admission in another  Central

School in Chennai having regard to the marks obtained by him in the class

X CBSE examination.

8. We are unable to accept the submissions of Mr. Patwalia. Let us first

deal with the second submission made by him as the first point would need

some discussion before it is turned down. We find it difficult to accept that

the offer of admission in another Central School in the city is quite the same

as allowing the student to continue in the higher class in the school from

which he passed the class X CBSE examination. In the context in which the

dispute arises, the same school can only mean the school from which the

student appeared and passed in the class X CBSE examination and the offer

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of admission in another Central School in the same city would not alter the

position. As a matter of fact in a small town where there may be only one

Central  School  this  arrangement  may not  work at  all.  Moreover,  another

Central School in Chennai will be almost as strange to a young boy or girl

student  as  any  other  school.  He/she  will  not  have  there  the  familiar

surroundings,  the  known  teachers  and  his/her  friends  and  classmates.

Furthermore, as we shall see presently even the admission guidelines framed

by the Sangathan recognise the distinction between the school from where

the  student  passed  the  class  X  CBSE  examination  and  other  Central

Schools. We are, therefore, clearly of the view that in the present context the

offer  of  admission  in  another  Central  School  in  the  same city  is  of  no

relevance.

9. We now take up Mr. Patwalia’s submission that the earlier decision of

this Court in Payal Gupta has no application to this case as that decision was

rendered on the provisions of the Delhi School Education Rules, 1973. We

may point out here that accepting Mr. Patwalia’s submission would lead to a

strange and highly anomalous situation. A private unaided school in Delhi

shall be obliged to accommodate in class XI all its students passing the class

X CBSE examination regardless of their percentage of marks but a Central

School in Delhi shall be free to refuse admission to some of its own students

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passing the class  X CBSE examination on the ground that  they failed to

secure the cut off marks as per the admission guidelines.

10. The submission that the decision in Payal would not apply to Central

Schools is otherwise also quite unsound. It is indeed true that the case of

Payal  Gupta  arose  under  the  provisions  of  the  Delhi  School  Education

Rules but certain observations and findings in the decision are clearly of

general application. In paragraph 5 of the judgment the Court framed two

questions arising for its consideration as follows:

“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 criterion 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 admission or readmission to the next higher class in the same school.”

                                                     (emphasis added)

As may be seen the  second question  is  in  general  terms.  Answering  the

second  question,  in  paragraph 6 of  the  judgment,  the  Court  observed  as

follows:

“………………..It may, however, be pointed out that it is  common knowledge that  once a student  is  given an

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admission in  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  is  given  admission  in  any  educational institution the same continues class  after class  until  he leaves the school.  In these facts and circumstances it is difficult  to accept  that after a student passed his tenth class of a public examination his admission to the next higher  class  i.e.  eleventh  class  would  be  a  fresh admission or readmission.”  

                                                     (emphsis added)

Further, in paragraph 7 the Court observed as follows:

“………….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 a 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…………………..”

In  Payal,  thus,  this  Court  clearly  held  that  on  passing  the  examination

promotion from one class to the next higher class does not involve any fresh

admission  or  readmission  in  the  school  and  whether  the  examination  is

internal or a general examination by an external statutory agency makes no

difference in the position.   

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11. It  may  here  be  noted  that  paragraph  7.4  of  the  CBSE  bye-laws

concerning  Admission  of  Students  to  a  School,  Transfer/Migration  of

Students provides as follows:

“Admission to  Class XI: -  Admission to  class  XI in  a school  shall  be  open  only  to  such  a  student  who  has passed:

(a) Secondary  School  Examination  (Class  X examination) conducted by this Board; or

(b) An equivalent examination conducted by any other recognised  Board  of  Secondary  Education/Indian University  and  recognised  by  this  Board  as equivalent to its secondary school examination.”

12.     In view of the above, we find it difficult to see how the appellants can

avoid the application of the earlier decision of this Court in Payal.

13.  We may now advert  to what was described by Mr. Patwalia as the

‘regulations and guidelines’ of admission framed by the Kendriya Vidyalaya

Sanghthan. Here it needs to be stated that though alluding to the provisions

as ‘regulations’ Mr. Patwalia was unable to point  out  to us any statutory

basis  for  them.  There  is  thus  not  much  difference  between  the  circular

coming under consideration in Payal and the provisions relied upon by the

appellants.

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14. Mr. Patwalia referred to ‘Admission Guidelines-2007’ (Annexure P-

1).  Paragraph  5  of  the  Guidelines  deals  with  methods  of  admission  and

clause H provides as follows:

“METHODS OF ADMISSION  

(H) CLASS XI ADMISSIONS:  Fresh admissions would be  made  after  accommodating  the  eligible  students  of the same KV and thereafter other KVs.  Fresh admissions for remaining vacancies would be made in the order of merit  in  the  sequence  of  categories  of  priority  on  the basis of the Board results of Class X.  There would be no admission in Class XI over and above the class strength. Admissions  in  different  streams  for  children  seeking admission from KVs and non-KVs would be made only on fulfilment of the following requirements.

                                                                        (emphasis added)

(i) There will be two distinct situations for admissions in Science and Commerce streams.  One situation would be where adequate number of children are available for admission to the streams from amongst students passing Class X from KVs as well as from amongst students  from other  schools  seeking  admission  in  a KV  with  the  requisite  eligibility.   The  second situation would be where adequate number of eligible children are not available for the stream for amongst students passing Class X from KVs as well as from amongst  students  from  other  schools  seeking admission in KVs with the requisite eligibility.  The cut  off  marks  for  admission  in  both  the  situations would be as under :

Admission to Class XI

Provision for admission in Provision for admission  situations wherein adequate       in situations wherein

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eligible children are                    adequate children are not available                                     available (where                                                      registration of eligible                                                     children is less than 40)

(a)  Science Stream

(I)  Science with Mathematics      (i) A minimum of 55% marks  i) A minimum of 52%

in Maths                                  marks in Maths

(ii) A minimum of 55% marks  ii) A minimum of 52% in Science and                          marks in Science and

(iii) A minimum of 60% marks  iii) A minimum of 57% in Maths and Science taken      marks in Maths and together and                              Science together

(iv)    A minimum of 55% marks   iv) A minimum of 52%           in aggregate of all subjects        marks in aggregate                                                               of all subjects

(II) Science without Mathematics

Science without mathematics may   Science without mathe- be allowed if the students has 50%  matics may be allowed  marks in Science and a minimum     if the student has 57% of 55% marks in aggregate of all     marks in Science and subjects.                                            minimum of 52% marks                                                           in aggregate of all                                                            subjects.       

b.  Commerce Stream xxx xxx xxx

         c.  Humanities Stream xxx xxx xxx            ”

These provisions are extracted from a compilation called “Education Code

for Kendriya Vidyalayas”.  The Code is drawn up in the form of Articles,

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each article dealing with a different  matter. Article 93 in chapter XI lays

down the admission guidelines.  The compilation produced before us was

printed in January 2004. The relevant provision in the 2004 guidelines are

contained  in  paragraph  4  (f)  under  article  93.  These  provisions  were

superseded by the 2007 guidelines enclosed with the SLP brief. The cut off

levels  of  marks in  the current  guidelines  remain unaltered  but  there  is  a

pronounced  preference  in  favour  of  students  passing  the  class  X CBSE

examination from the same Central School. The relevant provisions in the

2004 guidelines were as follows:

“4(f). Class XI – Fresh admissions would be made in the order of merit in the sequence of categories of priorities on the basis of Board results of class X.  There will be two  distinct  situations  for  admission  in  Science  and Commerce streams.

One  situation  would  be  where  adequate  number  of eligible  children  are  available  for  admission  to  the streams  from  amongst  students  passing  class  X  from KVs  as  well  as  from  amongst  students  from  other schools  seeking  admission  in  a  KV with  the  requisite eligibility.

The second situation would be where adequate number of eligible children are (sic) not available for the stream from amongst students passing class X from KVs as well as from other schools.  The cut off marks for admission in both these situations would be as follows:……..”

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15. Reading the 2004 and the 2007 provisions  together would make it

clear that any preference in favour of the school’s own students that might

have been assumed earlier has now been provided for expressly. But that

alone,  as  we  see  in  the  present  case  does  not  prevent  the  school  from

denying  admission  to  one  of  its  own students  on the  ground that  he/she

failed to secure the cut off marks in the class X CBSE examination.

16. One can have no objection to a school laying down cut off marks for

selection of suitable stream/course for a student giving due regard to his/her

aptitude as reflected from the class X marks where there are more than one

stream.   But  it  would  be  quite  unreasonable  and  unjust  to  throw out  a

student from the school because he failed to get the cut off marks in the

class  X  examination.  After  all  the  school  must  share  at  least  some

responsibility for the poor performance of its student and should help him in

trying to do better in the next higher class. The school may of course give

him the stream/course that may appear to be most suitable for him on the

basis of the prescribed cut off marks.

17. In the present case it would have been perfectly open to the appellants

to  offer  admission  to  the  boy  Saurabh  Chaudhary  in  class  XI  in

streams/courses other than science stream with Mathematics on the basis of

the prescribed cut off levels of marks, had such courses been available in

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Central  School  No.2,  AFS,  Tambram.  But  this  school  has  only  science

stream with  Mathematics  for  classes  XI  and  XII.  The  decision  in  Payal

forbids the school from turning down a student because he/she failed to get

the cut  off  level  of  marks  for  admission to  class  XI. As a  result  of  this

fortuitous circumstance the boy must get admission in class XI in Central

School No.2, AFS, Tambram in science stream with Mathematics.

18. In light of the discussions made above we come to the conclusion that

the case in  hand is  fully  covered by the  earlier  decision  of  the Court  in

Payal. The decisions of the three High Courts relied upon by Mr. Patwalia

in so far as they go contrary to the decision in  Payal  do not lay down the

correct law. The decision of the Madras High Court coming under appeal

takes the correct  view of the matter  and warrants  no interference by this

Court.  

19. In the result the appeal is dismissed but with no order as to costs.

……………………………J.

[R.V.Raveendran]

…………………………...J.

[Aftab Alam]  

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New Delhi,

November 05, 2008.          

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