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Madras High CourtWP/13878/2018disposed of

N.Kalyana Sundaram v. The Regional Officer

2018-08-24Honourable Mr Justice S.S. Sundar5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.08.2018

CORAM

THE HONOURABLE MR. JUSTICE S.S.SUNDAR WP.No.13878 of 2018 N.Kalyana Sundaram

...Petitioner

Vs.

1. The Regional Officer, Central Board of Secondary Education, New No.3, Old No.1630-A, J-Block, 16th Main Road, Anna Nagar, West, Chennai - 40.

2. The Principal, Hindu Colony Chellammal Vidyalaya, Senior Secondary School, Nanganallur, Chennai - 61.

...Respondents

PRAYER:

Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus to direct the respondents, in particularly the 2nd respondent to consider the circumstance of the case and future of the petitioner's son, K.Srikar and to give the admission to him for XI Std., in the academic year 2018-2019.

For petitioner : Mr.G.Saravana Kumar For Respondents : Mr.G.Nagarajan, for R1 Mr.M.Ashwin, for R2

ORDER

This writ petition is filed for issuance of a Writ of Mandamus to direct the respondents, in particularly, the 2nd respondent to consider the circumstance of the case and future of the petitioner's son, K.Srikar, to give him admission in XI Std., for the academic year 2018-2019.

2. The petitioner is the step father and guardian of one

K.Srikar and he was studying in the second respondent-School from fourth standard. The second respondent School is under the control of Central Board of Education. After the petitioner's son passed X standard with 347 marks out of 600, he approached the second respondent-School for XI standard, but they even refused to give application. It is stated by the petitioner that the School was re-opened on 06.06.2018 and his son was prevented by the second respondent. Since the petitioner's son was studying in the second respondent School from 4th standard, he opted to join the same School for XI standard. But admission was denied. Hence, the petitioner has come forward with this writ petition mainly on the ground that the Right to Education, which is a fundamental right of the Children under Article 21-A of the Constitution of India, is offended / infringed.

3. The learned counsel appearing for the petitioner relied upon the judgment of the Supreme Court in the case of Principal, Cambrdige School and another vs. Payal Gupa (Ms) and other, reported in 1995 (5) SCC 512, wherein in similar case, the Supreme Court has expressed the following view: "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 admission or readmission of a student in the same school after he 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 some 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 could he 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."

4. The learned counsel for the petitioner also relied upon the judgment of the Supreme Court in the case of Principal, Kendriya Vidyalaya and Others vs. Saurabh Chaudhary and Others reported in 2009 (1) SCC 794, wherein it has been held as

follows:

"18. 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 the most suitable for him on the basis of the prescribed cut-off marks.

19. 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 level of marks, had such courses been available in Central School No.2, AFS, Tambaram. 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, Tambaram in Science stream with Mathematics. "

5. From the judgments referred above, the law has been settled that it would be unjust and unfair if the students are not allowed to continue in the same school for XI standard though he failed to get the cut-off marks in the class X examination. The School may give him a different stream of course that would be more appropriate and suitable to the student based on the prescribed cut-off marks, but, admission cannot be denied to a student to continue XI standard in the same School.

6. It is not brought to the notice of this Court about any rule or statute or guideline enabling the School Management to refuse admission to XI standard for a student, who has completed X standard in the same School and unless the statute or notification issued by the Government, specifically provides for re-admission or fresh admission to every higher class after student passed out of a particular class, the Educational Institution shall not deny continuance for further studies in the same School.

7. The second respondent has filed a counter affidavit

stating that the student strength in the second respondent for School X standard is 130 and that the School has only two sections in XI standard, i.e., one Commerce class and one Science class, which can accommodate only 45 to 50 students in each class. In view of the limited seats available for class XI, the second respondent was compelled to prescribe a guideline and hence, cut-off mark was fixed.

8. It is further stated that the petitioner's son has scored only 265 out of 500 marks in the X standard, which falls short of cut-off mark prescribed by the second respondent. Despite the second respondent School given due care to the petitioner's son, it is stated by the second respondent that the petitioner's son felt that the CBSE syllabus is too difficult/tough for him to follow and he could not pick up the lessons covering the syllabus.

9. The defence taken by the second respondent School in the counter affidavit cannot be sustained in view of the categorical pronouncement of the Supreme Court. It is stated by the learned counsel appearing for the petitioner that the second respondent School has given admission to 30 students from outside and persons with lesser marks. If that be so, the contentions of the second respondent in the counter affidavit, have no merits. However, no specific pleading is found.

10. In the judgments discussed above, the Supreme Court has observed that there is no scope for re-admission or fresh admission to XI standard, in case the students are from the same School. Hence, it is for the second respondent School to have enough number of classes required to accommodate all those who pass in the X standard, and opt to continue in the same School.

11. In view of the above, the second respondent is directed to give admission to the petitioner's son, K.Srikar, for XI standard for the academic year 2018-2019, after collecting regular fees, within a period of two weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is allowed. No costs.

Sd/- Deputy Registrar //True copy// Sub Assistant Registrar pvs

To The Regional Officer, Central Board of Secondary Education, New No.3, Old No.1630-A, J-Block, 16th Main Road, Anna Nagar, West, Chennai - 40.

+1cc to Mr.P.Vijendran, Advocate SR.No.58144 +1cc to Mr.S.Meenakshisundaram, Advocate SR.No.58663 +1cc to Mr.G.Nagarajan, Advocate SR.No.58308 WP.No.13878 of 2018 GMY(18/09/2018)