S.K. Puri And Ors. vs Lt. Governor, Nct Of Delhi And Ors.
2003 Latest Caselaw 895 Del

JUDGMENT

Vikramajit Sen, J.

1. Rule.

2. By consent of the parties the Petition has been set down for final hearing. Arguments have been addressed in detail.

3. The grievance which has been ventilated in this Petition is that Master Gaurav Puri, a student in Class-V of Don Bosco School, Alaknanda, New Delhi has illegally not been promoted to the VIth Class by the decision dated 20.3.2003 (Annexure-A). It has been averred that he has obtained an aggregate percentage of 43.8%. Out of total marks of 200 in each subject, he has received 66 marks in English, 115 marks in Hindi, 67 marks in Mathematics, 97 marks in General Science, 66 marks in Social Studies and 116 marks in Computer. Therefore, he has secured less than 40% marks in English, Mathematics and Social Studies.

4. Reliance has been placed by Mr. Deepak Masih, learned counsel for the Petitioner on Instructions dated 8.9.2001 issued by the Directorate of Education which reads as follows:

''PROMOTION RULES FOR CLASS IV TO IX and XI

In order to be declared ''passed'' at the end of the session, a student must secure at least 33% marks in each of the following subjects studied by him/her during the session subject to the condition that he/she secures 33% marks separately in theory and practical portion also. The promotion is also subject to the condition that a minimum of 25% of marks should be secured in the comprehensive test. In computing 33% of the marks, the benefit of a fraction will go to the credit of the student and such a student shall be declared ''passed''and he/she shall be promoted to the next higher class:- Provided that in classes IV to VIII, a student will have to obtain the required passing marks in any two of the three languages in order to get promoted.

a) Class IV and V

1.Hindi

2.Maths

3.General Science

4.Environmental Studies.

b) Classes VI to

1.Hindi/Regional VIII Language

2.English

3.Mathematics

4.General Science

5.Social Studies

6.Third languages

7.Additional subject(s)

8.Physical Education

c) Class IX 1.Language 2.Language 3.Language 4.Maths 5.Science 6.Social Science

d) Class XI 1.Language (core/elective) 2,3,4,5 any four subjects under any stream which may include language as well.

A student must also obtain a minimum `E' grade in the following subjects of classes IX and XI.

Class IX 1.Physical and Health Education

2.Subject opted for, under work experience/SUPW.

Special mention is to be made in the report for students working on the EFA project.

Class XI 1.Subject offered under SUPW.

2.General Studies.''

5. Reliance has also been placed by learned counsel for the Petitioner on the following portions of the School Diary, which read thus:

''VI. ASSESSMENTS AND PROMOTION

25. The school has the semester system of evaluation and assessment approved by the CBSE.

26. Within each term there will also be regular class tests which will be taken into account for Promotion Record.

27. Details of class tests, terminal examinations, along with the schedule and syllabus will be given separately.

28. The Progress Reports will give an accurate picture of the performance of the students and these records are to be maintained, also in the school dairy.

29. Progress Reports issued after the terminal examination are to be collected personally by the parents on the scheduled day.''

6. Mr. Masih has argued that the School has no option but to promote Master Gaurav Puri in conformity with the above extracted Instructions, and that it cannot implement its own Rule to the effect that every student must secure 40 per cent in every subject in order to be eligible for promotion to the next Class. It is in this context that he has also pressed into service the principles of estoppel. Lastly, it has been contended that another student, namely, Master Richard Daniel has been promoted to the VIth Standard, even though he has not fulfillled the criteria of having secured at least 40 per cent marks in each subject.

7. On behalf of the School, Mr. Chacko had firstly highlighted the Preliminary Objection to the Petition inasmuch as the School is an unaided minority institution and accordingly is not amenable to the extraordinary Writ jurisdiction of this Court. He, however, did not press this Objection and was prepared to make good all the arguments on the merits of the Petition. In these circumstances it is not necessary for me to return any finding on this question.

8. Mr. Chacko's contention is that the Regulations are not binding on the School--firstly, because of its minority status, secondly because it only stipulates the minimum pass percentage and thirdly because they have no statutory strength. He has referred to a decision of the Division Bench of this Court in LPA No.178/1996 entitled Baby Shiwani Kapoor (Minor) vs. National Capital Territory of Delhi and Others. The question which had arisen in that Appeal was ''whether relevant instructions which prescribe the minimum pass marks of 33% preclude the School authorities from fixing 40% marks in each subject''. The Bench had referred to Rule 132 of the Education Rules which are substantially similar to the Instructions extracted above. The following paragraphs of the Judgment of the Division Bench justify their reproduction:-

''7. It is not contended by the learned counsel for the appellant before us that the fixation of minimum qualifying made at 40% by the school authorities is arbitrary. So far as the rule is concerned, we are in agreement with the learned single Judge that the words ''at least 33% marks'' indicate that any student who secured less than 33% marks should not be promoted from one class to another but then this does not preclude the School authorities from fixing higher percentage, which is reasonable. In this case, we find that 40% minimum qualifying marks prescribed by the school authorities is reasonable and not arbitrary.

8. .....

9. It has also been pointed out by learned counsel for the Respondent school that the parents of the wards are clearly informed that the student must secure 40 percent marks for promotion to the higher standard. It is also as record that in the preceeding class VI the performance of the appellant was not up to the mark and she was promoted only on an assurance from the parents that they would take care to see that her performance is better''.

9. Paragraph 7 has been relied on by Mr. Chacko and paragraph 9 by Mr. Masih. Mr. Masih has also relied on The Principal, Cambridge School and another vs. Ms. Payal Gupta and others, in which it has been held that a student who has passed the public examination has a right to continue further studies in the higher class in the same School. The Apex Court observed that the Head of the School did not have the authority to prescribe a cut off level of marks above the pass marks prescribed in the public examination. The case pertained to admission to Class XI in that unaided recognised School. It will be at once evident that this decision is not apposite to the facts of the present case since it does not deal with the effect or differences between the 33 per cent and 40 per cent prerequisite, and also for the reason that no public examination has been taken by the student before me. The Hon'ble Supreme Court had for its consideration Rules 139 to 143 of the Delhi School Education Rules (1973). In the case in hand, the School has not refused admission but has extended the option to the Petitioner either to be detained in Class-V, or to get a Pass Certificate provided the Petitioner migrates to another school. The intention of the School is palpably the maintenance of relatively high educational standards. The Apex Court observed that Rule 138 contemplates that even a student who fails at any public examination shall not, on that account, be refused 'readmission' in the school or class from which he had appeared at such examination. This decision is, therefore, of no assistance whatsoever to the Petitioner.

10. In the Reply the School has admitted the allegations pertaining to Master Richard Daniel. Mr. Chacko has contended that the promotion was granted pursuant to the decision of the Promotion Committee held on 4.7.2002. The relevant Minutes of which read as follows:-

''The members reviewed the process of promotions in the school. Various opinions were expressed keeping in mind the objective of maintaining the high academic standard prevalent in the school. Finally the following were unanimously decided upon.

1)The percentage for pass for all the students will be 40% in each subject, 40% in the aggregate will not be enough.

2)There will be no re-examination/compartmental after the promotion results are declared.

3)The students of the Junior Section (classes 1 to 5) repeating a class and having minimum attendance of 75% will not be detained again in the same class''.

(underling added)

11. I find it difficult to accept the wisdom of promoting a child who has failed to obtain 40 per cent marks merely on the grounds that he had already been detained in the same class in the previous year. In the event that such a student has not even secured 33 per cent marks, this practice may render the promotion illegal. It needs to be clarified that such a decision would tend to undermine the minimum educational standards and would, therefore, result in 'maladministration' of the institution. Such maladministration has been held by the Apex Court to be vulnerable even in cases of minority educational institutions.

12. This brings me immediately to the obverse situation that is where any minority educational institution prescribes conditions above the minimum set down by the concerned Directorate of Education such as in the case before me. Insistence on obtaining a higher pass percentage in the aggregate as well as in individual subjects, avowedly has the effect of raising educational standards. The Hon'ble Supreme Court has given its imprimatur to such stipulations on a number of occasions. Discussions on this subject Reference to Dr. Preeti Srivastava and Another vs. State of M.P. and Others, would suffice. The following paragraphs have topical relevance:

''39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words ''eligibility'' and ''qualification'' have been used interchangeably, and in some cases a distinction has been made between the two words -- ''eligibility'' connoting the minimum criteria for selection that may be laid down by the University Act or any Central stature, while ''qualifications'' connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central Statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.

46. We cannot agree with the proposition that prescribing no minimum qualifying marks for admission for the Scheduled Castes and the Scheduled Tribes would not have an impact on the standard of education in the medical colleges. Of course, once the minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State which will lead to the selection of better students cannot be challenged on the ground that it is contrary to what has been laid own by the authority concerned. But the action of the State is valid because it does not adversely impinge on the standards prescribed by appropriate authority. Although this judgment is referred to in the Constitution Bench judgment of Indra Sawhney v. Union of India the question of standards being lowered at the stage of postgraduate medical admissions was not before the Court for consideration. The Court merely said that since Article 16 was not applicable to the fact in Nivedita Jain case Article 335 was not considered there. For postgraduate medical education, where the ''students'' are required to discharge duties as doctors in hospitals, some of the considerations underlying Articles 16 and 335 would be relevant as hereinafter set out. But that apart, it cannot be said that the judgment in Nivedita Jain is approved in all its aspects by Indra Sawhney v. Union of India''.

13. It is, therefore, not open to the Administration/Directorate to interfere in the setting of such higher standards. In Shiwani Kapoor's case (supra) the Directorate had supported the setting of higher standards, and there is no justification to vary this stand. It would interfere in the rights of minority educational institutions to administer their schools. Public schools in Delhi have not adhered to the 33 per cent pass marks prescribed by the Directorate of Education and have almost ubiquitously, insisted on the 40 per cent benchmark for promotion. Furthermore, this is not a new procedure or practice. It has been implemented in most Public schools for almost half a century.

14. On the issue of estoppel Mr. Chacko's contention is that this is an afterthought as is evident from a reading of paragraph 5 of the Petition wherein there is a reference to ''aggregate marks''. The inference which he draws, and with substance, is that the Petitioner was fully aware of the School standard pertaining to promotion requisite of 40 per cent. Learned counsel for the Petitioner has not shown any provision or regulation or direction of the School indicating that the 33 per cent promotion criteria is applicable to the School. Estoppel cannot be pressed into service in a vacuum but only where it is specifically pleaded that a situation or representation or position was held out by one person and acted upon by the other. It is also no possible to accept the argument that 40 per cent stipulation was introduced on 4.7.2002. Quite clearly that Meeting was held to ''review'' the extant practice, and after due consideration the Committee reiterated the prevailing position.

15. Mr. Chacko has also contended that even if the promotion of Master Daniel was incorrect, that would not in itself entitle the Petitioner to pray for a Mandamus for promotion. There is merit in this submission. Hon'ble Mr. Justice B.P. Jeevan Reddy, speaking for the Bench, made the following observations in Chandigarh Administration and Another vs. Jagjit Singh and Another, :

''8. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favor of the petitioner on the plea of discrimination. The order in favor of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favor of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law -- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law -- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of la and the rule of law. Of course, if in case the order in favor of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner ho is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course -- barring exceptional situations -- would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (what is the position in the case or orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises.)''

In this regard yet another decision of the Apex Court in Gursharan Singh and Others vs. New Delhi Municipal Committee and Others, is indeed relevant. Hon'ble Mr. Justice N.P. Singh, speaking for the Bench, has made the following observations:-

''9. There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen of court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favor of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favor of person who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favor or principle of equality before law. Neither Article 14 of the constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. I such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to other. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. None of the 98 stall-holders was imp leaded a party to the writ petitions. The appellants question had the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favor of the stall-holders of Panchkuian Road, but they were primarily interested that same concessions in respect of license fee and relaxation in trade zoning restrictions, be also extended to them. Any such claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article 14 of the Constitution''.

16. In Director of Settlements, A.P. and Others vs. M.R. Apparao and Others, it has been clarified that for the issuance of a Mandamus the existence of a legal right to the performance of a legal duty by a public authority is an essential condition precedent. The prevalent position is to the contrary as there is every reason to accept the School's stance that it has hitherto fore followed the 40 per cent pass mark. The prayer, which is worded in the widest possible amplitude, cannot be granted.

17. Learned counsel for the parties has copiously referred to the judgments of the Apex Court in St. Stephen's College vs. University of Delhi, , Unni Krishnan, J.P. and Others etc. etc. vs. State of Andhra Pradesh and Others etc. etc., and T.M.A. Pai Foundation vs. State of Karnataka, . However, since it is not necessary to answer the question whether a Writ is maintainable against a minority unaided educational institution or whether such an institution can insist on adherence to higher standards of education than the minimum prescribed by the Directorate of Education, reference to these celebrated judgments would make this Judgment needlessly prolix. Suffice it to mention that the Apex Court has specifically observed that these institutions should be left to administer themselves untrammeled by bureaucratic inference and control.

18. I find no merit in the Petition and it is dismissed. However, there shall be no order as to costs.