WP(C) 4015/2010 BEFORE THE HON’BLE MR. JUSTICE A. C. UPADHYAY Heard Mr. N. Saikia, learned counsel for the petitioner and Mr. K. Agarwal, lear ned counsel representing the respondent Nos.3 and 4 Ms. R. Bora, learned Standin g Counsel for the respondent Nos. 5 and 6. 2. The facts, leading to filing of this writ petition, may be state d, in brief, as follows: The son of the petitioner successfully passed the class X Board 2010 of CBSE course from Delhi Public School, Guwahati(hereinafter responde nt-School). The petitioner’s son desired to take admission in the Commerce Stre am of the respondent-school. After passing of his Class X examination the petiti oner’s son appeared in the entrance examination for admission in the school held by the respondent-School. However, the respondent-school insisted to give admi ssion to the petitioner’s son in the Arts Stream, instead of Commerce Stream. T he course of study chosen by the petitioner’s son being Commerce, the petitioner filed several representations before the respondent-School, particularly for ad mission of her son in the Commerce Stream of the School, but to no avail. The pe titioner contended that her son has been studying in the same institution, for m ore than five years, but the respondent-School did not take any necessary steps in this regard to fulfill the wish of the petitioner’s son. Finding no way out o f the petitioner filed this writ petition before this Court, praying for a direc tion to the respondent authority particularly respondent No.4, to allow her son to take admission in the Commerce Stream instead of Humanities in the responden t, Delhi Public School, Guwahati. 3. The petitioner stated that many students from outside the respon dent-School has been given admission in the Commerce Stream , but the son of th e petitioner, who has been studying for last five years has been denied admissio n in the Commerce Stream. The petitioner has come to know from different sources that the students, who have taken admission in the residential accommodation of the school, have been given preference in admission of their choice stream of s tudy, by the school authority. Learned counsel for the petitioner stated that th e classes for the new session for all discipline have already started since 12.0 7.2010, therefore if the petitioner’s son is not allowed to attend the classes i n the Commerce Stream, he will not be able to adjust later on. 4. That the petitioner further stated that the Hon’ble Apex court i n Payal Gupta case[1995]5SCC 512 has clearly held that on passing the promotion examination from Class-I, to the next higher class, does not involve any fresh a dmission or readmission in the school and whether the examination is internal or a general examination or an external statutory agency, makes no difference in t he position. 5. The petitioner, by quoting the observation of the Hon’ble Suprem e Court in (2009) 1 SCC 794 (Principal, Kendriya Bidyalay V. Saurabh Chaudhary & ors.) stated that one can have no objection to a school laying down cut off mar ks for selection of suitable stream/course for a student giving due regard to hi s/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 fr om the school because he failed to get the cut of marks in the Class-X examinati on. After all, the school must share at least some responsibility for the poor p erformance of its students and should help him in trying to do better in the nex t higher class. 6. The respondent-School authority by filing affidavit in oppositio n contended that respondent Delhi Public School is run by a Society namely, Delh i Public School Society, registered under the Societies Registration Act, 1860 a nd it is a Private Unaided School. The Delhi Public School Society and Gyan Saga r Foundation in collaboration are running the affairs of Delhi Public School, Gu wahati. The school is managed by a Managing Committee. The Delhi Public School e ither at Guwahati or at any other place is affiliated to Central Board of Second ary Education(in short CBSE ). The CBSE have a Affiliation Bye-Laws, as amended from time to time, providing with the norms of affiliation and other related ma tters. In the aforesaid Affiliation Bye-Laws Kendriya Vidalaya is defined as a school run by Kendriya Vidyalaya Sangathan, an autonomous Organisation under t he Ministry of Human Resource Development of the Government of India whereas Pr ivate Unaided School , is defined as a school run by a society/trust/Company reg istered under section 25 of the Companies Act, 1956, duly constituted and regist ered under the provision of Central/State Acts not getting any regular Grant-in- Aid from any Government source(s). The Kendriya Vidyalaya being a separate auton omous Organization, and Delhi Public School being a Private Unaided School, they are not guided by Rules, Regulations and Guidelines of Kendriya Vidyalaya. The aforesaid Affiliation Bye-Laws in Clause 12 provides provision for Admission of students as follows:- Admission in the school affiliated to the CBSE shall be made without any distin ction of religion, race, caste, creed, place of birth or any of them. As regards reservations for SC/ST students in concerned, it shall be governed by the Educa tion Act/Rules applicable to the State/UT where the School is situated. 7. In Clause 21 of the aforesaid Affiliation Bye-Laws, the powers a nd functions of School Management Committee has been provided. The powers and fu nctions of School Managing Committee, amongst others, provides that School Manag ing Committee will work according to the specific direction given by the Society regarding admission policy. However, admission will be made as per merits, with out discretion of caste/creed/religion and region. Besides above, the Affiliatio n Bye-Laws does not provide any guideline for purpose of admission of the studen ts. 8. That the CBSE has framed the Examination Bye-Laws wherein provis ion has been made for admission of student to school, Transfer/Migration of the students. Clause 7.4 of the aforesaid Examination Bye-Laws provides provision fo r admission to Class XI which is quoted herein below: 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 Boa rd; or (b) An equivalent examination conducted by any other recognized Board of Sec ondary Education/Indian University and recognized by this Board as equivalent to its secondary School examination. 9. Besides above there is no provision related to admission. It may be relevant to mention herein that a circular bearing No.24/28-05-2010 dated 28 th May 2010, has been issued by CBSE to all the heads of the institutions affili ated to CBSE, for guidance of the school for the admission of CBSE student in Cl ass XI, for the academic year 2010-11, after introduction of grading at Secondar y School level by the CBSE. It has been provided in aforesaid guideline that sch ool affiliated to CBSE follow different practice suitable in their own context i n admission and they may continue to do so. However, in view of the request made by number of schools, illustrative guidelines for deciding the combination of s ubjects at Class XI are provided therein, which reads as follow:- The admission can be based on CGPA(overall indicative percentage of marks) and subject wise GP(subject wise indicative percentage of marks). In case of ties in CGPA(overall indicative percentage of marks), the inter-se-me rit of such candidates may be determined in order of preference based on subject wise Grade Point(subject wise indicate percentage of marks.). For example: In case of two or more candidates obtaining equal CGPA(overall indi cative percentage of marks), the inter-se-merit of such candidates may be determ ine as follows: (a) For Science based Courses: Candidates obtaining higher CGPA(overall indicative percentage of marks) in one compulsory language(Better of English/Hindi), mathematics and Science. (b) For Commerce based Courses with Mathematics: Candidates obtaining higher CGPA(indicative percentage of marks) in one compuls ory language(Better of English/Hindi), Mathematics and Science/social Science. (c) For Commerce based Courses without Mathematics: Candidates obtaining higher CGPA(indicative percentage of marks) in one compulso ry language(Better of English/Hindi), Science and Social Science. (d) Fur Humanities bases Courses: Candidates obtaining higher CGPA(indicative percentage of marks) in one compulso ry language(Better of English/Hindi), Social Science and 2nd Language. The above example is only illustrative and not exhaustive. 10. It is stated on behalf of the respondent-School that Delhi Publ ic School, Guwahati has framed its own guideline for admission in Class XI for a cademic year 2010-11. Relevant extract of the Guidelines for admission into Clas s XI Commerce Stream, is reproduced herein below for the sake of easy reference: Delhi Public School Guwahati Beyond excellence CLASS XI 2010-11 GUIDELINES FOR ADMISSION ADMISSION CRITERION COMMERCE CBSE and OTHER boards WITHOUT Entrance TEST Students securing minimum B1 Gra de/70 percent marks in all the subjects are eligible for admission. However, if the student is opting for Maths as one of the subjects he/she must secure A1 Gra de/90 percent marks in Maths and students from SEBA must have 90 percent marks i n Advance Maths. CBSE and OTHER boards WITH ENTRANCE TEST Students securing minimum B2 Gra de/60 per cent marks in all subjects may apply for admission and must necessaril y qualify the entrance test. All students opting for Maths must qualify the entr ance test for Main Maths. However, if the student from any board is opting for M aths he/she must have A2 Grade/80 percent marks in Maths and students from SEBA must have 80 percent marks in Advance Maths. SCHOLARSH-IP CRITERION Students securing minimum A1 Grade/90 per cent marks in English, Social Science & Maths(85 per cent marks in Advance Maths for SEBA) and a minimum of 85 per cent marks in the Entrance Test for English & Main Maths ar e eligible for scholarship. 11. The respondent-School authority stated that the Union of India b eing represented by the Commissioner, Kendriya Vidyalaya Sangathan and the Regio nal Director, Kendriay Vidyalaya Sangathan, Guwahati are not necessary parties t o the present Writ Petition. The Respondent Nos.1 and 2 have nothing to do with the admission in Class XI in Delhi Public School, Guwahati, in as much as, the D elhi Public School is not bound by Rules, Regulation and Guidelines of Kendriya Vidyalaya Sangathan. Since Delhi Public School is affiliated to CBSE, it has to adhere with the Rules, Regulation and Bye-Laws of CBSE alone. 12. Mr. K. Agarwal, learned counsel for the respondent-School, submi tted that the Delhi Public School being a Private Unaided School as stated above , no Writ will lie against the school, in as much as, Delhi Public School is nei ther State nor instrumentality of the State or any agency of State and/or local or other authorities within the meaning of Article 12 of the Constitution of Ind ia. Therefore, the present petition is not maintainable and therefore, liable to be dismissed on this ground alone. 13. The respondent further contended that it is absolutely incorrect to say that the petitioner’s son was suffering from various ailments as a resul t he could not perform well to get A1 Grade. According to the respondent, the pe titioner’s son is studying since class-VI i.e. from 2004-05 in Delhi Public Scho ol, Guwahati but, he was not found to be extraordinary brilliant, who would have scored A1 Grade if his health have not effected him. The result of the petition er’s son, since Class-VI to Pre-Board, would show that he was below average stud ent. 14. The respondent’s counsel by drawing attention of the Court to th e following marks obtained by the petitioner’s son submitted that on bare perusa l of marks sheet would show that petitioner’s son obtained subject wise Grade, G rade Point and percentage of marks, which did not reach the required Bench mark, for admission in Commerce Stream of the respondent’s school: Subject Grade Grade point Percentage of Marks English C1 06 57% Hindi Course B1 08 76% Mathematic B1 08 76% Science B2 07 66.5% Social Science B2 07 66.5% CGPA = 7.2 = 68.4% 15. Respondent counsel submitted that Delhi Public School, Guwahati including the teachers take utmost care of its student so that they are provided with quality education and trained in extra-circular activities to make a good citizen. However, the students and parents have to give effort to shine and to d o good results in the examination and the petitioner’s son having passed CBSE Xt h examination applied for his admission in Class XI Commerce Stream, wherein he gave the subject combinations as follows:- (i) English, (ii) Accountancy, (iii) Business Studies, (iv) Entrepreneurship , (v) Mathematics, (vi) Physical Education. 16. In view of the Bye-Laws and Guidelines of CBSE and in view of gu idelines of Delhi Public School, Guwahati as the petitioner’s son secured Grade C1 in English and Grade B1 in Mathematics, he was not entitled to admission in c ommerce stream with the aforesaid combinations. It may be relevant to mention herein that as per admission guide lines in Commerce stream of the respondent school, a student securing B2 Grade(6 0% marks in all subjects) may also apply, for admission but he must necessarily qualify the Entrance Test. If the student is opting for Maths, he must qualify t he Entrance Test for Main Maths. However, if the student from any Board is optin g for Mathematics as a subject, he/she must have A2 Grade(80% marks in Math) and students from SEBA must have 80% marks in Advance Mathematics. As the petitione r’s son obtained C1 Grade in English, i.e. 57% marks and B1 grade in Maths, he w as not even entitled to sit in the Entrance test for seeking admission, in any o f the streams, more particularly with the aforesaid combination. It is stated on behalf of the respondent school that considering that the petitioner’s son was the student of Delhi Public School, Guwahati, and on insistence of his parents h e was allowed to sit in Entrance Examination, for admission in Commerce Stream w ith aforesaid combination. The Entrance Test was held on 08.06.2010, for the sub ject English and Maths. The petitioner’s son secured 21.5 out of 50 i.e. 43% in English and 13 out of 50 i.e. 26% in Maths in the Entrance Test. The School Auth orities considering his marks obtained in CBSE Class X in English and Maths as w ell as in the entrance in the said subjects did not find him suitable to admit h im in the Commerce Steam with the aforesaid combinations. Accordingly, on 11.06. 2010, the petitioner’s son was allowed to be admitted in Arts Stream keeping in view that he was a student of Delhi Public School, Guwahati. 17. The respondents stated that if the petitioner’s son would have b een a student of any other school either from CBSE or SEBA Board, he would not e ven be admitted in Arts Stream, as per the admission policy of the respondent’s school. The petitioner’s son, accordingly, took admission in Arts Stream on 16.0 6.2010. The petitioner by her application dated 17.06.2010 requested to transfer him from Arts to Commerce, however, the School authority had refused in view of facts narrated above. 18. It may be pertinent to mention herein that as stated by the resp ondent-School admission in any of the stream is based on the merit of the studen t concerned and one cannot be allowed admission to a particular stream on the ba sis of insistence of the student and parents to fulfill their choice and willing ness. The respondents also denied to have received any representation dated 05.0 6.2010 submitted by the petitioner addressed to the School authority. 19. The respondent’s school stated that the students from outside th e school has been given admission in the commerce stream but marks of those stud ents were higher and they have been admitted in compliance with admission guidel ines of Delhi Public School, Guwahati and stated that it is also absolutely inco rrect to say that the students who has opted for residential accommodation of th e school had been given admission in the school in the stream of their choice. H owever, in reply to the above contention, the petitioner did not come forward wi th any specific instance of such discrimination as alleged by the petitioner. 20. The respondent-School contended that though, the petitioner’s son was admitted in the school in the Arts Stream with the combination of subjec ts English, Political Science, Economic, Geography and Physical Education, but h e did not attended the school since 12.07.2010. The respondents stated that the petitioner’s son has already taken admission in Hindustani Kendriya Vidyalaya, G uwahati, suppressing the fact that he had taken admission in Arts Stream of the respondent-school and was prosecuting his studies. 21. Further more, the respondent-School is run by a Society namely, Delhi Public School Society, registered under the Societies Registration Act, 18 60 as a Private Unaided School and it is managed by a Managing Committee. The re spondent Delhi Public School either at Guwahati or at any other place is affilia ted to Central Board of Secondary Education(in short CBSE ) in terms of Affilia tion Bye-Laws if CBSE, as amended from time to time, providing with the norms of affiliation and other related matters. In the aforesaid Affiliation Bye-Laws of CBSE Kendriya Vidalaya is defined as a school run by Kendriya Vidyalaya Sang athan, an autonomous Organisation under the Ministry of Human Resource Developme nt of the Government of India, whereas Private Unaided School , is defined as a school run by a society/trust/Company registered under section 25 of the Compan ies Act, 1956, duly constituted and registered under the provision of Central/St ate Acts not getting any regular Grant-in-Aid from any Government source(s). The Kendriya Vidyalaya being a separate autonomous Organization, and Delhi Public S chool being a Private Unaided School, they are not guided by Rules, Regulations and Guidelines of Kendriya Vidyalaya. In my view, the admission guideline presc ribed by Kendriya Vidyalaya Sangathan for admission in Class XI cannot applicabl e for the respondent Delhi Public School since neither such Guideline has been s hown to have been accepted and followed by the respondent school nor any law or rule binds them to follow the rules. On the other hand, the Guideline for admis sion issued by the respondent No.3, appears to have been prescribed on rational basis, so as to attract the better talents in every stream for improvement and d evelopment of skill and proficiency in the subject of study to serve the greater public interest. 22. Learned counsel for the respondent submitted that the Apex Court by referring the decision in Payal Gupta’s (supra) observed in Principal, Kendr iya Vidyalaya and Others vs. Saurabh Chaudhary and Others (supra) that the Scho ol 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 . Learned counsel for the respondent School submitted that the Delhi Public School, Guwahati has done the same thing with regard to the petitioner’s son as has been observed by the Hon’b le Apex Court’s directive in paragraph 18 of the above referred case, by giving him admission in Arts Stream which is most suitable stream on the basis of merit and cut off marks. 23. In Principal, Cambridge School v. Payal Gupta, (1995) 5 SCC 51 2, Hon’ble Supreme court observed as follows: & & &.. It may, however, be pointed out that it is common knowledge that once a student is given an admission in any educational institution by making an appl ication 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 sam e continues class after class until he leaves the school. In these facts and cir cumstances 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 cl ass would be a fresh admission or readmission. & & & & & & & & & & 8. Now coming to the provisions of sub-rule (1) of Rule 145 whi ch is the sheet-anchor of the appellant’s case, we do not find anything in the s aid rule which contemplates or requires fresh admission or readmission of a stud ent 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. T he question of an admission test or the result in a particular class or school f or purposes of admission would arise only if a student of one institution goes f or admission in some other institution. The question of admission test on the ba sis of result in a particular class will not be taken into account in the case o f a student of the same school who passes the public examination. Learned counse l for the appellant was unable to produce or show any provision in the Act or th e Rules which specifically contemplates that readmission or fresh admission is n ecessary to every next higher class after a student passes out a particular clas s 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 stu dies in higher class in the same school by a student who passes a public examina tion. 24. In Kendriya Vidyalaya v. Saurabh Chaudhary, (2009) 1 SCC 794, Hon’ble Supreme Court analyzing and following the decision rendered in Payal Gup ta (supra) held that one can have no objection to a school laying down c ut-off marks for selection of suitable stream/course for a student giving due re gard to his/her aptitude as reflected from the Class X marks where there are mor e 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 i n the next higher class. The school may of course give him the stream/course tha t may appear to be most suitable for him on the basis of the prescribed cut-off marks. The relevant extract of the decision reads as follows: 17. 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 assum ed 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 o wn students on the ground that he/she failed to secure the cut-off marks in the Class X CBSE examination. 18. One can have no objection to a school laying down cut-off marks for selectio n 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 b ecause 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 i ts student and should