!! 1 !! IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.7889/2008 Principal, Sophia Senior Secondary School, Jaipur Vs. Adhiti Sukhla Date of order :: 30.03.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.M.R. Singhvi, for the petitioner. Mr.Ajay Vyas, for the respondent. This writ petition has been filed by the petitioner-Institution for quashing the impugned order dated 07th July, 2008 (Annexure-5) passed by the Civil Judge (Junior Division)-cum-Judicial Magistrate, Ist Class, Bikaner so also, the order dated 01st August, 2008 passed by the Additional District Judge No.2, Bikaner whereby a direction was issued to the petitioner-Institution to grant admission to respondent in class XI in Science Maths subject. Before arguing the case on merit, it is submitted by learned counsel for the petitioner !! 2 !! that the order Annexure-5 dated 07th July, 2008 was passed upon an application under Order 39 Rule 1 and 2 read with Section 151 CPC, which is filed alongwith suit before the trial court and while deciding the said application, final relief sought by the respondent was granted, which is not permissible under the law. Further, learned counsel for the petitioner while inviting attention of this Court towards the judgment of Hon'ble Supreme Court reported in 2008 AIR SCW 7761 (Principal, Kendriya Vidyalaya & Ors. Vs. Saurabh Chaudhary & Ors.) submits that no one can raise 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. Therefore, as per adjudication made by the Hon'ble Supreme Court, both the orders passed by the learned trial court as well as by the appellate court deserve to be quashed and set aside. On the other hand, learned counsel for the respondent submits that now the session is over and respondent has pursued her study as per !! 3 !! interim order passed by the trial court, therefore, obviously cancellation of admission of respondent will cause irreparable loss, therefore, respondent's admission may not be disturbed. I have considered the rival submissions made by both the parties. It is true that Hon'ble Supreme Court in the case of Principal, Kendriya Vidyalaya & Ors. (supra) held in para 16 that 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. Para 16 of the said judgment reads as under:- “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 quire 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.” !! 4 !! In this view of the matter, this writ petition is disposed of with the direction that admission of sole respondent shall not be disturbed, but as per verdict of the Hon'ble Supreme Court given in para 16 of the above cited case, the order impugned in this writ petition passed by the learned trial court as well as by the appellate court will not come in the way of adjudging the suitability of the student for admission in class XI of the petitioner-school. Further, learned trial court is directed to decide the suit itself within a period of three months from the date of submitting certified copy of this order. (GOPAL KRISHAN VYAS), J. A.K. Chouhan/- A.K. Chouhan/-