1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.1473 OF 2010 Adhishree Gopalkrishnan .. Petitioner Versus Vibgyor High School and Ors. .. Respondents Mr.Aspi Chinoy, Senior Advocate with Mr.I.J.Nankani with H.S.Khokhawala i/b. Nankani & Associates for respondent No.1. Mr.Janak Dwarkadas, Senior Advocate with Mr.Navroz Seervai, Senior Advocate with Prateek Seksaria with Lalit Jain i/b. M/s.Z.J.Law for respondent No.2 Dr.B.K.Subbarao with S. Venkateshwar for petitioner Ms.S.M.Dandekar, AGP for State Mr.A.Y.Bookwala, Senior Advocate with Mr.Venkatesh Dhond i/b. Ms.Ashu Thakur for applicant – intervenor. CORAM : MOHIT S. SHAH, C.J. & S.C.Dharmadhikari, J. Date : 7th July 2010. P.C. 1] In this petition under Article 226 of the Constitution of India, the petitioner who is minor, through her parents, has challenged the letter dated June 2, 2010 (Exh.C) withdrawing her admission in the respondent No.1 school, run by respondent No.2 Management. The petitioners have also prayed for a direction to respondent Nos. 1 and 2 to restore 2 petitioner’s admission to standard IX in the said school. 2] It is the case of the petitioner that the petitioner aged 13 years was admitted to respondent No.1 school when she was in IIIrd Standard. At present she is studying in IX th standard in the academic year 2010-11. Petitioner has paid all fees for this academic year by cheque. The cheque was encashed and the petitioner was issued her books and the school was to start from 3rd June 2010. However, on 2nd June 2010, respondent Nos. 1 and 2 issued a letter withdrawing admission of petitioner and returning the fees paid by the petitioner. The management also sent school leaving certificate (Exh.A). 3] It is contended in the petition that the impugned letter does not mention any lapse on the part of the petitioner and that prior to issuing impugned letter no show cause notice was issued to the petitioner or to her parents. The impugned letter addressed to her parents reads thus:- “To, Mr.Gopalkrishnan Pursuraman, Dr.Mrs.Avisha Gopalkrishnan Kulkarni. 3 Dear Sir/ Madam, The management of the school regrets to inform you that your child M.sAdhishree will not be given admission in Vibgyor High School for the next academic year i.e. 2010 – 11 in view of the following:- You have filed a complaint with the police authorities making false and unwarranted allegations against the management of the school alleging “that you fear/ apprehend physical harm to you and your family by goondas who will through acid on your face to disfigure you or have you killed in a fase road accident.” You have also made allegations that your daughter has been penalised by attrtibuting false reasons when your child’s books were lost. You have in your letter dated 27th July 2009 threatened the Principal of the School that you will hold him personally responsible. You have not only participated in but have also led morchas to the school, when you have shouted slogans against the Principal of the school in front of the students. This conduct affects the working of the School and the relationship between the Principal and the students of the school, who look up to him and respect him as the Principal of the School. It is in these circumstances, the management is constrained to require you to arrange for your child’s admission in another school from the next academic year i.e. 2010-11 onwards). The management of the school wishes Adhishree best of luck in her studies and career she may chose to pursue her goals in life, with the strong 4 foundation laid during her tenure at Vibgyor High.” 4] The learned Counsel for the petitioner has submitted that the impugned decision is a penal action because petitioner’s parents had taken the lead in challenging the hike in tution fees being charged by respondent school and Government authorities have found substance in the said grievance. Therefore, the Authorities had directed the school management to reduce the fees. It is further submitted that merely because the parents had made a common cause, the parents of other students studying in the school have also brought relevant facts to the notice of concerned authorities and that cannot be a ground for removal of petitioner from the school or expelling her from school. 5] Learned Counsel for petitioner has placed reliance on the decision of the Division Bench of this Court in the case of Kobad Jehangir Bharda Vs. Farokh Sidhwa and Ors., reported in 1990 Mh.L.J. 883 and the decision of Delhi High Court dated 5th April 2010 in Writ Petition (C) No.2174 of 2010 in support of the contention that even unaided private 5 schools are subject to the School Code framed by the State Government in exercise of the powers under the Maharashtra Secondary School Code. It is submitted on the basis of the said decisions that expulsion of pupil in contravention of Rule 56.5 can be challenged and such petition is maintainable under Article 226 of the Constitution of India. 6] On the other hand, learned Counsel for respondent Nos. 1 and 2 have opposed the petition and have submitted that the petition is not maintainable as respondent school is a private unaided school, which does not take any grant from the Government. It is further submitted that the school code does not take away the right of the school management to decide as to who should be admitted as student of the concerned school. Reliance is also placed on the decisions of the Apex Court regarding admissions to professional colleges in the case of P.A. Inamdar Vs. State of Maharashtra reported in A.I.R. 2005 S.C. 3226, Islamic Academy of Education Vs. State of Karnatak reported in A.I.R. 2003 S.C. 3724, T.M.A. Pai Foundation Vs. State of Karnatak (2002) 8 S.C.C. 481. 6 7] It is submitted that this being exclusive right of the school management, the impugned decision cannot be challenged in a petition under Article 226. It is further submitted that the conduct on the part of the petitioner’s parents for the last three years, including several complaints filed before the Government Authorities and the police litigation required to be initiated by the school management or the litigations filed by the petitioner’s parents, resulted into such bitterness that not only the Principal but the teachers in the respondent school also find it stressful to have petitioner as a student of the school. 8] In rejoinder, the learned Counsel for the petitioner submitted that since the grievance of the school management is against petitioner’s parents and not the petitioner herself, they are prepared to give undertaking that they will not raise any objection with regard to the fee hike and/or will not complain to any Government authorities about the management of the school. 7 9] Having heard the learned Counsel for parties, we are of the view that without going into the question of maintainability of the petition, it would be prudent to consider the entire matter from the point of view of the interest and welfare of the child. While it is true that the impugned decision will result in to the petitioner being removed from the school and is bound to be traumatic to the petitioner as well as her parents, we have given our anxious consideration to the question whether, if the respondent Nos. 1 and 2 are directed to re-admit the petitioner in the school, the petitioner will be in a position to prosecute her studies without any stress, which is bound to affect petitioner’s performance for the remaining years in the school. 10] We have also considered whether quashing of the impugned decision and giving direction to the respondents to re-admit the petitioner will serve any useful purpose in the light of the allegations and counter – allegations including those made in the impugned notice and pendency of proceedings in court and complaints to police. 8 11] Having anxiously considering this position, we are of the view that directing the respondents to re-admit petitioner for prosecuting her further studies in the school will not take away the bitterness and stress between the parties because of allegations and counter allegations by the parents of petitioner and the school management. We do not wish to enter into the correctness or otherwise of such allegations because, as indicated above, we have considered the question only from the point of view of the welfare of the child. The pain and trauma which is bound to be caused to the petitioner, would certainly be considerable. The question is whether this Court should by a mandatory order direct the respondents to re-admit the petitioner and to make her undergo the stress in the respondent school where about 1700 students are studying. Taking a over all view of the matter we are of the view that interference of this Court in the present matter is not warranted in the facts and circumstances of the case. 12] In the view that we are taking, it is not necessary to decide the issue of maintainability of the petition and the right of management and 9 administration of an unaided private school in the context of the decisions on which reliance is placed by parties 13] Any reference to the conduct on the part of the petitioner’s parents or school management is only for the limited purpose of referring to the brief facts of the case and shall not come in the way of petitioner securing admission to any other school. Since this litigation has taken a couple of weeks, the petitioner’s application for admission to any other school shall not be rejected on the ground of any delay in making such application and respondent Nos. 3 and 4 – Authorities shall ensure that the petitioner does not loose admission to any other secondary school on the ground of delay in making such application. Petition disposed of in the aforesaid terms. (CHIEF JUSTICE) (S.C.DHARMADHIKARI, J)