DEBASISH KAR GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this writ petition the petitioners herein being two guardians of their two respective wards, viz., Anewsha Kar Gupta and Rupsa Basu, have challenged the decision of the Managing Committee of the secondary stream of Brahmo Balika Shikshalaya being the respondent No. 4 (hereinafter referred to as the said school) and a notice of the Headmistress dated 13 August, 1998 of the aforesaid stream for holding admission test of the wards of the petitioners.

(2.) It is stated in the writ petition that such decision is wholly mala fide, illegal, arbitrary and unconstitutional inasmuch as the said two girls were admitted once in its Montessori stream of the said school and gradually these two students were successfully promoted to successive classes and by this process they have come out successful in Class IV examination whereby they have become eligible to be admitted to Class V as a matter of course and without any further admission test. The said school is an one and integral body and having three branches, viz., Montessori, Primary and Secondary. So, these two students shall be admitted without having further test, and as a matter of course and right since once at the beginning upon test and interview they were admitted. The school authority has taken a stand that it has every right to take a policy decision regarding admission of the students in secondary stream. It is stated that the three wings are separate and distinct from each other as they are being administered by three different governing bodies and has no connection with another. So, the Managing Committee of the Secondary stream has taken a decision for a screening test amongst those students who have been promoted from primary stream following an instruction of Director of Public Instruction dated 22nd August, 1974. It is contended that the standard of the Class IV students have gone down miserably. So, in order to have better standard of the education and future benefits of the students the screening test has become inevitable to admit to Class V level. It is also the stand of the respondent that once upon a time the decision of taking screening test for admission to Class V was challenged in this Court and this Hon'ble Court has been pleased to hold amongst others such decision of taking screening test is permissible. Therefore, this point is no longer res integra.

(3.) Mr. L. C. Behani, Senior Advocate led by Mr. Balai Chandra Roy, Senior Advocate appearing for the petitioners, submits that factually the said school is one organisation and having three branches and it will appear from the averment made in the paragraph 18 of the affidavit-in-opposition of the respondent No. 10 that the aforesaid three streams are the branches only of the said school. So, (for) all practical purposes these three streams are nothing but part and 2 parcel of organisation, viz., the aforesaid school. Since the said school students were tested so also their parents at the time of their admission to the said school at Montessori level and these students admittedly had been through in class examinations and in Class IV examination they have brilliantly come out successfully, so the aforesaid decision for holding admission test is wholly arbitrary and illegal aiming at to deny the right to continue their study. In any event at the time of admission which is submitted by Mr. Behani that there was no stipulation or condition that the students have to pass admission test for entering secondary level. Such a notice was never published nor given to any of the guardians of the students. Therefore, it was the legitimate and/or reasonable expectation that the students who have been admitted at the Montessori level on admission test would be allowed to study at the same school in the secondary level and without having further admission test. He submits that instruction of the Education Department to the school allowing to hold admission test has got no statutory force. In order to have a statutory force this instruction should have been published in a Gazette unless that is done it has got no binding effect. Mr. Behani further submits that same school having different steams cannot be allowed to hold further examination for admission to another class. In support of his submission he relies on a decision of the Supreme Court reported in AIR 1996 SC 118. He also relies on the following decisions on the point that the guideline has no statutory force and further there is no publication in official Gazette. The aforesaid guideline cannot be enforceable affecting public at large. The decision reported in Administrative Law by H.W.R. Wade and C. F. Forsyth under the head "Circular".