DISTRICT EDUCATION OFFICER HIMMATNAGAR Vs. RAJVIRSINH K RATHOD

JUDGEMENT

(1.) .This appeal filed under Clause 15 of the Letters Patent is directed against judgment dated July 13, 1999/August 24, 1999, rendered by the learned single Judge in Special Civil Application No. 4183 of 1999, by which the appellants and respondent No. 8 are directed to consider the cases of respondent Nos. 1 to 7 for admission to XIth Standard in Science stream according to their merit and in preference to the candidates coming from other schools and to utilise only such number of seats remaining vacant for the purpose of admission to the students coming from other schools after accommodating all the students who have applied for admission to XIth standard on passing the Xth standard examination from the very same school.

(2.) . The respondent Nos. 1 to 7 were studying in Shri K. N. Shah Modasa Village High School at Modasa, District : Sabarkantha, which is a Government aided school. They appeared in the public examination of Xth Std., conducted by the Gujarat Secondary Education Board in 1999 and passed the same. They were desirous of continuing their study in the same school for XIth & XIIth Stds., as there is Science stream in the same school. According to them, they were not likely to get admission in the same school, as a policy decision was taken to stop admission at 86% in the Science stream; whereas they had secured percentage of marks less than 86. It was their case that respondent No. 8- school had entertained the applications for admission to XIth Std. in Science stream from the students of other schools, as a result, they were denied admission to XIth Std. in Science stream in the school from which they had passed the Xth Std. examination. It was also their case that Higher Education Commissioner had taken a decision that over and above 60 students in each class, only six more students would be accommodated, but even this permitted increase in number of seats was not availed of by the school and there being two sections in the school, only 120 students were likely to be admitted in Science stream in XI Std. Under the circumstances, they instituted Special Civil Application No. 4183 of 1999 and prayed the Court to issue a writ of mandamus or a writ of certiorari or any other appropriate writ or order directing the respondent No. 8-school to give admission to them in XIth Std., in view of judgment of the Supreme Court rendered in The Principal, Cambridge School & Anr. v. Ms. Payal Gupta & Anr., AIR 1996 SC 118. An affidavit-in-reply was filed by Mr. K. P. Joshi, District Education Officer, District Sabarkantha, controverting the averments made in the petition. In the reply, it was mentioned that pursuant to directions of the High Court in Special Civil Application No. 3252 of 1984 and Special Civil Application No. 3336 of 1984, the State of Gujarat has issued Circular/Resolution dated November 6, 1985, whereby procedure as well as policy of admission has been framed which requires that 70 percent of students of the same school should be admitted on the basis of merits; whereas only 30 percent of seats are reserved for students of other schools, and therefore, the petition should be dismissed. It was stated in the reply that a list of 125 students was received as per merits from amongst the applicants and 48 students of respondent No. 8-school had been admitted; whereas only 20 students from other schools were given admission on merit, and admission of the students studying in the same school was stopped at 173 marks; whereas admission of outsiders was stopped at 190 marks. What was emphasised in the reply was that admission policy has been framed considering the various points and the aspects that basic bifurcation of the stream of Science and Commerce begins from XIth Std. and number of students from different schools are coming out with glorious results from the schools where either there is no XIth Std. or there is no Science stream, and therefore, respondent Nos. 1 to 7 should not be granted relief claimed by them. Along with the reply, a xerox copy of (a) resolution dated November 6, 1985, (b) resolution dated June 10, 1987 and (c) merit list as prepared by the school were enclosed. The averments made in the reply affidavit were controverted by the original petitioners in their rejoinder dated July 13, 1999.

(3.) . The learned single Judge took the view that even if any Circular or Resolution dated November 6, 1985 had been issued by the appellants in the context of the judgment of the High Court rendered on August 21, 1984 in Special Civil Application No. 3252 of 1984 and 3336 of 1984, the same cannot be held good, as now the law laid down by the Supreme Court in the case of The Principal, Cambridge School (supra) holds the field wherein preferential right of a Student of the same school to carry on his studies in the next higher class in the very same school is recognised. Therefore, the learned single Judge has allowed the petition by the impugned judgment and given directions which have been referred to earlier, giving rise to present appeal.