SUJIT KUMAR BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this application 23 guardians for and on behalf of their respective wards have approached this Court for the relief of admission to Class-V without any admission test in the institution. Each and every ward was the student of Shibpur Hindu Girls' Primary School (hereinafter referred to as the Primary School) and they have passed in Class IV examination held in the Primary School. In this building according to the petitioners there are two streams, namely one is primary and another is secondary. The management of the secondary stream has refused to admit those students who have come out successfully in primary section as a matter of course. In stead they held the admission test to select the suitable candidates for admission to the secondary stream. The petitioners and each of them seemingly have got inspiration of judicial pronouncement rendered in case of Debasish Kar Gupta v. State of West Bengal reported in AIR 1999 Cal. 300 since affirmed by Appeal Court reported in AIR 2000 Cal. 155 and by the Supreme Court by the judgment dated 18th September, 2002 for moving this matter.

(2.) Mr. Haradhan Banerjee learned Advocate appearing in support of this application contends that both the primary and secondary streams are housed by the same building. As a matter of fact, the primary section of this school was set up as early as 1867, thereafter the local inhabitants felt the need of secondary stream for imparting high education to the girls and set up the secondary stream subsequently. Both the streams are integral to one another and the people at large always accept and think so. The integrality and inseverability will appear from emblem, logo, name and the pattern of uniform of the students in both the streams. The primary section is totally financed and controlled and managed under the appropriate laws, similarly the secondary stream is also managed and controlled under the appropriate law.

(3.) He contends further that as a matter of course and rule without any departure the students who came out successful in Class IV standard got admission automatically to Class V Course. For the last few years the management of the secondary stream however, has been refusing to admit the successful student in the same school without any admission test. This is not legally permissible as has been declared by the aforesaid judicial pronouncement. Right to get education up to the age of 14 years has now become part and percel of fundamental right with the unsertion of Article 21 (A) in the Constitution of India. The management of the secondary stream having instrumentality of the State has infringed the aforesaid right of the students by this process. He urges that it is true the wards of his clients have appeared in the admission test accepting this screening system but this cannot operate as an estoppel for the simple reason that principle of estoppel or waiver does not apply as against the fundamental right as guaranteed in the Constitution of India.