Monday, November 10, 2008

Cut-Off Marks in School Admissions: Was Judicial Intervention Warranted?

I was intrigued by the recent SC decision in Principal, Kendriya Vidyalaya and Ors. v. Saurabh Chaudhary and Ors. where the court held that as a general rule, students from the same school cannot be subjected to readmission for Class XI. The Hindu news report regarding this item is here.

Kendriya Vidyalayas (KV) are run by the Kendriya Vidyalaya Sanghatan, a registered society administered by the HRD ministry. Their admission guidelines prescribe fresh admission to class XI where cut-off marks are set for students of the same school for each of the streams offered – science, humanities and commerce. The petitioner was an aggrieved student who failed to meet the cut-off marks for admission to the science stream, the only one taught at the school in question at Tambaram, TN. He was therefore denied entry there but instead offered admission in a different stream at a different KV school in Chennai where other options are available. The current appeal was against the judgment of the Madras High Court which ruled in the boy’s favor directing the school to admit him.

J.Aftab Alam’s opinion in this case is based almost entirely on a previous judgment in The Principal, Cambridge and Anr. v. Ms.Payal Gupta and Ors. where the court held that in accordance with the rules framed under the Delhi School Education Act, 1973, private unaided schools had no authority to exclude their own Class X students from entry into Class XI on the basis of school-determined cut-off marks. The court recognized that that law does not apply in the context of this case but cited various passages from that ruling in support of its contention that the principle had wider applicability qua schools in general.

The Judgment in Payal Gupta:

To understand the context, a short summary of the facts and reasoning in Payal Gupta is briefly presented first. The question there was similar except that a private unaided school was involved. There too, students were denied admission owing to a cut-off prescribed by the school in the form of a circular. The aggrieved students first approached the government and secured a letter from the Deputy Education Officer asking the school to admit them notwithstanding any institution-prescribed rules. The school in question rejected this directive arguing that the Directorate of Education was not authorized to issue it under the 1973 Act following which the students took the matter to court.

Central to the question in Payal Gupta was the power of the principals of private unaided schools to regulate their admissions. Rule 145(1) allowed heads of private unaided schools to ‘regulate admissions…to any class either on the basis of admission test or on the basis of result in a particular class or school’. Rule 145(2) stated that subject to the provisions of 145(1), other provisions of the chapter (which included particular regulations of admissions to aided schools and the authority of the Directorate of Education to issue directives to them) , so far as may be, apply to admission to a recognized unaided school as they apply to an aided school.

Despite the clear wording of 145(2) that its application was subject to 145(1), the court took the opposite (and erroneous in my view) position that 145(2) applied generally (i.e. all provisions of aided schools that could be applied to unaided ones as well) while the power of private unaided school heads under 145(1) only applied to matters not already covered under the chapter, i.e. as specified by 145(2) (para 6).This is effectively tantamount to rewriting the rules with the prefatory condition clause transposed from 145(2) to 145(1).

It followed, as per this dubious and unduly restrictive interpretation, that the school, in order to win, had to demonstrate that its admission practice was perfectly common and conformed to the regulations that applied to aided schools (i.e. only procedures regulated under that chapter were deemed permissible). In rejecting the school’s case, the court cited two plausible reasons why it could not accept that entry into each successive higher class in the same school involved readmission: (1) As per admission procedures of aided schools, admissions could only be conducted in the manner prescribed with forms duly signed by the parent/guardian being turned in to the school. That being the case, it stood to reason that if admissions were indeed being held year after year, the school ought to have been able to produce these submitted applications as evidence of existence of such a procedure but since no such material was placed, a contrary inference could be drawn. (2) This was supported by common knowledge that following admission to a school, no fresh application is sought for promotion from class to class until following the last exam when the student departs the school. Taken together, it concluded, ‘in these facts and circumstances, it is difficult to accept that after a student passes class X of a public examination, his admission to the next higher class, i.e. class XI would be a fresh or readmission’ (para 6). Failing that, the school had to show that its own distinct admission practice was required to be followed under either 145(1) or some other provision. This it could not do (the practice of readmitting students to class XI was relatively new even in 1995 when the case was decided, not widely prevalent as the court itself opined and was obviously not contemplated by whoever wrote the law and rules over twenty years earlier) and not surprisingly, the attempt failed (para 8). Lastly, consistent with the same approach, the court held that if aided schools were barred from denying readmission to the same class for failed students under rule 138, a fortiori, unaided schools could not deny the same for those who passed but scored less than the cut-off marks even if it was to a higher class (para 7).

A critique of Saurabh Chaudhary:

Payal Gupta remains binding precedent notwithstanding this fundamental error. The question in the present Saurabh Chaudhary case was whether this holding applied also to KVs which do not come under the ambit of this law. That fact alone was sufficient ground to distinguish this case and uphold the school’s appeal. Instead, the court compounded the flaw by answering in the affirmative.

Firstly, it said that accepting the contention of the school would lead to an anomalous situation in Delhi where Central schools such as the KVs would be free to refuse admission to their own students but private unaided schools would be denied the privilege (para 9). Given that the school in the present case is not situated in Delhi, why was this even a consideration? If a consequence of its outcome was going to be that different schools in Delhi would end up having different rules applying to them, the court could consider the matter (either statutory or constitutional) if and when it came up. Alternatively, it could have indicated clearly that its decision being not based on the same law, the question of its applicability to Central schools in Delhi was being left open for another day.

Next, it said that though the Act in question in Payal Gupta did not apply in this case, ‘certain findings and observations in the decision are clearly of general application’ (para 10). Here it cited the ‘common knowledge’ observation as well as the issue of parity the court addressed under rule 138 of that case (both mentioned above). The latter has no relevance to the present case as the court did not point out any like provision providing protection to failed candidates under the KV system. As for the former, Payal Gupta concerned a particular private unaided school trying to implement a different policy contrary to the system that aided schools followed as per regulations whereas here, an entire government run school system was trying to implement this admission policy. When a large number of schools are attempting to bring about a change, what is ‘common knowledge’ is itself thrown into question (of course the court can prevent it and then claim that what it has inferred from ‘common knowledge’ is still intact!). Thirdly, the Sanghatan guidelines here, as the judgment points out, specifically required fresh admissions to be made to class XI based on the Board results of class X which was again different from that case where the regulations merely referred to admissions in general leaving it to the court to ascertain what constituted admissions as distinct from readmissions to a higher class in the same school.

The court then reproduced the CBSE bye-laws concerning student admission to class XI (para 11) which neither support nor refute its view – they simply point out that only those who have passed class X are eligible for admission to class XI (how surprising is that?!). Note however that this is a minimum criterion for eligibility, not a maximum one.

It further argued that the Sanghatan guidelines having no statutory basis, they are not very different from the circular issued by the court in Payal Gupta (para 13). Wrong again. Absence of a statutory basis is precisely why they are indeed different. In Payal Gupta, the circular was held to be in violation of the 1973 Act whereas, bereft of a comparable statute, no conceivable ground was made out for challenging vires of the guidelines here.

Based on this erroneous line of reasoning, the court decided that because other streams were not being offered by the school, it had no choice but to accept the student into the science stream. The admission offer to a different stream at another school was rejected as irrelevant because such an arrangement may not be feasible in smaller towns where there may not be more than one school and moreover, it would entail a disruption in the familiarity of surroundings for the student. These are highly debatable value judgments. People relocate all the time in part owing to consideration for their children’s education. Even in the present day, many villages have no high school or college nearby requiring them to make arrangements for their children to study in distant places. Surely the hardship that traveling out of town to attend a different KV entails cannot be said to be undue or excessive in light of what a large number of families and children migrating from rural areas to attend lesser known urban schools routinely endure. And if disruption of familiarity is a reason for keeping a student, seriously, no one should ever be required to graduate within any time frame! After all, going from school to school or school to college or even from college to a workplace all involve major changes in our routine and a compulsion to adapt to new surroundings and getting to know new people whether we are so inclined or not.

At no stage does the court appear to have given any thought to whether schools ought not to be allowed the discretion to lay down their own admission standards and procedures without unwarranted interference from outside. Nor did it stop to consider whether it was in the student’s own interest to be admitted to the science stream without his meeting minimum requirements. There is no doubt a reasonable basis for laying down cut-off marks and conducting fresh admissions at the class XI stage – fewer subjects have to be studied in greater detail, the competition encountered in the various streams is not alike and aptitude in certain subjects is more material to some streams than to others. If the guidelines incorporating all these factors have been applied to judge that an individual student is better suited for a non-science stream, does the court really have superior clairvoyant abilities to proclaim otherwise? If he fails to succeed later on to the detriment of both the school and his own self, is the court willing to take responsibility for it?

One final point. The notion that schools cannot require their own students to reapply is not inscribed in stone for the ages. Nor are the standards applied by the education community immutable. Change does not always happen through a top-down process initiated by legislation and court orders but evolves bottom-up with contemporary standards emerging as schools make changes and evolve new methods one at a time (or one system at a time as in this case where the KV Sanghatan makes periodic changes to its guidelines) through a process of trial and error. Educationists deliberate upon these diverse approaches and models in revising their own perceptions of what is ideal and suitable. To decree that admission procedures be frozen to conform to what was considered ‘common knowledge’ in 1995 is to stifle this natural process, curb innovation and enforce dogma solely on account of tradition. Not only is it anomalous for a court that considers itself progressive to be trying to retain the old ways simply because that is the way it has always been done but its penchant for enforcing its own arbitrary notions of propriety in the name of uniformity above and beyond what state legislatures have locally mandated behooves ill for a free country. Perhaps no other area has suffered more from excessive judicial meddling as much as education. On a broader note, unless this tendency is reined in, it will gradually erode the gains that decentralization efforts and the democratic process have managed to make over the years.

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