Natasha Shukla vs Council For The Indian School ...
1997 Latest Caselaw 940 Del

JUDGMENT

Manmohan Sarin, J.

(1) RULE. Sixteen years old Kumari Natasha, spent almost her entire childhood and adolescent years in England. Driven by desire to return to her motherland, she came to India and took admission in St. Joseph's Academy, Dehradun, 'for pursuing the Indian School Certificate Examination (ICSE), conducted by the Council for Indian School Certificate Examination, respondent No. 1 in the writ petition. The young girl finds herself in a predicament. She appeared in five subjects in the Board examination for 10th Class and secured 77% marks. But respondent No. 1 declined her request for issuing a pass certificate since she did not take 3nd language paper in Hindi. Resultantly, she is unable to take admission in Class Xi for continuing her 10+2 examination.

(2) Petitioner Natasha has filed the present petition through her father seeking directions to the respondents for grant of a pass certificate as well as provisional admission to her in Class Xlth.

(3) Natasha had admittedly performed commendably in the five subjects, securing an aggregate of 77 percent. Yet she is declined the pass certificate since she was required to take the examination in all the six subjects. Natasha did not take up the 2nd language paper, viz. Hindi. The respondents, accordingly declared her result as 'absent' and have denied the pass certificate to her.

(4) Natasha, through her father, made representations to the respondent Council and also submitted an appeal to the Governor. The Council, after considering the representation made to it as well as the appeal to the Governor, which was forwarded for sympathetic consideration, held that she did not fulfill the basic requirement for a pass certificate and, therefore, has been declared unsuccessful.

(5) At this stage, the relevant rules may be noticed : B. Choice of Subjects.

1.All candidates for the examination must enter and sit for the written paper of all the six subjects of Group I and must have been examined by the School in practical/project work of the sixth subject of Group I and in Socially useful Productive Work and Community Service of Group II: Provided that candidates reappearing for the examination without attendance at School in accordance with the provision given in Chapter I, B, 3 will have to enter and sit for all the written papers of the all the six subjects of Group 1.

2.A School may not enter candidates for subjects, for the teaching of which no provision is made by the School."

"C.Awards and conditions for awards :

1.Pass Certificates will be awarded to candidates who attain pass standard in at least five subjects from Group I which must include the subject English. Provided that no candidate except as otherwise exempted by the Council, shall be awarded a Pass Certificate unless in addition to fulfillling the conditions above, he has attained a pass grade in Supw and Community Service as examined / assessed internally by the School.

2.Supplementary Pass Certificates will be awarded to candidates who have obtained Pass Certificates and who appear in a subsequent examination and reach the pass standard in one or more subjects.

3.Statements of Marks will be issued to all candidates who appeared for the examination. The pass mark for each subject is 35%. 1. Re-examination The Secretary of the Council shall have the power to hold a re-examination or an additional examination, if he is satisfied that such a re-examination or additional examination is necessary. J. Last date for retaining answer scripts The Council does not undertake to retain answer scripts of candidates later than 60 days after the date on which the results are issued. For enquiries concerning examinations results attention is invited to paragraph above.

(6) The respondents, in denying the pass certificate contend that Natasha failed to meet the requirements specified in Chapter Ii Part Ii - Choice of Subjects - noticed above. She failed to sit for the written paper in all the six subjects of Group I and, therefore, is not entitled to a pass certificate. It does not matter whether she may have attained a high percentage of marks in the remaining five subjects.

(7) On the other hand, the submission of learned Counsel for the petitioner is that it is not open to the respondents to deny Natasha the benefit of a pass certificate since the requirement for grant of a pass certificate, as given in Clause 'C', noticed above, has been fully met, viz. "Pass Certificate will be awarded to candidates who attain the pass standards in at least five subjects from Group I, which must include the subject of English." It is stated that in the instant case Natasha has obtained 77 percent marks, as against the pass marks for each subject being 35 percent, she has also passed in English. Learned Counsel for the petitioner has also contended that the respondent Council failed to exercise its jurisdiction in holding re-examination or an additional examination.

(8) Petitioner has taken the plea in the writ petition that it was on account of having suddenly fallen ill and suffering from food poisoning that she could not take up the examination in the last subject, viz. "Hindi". Natasha, it if claimed, was advised by the School authorities as well as other friends and well-wishers that nonappearance in Hindi would not disqualify her from passing the examination as per Clause 'C' of Chapter Ii if she passed in all the five subjects. During the course of hearing of the writ petition, the respondents were directed to ascertain if the petitioner had pursued regular course and attended classes in Hindi. Respondents have confirmed that she meets the attendance requirements and had pursued the regular course of studies, including in the sixth subject of Hindi.

(9) Learned Counsel for the respondents, relying on Madan Lal Fakir Chand Dudhediya v. Shree Changdeo Sugar Mills Ltd., , as well as Maharashtra State Board of' Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth and Ors., , has argued that it is not open to the petitioner to challenge the byelaw/ regulation merely on the ground that either it is unreasonable or the Judges do not approve of it. Further, unless it is shown that bye-law is manifestly unjust, capricious, inequitable or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. Reliance in this regard has also been placed on the decisions in Slattery v. Naylor, 1888 13 Ac 446, and Port of Madras v. Ami Chand Pyare Lal, . Accordingly, it is urged, the requirement of entering and sitting for six subjects of Group I cannot be assailed or read down as unreasonable. Learned Counsel for the respondents has also argued that petitioner's story of being sick and unable to take the examination stands falsified by her own letter and the fact that the School did not initially fill up a Special Difficulty Form or send the intimation with regard to alleged sickness. It is urged that petitioner having taken a false plea of .sickness is not entitled to invoke the discretionary writ jurisdiction under Article 226 of the Constitution of India.

(10) I have carefully considered the respective submissions made by the parties and perused the record. This, undoubtedly, is an unfortunate case where the petitioner appears to have, on second thoughts, taken the plea of illness, viz. food poisoning, and being not in a condition to take the examination. This plea, which may have been taken on "matured advice of well wishers", even if not substantiated in this case, to my mind, should not result in denying the relief, if otherwise legitimately due to the petitioner. Petitioner's innocence, her mental tabulations and trepidations, and perhaps the revelation of truth, are best recapitulated in the representation made by her to the Executive Secretary of the Council for Indian School Certificate Examination, which reads as under : "DEARMr. Fanthome, After spending 14 years of my life in England, I have come to my parental land, a land foreign to me in many aspects. I have struggled to overcome the social and cultural conditions of India which strongly contrast with those of England. The starting of my new life in India held many trials and tribulations. I was alienated and lonely and longing for familiarity. Familiarity which I did not .find in the environment around me or in the educational system. Despite these difficulties I put my heart and soul into fulfillling my duties as a student, dedicating all my time to adjusting to the new syllabi and teaching system. I had the urge not only to attain the level my peers were at, but to surpass their achievements. This drive required immense effort on my part and on that of my family's. This desire often left me with mental fatigue, anxiety and depression. However, due to my determination and support from my family I overcame these phases. Hindi, a language unknown to me, posed yet another obstacle, which in due course I resolved to overcome. However, as Icse examinations approached it became evident that I would not reach the examination requirements in Hindi. As advised (which now turns out to be misadvice) I did not sit in the Hindi examination, proposing to pass Hindi at the end of year XI. My not sitting in Hindi was a combination of nervousness and 'advice' that it would not effect my results. Though I am not free to give names of people who advised me, they were people who I had reason to believe knew the rules and regulations. Please don't lose sight of the fact that I am the innocent victim in this situation. I worked to the satisfaction of my teachers and managed to secure 77 .6%. This incident has exposed me to the injustice of the world, leaving me distraught and groping for reason. I hope you will consider my case carefully. Thank you. Yours sincerely, Natasha Shukla"

(11) It would be seen from the foregoing that the non-appearance in the Hindi examination, as stated by Natasha herself was candidly due to a combination of nervousness and advice that it would not affect her result.

(12) From a perusal of Clause 'B' - Choice of Subjects - it is clear that the same is intended to ensure that regular course of study is pursued in all the six subjects of Group I. Further, students are required to enter and sit in the written examination of all the six papers.

(13) Coming to the pass certificates, as per the regulations, it is sufficient if the candidate passes in at least five subjects from Group I, which must include English. The proviso further prescribes the requirement for obtaining a pass grade in Supw and Community Services. The petitioner's contention that Clause 'C' is independent of Clause 'B' and for grant of a "Pass Certificate" only the conditions of Clause 'C' have to be complied with, without adhering to the requirements of Clause 'B'. "Choice subjects", cannot also be accepted as otherwise there would be no control in enforcing that studies in six subjects are pursued and students take the examination in the sixth subject. From a combined reading of the two clauses, it would follow that the essential requirement is to pass in five subjects for the grant of a pass certificate, of which English is one of the subjects. Theoretically, if in the sixth subject the candidate taking the examination simply fills in the roll number and does not attempt to answer and is awarded even '0' marks, then he would be eligible for a pass certificate since he has passed in the other five subjects. The question for consideration is whether a student who gets enrolled and pursues the regular courses in all six subjects, meeting the attendance requirements, but does not sit for examination in one paper is to be denied the pass certificate. The non-appearance in one of the papers could be because of a variety of reasons, viz. illness, nervousness, lack of confidence, lack of preparedness coupled with wrong advice. The essential requirement, in my view, is of pursuing and attending the courses in all the six subjects. Once the petitioner has met the essential requirement of pursuing the course of study and attending the classes, the failure to sit and appear in the examination, subject to a reasonable explanation for the absence, should not visit the candidate with consequences of debarring her from qualifying. A meaningful and purposeful interpretation of this clause would be to ensure substantial compliance, inasmuch as the courses are followed and diligently attended. Support in this regard also flows from Clause 'C' wherein failure to pass the examination does not deprive the candidate from obtaining a pass certificate in Clause 'C'. Clause 'C' is the operative clause with regard to the grant of a pass certificate. Petitioner, indisputably, meets all the requirements under Clause 'C'.

(14) Reference may also usefully be made to Clause I of the Regulations, regarding re-examination, viz. "the Secretary of the Council shall have the power to hold re-examination or an additional examination if he is satisfied that such reexamination or additional examination is necessary". In the facts and circumstances of this case where the petitioner was definitely suffering from extreme nervousness and anxiety, which could even be looked at as analogous to illness, this is a fit case where the respondents should have exercised their discretion of either permitting re-examination or an .additional examination, to be held under Clause I. The petitioner could have also been issued a provisional pass certificate and permitted to join Class Xi and given an opportunity to clear the 2nd language paper while pursuing the studies of Class XI. It is also not necessary, in these circumstances, to go into the validity or otherwise of Clause 'B', which even has not been prayed for in this writ Petition.

(15) Accordingly, rule is made absolute. A direction be issued to the respondents to issue a provisional pass certificate to the petitioner and permit her to take admission in Class Xi, subject to compliance with requisite formalities and her appearing for and taking examination in the 2nd language paper while pursuing studies for Class XI.

(16) The writ petition stands disposed of.with the above directions.