Master Mohammad Akram Khan vs Jamia Senior Secondary School & ...
2011 Latest Caselaw 4121 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment delivered on: 25.08.2011

                          +W.P.(C) No. 3270/2011


Master Mohammad Akram Khan                           ......Petitioner

                     Through: Mr. Ashok Aggarwal with
                              Ms.Kusum Sharma, Advocate.

                            Vs.

Jamia Senior Secondary School & Ors.                ......Respondents

                     Through: Mr.M.A Siddiqui with Mr. Rohit
                              Gandhi, Advocate.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may          Yes
     be allowed to see the judgment?
2. To be referred to Reporter or not?                 Yes
3. Whether the judgment should be reported            Yes
     in the Digest?


KAILASH GAMBHIR, J. Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

respondent Nos. 1 and 2 to allow him to reappear in the English

as well as Mathematics examination of XI class and thereafter

assess his suitability for promotion to class XII.

2. The background of facts that has led to the filing of

the present petition is that the after passing his class X CBSE

examination, the petitioner took admission in the respondent

school in XI class in the academic year 2010-11, the annual

examinations for which were scheduled to be held from 2.3.2011

to 28.3.2011 . It is further stated that the petitioner fell ill from

10.3.2011 to 16.3.2011 due to enteric fever and thus could not

appear in his English examination, which was held on 14th

March,2011 due to his illness and for which he had duly

submitted his medical certificate on 18.3.2011 with respondent

No. 1. It is further the case of the petitioner that on 6.4.11, the

result of his annual examination was declared wherein he was

declared "failed". It is also the case of the petitioner that in the

marksheet supplied to him he was shown failed in two subjects

i.e. Maths as well as English. It is also the case of the petitioner

that he had not failed in English subject in as much as in the said

subject he could not appear in the annual examination because

of his illness and, therefore, the petitioner could not be treated as

"failed" in the said subject by the respondent. The grievance

raised by the petitioner is thus that respondent No. 1 school has

acted in a most illegal and arbitrary manner by not permitting the

petitioner to reappear in the said two subjects and being

aggrieved with the same, the petitioner has preferred the present

petition.

3. Learned counsel for the petitioner submits that the

petitioner had failed only in one subject i.e. Mathematics and not

in English subject which he in fact could not appear due to

medical reasons. Placing reliance on the relevant part of the

instructions issued by the respondent regarding evaluation and

promotion of students from one class to another for class IX and

XI, counsel pointed out that as per the own instructions of the

respondent, the student on leave either in the comprehensive

test or annual exam is entitled for re-appearance in the

compartment examinations, if such a student has absented

himself on medical grounds and has applied for leave duly

supported by medical certificate. Counsel further argued that

even the said relevant rule entitles the student to appear

alongwith the students taking the compartment exam even if he

has failed in one or more subjects on medical grounds. Counsel

also submits that the respondents are wrongly interpreting the

said rule by denying and defeating the right of the petitioner to

appear in the English paper in which he did not fail but was only

absent. Counsel also submits that the said relevant rule should

be interpreted in favour of the student and not in a manner which

would waste one precious academic year of the student.

4. Opposing the present petition, learned counsel

appearing for the respondent submits that the rule being cited by

the counsel appearing for the petitioner would not help the case

of the petitioner as the same would be applicable in a situation

where the student does not fail in any of the subjects. Placing

reliance on relevant rule (i) of the compartment examination the

counsel submits that a student who secured at least 20% marks

in one failing subject can be permitted to appear in the

compartment examination, but in the case of the petitioner even

if he is permitted to appear in the English exam he will be still

declared as failed having already failed in Mathematics exam.

Counsel further submits that the issue of the petitioner was duly

examined by a three member committee constituted by the

respondent and the said expert committee also took the same

view that the petitioner is ineligible to appear in the compartment

exam in the English subject. Counsel for the respondent submits

that the relevant rules which would attract to the facts of the

present case is Rule (i) of the promotional rules for class IV to IX

and XI which deals with the compartmental examination which

envisages that if a student has failed in one subject in class 11th,

he can be permitted to appear in the compartmental examination

and then can be promoted to the next class subject to his

securing the percentage of marks laid down in the said rules.

The contention of the counsel for the respondent is that the

petitioner in the present case having failed in mathematics

subject and having absented himself in English paper could not

be permitted to appear in both the papers at the same time.

Counsel also submits that the said rule relating to the

compartmental examination will apply in the same manner

uniformly.

5. I have heard learned counsel for the parties.

6. Before I deal with the contention raised by counsel

representing the parties, it would be appropriate to reproduce the

relevant rules taken out from the instructions issued by the

respondent regarding evaluation and promotion of students from

one class to another and the same are as under:-

"7. Student on leave on medical grounds, duly supported by a medical certificate in the comprehensive test/Annual Exam in one or more subjects shall be allowed to take test in the subject(s) (in which he/she had been on leave on medical grounds) along with the students taking the compartmental examination. For such subjects student will appear with compartmental candidates and the rules of compartment examination will be applicable (i.e. the student will have to obtain 33% marks in the examination without any grace marks or addition of terminal examination marks)."

..................

Instruction 7 only permits a student to appear in one or

more subjects at the compartmental exam, if he or she could not

appear in said subjects on medical grounds at his/her annual

exam and where medical leave of such candidates duly

supported by medical certificate. Hence, the aforesaid Instruction

particularly deals with comprehensive test as well as annual

exam and permits a student to appear in the subjects in which

he was absent on medical grounds along with the students

taking the compartmental examination.

Compartment Examination "If a student secures at least 20% marks in one failing subject in classs XI and not more than two failing subjects in classes IX will be declared eligible for appearing at compartment examination and will be promoted to the next higher class if he/she secures 33% marks disregarding the terminal test (i.e. 1st term and II term test) marks.

OR

If a student gets at least 15% marks in one failing subject in class XI and not more than two failing subjects in class IX, he/she should get at least 40% marks in aggregate in other than failing and qualifying subjects, in order to become eligible for the compartment examination and will be promoted to the next higher class if he/she secures at least 33% marks disregarding the terminal test (i.e. 1 st term and II term test) marks. "

As per the rule reproduced above, if a student has secured

at least 20% marks in one failing subject in class XI, then he will

be declared eligible for appearing in compartmental exam and

will be promoted to next higher class if such student secures 33%

marks in the examination disregarding the terminal test.

7. In the present case, the petitioner has failed in his

Mathematics exam as he had secured 17 marks in the annual

examination. In the English subject also he was declared fail but

it is not that the petitioner had failed in the said subject but he

failed to appear in English subject on account of medical reasons.

So the fact situation of the present case is that the petitioner has

failed in one subject and in one subject he did not fail but

absented himself due to medical reasons. Failure in a subject is

entirely a different situation then non-appearance of a student on

account of medical grounds. As per the rules however failure in

two subjects will not entitle the candidate to appear in the

compartment examination while the absenteeism in two or more

papers on medical grounds will entitle the student to appear in

such exam. It is quite surprising to know that the school has been

interpreting the rule in the manner where the student however if

fails in two subjects cannot be allowed to appear in the

compartment examination, but if he absents himself due to

medical reasons, he can be allowed to appear in both of them

alongwith the candidates for compartmental examinations and

the rules of compartmental examinations would apply to them. It

is quite distressing to note that the said rules do not envisage a

situation where a student can fail in one exam and can absent

himself in the other due to medical reasons. As per the counsel

for the respondent, the said uniform practice to deal with such

cases has been not to allow the student to appear in the two

examinations. The two rules, one dealing with the absent

students at par with the compartment students and the other

wherein the student actually fails and appears in compartment

examination are contradictory and ambiguous to say the least. If

the interpretation of the school is accepted, it would mean that a

student cannot fail and fall ill at the same time in an annual

examination. This is a bizarre expectation as falling ill is not in

ones hands and no student would purposely fall ill and absent

himself in an exam.

8. The only requirement laid down in the said rule 7 is

that the student must file his medical certificate in proof of his

medical sickness. It is not in dispute that in the present case the

petitioner has submitted his medical certificate on time i.e. on

18.3.2011. The interest of the students has to be kept supreme

while interpreting said instructions, if any obscurity is there in

any of the instructions and where the instructions are quite

ambiguous, the student cannot be made to suffer the brunt of

the same. Therefore, this court deems it appropriate that the

petition deserves to be allowed and therefore it is also directed

that the respondent school shall re-frame the rules so that the

students do not suffer due to ambiguity or confusion. The

respondent school is accordingly directed to allow the petitioner

to appear in both the subjects i.e. English and Mathematics in a

test to be especially conducted for him. In case the

petitioner succeeds in both the subjects then he will be entitled

to attend the classes of 12th standard after the declaration of his

result. The compartmental examination shall be

conducted by the respondent within a period of three weeks from

the date of this order. The result of the petitioner shall also be

declared by the school as early as possible but not later than a

period of two weeks after the date of conduct of the

examinations. It is also made clear that in case the petitioner

qualifies the exams and is promoted to class 12th, then his

attendance for class 12 shall be calculated from the next day

from the date of declaration of his result. It is also made clear

that this order is passed in the peculiar facts and circumstances

of the case and in any event shall not be treated as a precedent.

9. Thus, the present petition is allowed in aforesaid terms.

10.   Order be given DASTI




August 25, 2011                        KAILASH GAMBHIR, J